LIABILITY INSURANCE ALLOCATION AGREEMENT
This Insurance Allocation Agreement (the "Agreement") is made as of
December 18, 2003, by and among the Xxxxxx Funds (the "Funds"), Xxxxx &
McLennan Companies, Inc. ("MMC") and Xxxxxx Investments LLC ("Xxxxxx")
acting on its own behalf and on behalf of Xxxxxx Investment Management
LLC (the "Investment Manager") and its other direct and indirect
subsidiaries (individually hereinafter referred to as an "Affiliate" or
collectively as "Affiliates").
WHEREAS, the Investment Manager acts as investment manager (or
investment adviser and administrator) of the Funds and in such capacity
participates in the application for and purchase of joint liability
insurance policies for the protection of Xxxxxx and its Affiliates and
the Funds and may also from time to time participate in the handling and
settlement of claims under such policies;
WHEREAS, the Funds, MMC, Xxxxxx and the Affiliates have been named as
joint insured parties ("Insureds") under joint mutual fund/investment
advisor professional liability insurance policies and excess multi-line
joint insurance policies and such other joint insurance policies
(hereinafter referred to individually as a "Policy" and collectively as
the "Policies") approved, from time to time, by the Funds' respective
Boards of Trustees;
WHEREAS, the Funds and the Investment Manager entered into a letter of
indemnity dated as of December 18, 2003 (the "Letter of Indemnity"),
pursuant to which the Investment Manager agreed to indemnify and hold
harmless the Funds against any and all loss, damage, liability and
expense, including reasonable fees and expenses of counsel, arising out
of the matters alleged in the Administrative Proceedings (as defined in
the Letter of Indemnity), the Private Litigation (as defined in the
Letter of Indemnity) or any proceedings or actions that may be
threatened or commenced in the future by any person (including any
regulatory authority) arising out of matters reasonably related to the
Administrative Proceedings or the Private Litigation (any loss, damage,
liability and expense reasonably related to the foregoing proceedings is
hereinafter referred to as an "Indemnifiable Loss");
WHEREAS, certain of the parties hereto have heretofore entered into an
Agreement dated as of January 21, 2003 providing for certain minimum
coverages for the Funds, their Trustees and their officers (hereinafter
referred to collectively as the "Fund Insureds");
WHEREAS, the parties desire to establish the criteria by which the
amounts payable under the Policies shall be allocated among the parties
to this Agreement and to provide for certain contingencies;
NOW, THEREFORE, it is agreed as follows:
1. In the event that the claims of loss of two or more Insureds under
the Policies for any period exceed the amount of insurance coverage
available to pay such claims, or in the event that the aggregate
recovery by two or more Insureds under the claims, or in the event that
the aggregate recovery by two or more Insureds under the policies for
any related claims is less that the aggregate loss incurred by the
Insureds that gave rise to such claims, the following rules shall
determine, as among the claimants, the allocation of the amounts payable
under the Policies:
Such amounts shall be allocated as follows: (i) the first $15 million
shall be allocated to any losses of the Fund Insureds, other than Fund
Insureds who were directors or officers of MMC, Xxxxxx or its Affiliates
at any time after January 1, 1997 (the "Affiliated Fund Insureds") and
(ii) the balance shall be allocated first (A) on an equitable and
proportionate basis among the Fund Insureds (other than the Affiliated
Fund Insureds), MMC and Xxxxxx and its Affiliates with respect to any
losses of the Fund Insureds (other than the Affiliated Fund Insureds)
and any losses (other than losses arising out of the proceedings that
are the subject of the Letter of Indemnity) of MMC and Xxxxxx and its
Affiliates, and then (B) to MMC and Xxxxxx and its Affiliates with
respect to any losses arising out of the proceedings that are the
subject of the Letter of Indemnity (including without limitation any
Indemnifiable Losses paid by MMC and Xxxxxx and its Affiliates to the
Funds pursuant to the Letter of Indemnity).
As used in this Agreement, the terms "loss" and "losses" shall include
and be limited to any covered loss, damage, judgment, settlement cost,
legal or other expense or other cost which is covered under a Policy,
but, with respect to the Funds, such terms shall not include any loss
with respect to which payment has been made to the Funds pursuant to the
Letter of Indemnity. The aforesaid allocation shall not adversely
affect the rights of any insured person or entity entitled to make a
claim under the Policies who is not a party to this Agreement,
including, without limitation, the individual directors and others of
MMC, Xxxxxx or its Affiliates. In the event that any party to this
Agreement receives payment of any insurance claim in contravention of
the allocation priorities established herein, whether or not
ascertainable at the time of such receipt, such party shall on demand
promptly pay such amount over to the parties entitled to such payment
under the terms of this Agreement.
2. In the event that insurance coverage under any Policy shall be denied
for any claim of loss made by any Fund Insureds (other than the
Affiliated Fund Insureds) based on any alleged misrepresentation made by
MMC, Xxxxxx and/or its Affiliates in connection with the application for
such Policy or other alleged improper conduct by MC, Xxxxxx and/or its
Affiliates or any director, officer or employee thereof, then MMC,
Xxxxxx and its Affiliates will be responsible, jointly and severally,
for payment of such loss. The defense of any claim pertaining to any
such loss shall be conducted in accordance with the procedural
provisions of the Letter of Indemnity.
3. To the extent that any amounts payable under the Policies are paid to
any current or former director, trustee, officer or employee of MMC,
Xxxxxx and/or its Affiliates on account of losses incurred by such
person in connection with proceedings or actions that are the subject of
the Letter of Indemnity, with the result that the amounts payable under
the Policies that are paid to any individual Fund Insured other than
(other than the Affiliated Fund Insureds) are insufficient to cover
fully all loss incurred by such person in connection with the aforesaid
proceedings or actions, then MMC, Xxxxxx and its Affiliates will be
responsible, jointly and severally, for payment of such loss.
4. In the event that MMC, Xxxxxx or its Affiliates pay any Indemnifiable
Losses of the Funds pursuant to the Letter to Indemnity that would
otherwise constitute claims that the Funds would be entitled to assert
under the Policies, then upon request by MMC or Xxxxxx and its
Affiliates, the Funds shall assign their interest in such claims to MMC
or Xxxxxx and its Affiliates, as the case may be. Such assigned claims
shall be subordinated as provided in clause (ii)(B) of the second
paragraph of Section 1 above.
5. This Agreement shall be effective as to any and all Policies now or
heretofore in effect and may be terminated only by mutual agreement of
the parties. This Agreement supersedes all prior agreements dealing
with the subject matter hereof. This Agreement shall survive the
termination of any management contract between any Fund and the
Investment Manager.
6. The Funds are organized as Massachusetts business trusts, and this
Agreement is not binding upon any of the trustees or holders of shares
of beneficial interest of any such trust individually, but shall bind
only the assets and property of such Funds.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their officers, as appropriate, hereunto duly authorized all
as of the day and year first above written.
The Xxxxxx Funds
By: /s/ Xxxxxxx X. Xxxxxx, Executive Vice
President
Xxxxx & McLennan Companies, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxx Investments, LLC
on behalf of itself and each of its Affiliates
By: /s/ Xxxxxx X. Silver, Senior Managing
Director
