TRANSFER AND ASSUMPTION AGREEMENT
Transfer and Assumption Agreement dated as of March 30, 2012, among g Fiduciary Asset Management LLC ("FAMCO LLC"), a Delaware limited liability company having its principal office and place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx, Xxxxx Xxxxxxx Investment Management Inc. ("Xxxxx Xxxxxxx"). a Delaware corporation having its principal office and place of business at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx ("Xxxxx Xxxxxxx"), Advisory Research, Inc. ("Advisory Research"), a Delaware corporation having its principal office and place of business at 000 X Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, Guggenheim Funds Investment Advisors, LLC (formerly known as Claymore Advisors, LLC) ("Guggenheim"), a Delaware limited liability company having its principal office and place of business at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx, and Fiduciary/Claymore MLP Opportunity Fund (the "Fund"), a Delaware statutory trust having its principal office and place of business at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx.
WHEREAS, Fiduciary Asset Management, LLC, a Missouri limited liability company (the "Predecessor"), entered into an Investment Sub-Advisory Agreement dated February 2, 2010 (the "Agreement") among the Predecessor, Guggenheim and the Fund;
WHEREAS, the Predecessor and Fiduciary Asset Management Inc. ("FAMCO"), a Delaware corporation having its principal office and place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx, entered into an Agreement and Plan of Merger dated December 20, 2010, with FAMCO being the surviving entity;
WHEREAS, FAMCO and FAMCO LLC propose to enter into an Agreement and Plan of Merger, with FAMCO LLC being the surviving entity (the "Merger");
WHEREAS, upon completion of the Merger, FAMCO LLC will provide the services under the Agreement;
WHEREAS, FAMCO LLC and Advisory Research are both (i) registered investment advisers under the Investment Advisers Act of 1940, as amended, and (ii) direct, wholly-owned subsidiaries of Xxxxx Xxxxxxx;
WHEREAS, upon completion of the Merger, FAMCO LLC proposes to transfer all of the assets and liabilities arising under the advisory agreements with clients served by FAMCO LLC's dedicated advisory and support team for FAMCO LLC's Master Limited Partnerships ("MLPs") strategy (the "MLP Team") to its direct parent company, Xxxxx Xxxxxxx (the "FAMCO LLC Transfer");
WHEREAS, upon completion of the FAMCO LLC Transfer, Xxxxx Xxxxxxx proposes to transfer all of the assets and liabilities arising under the advisory agreements with clients served by the MLP Team to Advisory Research (the "Xxxxx Xxxxxxx Transfer" and together with the FAMCO LLC Transfer, the "Reorganization");
WHEREAS, upon completion of the Reorganization, FAMCO personnel currently providing services to the Fund will no longer be employees of FAMCO and will become employees of Advisory Research;
WHEREAS, upon completion of the FAMCO LLC Transfer, FAMCO LLC desires to transfer its rights under the Agreement to Xxxxx Xxxxxxx, in consideration of the assumption by Xxxxx Xxxxxxx of all obligations and liabilities of FAMCO LLC under the Agreement; and
WHEREAS, upon completion of the Xxxxx Xxxxxxx Transfer, Xxxxx Xxxxxxx desires to transfer its rights under the Agreement to Advisory Research, in consideration of the assumption by Advisory Research of all obligations and liabilities of Xxxxx Xxxxxxx under the Agreement.
NOW, THEREFORE, FAMCO LLC hereby transfers to Xxxxx Xxxxxxx, upon completion of the FAMCO LLC Transfer, the entire right, title and interest of FAMCO LLC under the Agreement, Xxxxx Xxxxxxx hereby undertakes, assumes and agrees to perform and discharge all obligations and liabilities of FAMCO LLC under the Agreement upon completion of the FAMCO LLC Transfer, Guggenheim and the Fund hereby release FAMCO LLC from any further obligations under the Agreement arising from and after the FAMCO LLC Transfer, but FAMCO LLC shall remain liable with respect to all of its obligations and liabilities under the Agreement arising prior to the completion of the FAMCO LLC Transfer;
THEREFORE, Xxxxx Xxxxxxx hereby transfers to Advisory Research, upon completion of the Xxxxx Xxxxxxx Transfer, the entire right, title and interest of Xxxxx Xxxxxxx under the Agreement, Advisory Research hereby undertakes, assumes and agrees to perform and discharge all obligations and liabilities of Xxxxx Xxxxxxx under the Agreement upon completion of the Xxxxx Xxxxxxx Transfer, Guggenheim and the Fund hereby release Xxxxx Xxxxxxx from any further obligations under the Agreement arising from and after the Xxxxx Xxxxxxx Transfer, but Xxxxx Xxxxxxx shall remain liable with respect to all of its obligations and liabilities under the Agreement arising after the completion of the FAMCO LLC Transfer but prior to the completion of the Xxxxx Xxxxxxx Transfer; and
THEREFORE, all terms and conditions of the Agreement shall otherwise remain in full force and effect, except that:
Section 15 (captioned USE OF THE NAME FIDUCIARY) is hereby amended to provide, in its entirety:
15. USE OF THE NAME ADVISORY RESEARCH OR FAMCO MLP. The Investment Sub-Adviser has consented to the use by the Trust of the name or identifying phrase "Advisory Research" or "FAMCO MLP" in the name of the Trust. Such consent is conditioned upon the employment of the Investment Sub-Adviser as the investment sub-adviser to the Trust. The name or identifying phrase "Advisory Research" or "FAMCO MLP" may be used from time to time in other connections and for other purposes by the Investment Sub-Adviser and any of its affiliates. The Investment Sub-Adviser may require the Trust to cease using "Advisory Research" or "FAMCO MLP" in the name of the Trust if the Trust or the Investment Adviser ceases to employ, for any reason, the Investment Sub-Adviser, any successor thereto or any affiliate thereof as investment sub-adviser of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer and Assumption Agreement to be duly executed by their authorized officers as of the date first set forth above.
| Fiduciary Asset Management LLC | |
| By /s/ Wiley X. Xxxxxx | |
| Name: Wiley X. Xxxxxx | |
| Title: President & CEO |
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Xxxxx Xxxxxxx Investment Management Inc.
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| By /s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |
| Title: Chief Financial Officer |
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Advisory Research, Inc.
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| By /s/ Xxxxx X. X'Xxxxx | |
| Name: Xxxxx X. X'Xxxxx | |
| Title: Chairman & CEO |
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Guggenheim Funds Investment Advisors, LLC
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| By /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | |
| Title: General Counsel |
| By /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |
| Title: Chief Financial Officer |
