Exhibit 99(h)(5)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is made and
entered into as of May 1, 2002, between Xxxxxx Xxxxxxx Investments LP, formerly
known as Xxxxxx Xxxxxxxx & Xxxxxxxx, XX ("MSI" or the "Assignor") and Xxxxxx
Xxxxxxx Investment Management Inc. ("MSIM" or the "Assignee").
W I T N E S S E T H
WHEREAS, Assignor currently serves as the administrator to the portfolios
of The Universal Institutional Funds, Inc., formerly known as Xxxxxx Xxxxxxx
Universal Funds, Inc., a Maryland corporation ("UIF" or the "Fund"), pursuant to
an administration agreement dated September 9, 1996 between the Assignor and UIF
(the "Administration Agreement") that was previously approved by a majority of
the directors of UIF and by those directors of UIF who are not "interested
persons" under the Investment Company Act of 1940, as amended; and
WHEREAS, MSIM is authorized to conduct business under the name Xxxxxx
Xxxxxxxx & Xxxxxxxx, LLP ("MAS") and MSI is not so authorized;
WHEREAS, management has recommended for a variety of business reasons that
the administrator to the Fund have the ability to use the name "MAS;"
WHEREAS, on December 13, 2001 the Board of Directors of UIF voted to
approve the assignment of the Advisory Agreement between UIF and MSI to MSIM for
the afore mentioned reasons;
WHEREAS, management believes that it would be in the best interest of the
Fund for the Administration Agreement to also be assigned to MSIM; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Administration Agreement and the Assignee proposes to
accept assignment of such rights and assume corresponding obligations from the
Assignor on such terms;
WHEREAS, the assumption by MSIM of MSI's administration activities for UIF
would not effect any change in the administrative services provided to UIF;
WHEREAS, after the assumption by MSIM of MSI's administration activities
for UIF, the key personnel within MSI that provide administrative services to
UIF would be joint officers of both MSI and MSIM and would continue to operate
under the same conditions as those under which they operated prior to the
assumption of obligations;
WHEREAS, the assumption by MSIM of MSI's administration activities for UIF
will not result in any change in the content of the Administration Agreement,
including the compensation that would be received by the administrator, other
than the change of the name of the administrator to MSIM doing business as
"MAS;"
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 Administration Agreement and
assumes all obligations and duties of the Assignor under the Administration
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 Administration
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
Administration Agreement, and this Agreement shall be deemed to constitute
effective notice under the Administration 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 Administration Agreement shall be paid to the
Assignee, and (b) if the Assignor receives any payment in connection with the
Administration 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
Administration Agreement from the Assignor without representation or warranty
except as provided in Section 3 hereof.
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The Assignee further acknowledges that it has made its own independent
investigation of UIF and its 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, or the
Administration 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 Administration Agreement or this Agreement.
The Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on the Administration 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.
7. Effect of Assignment. From and after the Effective Date, the
Assignee shall be deemed automatically to have become a party to the
Administration Agreement and shall have all the rights, obligations and duties
of an investment adviser under the Administration 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. Integration. This Agreement shall supersede any prior agreement
or understanding between the parties as to the subject matter hereof.
9. 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.
10. 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 Investment Company Act of 1940, as
amended.
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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:
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Acknowledged and Accepted:
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: _________________________
Name:
Title:
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