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Exhibit (d)(3)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of March 1, 2000, by and among CONNING ASSET MANAGEMENT COMPANY, a Missouri
corporation ("Assignor"), METROPOLITAN LIFE INSURANCE COMPANY, a New York life
insurance company ("Assignee") and GENERAL AMERICAN LIFE INSURANCE COMPANY, a
Missouri life insurance company ("General American").
W I T N E S S E T H:
WHEREAS, Assignor and General American are parties to that certain
Investment Advisory Agreement, dated as of May 1, 1995 (the "Advisory
Agreement"), pursuant to which Assignor (formerly known as General American
Investment Management Company) provides General American with investment
advisory services for its general account (the "General Account"), including,
without limitation, services relating to the trading of securities and the
advisability of investing in, purchasing or selling securities ("Investment
Advisory Services"), asset/liability management services in respect of the
General Account ("Portfolio Management Services"; together with Investment
Advisory Services, "Front-Office Services") and services other than Front-Office
Services needed to operate and report on the General Account, including, without
limitation, accounting services (including tax accounting, statutory accounting
and accounting under generally accepted accounting principles), record-keeping
services, reconciliation of trade confirmations, reporting and other similar
functions not pertaining to Front-Office Services ("Back-Office Services"); and
WHEREAS, on the date this Agreement is deemed approved by the Missouri
Department of Insurance, whether by specific, written approval or by the passage
of thirty days from receipt of the Agreement by the Missouri Department of
Insurance (the "Agreement Effective Date"), Assignor desires to assign and
transfer to Assignee, and Assignee desires to accept and assume, all of
Assignor's rights and obligations under the Advisory Agreement (other than in
respect of Back-Office Services and the Portfolio Management Services) with
respect to all assets other than any and all commercial mortgage loan assets
(the "Real Estate Mortgage Assets") and real estate assets other than the Real
Estate Mortgage Assets (the "Real Estate Equity and Joint Venture Assets") (the
"Assigned Assets); and
WHEREAS, Assignor desires to continue to perform Portfolio Management
Services in respect of the Assigned Assets until such date as Assignee shall
notify Assignor in writing, but in any event no later than June 30, 2000 (the
"Portfolio Management Termination Date"), at which time Assignor desires to
assign and transfer, and Assignee desires to accept and assume, all of
Assignor's rights and obligations in respect of Portfolio Management Services
under the Advisory Agreement with respect to the Assigned Assets (the "Portfolio
Management Assignment")
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WHEREAS, Assignor desires to continue to perform Back-Office Services
in respect of the Assigned Assets until such date as Assignee shall notify
Assignor in writing, but in any event no later than September 30, 2000 (the
"Back-Office Termination Date"), at which time Assignor desires to assign and
transfer, and Assignee desires to accept and assume, all of Assignor's rights
and obligations in respect of Back-Office Services under the Advisory Agreement
with respect to the Assigned Assets (the "Back-Office Assignment"); and
WHEREAS, Assignor desires to continue to perform Front-Office Services
and Back-Office Services in respect of the Real Estate Equity and Joint Venture
Assets until such date as Assignee shall notify Assignor in writing, but in any
event no later than the Back-Office Termination Date (the "Real Estate Equity
and Joint Venture Assignment Date"), at which time Assignor desires to assign
and transfer, and Assignee desires to accept and assume, all of Assignor's
rights and obligations in respect of the Real Estate Equity and Joint Venture
Assets under the Advisory Agreement (the "Real Estate Equity and Joint Venture
Asset Assignment"); and
WHEREAS, notwithstanding the assignments set forth herein, Assignor
will continue to provide Front-Office Services and Back-Office Services with
respect to the Real Estate Mortgage Assets; and
WHEREAS, Assignee is a registered investment adviser under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, General American desires to consent to the assignments
described above and to the payment of fees in respect of services rendered by
Assignee and Assignor that will be provided in respect of the Assigned Assets,
the Real Estate Equity and Joint Venture Assets and the Real Estate Mortgage
Assets.
NOW, THEREFORE, in consideration for the covenants, agreements and
assignments set forth herein, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto,
intending to be legally bound, have agreed as follows:
1. Various Assignments.
a. Assigned Assets. Effective on the Agreement Effective
Date, Assignor hereby assigns and transfers, and
Assignee hereby accepts and assumes, all of Assignor's
rights and obligations under the Advisory Agreement
(other than in respect of Back-Office Services and
Portfolio Management Services) with respect to the
Assigned Assets.
b. Portfolio Management Services. Effective on the
Portfolio Management Termination Date, Assignor hereby
assigns and transfers, and Assignee hereby accepts and
assumes, all of Assignee's rights and obligations under
the Advisory Agreement relating to Portfolio Management
Services in respect of the Assigned Assets.
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c. Back-Office Services. Effective on the Back-Office
Termination Date, Assignor hereby assigns and transfers,
and Assignee hereby accepts and assumes, all of
Assignee's rights and obligations under the Advisory
Agreement relating to Back-Office Services in respect of
the Assigned Assets.
d. Real Estate Equity and Joint Venture Assets. Effective
on the Real Estate Equity and Joint Venture Assignment
Date, Assignor hereby assigns and transfers, and
Assignee hereby accepts and assumes, all of Assignor's
rights and obligations under the Advisory Agreement in
respect of the Real Estate Equity and Joint Venture
Assets.
2. Assignor's Continued Performance of Portfolio Management Services
and Back-Office Services; Services Relating to Real Estate Equity
and Joint Venture Assets and Real Estate Mortgage Assets.
a. Portfolio Management Services. For a period beginning on
the date hereof and ending on the Portfolio Management
Termination Date, Assignor shall continue to perform
Portfolio Management Services in respect of the Assigned
Assets.
b. Back-Office Services. For a period beginning on the date
hereof and ending on the Back-Office Termination Date,
Assignor shall continue to perform Back-Office Services
in respect of the Assigned Assets.
c. Real Estate Equity and Joint Venture Assets. For a
period beginning on the date hereof and ending on the
Real Estate Equity and Joint Venture Assignment Date,
Assignor will continue to perform Front-Office Services
and Back-Office Services with respect to the Real Estate
Equity and Joint Venture Assets.
d. Real Estate Mortgage Assets. Notwithstanding the various
assignments described in Section 1 hereof, Assignor
shall continue to perform Front-Office Services and
Back-Office Services with respect to the Real Estate
Mortgage Assets.
3. Fees. General American hereby agrees to pay quarterly fees in
arrears (which shall be pro-rated for any partial quarter) within 30
days after the end of the quarter to which such fees relate, which
fees shall be calculated and paid as follows:
a. Assignor's Fees.
(i) Portfolio Management Services for the
Assigned Assets. In consideration for its
performance of Portfolio Management Services
in respect of the Assigned Assets from the
date hereof through (and including) the
Portfolio Management Termination
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Date, General American shall pay to Assignor
a quarterly fee equal to the product of (x)
the market value of the Assigned Assets as
determined by Assignor as at the last day of
the quarter to which such payment relates
and (y) the applicable percentage set forth
on the fee schedule annexed hereto as
Exhibit A (the "Fee Schedule").
(ii) Back-Office Services for the Assigned
Assets. In consideration for its performance
of Back-Office Services in respect of the
Assigned Assets from the date hereof through
(and including) the Back-Office Termination
Date, General American shall pay to Assignor
a quarterly fee equal to the product of (x)
the market value of the Assigned Assets as
determined by Assignor as at the last day of
the quarter to which such payment relates
and (y) the applicable percentage set forth
on the Fee Schedule.
(iii) Real Estate Equity and Joint Venture Assets.
In consideration for all services rendered
by Assignor with respect to the Real Estate
Equity and Joint Venture Assets, from the
Agreement Effective Date and through (and
including) the Real Estate Equity and Joint
Venture Assignment Date, General American
shall pay to Assignor a quarterly fee equal
to the product of (x) the gross market value
of the Real Estate Equity and Joint Venture
Assets determined by Assignor as at the last
day of the quarter to which such payment
relates and (y) the applicable percentage
set forth on the Fee Schedule.
(iv) Real Estate Mortgage Assets. After the
Agreement Effective Date, in consideration
for all services rendered thereafter by
Assignor with respect to the Real Estate
Mortgage Assets, General American shall pay
to Assignor a quarterly fee equal to the
product of (x) the aggregate unpaid
principal balance of the mortgage loans
comprising the Real Estate Mortgage Assets
determined by Assignor as at the last day of
the quarter to which such payment relates
and (y) the applicable percentage set forth
on the Fee Schedule.
b. Assignee's Fees.
(i) Investment Advisory Services. In
consideration for Assignee's performance of
Investment Advisory Services in respect of
the Assigned Assets from the Agreement
Effective Date through (and including) the
Portfolio Management Termination Date,
General American shall pay to Assignee a
quarterly fee equal to the product of (x)
the market value of the Assigned Assets as
determined by Assignor as at the last day of
the quarter to
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which such payment relates and (y) the
applicable percentage set forth on the Fee
Schedule.
(ii) Front-Office Services. In consideration for
Assignee's performance of Front-Office
Services in respect of the Assigned Assets
from the Portfolio Management Termination
Date through (but not including) the
Back-Office Termination Date, General
American shall pay to Assignee a quarterly
fee equal to the product of (x) the market
value of the Assigned Assets as determined
by Assignor as at the last day of the
quarter to which such payment relates and
(y) the applicable percentage set forth on
the Fee Schedule.
(iii) Front-Office Services and Back-Office
Services. In consideration for Assignee's
performance of Front-Office Services and
Back-Office Services in respect of the
Assigned Assets from and after the
Back-Office Termination Date, General
American shall pay to Assignee a quarterly
fee equal to the product of (x) the market
value of the Assigned Assets as determined
by Assignee as at the end of such quarter
and (y) the applicable percentage set forth
on the Fee Schedule.
(iv) Real Estate Equity and Joint Venture Assets.
In consideration for Assignee's performance
of Front-Office Services and Back-Office
Services in respect of the Real Estate
Equity and Joint Venture Assets from and
after the Real Estate Equity and Joint
Venture Assignment Date, General American
shall pay to Assignee a quarterly fee equal
to the product of (x) the gross market value
of the Real Estate Equity and Joint Venture
Assets as determined by Assignee as at the
last day of the quarter to which such
payment relates and (y) the applicable
percentage set forth on the Fee Schedule.
4. Consent of General American. General American hereby consents to the
assignments set forth in Section 1 hereof, the Fee Schedule and the
other transactions contemplated by this Agreement.
5. Undertakings of Assignee; Standard of Care.
a. In consideration of the compensation described in
Section 3(b) above, Assignee undertakes to perform the
duties required of the "Advisor" in the Advisory
Agreement.
b. Assignee agrees to perform its services under the
Advisory Agreement with the same care and attention that
it applies to the services it provides to its own
accounts and to the accounts of its other clients,
making every reasonable effort to avoid conflicts of
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interest between or among General American, its own
accounts and the accounts of its other clients.
c. Assignee undertakes to perform the Front-Office Services
and the Back-Office Services in accordance with
applicable law and regulations, including the law and
regulations of Missouri relating to life insurance
companies such as General American; provided that,
General American shall provide Assignee with guidance
and assistance in respect of any such laws and
regulations of Missouri that relate to Assignee's
performance of Front-Office Services and Back-Office
Services hereunder.
d. Assignee will cooperate with Assignor to ensure that the
transition of Front-Office Services and Back-Office
Services contemplated by this Agreement occurs smoothly
and without harm to General American; provided that,
nothing contained in this Agreement shall constitute a
representation or warranty of Assignee, or otherwise
obligate Assignee, in respect of the future investment
performance of any of the Assigned Assets or Real Estate
Equity and Joint Venture Assets.
6. Term and Termination. The terms of this Section 6 shall supercede in
its entirety Paragraph 9 of the Advisory Agreement. The term of this
Agreement shall be the period of time from March 1, 2000 until
termination by either party at any time upon ninety (90) days
written notice, subject to the satisfaction of all outstanding
obligations hereunder. In the event of termination of this
Agreement, all books and records (including magnetic records, files,
and spreadsheets) maintained by Assignee in connection with the
performance of any of the services described herein will be
transferred to General American.
7. Miscellaneous.
a. Entire Agreement; Assignment; Amendment. This Agreement
(i) constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and
supersedes all other prior agreements and
understandings, both written and oral, between the
parties with respect to the subject matter hereof, and
(ii) shall not be assigned by operation of law or
otherwise without the prior written consent of the other
parties hereto (which consent shall not be unreasonably
withheld). This Agreement shall not be amended except
pursuant to a writing that is executed by all parties
hereto.
b. Severability. If any provision of this Agreement, or the
application thereof to any person or circumstance, is
held invalid or unenforceable, such provision shall be
enforced to the maximum extent permissible in the
circumstances, and the remainder of this Agreement, and
the application of such provision to other persons or
circumstances, shall
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not be affected thereby, and to such end, shall be
severable and enforced to the greatest extent permitted
by applicable law.
c. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Missouri, without regard to the principles of conflicts
of law thereof.
d. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are
not intended to be part of or to affect the meaning or
interpretation of this Agreement.
e. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party
hereto and its successors and permitted assigns, and
nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person,
entity, or group any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
f. Notices. All notices, requests, claims, demands, and
other communications hereunder shall be in writing
(including by facsimile with written confirmation
thereof) and unless otherwise expressly provided herein,
shall be delivered during normal business hours by hand,
by Federal Express, United Parcel Service or other
nationally recognized overnight commercial delivery
service, or by facsimile notice, confirmation of receipt
received, addressed as follows, or to such other address
as may be hereafter specified by the respective parties
hereto:
If to Assignor, to:
Conning Asset Management Company
700 Market Street
St. Louis, MO 63101
Attn: Douglas R. Koester
Fax: (314) 444-0613
with a copy (which shall not constitute notice) to:
Conning Asset Management Company
700 Market Street
St. Louis, MO 63101
Attn: Matthew P. McCauley, Esq., General Counsel
Fax: (314) 444-0510
If to Assignee, to:
Metropolitan Life Insurance Company
334 Madison Avenue
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Convent Station, NJ 07961
Attn: Anthony J. Williamson, Senior Vice-President
Fax: (973) 254-3054
with a copy (which shall not constitute notice) to:
Metropolitan Life Insurance Company
One Madison Avenue
New York, NY 10010
Attn: Jane Weinberg, Esq., Vice-President and
Investment Counsel
Fax: (212) 578-3916
If to General American, to:
General American Life Insurance Company
700 Market Street
St. Louis, MO 63101
Attn: Barry Cooper
Fax: (314) 444-0588
with a copy (which shall not constitute notice) to:
General American Life Insurance Company
700 Market Street
St. Louis, MO 63101
Attn: Matthew P. McCauley, Esq., Vice-President and
Associate General Counsel
Fax: (314) 444-0510
g. Counterparts. This Agreement may be executed in two or
more counterparts (including by facsimile), each of which
shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
h. Further Assurances. Assignor, Assignee and General
American each acknowledge and agree that they shall
execute and deliver such further amendments and/or
modifications to the Advisory Agreement as shall be
reasonably requested from time to time in order to carry
out the intention and/or facilitate the performance of the
terms of this Agreement, including, but not limited to,
further specifying the scope of services to be provided to
General American with respect to Investment Advisory
Services, Portfolio Management Services, Front-Office
Services and Back-Office Services.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the day and year first above
written.
ASSIGNOR:
CONNING ASSET MANAGEMENT COMPANY
By: /s/ Douglas R. Koester
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Name: Douglas R. Koester
Title: Senior Vice President
ASSIGNEE:
METROPOLITAN LIFE INSURANCE COMPANY
By:/s/ Anthony J. Williamson
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Name: Anthony J. Williamson
Title: Senior Vice-President
GENERAL AMERICAN:
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: /s/ Richard A. Liddy
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Name: Richard A. Liddy
Title: Chairman, President and
Chief Executive Officer
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Exhibit A
Fee Schedule
The following annual fees will be charged on a quarterly basis:
Assignor's Fees:
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Portfolio Management Services: 0.03% per annum (0.0075% per
[SECTION 3(a)(i)] quarter)
Back-Office Services: 0.02% per annum (0.0050% per
[SECTION 3(a)(ii)] quarter)
Real Estate Equity 0.78% per annum (0.195% per
and Joint Venture Assets: quarter)
SECTION 3(a)(iii)]
Real Estate Mortgage Assets: 0.22% per annum (0.055% per
[SECTION 3(a)(iv)] quarter)
Assignee's Fees:
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Investment Advisory Services: 0.05% per annum (0.0125% per
[SECTION 3(b)(i)] quarter)
Front-Office Services: 0.08% per annum (0.02% per
[SECTION 3(b)(ii)] quarter)
Front-Office Services 0.10% per annum (0.025% per
and Back-Office Services: quarter)
[SECTION 3(b)(iii)]
Real Estate Equity and Joint Venture
Assets: 0.45% per annum (0.1125% per
[SECTION 3(b)(iv)] quarter)
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