Amendment No. 1 to Distribution Agreement
This Amendment No. 1 to the Distribution Agreement dated as of
December 15, 2006 (the "Amendment") by and between Xxxx Xxxxx Growth Trust,
Inc. (the "Fund") and Xxxx Xxxxx Investor Services, LLC ("Distributor").
WHEREAS, the Fund and Distributor entered into a Distribution Agreement
dated November 1, 2006 ("Agreement") pursuant to which the Fund appointed
Distributor as principal underwriter and distributor in connection with the
offering and sale of shares of the Fund;
WHEREAS, the Fund and Distributor desire to amend the Agreement to
clarify that, to the extent the Fund is a party to and/or provide
indemnification with respect to any dealer or similar agreement with a qualified
intermediary for the performance of distribution or shareholder related
services, Distributor shall pay on the Fund's behalf any and all amounts that
the Fund may be required to pay under such agreements; and
WHEREAS, all capitalized terms used in this Amendment and not defined
herein shall have the meaning ascribed to them in the Agreement.
NOW THEREFORE, in consideration of these promises and mutual covenants
herein contained, it is agreed as follows:
1. Section 9. Section 9(d) is hereby added to the Agreement as follows:
(d) Notwithstanding anything herein to the contrary, to the
extent the Investment Company is a party to and/or provides
indemnification with respect to any dealer or similar
agreement with a Qualified Intermediary for the performance
of Distribution Services or Shareholder Services as provided
for in Section 2 of this Agreement, the Distributor agrees
to pay on the Investment Company's behalf, any and all
amounts that the parties may be required to pay to such
Qualified Intermediary pursuant to the Indemnification
provision of such dealer or similar agreement, except to the
extent such Indemnification obligations are directly and
proximately caused by any act or failure to act by the
Investment Company or from the gross negligence or wilful
malfeasance by the Investment Company.
2. Other Terms. Except as specifically amended herein, all of the terms
and conditions of the Agreement shall remain unchanged and in full force and
effect and are ratified and confirmed in all respects by Fund and Distributor.
IN WITNESS THEREOF, the parties hereto caused this Amendment to be
executed by their officers thereunto duly authorized.
Xxxx Xxxxx Growth Trust, Inc. Xxxx Xxxxx Investor Services, LLC
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxxx Xxxx Name: Xxxxxx X. Xxxxx
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Title: Vice President and Chief Legal Title: General Counsel and
Officer Secretary
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