Exhibit 23(d)(5)(h)(1)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is made and
entered into as of April 28, 2003, between Xxxxxx Xxxxxxx Investments LP (the
"Assignor") (formerly known as Xxxxxx Xxxxxxxx & Xxxxxxxx, XX) and Xxxxxx
Xxxxxxx Investment Management Inc. (the "Assignee").
W I T N E S S E T H
WHEREAS, Assignor currently serves as the sub-adviser of the MAS GVIT Multi
Sector Bond Fund (the "Fund") of Gartmore Variable Insurance Trust (formerly
Nationwide Separate Account Trust) (the "Trust"), pursuant to a sub-advisory
agreement dated May 1, 2000 (the "Sub-Advisory Agreement") between the Assignor,
the Trust and Villanova Mutual Fund Capital Trust (now known as Gartmore Mutual
Fund Capital Trust) (the "Adviser") that was previously approved by a majority
of the Fund's outstanding shares and by a majority of the Trust's trustees and
of those trustees of the Trust who are not parties to the Sub-Advisory Agreement
or "interested persons" of any such party as contemplated by Section 15 of the
Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Assignee is currently registered as an investment adviser
under the Investment Advisers Act of 1940; 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; and
WHEREAS, the Board of Trustees of the Trust has agreed to have Assignor
assign, and Assignee assume, the subadvisory responsibilities for the Fund
pursuant to the Sub-Advisory Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein, the
Assignor hereby irrevocably assigns, 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 rights, title and interest of the Assignor under
the Sub-Advisory Agreement and assumes all obligations and duties of
the Assignor under the Sub-Advisory Agreement from and after the
Effective Date (as defined below). The Assignee is not assuming hereby
any liabilities for any act or omission of the Assignor that 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
represents and warrants 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 Sub-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 first listed above (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, the
Adviser and the Fund. From and after the Effective Date, (a) all fees
and other amounts that would otherwise be payable to the Assignor in
respect of the Sub-Advisory Agreement shall be paid to the Assignee,
and (b) if the Assignor receives any payment in connection with the
Sub-Advisory Agreement, the Assignor shall hold such payment for the
benefit of the Assignee and shall promptly deliver it to the Assignee.
5. Notice of Assignment. The Assignor hereby gives, and the Adviser and
the Trust by their signature hereto hereby acknowledge, notice of the
assignment and assumption of Assignor's right, title, interest,
obligations and duties under the Sub-Advisory Agreement, and this
Agreement shall be deemed to constitute effective notice under the
Sub-Advisory Agreement.
6. Independent Investigation. The Assignee acknowledges that it is
assuming the right, title, interest, obligations and duties under the
Sub-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 the
Trust and the Fund. 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 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 Sub-Advisory
Agreement or this Agreement. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on the
Sub-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 the
Portfolio(s).
7. Effect of Assignment. From and after the Effective Date, the Assignee
shall be deemed automatically to have become a party to the
Sub-Advisory Agreement and shall have all the rights, obligations and
duties of an investment adviser under the Sub-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 represent, and the Adviser and the Trust hereby acknowledge,
that the assignment and assumption effected pursuant to this Agreement
will not result in a change of actual control or management of the
sub-adviser to the Fund and therefore, pursuant to Rule 2a-6 under the
1940 Act, 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, provided that
nothing herein shall be construed as being inconsistent with the 1940
Act.
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,
f/k/a Xxxxxx Xxxxxxxx & Xxxxxxxx, XX,
as Assignor
By: XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Executive Director
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC.,
as Assignee
By: XXXXXXXX XXXXX XX
Name: Xxxxxxxx Xxxxx Xx
Title: Executive Director
Acknowledged and Accepted:
GARTMORE MUTUAL FUND CAPITAL TRUST (formerly Villanova Mutual Fund Capital
Trust)
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: SVP - Chief Administrative
Officer
GARTMORE VARIABLE INSURANCE TRUST (formerly Nationwide Separate Account Trust)
By: XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
