EXHIBIT (h)(1)
AMENDED AND RESTATED DISTRIBUTION AND SERVICE AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AND SERVICE AGREEMENT (which
renames, amends and restates the "Offering Agreement" dated May 31, 1997) dated
as of February 3, 2005 (the "Agreement") by and between XXX XXXXXX SENIOR LOAN
FUND, a Massachusetts business trust (the "Trust"), and XXX XXXXXX FUNDS INC., a
Delaware corporation (the "Principal Underwriter").
1. (a) Appointment of Principal Underwriter. The Fund appoints the
Principal Underwriter as a principal underwriter and exclusive distributor of
each class of its shares of beneficial interest (the "Shares") offered for sale
from time to time pursuant to the then current prospectus of the Fund, subject
to different combinations of front-end sales charges, distribution fees, service
fees and early withdrawal charges. Classes of shares, if any, subject to a
front-end sales charge and a distribution and/or service fee are referred to
herein as "FESC Classes" and the Shares of such classes are referred to herein
as "FESC Shares." Classes of shares, if any, subject to an early withdrawal
charge and a distribution and/or a service fee are referred to herein as "EWC
Classes" and Shares of such classes are referred to herein as "EWC Shares."
Classes of shares, if any, subject to a front-end sales charge, an early
withdrawal charge and a distribution and/or service fee are referred to herein
as "Combination Classes" and Shares of such class are referred to herein as
"Combination Shares." The Fund reserves the right, however, to refuse at any
time or times to sell Shares hereunder for any reason deemed adequate by the
Board of Trustees of the Fund.
(b) Best Efforts. The Principal Underwriter shall use its best efforts
to sell, through its organization and through other dealers and agents, the
Shares which the Principal Underwriter has the right to purchase under Section 2
hereof, but the Principal Underwriter does not undertake to sell any specific
number of Shares. Without the prior approval of the Board of Trustees, the
Principal Underwriter shall not, directly or indirectly, distribute, sell or
market, through its organization or other brokers, dealers or agents, shares of
any investment companies unless the Board of Trustees of the Fund determines
that such companies do not compete, or potentially compete, with the Fund.
(c) Positions in the Shares. The Principal Underwriter agrees that it
will not take any long or short positions in the Shares, except for long
positions in those Shares purchased by the Principal Underwriter in accordance
with any systematic sales plan described in the then current Prospectus of the
Fund and except as permitted by Section 2 hereof, and that so far as it can
control the situation, it will prevent any of its trustees, officers or
shareholders from taking any long or short positions in the Shares, except for
legitimate investment purposes.
(d) Essential Personnel. The Principal Underwriter and the Fund agree
that the retention of (i) the chief executive officer, president, treasurer and
secretary of the Principal Underwriter, and (ii) each director, officer and
employee of the Principal Underwriter or any of its Affiliates (as defined in
the Investment Company Act of 1940,
as amended (the "1940 Act")) who serves as an officer of the Fund (each person
referred to in (i) or (ii) hereinafter being referred to as an "Essential
Person"), in his or her current capacities, is in the best interest of the Fund
and the Fund's shareholders. In connection with the Principal Underwriter's
acceptance of employment hereunder, the Principal Underwriter hereby agrees and
covenants for itself and on behalf of its Affiliates that neither the Principal
Underwriter nor any of its Affiliates shall replace or seek to replace any
Essential Person or cause to be replaced any Essential Person, in each case
without first consulting with the Board of Trustees of the Fund in a timely
manner. In addition, neither the Principal Underwriter nor any Affiliate of the
Principal Underwriter, shall change or seek to change or cause to be changed, in
any material respect, the duties and responsibilities of any Essential Person,
in each case without first consulting with the Board of Trustees of the Fund in
a timely manner.
2. Sale of Shares to Principal Underwriter. The Fund hereby grants to
the Principal Underwriter the exclusive right, except as herein otherwise
provided, to purchase Shares directly from the Fund upon the terms herein set
forth. Such exclusive right hereby granted shall not apply to Shares issued or
transferred or sold at net asset value: (a) in connection with the merger or
consolidation of the Fund with any other investment company or the acquisition
by the Fund of all or substantially all of the assets of or the outstanding
Shares of any investment company; (b) in connection with a pro rata distribution
directly to the holders of Fund Shares in the nature of a stock dividend or
stock split or in connection with any other recapitalization approved by the
Board of Trustees; (c) upon the exercise of purchase or subscription rights
granted to the holders of Shares on a pro rata basis; (d) in connection with the
automatic reinvestment of dividends and distributions from the Fund; or (e) in
connection with the issue and sale of Shares to trustees, officers and employees
of the Fund; to directors, officers and employees of the investment adviser of
the Fund or any principal underwriter (including the Principal Underwriter) of
the Fund; to retirees of the Principal Underwriter that purchased shares of any
mutual fund distributed by the Principal Underwriter prior to retirement; to
directors, officers and employees of Xxxxxx Xxxxxxx and to the subsidiaries of
Xxxxxx Xxxxxxx; and to any trust, pension, profit-sharing or other benefit plan
for any of the aforesaid persons as permitted by Rule 22d-1 under the Investment
Company Act of 1940 (the "1940 Act").
The Principal Underwriter shall have the right to buy from the Fund the
Shares needed, but not more than the Shares needed (except for reasonable
allowances for clerical errors, delays and errors of transmission and
cancellation of orders) to fill unconditional orders for Shares received by the
Principal Underwriter from dealers, agents and investors during each period when
particular net asset values and public offering prices are in effect as provided
in Section 3 hereof; and the price which the Principal Underwriter shall pay for
the Shares so purchased shall be the respective net asset value used in
determining the public offering price on which such orders were based. The
Principal Underwriter shall notify the Fund at the end of each such period, or
as soon thereafter on that business day as the orders received in such period
have been compiled, of the number of Shares of each class that the Principal
Underwriter elects to purchase hereunder.
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3. Public Offering Price. The public offering price per Share shall be
determined in accordance with the then current Prospectus of the Fund. In no
event shall the public offering price exceed the net asset value per Share,
plus, with respect to the FESC Shares, a front-end sales charge not in excess of
the applicable maximum sales charge permitted under the Rules of Fair Practice
of the National Association of Securities Dealers, Inc., as in effect from time
to time. The net asset value per share for each class of Shares, respectively,
shall be determined in the manner provided in the Declaration of Trust and
By-laws of the Fund as then amended. The Fund will cause immediate notice to be
given to the Principal Underwriter of each change in net asset value as soon as
it is determined. Discounts to dealers purchasing FESC Shares from the Principal
Underwriter for resale and to brokers and other eligible agents making sales of
FESC Shares to investors and compensation payable from the Principal Underwriter
to dealers, brokers and other eligible agents making sales of EWC Shares and
Combination Shares shall be set forth in the selling agreements between the
Principal Underwriter and such dealers or agents, respectively, as from time to
time amended, and, if such discounts and compensation are described in the then
current Prospectus for the Fund, shall be as so set forth. In connection with
the Principal Underwriter's employment hereunder, the Principal Underwriter
hereby agrees to distribute the Shares through brokers, dealers and other agents
of Xxxxxx Xxxxxxx XX Inc. on a "proprietary basis" substantially identical to
the distribution of shares of proprietary open-end investment companies
distributed by Xxxxxx Xxxxxxx XX Inc.
4. Compliance with NASD Rules, SEC Orders, etc. In selling Fund Shares,
the Principal Underwriter will in all respects duly comply with all state and
federal laws relating to the sale of such securities and with all applicable
rules and regulations of all regulatory bodies, including without limitation the
Rules of Fair Practice of the National Association of Securities Dealers, Inc.,
and all applicable rules and regulations of the Securities and Exchange
Commission under the 1940 Act, and will indemnify and save the Fund harmless
from any damage or expense on account of any unlawful act by the Principal
Underwriter or its agents or employees. The Principal Underwriter is not,
however, to be responsible for the acts of other dealers or agents, except as
and to the extent that they shall be acting for the Principal Underwriter or
under its direction or authority. None of the Principal Underwriter, any dealer,
any agent or any other person is authorized by the Fund to give any information
or to make any representations, other than those contained in the Registration
Statement or Prospectus heretofore or hereafter filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "1933
Act") (as any such Registration Statement and Prospectus may have been or may be
amended from time to time), covering the Shares, and in any supplemental
information to any such Prospectus approved by the Fund in connection with the
offer or sale of Shares. None of the Principal Underwriter, any dealer, any
broker or any other person is authorized to act as agent for the Fund in
connection with the offering or sale of Shares to the public or otherwise. All
such sales shall be made by the Principal Underwriter as principal for its own
account.
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In selling Shares to investors, the Principal Underwriter will adopt and
comply with certain standards, as set forth in Exhibit III attached hereto as to
when each respective class of Shares may appropriately be sold to particular
investors. The Principal Underwriter will require every broker, dealer and other
eligible agent participating in the offering of the Shares to agree to adopt and
comply with such standards as a condition precedent to their participation in
the offering.
5. Expenses.
(a) The Fund will pay or cause to be paid:
(i) all expenses in connection with the registration of Shares
under the federal securities laws, and the Fund will exercise its best efforts
to obtain said registration and qualification;
(ii) all expenses in connection with the printing of any notices
of shareholders' meetings, proxy and proxy statements and enclosures therewith,
as well as any other notice or communication sent to shareholders in connection
with any meeting of the shareholders or otherwise, any annual, semiannual or
other reports or communications sent to the shareholders, and the expenses of
sending prospectuses relating to the Shares to existing shareholders;
(iii) all expenses of any federal or state original-issue tax or
transfer tax payable upon the issuance, transfer or delivery of Shares from the
Fund to the Principal Underwriter; and
(iv) the cost of preparing and issuing any Share certificates
which may be issued to represent Shares.
(b) The Principal Underwriter will also permit its officers and
employees to serve without compensation as trustees and officers of the Fund if
duly elected to such positions.
(c) The Fund shall reimburse the Principal Underwriter for
out-of-pocket costs and expenses actually incurred by it in connection with
distribution of each class of Shares respectively subject to the below described
distribution plan, in accordance with the terms of a plan (the "Distribution
Plan") adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act with
respect to its Class A, Class B and Class C Shares as if the Fund were an
open-end investment company, as such Distribution Plan may be in effect from
time to time; provided, however, that no payments shall be due or paid to the
Principal Underwriter hereunder with respect to a class of Shares unless and
until this Agreement shall have been approved for each such class by a majority
of the Board of Trustees of the Fund and by a majority of the "Disinterested
Trustees" (as such term is defined in such Distribution Plan) by vote cast in
person at a meeting called for the purpose of voting on this Agreement. A copy
of such Distribution Plan as in effect on the date of this Agreement is attached
as Exhibit I hereto. The Fund reserves the right to terminate
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such Distribution Plan with respect to a class of Shares at any time, as
specified in the Plan. The persons authorized to direct the payment of funds
pursuant to this Agreement and the Distribution Plan shall provide to the Fund's
Board of Trustees, and the Trustees shall review, at least quarterly, a written
report with respect to each of the classes of Shares subject to the Distribution
Plan of the amounts so paid and the purposes for which such expenditures were
made for each such class of Shares.
(d) The Fund shall compensate the Principal Underwriter for
providing services to, and the maintenance of, shareholder accounts in the Fund
(including prepaying service fees to eligible brokers, dealers and financial
intermediaries and expenses incurred in connection therewith) and the Principal
Underwriter may pay as agent for and on behalf of the Fund a service fee with
respect to certain classes of its Shares to brokers, dealers and financial
intermediaries for the provision of shareholder services and the maintenance of
shareholder accounts in the Fund in the amount with respect to each such class
of Shares set forth from time to time in the Fund's prospectus. The Fund shall
compensate the Principal Underwriter for such expenses in accordance with the
terms of a service plan (the "Service Plan"), as such Service Plan may be in
effect from time to time; provided, however, that no service fee payments shall
be due or paid to the Principal Underwriter hereunder with respect to a class of
Shares unless and until this Agreement shall have been approved for each such
class by a majority of the Board of Trustees of the Fund and by a majority of
the Disinterested Trustees by vote cast in person at a meeting called for the
purpose of voting on this Agreement. A copy of such Service Plan as in effect on
the date of this Agreement is attached as Exhibit II hereto. The Fund reserves
the right to terminate such Service Plan with respect to a class of Shares at
any time, as specified in the Plan. The persons authorized to direct the payment
of funds pursuant to this Agreement and the Service Plan shall provide to the
Fund's Board of Trustees, and the Trustees shall review, at least quarterly, a
written report with respect to each of such classes of Shares of the amounts
paid as service fees for each such class of Shares.
6. Repurchase of Shares. In connection with the Fund's repurchase of its
Shares pursuant to repurchase offers, the Fund hereby authorizes the Principal
Underwriter to repurchase, upon the terms and conditions hereinafter set forth,
as the Fund's agent and for the Fund's account, such Shares as may be offered
for sale to the Fund, pursuant to repurchase offers, from time to time by
holders of such Shares or their agents up to the amount of Shares repurchased by
the Fund in any particular repurchase offer.
(a) Subject to and in conformity with all applicable federal and
state legislation, any applicable rules of the NASD, Inc., and any applicable
rules and regulations of the Securities and Exchange Commission under the 1940
Act, the Principal Underwriter may accept offers of holders of Shares to resell
such Shares to the Fund on such terms and conditions and at such prices as
described and provided for in the then current Prospectus of the Fund and in any
applicable repurchase offer document regarding the particular repurchase offer.
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(b) The Principal Underwriter agrees to notify the Fund at such
times as the Fund may specify of the number of each class of Shares,
respectively, repurchased for the Fund's account and the time or times of such
repurchases, and the Fund shall notify the Principal Underwriter of the prices
and, in the case of a class of EWC Shares or Combination Shares, of the early
withdrawal charge as described below, if any, applicable to repurchases of
Shares of such class.
(c) The Fund shall have the right to suspend or revoke the
foregoing authorization at any time; unless otherwise stated, any such
suspension or revocation shall be effective forthwith upon receipt of notice
thereof by telegraph or by written instrument from any of the Fund's officers.
In the event that the Principal Underwriter's authorization is, by the terms of
such notice, suspended for more than twenty-four hours or until further notice,
the authorization given by this Section 6 shall not be revived except by vote of
the Board of Trustees of the Fund.
(d) The Principal Underwriter agrees that all repurchases of
Shares made by the Principal Underwriter shall be made only as agent for the
Fund's account and pursuant to the terms and conditions herein set forth.
(e) The Fund agrees to authorize and direct its Custodian to
pay, for the Fund's account, the repurchase price (together with any applicable
early withdrawal charge) of any Shares so repurchased for the Fund against the
authorized transfer of book shares from an open account and against delivery of
any other documentation required by the Board of Trustees of the Fund or, in the
case of certificated Shares, against delivery of the certificates representing
such Shares in proper form for transfer to the Fund.
(f) The Principal Underwriter shall receive no commissions or
other compensation in respect of any repurchases of FESC Shares for the Fund
under the foregoing authorization and appointment as agent. With respect to any
repurchase of EWC Shares or Combination Shares, the Principal Underwriter shall
receive the early withdrawal charge, if any, applicable to the respective class
of Shares that have been held for less than a specified period of time with
respect to such class as set forth from time to time in the Fund's Prospectus.
The Principal Underwriter shall receive no other commission or other
compensation in respect of any repurchases of EWC Shares or Combination Shares
for the Fund under the foregoing authorization and appointment as agent.
(g) If any FESC Shares sold to the Principal Underwriter under
the terms of this Agreement are repurchased by the Fund or by the Principal
Underwriter as agent or are tendered for repurchase within seven business days
after the date of the Principal Underwriter's confirmation of the original
purchase by the Principal Underwriter, the Principal Underwriter shall forfeit
the amount above the net asset value received by it in respect of such Shares,
provided that the portion, if any, of such amount re-allowed by the Principal
Underwriter to dealers or agents shall be repayable to the Fund only to the
extent recovered by the Principal Underwriter from the dealer or agent
concerned. The Principal Underwriter shall include in agreements with such
dealers and agents a
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corresponding provision for the forfeiture by them of their concession with
respect to FESC Shares purchased by them or their principals or repurchased by
the Fund or by the Principal Underwriter as agent within seven business days
after the date of the Principal Underwriter's confirmation of such initial
purchases.
(h) It is understood that Shares of the Fund will not be repurchased by
either the Fund or the Principal Underwriter outside of the Fund's repurchase
offers, and that no secondary market for the Fund shares exists currently, or is
expected to develop. Accordingly investment in the Fund's Shares would be
considered illiquid. ANY REPRESENTATION AS TO A REPURCHASE OFFER BY THE FUND,
OTHER THAN THAT WHICH IS SET FORTH IN THE FUND'S THEN CURRENT PROSPECTUS OR
REPURCHASE OFFER, IS EXPRESSLY PROHIBITED.
(i) The Principal Underwriter hereby covenants that it (i) will not
make a secondary market in any Shares of the Fund, (ii) will not purchase or
hold such Shares in inventory for the purpose of resale in the open market,
(iii) will not repurchase Shares in the open market, and (iv) will require every
bank, broker or dealer participating in the continuous offering of the shares to
make the covenants contained in clauses (i), (ii) and (iii) of this Section 6(i)
as a condition precedent to their participation in such offering.
7. Indemnification. The Fund agrees to indemnify and hold harmless the
Principal Underwriter and each of its trustees and officers and each person, if
any, who controls the Principal Underwriter within the meaning of Section 15 of
the 1933 Act against any loss, liability, claim, damages or expenses (including
the reasonable cost of investigating or defending any alleged loss, liability,
claim, damages, or expenses and reasonable counsel fees incurred in connection
therewith), arising by reason of any person acquiring any Shares, based upon the
ground that the registration statement, Prospectus, shareholder reports or other
information filed or made public by the Fund (as from time to time amended)
included an untrue statement of a material fact or omitted to state a material
fact required to be stated or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading under
the 1933 Act or any other statute or the common law. However, the Fund does not
agree to indemnify the Principal Underwriter or hold it harmless to the extent
that the statement or omission was made in reliance upon, and in conformity
with, information furnished to the Fund by or on behalf of the Principal
Underwriter. In no case (i) is the indemnity of the Fund in favor of the
Principal Underwriter or any person indemnified to be deemed to protect the
Principal Underwriter or any person against any liability to the Fund or its
securityholders to which the Principal Underwriter or such person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Fund to be liable under its indemnity agreement contained in this Section with
respect to any claim made against the Principal Underwriter or any person
indemnified unless the Principal Underwriter or any such person shall have
notified the Fund in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Principal Underwriter or any such
person (or after the Principal Underwriter or
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the person shall have received notice of service on any designated agent).
However, failure to notify the Fund of any claim shall not relieve the Fund from
any liability which it may have to the Principal Underwriter or any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. The Fund shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume the defense,
of any suit brought to enforce any claims, but if the Fund elects to assume the
defense, the defense shall be conducted by counsel chosen by it and satisfactory
to the Principal Underwriter or person or persons, defendant or defendants in
the suit. In the event the Fund elects to assume the defense of any suit and
retain counsel, the Principal Underwriter, officers or trustees or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Fund does not elect
to assume the defense of any suit, it will reimburse the Principal Underwriter,
officers or trustees or controlling person or persons, defendant or defendants
in the suit for the reasonable fees and expenses of any counsel retained by
them. The Fund agrees to notify the Principal Underwriter promptly of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of any of the Shares.
The Principal Underwriter also covenants and agrees that it will
indemnify and hold harmless the Fund and each of its trustees and officers and
each person, if any, who controls the Fund within the meaning of Section 15 of
the 1933 Act against any loss, liability, damages, claim or expense (including
the reasonable cost of investigating or defending any alleged loss, liability,
damage, claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares, based upon the
1933 Act or any other statute or common law, alleging any wrongful act of the
Principal Underwriter or any of its employees or alleging that the registration
statement, Prospectus, shareholder reports or other information filed or made
public by the Fund (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, insofar as the statement or omission
was made in reliance upon, and in conformity with, information furnished to the
Fund by or on behalf of the Principal Underwriter. In no case (i) is the
indemnity of the Principal Underwriter in favor of the Fund or any person
indemnified to be deemed to protect the Fund or any such person against any
liability to which the Fund or such person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligation and duties under
this Agreement, or (ii) is the Principal Underwriter to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Fund or any person indemnified unless the Fund or person, as the
case may be, shall have notified the Principal Underwriter in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Fund or person (or after the Fund or such person shall have
received notice of service on any designated agent). However, failure to notify
the Principal Underwriter of any claim shall not relieve the Principal
Underwriter from any liability which it may have to the Fund or any person
against whom the action is brought
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otherwise than on account of its indemnity agreement contained in this
paragraph. In the case of any notice to the Principal Underwriter, it shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense, of any suit brought to enforce the claim, but if
the Principal Underwriter elects to assume the defense, the defense shall be
conducted by counsel chosen by it and satisfactory to the Fund, to its officers
and trustees and to any controlling person or persons, defendant or defendants
in the suit. In the event that the Principal Underwriter elects to assume the
defense of any suit and retain counsel, the Fund or controlling persons,
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Principal Underwriter does not elect to assume
the defense of any suit, it will reimburse the Fund, officers and trustees or
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Principal
Underwriter agrees to notify the Fund promptly of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any of the Shares.
8. Continuation, Amendment or Termination of This Agreement. This
Agreement shall become effective on the Effective Date and thereafter shall
continue in full force and effect year to year with respect to each class of
Shares so long as such continuance is approved at least annually (i) by the
Board of Trustees of the Fund or by a vote of a majority of the outstanding
voting securities of the respective class of Shares of the Fund, and (ii) by
vote of a majority of the Trustees who are not parties to this Agreement or
interested persons in any such party (the "Independent Trustee") cast in person
at a meeting called for the purpose of voting on such approval, provided,
however, that (a) this Agreement may at any time be terminated with respect to
any class of Shares of the Fund without the payment of any penalty either by
vote of a majority of the Independent Trustees, or by vote of a majority of the
outstanding voting securities of the respective class of Shares of the Fund, on
written notice to the Principal Underwriter; (b) this Agreement shall
immediately terminate in the event of its assignment; and (c) this Agreement may
be terminated by the Principal Underwriter on ninety (90) days' written notice
to the Fund. Upon termination of this Agreement with respect to any class of
Shares of the Fund, the obligations of the parties hereunder shall cease and
terminate with respect to such class of Shares as of the date of such
termination, except for any obligation to respond for a breach of this Agreement
committed prior to such termination and except with respect to any rights and
obligations of indemnification arising out of any action or inaction occurring
prior to such termination.
This Agreement may be amended with respect to any class of Shares at any
time by mutual consent of the parties, provided that such consent on the part of
the Fund shall have been approved (i) by the Board of Trustees of the Fund, or
by a vote of the majority of the outstanding voting securities of the respective
class of Shares of the Fund, and (ii) by vote of a majority of the Independent
Trustees cast in person at a meeting called for the purpose of voting on such
amendment.
For the purpose of this section, the terms "vote of a majority of the
outstanding voting securities", "interested persons" and "assignment" shall have
the meanings defined in the 1940 Act, as amended.
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9. Disclaimer Liability. Notwithstanding anything to the contrary
contained in this Agreement, you acknowledge and agree that, as provided by
Section 5.5 of the Declaration of Trust of the Fund, the shareholders, trustees,
officers, employees and other agents of the Fund shall not personally be bound
by or liable hereunder, nor shall any resort to their personal property being
had for the satisfaction of any obligation or claim hereunder.
10. Notice. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, to the other party at any office of
such party or at such other address as such party shall have designated in
writing.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF
LAWS.
12. Name. In connection with its employment hereunder, the Principal
Underwriter hereby agrees and covenants not to change its name without the prior
consent of the Board of Trustees.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
XXX XXXXXX SENIOR LOAN FUND
By:
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Name:
Title:
XXX XXXXXX FUNDS INC.
By:
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Name:
Title:
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