ASSIGNMENT AND ASSUMPTION OF
AUL FUND PARTICIPATION AGREEMENT
(Xxxxx Street Funds, Inc.)
THIS ASSIGNMENT AND ASSUMPTION OF AUL FUND PARTICIPATION AGREEMENT (this
"Assignment") is made and entered into as of March 31, 2002 by and among XXXXXX
X. XXXXX & CO., INCORPORATED, a Wisconsin corporation ("Baird"), NORTHWESTERN
MUTUAL INVESTMENT SERVICES, LLC, a Wisconsin limited liability company ("NMIS"),
and XXXXX STREET ADVISORS, LLC, a Delaware limited liability company ("MSA").
RECITALS
X. Xxxxx, NMIS, and Xxxxx Street Funds, Inc., a Maryland corporation (the
"Fund") are parties to the Fund Participation Agreement dated as of January 31,
2001 with American United Life Insurance Company (the "Participation
Agreement");
B. Both NMIS and MSA are registered as investment advisors under the Investment
Advisers Act of 1940, as amended, and both are entities under the common control
of The Northwestern Mutual Life Insurance Company, a Wisconsin mutual life
insurance company and Wisconsin corporation ("Northwestern Mutual");
C. Both NMIS and Baird are registered as broker/dealers under the Securities
Exchange Act of 1934, as amended;
D. NMIS is refocusing its business to concentrate on its broker/dealer
operations and, pursuant to an Assignment and Assumption Agreement dated as of
January 1, 2002, NMIS assigned to MSA all of its rights and obligations as
investment advisor under certain investment advisory agreements relating to the
Fund;
E. Effective March 31, 2002, NMIS is to replace Baird in its role as distributor
of the Xxxxx Street Funds; and
X. Xxxxx is currently named as "Distributor" and NMIS is currently named as
"Advisor" or "Adviser" (hereinafter, "Advisor") under the Participation
Agreement.
NOW, THEREFORE, in consideration of the recitals set forth above, which are made
a part of this Assignment, the mutual covenants hereinafter contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Effective as of January 1, 2002, NMIS hereby transfers, conveys, and
assigns to MSA all of its right, title, and interest as Advisor in, to and
under the Participation Agreement; and MSA hereby accepts the transfer,
conveyance, and assignment of the Participation Agreement from NMIS and
assumes all rights, duties, obligations, and liabilities of NMIS as Advisor
under the Participation Agreement accruing from and after the January 1,
2002.
2. Effective as of the March 31, 2002, Baird hereby transfers, conveys, and
assigns to NMIS all of its right, title, and interest as Distributor in, to
and under the Participation Agreement; and MSA hereby accepts the transfer,
conveyance, and assignment of the Participation Agreement from Baird and
assumes all rights, duties, obligations, and liabilities of Baird as
Distributor under the Participation Agreement accruing from and after the
March 31, 2002.
3. Each party assigning any rights under this Assignment (each, an "Assignor")
represents and warrants to its assignee hereunder (each, an "Assignee")
that (i) Assignor is the owner of all of the rights assigned by it under
the Participation Agreement; (ii) Assignor has the power, right and
authority to enter into this Assignment and to assign all of its right,
title and interest in and to the Participation Agreement to Assignee; and
(iii) Assignor has not previously assigned, pledged or otherwise disposed
of or encumbered its interest in the Participation Agreement.
4. Each Assignee represents and warrants to its Assignor that (i) such
Assignee has the power, right and authority to enter into this Assignment;
(ii) in the case of MSA, that it is registered as an investment advisor
under the Investment Advisers Act of 1940, as amended; and (iii) in the
case of NMIS, that it is registered as a broker/dealer under the Securities
Exchange Act of 1934, as amended.
5. The notice addresses of Distributor and Advisor specified in the
Participation Agreement shall be amended as follows:
If to Distributor: Northwestern Mutual Investment
Services, LLC
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Senior Vice President -Variable Annuities
If to Advisor: Xxxxx Street Advisors, LLC
000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000
Attention: President
6. This Assignment shall be governed by the laws of the State of Wisconsin,
and shall be binding upon and shall inure to the benefit of Assignor,
Assignee, and their respective legal representatives, heirs, successors,
and assigns.
7. This Assignment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the day and year first above written.
XXXXXX X. XXXXX & COMPANY, INCORPORATED, a Wisconsin
corporation
By: /s/ Xxxxxx X. Xxxxxx
Its: Senior Vice President
NORTHWESTERN MUTUAL INVESTMENT SERVICES, LLC, a Wisconsin
limited liability company
By:_/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Senior Vice President, Variable
Annuities
XXXXX STREET ADVISORS, LLC, a Delaware limited liability
company
By: /s/ Xxxx X. Xxxx
Xxxx X. Xxxx, President
ACKNOWLEDGEMENT AND CONSENT
The undersigned acknowledges the terms of the foregoing Assignment and
Assumption of AUL Fund Participation Agreement and confirms its consent thereto.
AMERICAN UNITED LIFE INSURANCE COMPANY, a life insurance company domiciled in
Indiana, on its behalf and on behalf of its segregated asset accounts
By /s/ Xxxxxxx X. Xxxxxx:
Its: Associate General Counsel
ACKNOWLEDGEMENT AND CONSENT
The undersigned acknowledges the terms of the foregoing Assignment and
Assumption of AUL Fund Participation Agreement and confirms its consent
thereto as part of the consent it gave to an Assignment and Assumption
Agreement dated as of January 1, 2002 under which NMIS assigned to Xxxxx
Street Advisors, LLC all of its rights and obligations as investment advisor
under certain investment advisory agreements relating to Xxxxx Street Funds,
Inc.
XXXXX STREET FUNDS, INC., a
Maryland corporation
By: /s/ Xxxx X. Xxxx
Xxxx X. Xxxx, Vice President and Treasurer
