ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement"), effective as of
September 30, 1999, by and between Xxxxxx Associates, Inc., a Delaware
corporation ("Associates"), and Xxxxxx LLC, a Nevada limited liability company
("LLC").
RECITALS
WHEREAS, Associates or an affiliate of Associates provides investment
advisory and administrative services to the following investment companies: The
One Hundred Fund, Inc.; Xxxxxx One Hundred and One Fund, Inc., d/b/a Xxxxxx
Growth and Income Fund; Xxxxxx Small Cap Value Fund, a series of Xxxxxx Omni
Investment Trust; Xxxxxx Mid Cap Value Fund, Xxxxxx Small Company Growth Fund,
Xxxxxx New Generation Fund, Xxxxxx Balanced Fund, Xxxxxx Select Fund, Xxxxxx Mid
Cap Growth Fund, and Xxxxxx Information Technology Fund, each a series of Xxxxxx
Investment Portfolio Trust; Xxxxxx IPT-100 Fund, Xxxxxx IPT-Growth and Income
Fund, Xxxxxx IPT-Small Company Growth Fund, and Xxxxxx/BIAM IPT-International
Fund, each a series of Xxxxxx Institutional Products Trust; Xxxxxx/BIAM
International Portfolio, a series of Xxxxxx/BIAM Worldwide Portfolios Trust, and
Xxxxxx/BIAM International Fund, Xxxxxx/BIAM International CORE Fund and
International Equity Fund, each a series of Xxxxxx/BIAM Worldwide Funds Trust
(each a "Xxxxxx Fund" and collectively, the "Xxxxxx Funds"); and
WHEREAS, Associates desires to transfer, convey, assign and deliver to
LLC certain agreements and plans relating to the Xxxxxx Funds to which
Associates is a party or under which Associates has rights or obligations, and
LLC desires to accept and assume such rights and obligations, on the terms and
conditions set forth in this Agreement; and
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
ASSIGNMENT AND ASSUMPTION OF
INVESTMENT ADVISORY AGREEMENTS
1.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys, delegates and delivers to LLC all of
Associates' rights, interests, duties, obligations, burdens, responsibilities
and liabilities, of every kind and nature whatsoever, whenever created or
incurred, under the investment advisory and sub-advisory agreements to which
Associates is a party, as set forth on EXHIBIT A attached hereto and
incorporated herein by reference (the "Assigned Advisory Agreements").
1.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens, responsibilities and
liabilities under the Assigned Advisory Agreements, (ii) agrees to be bound by
all of the provisions of the Assigned Advisory Agreements, to the same extent as
if LLC had initially executed and delivered such agreements, and (iii) agrees to
indemnify Associates from and against any liability, loss, or damage arising
under the Assigned Advisory Agreements.
ARTICLE II
ASSIGNMENT AND ASSUMPTION OF
ADMINISTRATIVE SERVICES AGREEMENTS
2.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys and delegates to LLC its rights, interests,
duties, obligations, burdens, responsibilities and liabilities, of every kind
and nature whatsoever, whenever created or incurred, under the administrative
services agreements to which Associates is a party, as set forth on EXHIBIT B
attached hereto and incorporated herein by reference (the "Assigned
Administrative Agreements").
2.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens, responsibilities and
liabilities under the Assigned Administrative Agreements, (ii) agrees to be
bound by all of the provisions of the Assigned Administrative Agreements, to the
same extent as if LLC had initially executed and delivered such agreements, and
(iii) agrees to indemnify Associates from and against any liability, loss, or
damage arising under the Assigned Administrative Agreements.
ARTICLE III
ASSIGNMENT AND ASSUMPTION OF
FEE WAIVER AGREEMENTS
3.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys and delegates to LLC its rights, interests,
duties, obligations, burdens, responsibilities and liabilities, of every kind
and nature whatsoever, whenever created or incurred, under the investment
advisory fee waiver agreements to which Associates is a party, as set forth on
EXHIBIT C attached hereto and incorporated herein by reference (the "Assigned
Fee Waiver Agreements").
3.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens, responsibilities and
liabilities under the Assigned Fee Waiver Agreements, (ii) agrees to be bound by
all of the provisions of the Assigned Fee Waiver Agreements, to the same extent
as if LLC had initially executed and delivered such agreements, and (iii) agrees
to indemnify Associates from and against any liability, loss, or damage arising
under the Assigned Fee Waiver Agreements.
ARTICLE IV
ASSIGNMENT AND ASSUMPTION OF RULE 12B-1 PLANS AND RULE 18F-3 PLANS
4.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys and delegates to LLC its rights, interests,
duties, obligations, burdens, responsibilities and liabilities, of every kind
and nature whatsoever, whenever created or incurred, under the separate Rule
12b-1 plans, and the separate Rule 18f-3 plans, adopted by the Xxxxxx Funds, as
set forth on EXHIBIT D attached hereto and incorporated herein by reference
-2-
(the "Assigned Rule 12b-1 Plans" and "Assigned Rule 18f-3 Plans," respectively,
and collectively, the "Assigned Plans").
4.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens and responsibilities under
the Assigned Plans, (ii) agrees to be bound by all of the provisions of the
Assigned Plans relating to Associates, and (iii) agrees to indemnify Associates
from and against any liability, loss, or damage arising under the Assigned
Plans.
ARTICLE V
ASSIGNMENT AND ASSUMPTION OF PARTICIPATION AGREEMENTS
5.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys and delegates to LLC its rights, interests,
duties, obligations, burdens, responsibilities and liabilities, of every kind
and nature whatsoever, whenever created or incurred, under the participation
agreements to which Associates is a party, as set forth on EXHIBIT E attached
hereto and incorporated herein by reference (the "Assigned Participation
Agreements").
5.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens, responsibilities and
liabilities under the Assigned Participation Agreements, (ii) agrees to be bound
by all of the provisions of the Assigned Participation Agreements, to the same
extent as if LLC had initially executed and delivered such agreements, and (iii)
agrees to indemnify Associates from and against any liability, loss, or damage
arising under the Assigned Participation Agreements.
ARTICLE VI
ASSIGNMENT AND ASSUMPTION OF REORGANIZATION AGREEMENT
6.1 Subject to the terms and conditions herein stated, Associates
hereby assigns, transfers, conveys and delegates to LLC its rights, interests,
duties, obligations, burdens, responsibilities and liabilities, of every kind
and nature whatsoever, whenever created or incurred, under the separate
Agreement and Plan of Reorganization, dated April 16, 1999, between Advisors
Series Trust with respect to its series InformationTech 100 Fund and Xxxxxx
Investment Portfolio Trust with respect to its series Xxxxxx Information
Technology Fund (the "Assigned Reorganization Agreement").
6.2 Subject to the terms and conditions herein stated, LLC hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of Associates' obligations, duties, burdens, responsibilities and
liabilities under the Assigned Reorganization Agreement, (ii) agrees to be bound
by all of the provisions of the Assigned Reorganization Agreement relating to
Associates, and (iii) agrees to indemnify Associates from and against any
liability, loss, or damage arising under the Assigned Reorganization Agreement.
-3-
ARTICLE VII
GENERAL PROVISIONS
7.1 CONDITIONS TO ASSIGNMENT AND ASSUMPTION. The assignment by
Associates, and the assumption by LLC, of the Assigned Advisory Agreements, the
Assigned Administrative Services Agreements, the Assigned Fee Waiver Agreements,
the Assigned Plans, the Assigned Participation Agreements and the Assigned
Reorganization Agreement are subject to obtaining such approval of the Board of
Directors or Board of Trustees, as the case may be, of the Xxxxxx Funds to which
such agreements relate, as may be required under the Investment Company Act of
1940, by order of the Board of Governors of the Federal Reserve Board, or by any
other applicable law, rule, regulation or order, and to obtaining such consents
as may be required under the provisions of such assigned agreements.
7.2 FURTHER ASSURANCES. Associates and LLC each shall take such action
and execute and deliver to the other party all such instruments and documents as
such other party may reasonably request to carry out the intent and purposes of
this Agreement and the transactions contemplated hereby. In particular,
Associates and LLC acknowledge the purpose of this Agreement is to: assign to
LLC all of the rights, interests, duties, obligations, burdens, responsibilities
and liabilities under the investment advisory and sub-advisory agreements to
which Associates is a party; assign to LLC all of the rights, interests, duties,
obligations, burdens, responsibilities and liabilities under the administrative
services agreements to which Associates is a party; assign to LLC all of the
rights, interests, duties, obligations, burdens, responsibilities and
liabilities under the investment advisory fee waiver agreements to which
Associates is a party; assign to LLC all of Associates' rights, interests,
duties, obligations, burdens, responsibilities and liabilities under the
Assigned Plans; assign to LLC all of the rights, interests, duties, obligations,
burdens, responsibilities and liabilities under the participation agreements to
which Associates is a party; assign to LLC all of the rights, interests, duties,
obligations, burdens, responsibilities and liabilities under the Assigned
Reorganization Agreement; and to assign to LLC, and for LLC to accept and
assume, all of Associates' rights, interests, duties, obligations, burdens,
responsibilities and liabilities as described in Sections 1.2, 2.2, 3.2, 4.2,
5.2 and 6.2 herein, so that if any such agreement, or right, interest, duty,
obligation, burden, responsibility or liability is inadvertently not included
specifically in this Agreement, Associates and LLC agree to take the appropriate
actions needed to transfer any such agreement or right, interest, duty,
obligation, burden, responsibility or liability to LLC and for LLC to assume the
same.
7.3 GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating thereto, shall be governed by the laws of
the State of Colorado, without regard to its principles of conflicts of law.
7.4 ASSIGNMENT AND AMENDMENT. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party without the prior written consent
of the other party. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be changed or modified except by a written
amendment hereto signed by all parties affected by such amendment.
7.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original and all of
which together shall constitute one and the same agreement.
-4-
IN WITNESS WHEREOF, each of the parties have executed this Agreement as
of the day and year first set forth above.
XXXXXX ASSOCIATES, INC. XXXXXX LLC
By: By:
--------------------------- ------------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
President President
-5-
EXHIBIT A
ASSIGNED ADVISORY AGREEMENTS
The following are the Assigned Advisory Agreements being assigned by
Associates and assumed by LLC pursuant to Article I of the Agreement:
1. Investment Advisory Agreement, dated October 14, 1994, between
Xxxxxx Associates, Inc. and The One Hundred Fund, Inc.;
2. Investment Advisory Agreement, dated October 14, 1994, between
Xxxxxx Associates, Inc. and Xxxxxx One Hundred and One Fund, Inc.;
3. Investment Advisory Agreement, dated February 14, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Omni Investment Trust;
4. Investment Advisory Agreement, dated October 14, 1994, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Small Company Growth Fund;
5. Investment Advisory Agreement, dated March 6, 1996, between Xxxxxx
Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to Xxxxxx
New Generation Fund;
6. Investment Advisory Agreement, dated December 31, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Mid Cap Growth Fund;
7. Investment Advisory Agreement, dated December 31, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Select Fund;
8. Investment Advisory Agreement, dated September 3, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Balanced Fund;
9. Investment Advisory Agreement, dated July 7, 1998, between Xxxxxx
Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to Xxxxxx
Mid Cap Value Fund;
10. Investment Advisory Agreement, dated July 1, 1999, between Xxxxxx
Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to Xxxxxx
Information Technology Fund;
11. Investment Advisory Agreement, dated April 16, 1996, between Xxxxxx
Associates, Inc. and Xxxxxx Institutional Products Trust with respect to Xxxxxx
IPT-100 Fund;
12. Investment Advisory Agreement, dated April 16, 1996, between Xxxxxx
Associates, Inc. and Xxxxxx Institutional Products Trust with respect to Xxxxxx
IPT-Growth and Income Fund;
-6-
13. Investment Advisory Agreement, dated April 16, 1996, between Xxxxxx
Associates, Inc. and Xxxxxx Institutional Products Trust with respect to Xxxxxx
IPT-Small Company Growth Fund;
14. Sub-Advisory Agreement, dated February 14, 1997, between Xxxxxx
Associates, Inc. and Perkins, Wolf, XxXxxxxxx & Company
15. Sub-Advisory Agreement, dated July 7, 1998, between Xxxxxx
Associates, Inc. and Perkins, Wolf, XxXxxxxxx & Company
16. Sub-Advisory Agreement, dated July 1, 1999, between Xxxxxx
Associates, Inc. and Bay Isle Financial Corporation
-7-
EXHIBIT B
ASSIGNED ADMINISTRATIVE SERVICES AGREEMENTS
The following are the Assigned Administrative Services Agreements being
assigned by Associates and assumed by LLC pursuant to Article II of the
Agreement:
1. Administrative Services Agreement, dated October 1, 1992, between
Xxxxxx Associates, Inc. and The One Hundred Fund, Inc.;
2. Administrative Services Agreement, dated October 1, 1992, between
Xxxxxx Associates, Inc. and Xxxxxx One Hundred and One Fund, Inc.;
3. Administrative Services Agreement, dated December 22, 1993, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Small Company Growth Fund;
4. Administrative Services Agreement, dated March 6, 1996, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx New Generation Fund;
5. Administrative Services Agreement, dated September 3, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Balanced Fund;
6. Administrative Services Agreement, dated December 31, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Select Fund;
7. Administrative Services Agreement, dated December 31, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Mid Cap Growth Fund;
8. Administrative Services Agreement, dated July 7, 1998, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Mid Cap Value Fund;
9. Administrative Services Agreement, dated July 1, 1999, between
Xxxxxx Associates, Inc. and Xxxxxx Investment Portfolio Trust with respect to
Xxxxxx Information Technology Fund;
10. Administrative Services Agreement, dated April 16, 1996, between
Xxxxxx Associates, Inc. and Xxxxxx Institutional Products Trust with respect to
Xxxxxx IPT-100 Fund;
11. Administrative Services Agreement, dated April 16, 1996, between
Xxxxxx Associates, Inc. and Xxxxxx Institutional Products Trust with respect to
Xxxxxx IPT-Growth and Income Fund;
12. Administrative Services Agreement, dated April 16, 1996, between
Xxxxxx Associates, Inc. and Xxxxxx Institutional Products Trust with respect to
Xxxxxx IPT-Small Company Growth Fund;
-8-
13. Administrative Services Agreement, dated February 14, 1997, between
Xxxxxx Associates, Inc. and Xxxxxx Omni Investment Trust with respect to its
series, the Xxxxxx Small Cap Value Fund;
14. Sub-Administration Agreement, dated October 11, 1996, between
Xxxxxx Associates, Inc. and BBOI Worldwide LLC with respect to the series of
Xxxxxx/BIAM Worldwide Funds Trust;
15. Sub-Administration Agreement, dated May 1, 1997, between Xxxxxx
Associates, Inc. and BBOI Worldwide LLC with respect to the Xxxxxx/BIAM
IPT-International Fund, a series of Xxxxxx Institutional Products Trust.
-9-
EXHIBIT C
ASSIGNED FEE WAIVER AGREEMENTS
The following are the Assigned Fee Waiver Agreements being assigned by
Associates and assumed by LLC pursuant to Article III of the Agreement:
1. Letter Agreement, dated April 15, 1999, from Xxxxxx Associates, Inc.
to Xxxxxx Institutional Products Trust with respect to the Xxxxxx IPT-100 Fund,
regarding advisory fee waiver and reimbursement of fund expenses;
2. Letter Agreement, dated April 15, 1999, from Xxxxxx Associates, Inc.
to Xxxxxx Institutional Products Trust with respect to the Xxxxxx IPT-Growth and
Income Fund, regarding advisory fee waiver and reimbursement of fund expenses;
3. Letter Agreement, dated April 15, 1999, from Xxxxxx Associates, Inc.
to Xxxxxx Institutional Products Trust with respect to the Xxxxxx IPT-Small
Company Growth Fund, regarding advisory fee waiver and reimbursement of fund
expenses;
4. Letter Agreement, dated February 18, 1999, from Xxxxxx Associates,
Inc. to Xxxxxx Investment Portfolio Trust with respect to the Xxxxxx Mid Cap
Growth Fund, regarding advisory fee waiver;
5. Letter Agreement, dated February 18, 1999, from Xxxxxx Associates,
Inc. to Xxxxxx Investment Portfolio Trust with respect to the Xxxxxx Balanced
Fund, regarding advisory fee waiver;
6. Letter Agreement, dated April 30, 1996, from Xxxxxx Associates, Inc.
to Xxxxxx Investment Portfolio Trust with respect to the Xxxxxx Small Company
Growth Fund, regarding advisory fee waiver;
7. Letter Agreement, dated March 6, 1996, from Xxxxxx Associates, Inc.
to Xxxxxx Investment Portfolio Trust with respect to the Xxxxxx New Generation
Fund, regarding advisory fee waiver;
8. Letter Agreement, dated April 30, 1996, from Xxxxxx Associates, Inc.
to The One Hundred Fund, Inc., regarding advisory fee waiver;
9. Letter Agreement, dated April 30, 1996 from Xxxxxx Associates, Inc.
to Xxxxxx One Hundred and One Fund, Inc., regarding advisory fee waiver; and
10. Letter Agreement, dated July 1, 1999 from Xxxxxx Associates, Inc.
to Xxxxxx Investment Portfolio Trust with respect to the Xxxxxx Information
Technology Fund, regarding advisory fee waiver and reimbursement of fund
expenses.
-10-
EXHIBIT D
ASSIGNED RULE 12B-1 PLANS
1. Rule 12b-1 Plan for The One Hundred Fund, Inc., dated October 14,
1994.
2. Rule 12b-1 Plan for Xxxxxx One Hundred and One Fund, Inc., dated
October 14, 1994.
3. Amended and Restated Rule 12b-1 Plan for the Investor Shares of the
Xxxxxx Small Company Growth Fund, dated July 6, 1999.
4. Amended and Restated Rule 12b-1 Plan for the Investor Shares of the
Xxxxxx New Generation Fund, dated July 6, 1999.
5. Rule 12b-1 Plan for Xxxxxx Balanced Fund, dated September 3, 1997.
6. Rule 12b-1 Plan for Xxxxxx Select Fund, dated December 31, 1997.
7. Rule 12b-1 Plan for Xxxxxx Mid Cap Growth Fund, dated December 31,
1997.
8. Rule 12b-1 Plan for Xxxxxx Mid Cap Value Fund, dated July 7, 1998.
9. Rule 12b-1 Plan for the Investor Shares of the Xxxxxx Small Cap
Value Fund, dated February 14, 1997.
10. Rule 12b-1 Plan for Xxxxxx/BIAM International Fund, dated
October 11, 1996.
11. Rule 12b-1 Plan for the Investor Shares of Xxxxxx Information
Technology Fund, dated July 1, 1999.
ASSIGNED RULE 18F-3 PLANS
1. Rule 18f-3 Plan for Multiple Classes of Shares of the Xxxxxx Small
Cap Value Fund, dated February 14, 1997.
2. Rule 18f-3 Plan for Multiple Classes of Shares of the Xxxxxx Small
Company Growth Fund, dated July 6, 1999.
3. Rule 18f-3 Plan for Multiple Classes of Shares of the Xxxxxx New
Generation Fund, dated July 6, 1999.
4. Rule 18f-3 Plan for Multiple Classes of Shares of the Xxxxxx
Information Technology Fund, dated July 1, 1999.
-11-
EXHIBIT E
ASSIGNED PARTICIPATION AGREEMENTS
1. Participation Agreement, dated April 15, 1996, between Great
American Reserve Insurance Company, Xxxxxx Institutional Products Trust and
Xxxxxx Associates, Inc.
2. Participation Agreement, dated December 10, 1996, between Ameritas
Life Insurance Corp., Xxxxxx Institutional Products Trust and Xxxxxx Associates,
Inc.
3. Participation Agreement, dated May 1, 1998, between Canada Life
Insurance Company of America, Xxxxxx Institutional Products Trust and Xxxxxx
Associates, Inc.
4. Participation Agreement, dated May 1, 1998, between Canada Life
Insurance Company of New York, Xxxxxx Institutional Products Trust and Xxxxxx
Associates, Inc.
5. Participation Agreement, dated March 4, 1997, between Prudential
Insurance Company of America, Xxxxxx Institutional Products Trust and Xxxxxx
Associates, Inc.
6. Participation Agreement, dated May 1, 1997, between Great-West Life
& Annuity Insurance Company, Xxxxxx Institutional Products Trust, Xxxxxx
Associates, Inc., Xxxxxx Distributors, Inc. and Xxxxxxx Xxxxxx & Co., Inc.
7. Participation Agreement, dated May 1, 1997, between First Great-West
Life & Annuity Insurance Company, Xxxxxx Institutional Products Trust, Xxxxxx
Associates, Inc., Xxxxxx Distributors, Inc. and Xxxxxxx Xxxxxx & Co., Inc.
