Exhibit 99(d)(13)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is made and
entered into as of December 13, 2001, between Xxxxxx Xxxxxxx Investments LP,
formerly known as Xxxxxx Xxxxxxxx & Xxxxxxxx, XX (the "Assignor") and Xxxxxx
Xxxxxxx Investment Management Inc. (the "Assignee").
W I T N E S S E T H
WHEREAS, Assignor currently serves as the investment adviser to eleven of
the portfolios (the "MAS Portfolios") of The Universal Institutional Funds,
Inc., formerly known as Xxxxxx Xxxxxxx Universal Funds, Inc., a Maryland
corporation ("UIF"), pursuant to an investment advisory agreement dated May 31,
1997 between the Assignor and UIF (the "Advisory Agreement") that was previously
approved by a majority of UIF's outstanding shares and by a majority of the
directors of UIF and of those directors of UIF ("Independent Directors") who are
not parties to the Advisory Agreement or "interested persons" of UIF, MAS, or
Xxxxxx Xxxxxxx Investment Management Inc. ("MSIM") as contemplated by Section 15
of the Investment Company Act of 1940 ("1940 Act"); and
WHEREAS, MSIM currently serves as investment adviser to the eleven other
portfolios of UIF not advised by Xxxxxx Xxxxxxx Investments LP, and is currently
registered as an investment adviser under the Investment Advisers Act of 1940;
and
WHEREAS, the Board of UIF has concluded that it would be in the best
interests of the Fund and its stockholders if the MAS Portfolios were to be
advised by MSIM under the names "Xxx Xxxxxx" or "Xxxxxx Xxxxxxxx"; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Advisory Agreement and the Assignee proposes to accept
assignment of such rights and assume corresponding obligations from the Assignor
on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein,
the Assignor hereby irrevocably transfers, conveys and assigns, without
recourse, representation or warranty (except as expressly set forth herein) to
the Assignee, and the Assignee hereby irrevocably accepts from the Assignor all
right, title and interest of the Assignor under the Advisory Agreement and
assumes all obligations and duties of the Assignor under the Advisory Agreement
from and after the Effective Date. The Assignee is not assuming hereby any
liabilities for any act or omission of the Assignor which took place prior to
the Effective Date.
2. Undertaking and Further Assurances. Each of the parties hereto
agrees to take such further action as may be reasonably requested by the other
party hereto and as shall be necessary or reasonably desirable to further
effectuate the purposes of this Agreement.
3. Representations and Warranties. Each of the Assignor and the
Assignee represent and warrant to the other that: (a) it has full power and
legal right to execute and deliver this Agreement and to perform the obligations
set forth in this Agreement; (b) the execution, delivery and performance of this
Agreement have been authorized by all necessary action on its part, corporate or
otherwise, and do not violate any provisions of its charter or by-laws; and (c)
this Agreement constitutes its legal, valid and binding obligation. The Assignor
hereby further represents and warrants to the Assignee that it is the legal and
beneficial owner of its right, title and interest in the Advisory Agreement,
free and clear of all liens and adverse claims created by the Assignor.
4. Effective Date; Related Payment Obligations. The assignment to
the Assignee made pursuant to this Agreement shall be effective as of the date
hereof (the "Effective Date") when the Assignee has received, by facsimile or
otherwise, copies of the counterparts of this Agreement duly executed by the
Assignor, the Assignee, and UIF.
5. Notice of Assignment. The Assignor hereby gives, and UIF by its
signature hereto hereby acknowledges, notice of the assignment and assumption of
Assignor's right, title, interest, obligations and duties under the Advisory
Agreement, and this Agreement shall be deemed to constitute effective notice
under the Advisory Agreement. From and after the Effective Date, (a) all fees
and other amounts that would otherwise be payable to the Assignor in respect of
the Advisory Agreement shall be paid to the Assignee, and (b) if the Assignor
receives any payment in connection with the Advisory Agreement, the Assignor
shall hold such payment for the benefit of the Assignee and shall promptly
deliver it to the Assignee.
6. Independent Investigation. The Assignee acknowledges that it is
assuming the right, title, interest, obligations and duties under the Advisory
Agreement from the Assignor without representation or warranty except as
provided in Section 3 hereof. The Assignee further acknowledges that it has made
its own independent investigation of UIF and the MAS Portfolios. Except as set
forth in Section 3, the Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made pursuant to or in connection with this agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
agreement, the Assignment Agreement, or any other instrument or document
furnished pursuant hereto or thereto. The Assignor has not acted nor will it be
acting as either the representative, agent or trustee of the Assignee with
respect to matters arising out of or relating to the Advisory Agreement or this
Agreement. The Assignee acknowledges that it has, independently and without
reliance on the Assignor, and based on the Advisory Agreement and such documents
and information as it has deemed appropriate, made its own decision to enter
into this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of UIF.
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7. Effect of Assignment. From and after the Effective Date, the
Assignee shall be deemed automatically to have become a party to the Advisory
Agreement and shall have all the rights, obligations and duties of an investment
adviser under the Advisory Agreement and shall be bound by the terms and
conditions thereof as if it were an original signatory thereto. The assignment
provided for herein shall be without recourse to the Assignor.
8. Investment Company Act Status of Assignment. Each of the parties
hereto and UIF hereby acknowledges that the assignment and assumption effected
pursuant to this Agreement will not result in a change of actual control or
management of the investment adviser to UIF and therefore, pursuant to Rule 2a-6
under the 1940, will not be construed to be an "assignment" of an advisory
agreement for purposes of Section 15(a)(4) of the 1940 Act and will not trigger
the automatic termination thereof.
9. Integration. This Agreement shall supersede any prior agreement
or understanding between the parties as to the subject matter hereof.
10. Counterparts; Successors and Assigns. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument, and shall be binding upon the parties and their respective
successors and assigns.
11. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to New
York's conflicts of law principles, provided, that nothing herein shall be
construed as being inconsistent with the 1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
XXXXXX XXXXXXX INVESTMENTS LP,
formerly, XXXXXX XXXXXXXX & XXXXXXXX, XX
as Assignor
By: _______________________
Name:
Title:
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC.,
as Assignee
By: _______________________
Name:
Title:
Acknowledged and Accepted:
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: _________________________
Name:
Title:
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