ASSIGNMENT AND ASSUMPTION AGREEMENT
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This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and
Assumption Agreement") dated as of February 27, 2007 among Xxxxxxxxx Xxxxxx, LLC
("Assignor"), a Delaware limited liability company and a wholly owned subsidiary
of Xxxxxx Brothers Holdings Inc. ("Xxxxxx Brothers"), and Xxxxxx Brothers Asset
Management LLC ("Assignee"), a Delaware limited liability company and a wholly
owned subsidiary of Xxxxxx Brothers.
W I T N E S S E T H:
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WHEREAS, Assignor and Xxxxxxxxx Xxxxxx Management Inc. ("Investment
Adviser") are parties to that certain Investment Advisory Agreement dated as of
November 3, 2003 (the "Investment Advisory Agreement"), whereby Assignor serves
as the subadviser to certain series of Xxxxxxxxx Xxxxxx Income Funds (the
"Trust"), as listed on Schedule A and any supplements thereto of the Investment
Advisory Agreement;
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires
to accept all of Assignor's right, title and interest in the Investment Advisory
Agreement with respect to Xxxxxxxxx Xxxxxx Government Money Fund (the "Fund"),
and (ii) Assignee desires to acquire and to assume all of the duties and
obligations of Assignor under the Investment Advisory Agreement with respect to
the Fund;
WHEREAS, this Assignment and Assumption Agreement does not result in a
change of actual control or management of the subadviser to the Trust and,
therefore, is not an "assignment" as defined in Section 2(a)(4) of the
Investment Company Act of 1940 (the "Act") nor an "assignment" for purposes of
Section 15(a)(4) of the Act.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Effective as of February 27, 2007, Assignor hereby designates
Assignee as its successor under the Investment Advisory Agreement with respect
to the Fund and hereby assigns, conveys, transfers and sets over absolutely to
Assignee, and Assignee hereby accepts, all of Assignor's right, title and
interest in and to the Investment Advisory Agreement with respect to the Fund
and Assignee hereby assumes and agrees to perform and discharge all of
Assignor's duties and obligations under the Investment Advisory Agreement with
respect to the Fund.
2. The Trust and the Investment Adviser hereby agree and consent to
the assignment to and assumption by Assignee of the Investment Advisory
Agreement with respect to the Fund, and as of the date of this Assignment and
Assumption Agreement agree that all of the representations, covenants, and
agreements in the Investment Advisory Agreement of the Assignor with respect to
the Fund shall now apply to the Assignee as though Assignee were a named party
to the Investment Advisory Agreement with respect to the Fund, except that any
claim by the Trust and the Investment Advisor under the Investment Advisory
Agreement with respect to the Fund, or liability with respect to services
performed prior to the date of this Assignment and Assumption Agreement by the
Assignor, shall not be made against the Assignee.
3. Assignor, Assignee and Investment Adviser hereto further agree that
by signing this Assignment and Assumption Agreement, Assignee shall become a
party to the Investment Advisory Agreement with respect to the Fund with the
same effect as if Assignee had executed the Investment Advisory Agreement with
respect to the Fund as a party thereto as of the date of this Assignment and
Assumption Agreement, and Assignee shall have all of the rights and obligations
of Assignor under the Investment Advisory Agreement with respect to the Fund and
as of the date of this Assignment and Assumption Agreement shall be deemed to
have made all of the representations, covenants and agreements of Assignor
contained in the Investment Advisory Agreement with respect to the Fund.
4. Neither this Assignment and Assumption Agreement nor any term
hereof may be changed, waived, discharged or terminated, except by an instrument
in writing signed by the parties hereto.
5. In case any provision in or obligation under this Assignment and
Assumption Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
6. This Assignment and Assumption Agreement shall be governed by, and
shall be construed and enforced in accordance with, the internal laws of the
State of New York, without regard to conflicts of law principles.
7. This Assignment and Assumption Agreement may be executed in one or
more counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
8. This Assignment and Assumption Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective successors and
assigns.
9. This Agreement sets forth the entire agreement of the parties
hereto with respect to the subject matter hereof and may not be altered,
amended, changed, waived, terminated or modified in any respect or particular
unless the same shall be in writing and signed by each of the parties hereto.
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized, as of the date first above written.
TRUST:
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XXXXXXXXX XXXXXX INCOME FUNDS
/s/ Xxxx Xxxxx
By: ---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
INVESTMENT ADVISER:
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XXXXXXXXX XXXXXX MANAGEMENT INC.
/s/ Xxxxxx Xxxxx
By: ---------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
ASSIGNEE:
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XXXXXX BROTHERS ASSET MANAGEMENT LLC
/s/ Xxx X. Xxxxxxxx
By: ---------------------------------
Name: Xxx X. Xxxxxxxx
Title: Managing Director
ASSIGNOR:
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XXXXXXXXX XXXXXX, LLC
/s/ Xxxxxx Xxxxx
By: ----------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
