JOINT LIABILITY INSURANCE AGREEMENT
JOINT LIABILITY INSURANCE AGREEMENT
AGREEMENT dated the day of June, 2020 among Xxxxxxxx Xxxx Advisors, L.L.C. and [ ] (together, the "Xxxxxxxx Xxxx Entities") and Xxxxxxxx Xxxx Private Assets Fund (the "Fund", collectively with the Xxxxxxxx Xxxx Entities, the "Parties" and individually, a "Party").
WHEREAS, the Fund is a management investment company that will be registered under the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Fund is an affiliate of each of the Xxxxxxxx Xxxx Entities under the 1940 Act;
WHEREAS, Rule 17d-1(d)(7) under the 1940 Act permits arrangements regarding liability insurance policies between registered investment companies and their affiliates provided certain conditions are met; and
WHEREAS, a majority of the Board of Trustees of the Fund (including a majority of the trustees who are not “interested persons” of the Fund as defined by Section 2(a)(19) of the 0000 Xxx) has given due consideration to all factors relevant to the form, amount and ratable allocation of premiums of the Joint Directors' and Officers' Errors and Omissions Insurance Policy (the “Policy”) and (i) has approved the terms and amount of the Policy and the participation of the Fund in the Policy as being in the best interests of the Fund, and (ii) has determined that the allocation of the premium for the Policy as set forth herein (which is based on information obtained from the underwriters regarding each Party's proportionate share of the sum of the premiums that would have been paid if such insurance coverage were purchased separately by the Parties) is fair and reasonable to the Fund.
NOW, THEREFORE in consideration of the mutual covenants contained herein, the Parties hereby agree:
1. Joint Policy. To insure the Parties and their respective trustees, executives, officers and employees against their errors or omissions, the Parties have obtained and maintain a Policy issued by [ ] (the "Insurers"), pursuant to which they are each insured under the Policy.
2. Limits of Liability. The limit of the Insurers’ liability under the Policy shall not be less than an amount approved by the Fund’s Board of Trustees.
3. Ratable Allocation of Premium. So long as the Fund continues to operate as an investment company, each Party agrees to pay its proportionate share of the total premium due under the Policy, which share shall be determined based on each Party’s proportionate share of the sum of the premiums that would have been paid if such insurance coverage were purchased separately by the Parties.
4. Allocation of Recoveries and Deductibles.
(i) The term "Loss" shall mean any Loss (as such term or similar term is defined in the Policy) for which payment is made under the Policy by the Insurer on behalf of the Parties, or their respective trustees/directors, executives, officers or employees, or for which payment would have been made by the Insurer under the Policy if the limits of the Insurer's liability under the Policy had not been exceeded. The term "Recovery" shall mean the aggregate amount paid by the Insurer on behalf of the Fund (or its respective trustees, executives, officers or employees) in respect of a Loss.
(ii) Subject to the next sentence, if a Party sustains a Loss as a result of one or more claims made during a single annual coverage period for which a Recovery is received under the Policy, such Party shall receive an amount equal to the actual Loss. If a Recovery is less than the amount required to indemnify fully the Parties sustaining a related Loss, then the Recovery shall be allocated among the Parties which have not been fully indemnified for their Losses in the same proportion as their premiums bear to one another.
(iii) In each case of Loss, the applicable deductible under the Policy will be allocated among the Parties in proportion to the relative share of Recovery received by each Party.
5. Claims and Settlements. Each Party shall file a copy of this Agreement with the Insurer as part of any claim under the Policy and shall, at the time of making of any claim under the Policy, provide the other Party with written notice of the amount and nature of such claim. Each Party shall provide to the other Party forthwith written notice of the terms of settlement of any claim made under the Policy.
6. Term. This Agreement shall remain in effect as long as the Board of Trustees of the Fund (including a majority of the trustees who are not “interested persons,” as defined by Section 2(a)(19) of the Act) makes the annual determinations respecting the Policy required under Rule 17d-1(d)(7), and annually approves the renewal of the Policy.
7. Amendments. This Agreement may be modified or amended only by a writing executed by all of the Parties.
8. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware.
9. No Assignment. This Agreement is not assignable.
10. Notices. All notices and other communications hereunder shall be in writing and shall be addressed to the notified Party as follows:
11. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement on the day and year first above written.
| Xxxxxxxx Xxxx Private Assets Fund | ||
| By: | ||
| Name: | ||
| Title: | ||
| Xxxxxxxx Xxxx Advisors, L.L.C. | ||
| By: | ||
| Name: | ||
| Title: | ||
| [ ] | ||
| By: | ||
| Name: | ||
| Title: | ||
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