SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 2nd day of May, 2005,
among GARTMORE VARIABLE INSURANCE TRUST (formerly Nationwide Separate Account
Trust), a Delaware statutory trust (the "Trust"), GARTMORE MUTUAL FUND CAPITAL
TRUST (formerly Villanova Mutual Fund Capital Trust, as assignee of Nationwide
Advisory Services, Inc.) (the "Adviser"), a Delaware statutory trust registered
under the Investment Advisers Act of 1940 (the "Advisers Act"), and Federated
Investment Management Company, a Delaware statutory trust (the "Subadviser"),
and also registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of May 2, 2005 (the "Advisory Agreement"), been retained
to act as investment adviser for certain of the series of the Trust which are
listed on Exhibit A to this Agreement (each a "Fund");
WHEREAS, the Advisory Agreement permits the Adviser to delegate certain
of its duties under the Advisory Agreement to other investment advisers, subject
to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Trust's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. APPOINTMENT AS SUBADVISER. The Adviser hereby retains the Subadviser
to act as investment adviser for and to manage the Subadviser Assets subject to
the supervision of the Adviser and the Board of Trustees of the Trust and
subject to the terms of this Agreement; and the Subadviser hereby accepts such
employment. In such capacity, the Subadviser shall be responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser now acts, and that from time to time hereafter may act, as investment
adviser to one or more other investment companies and to fiduciary or other
managed accounts and that the Adviser and the Trust have no objection to such
activities.
2. DUTIES OF SUBADVISER.
(a) INVESTMENTS. The Subadviser is hereby authorized and directed
and hereby agrees, subject to the stated investment policies and
restrictions of each Fund as set forth in that Fund's prospectus and
statement of additional information as currently in effect and as
supplemented or amended from time to time (collectively referred to
hereinafter as the "Prospectus") and subject to the directions of the
Adviser and the Trust's Board of Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous
basis the performance of the Subadviser Assets. In providing these
services, the Subadviser will conduct a continual program of
investment, evaluation and, if appropriate, sale and reinvestment of
each fund's Subadviser Assets. The Adviser agrees to provide the
Subadviser with such assistance as may be reasonably requested by the
Subadviser in connection with its activities under this Agreement,
including, without limitation, information concerning each Fund, its
funds available, or to become available, for investment and generally
as to the conditions of the Fund's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. In
the performance of its duties and obligations under this Agreement, the
Subadviser shall act in conformity with the Prospectus and the Trust's
Agreement and Declaration of Trust and By-Laws as currently in effect
and, as soon as practical after the Trust, the Fund or the Adviser
notifies the Subadviser thereof, as supplemented, amended and/or
restated from time to time (referred to hereinafter as the Declaration
of Trust" and "By-Laws," respectively) and with the instructions and
directions received in writing from the Adviser or the Trustees of the
Trust and will conform to, and comply with, the requirements of the
1940 Act, the Internal Revenue Code of 1986, as amended (the "Code"),
and all other applicable federal and state laws and regulations.
Notwithstanding the foregoing, the Adviser shall remain responsible for
ensuring each Fund's overall compliance with the 1940 Act, the Code and
all other applicable federal and state laws and regulations and the
Subadviser is only obligated to comply with this subsection (b) with
respect to the Subadviser Assets.
The Adviser will provide the Subadviser with reasonable
advance notice of any change in a Fund's investment objectives,
policies and restrictions as stated in the Prospectus, and the
Subadviser shall, in the performance of its duties and obligations
under this Agreement, manage the Subadviser Assets consistent with such
changes, provided the Subadviser has received prompt notice of the
effectiveness of such changes from the Trust or the Adviser. In
addition to such notice, the Adviser shall provide to the Subadviser a
copy of a modified Prospectus reflecting such changes. The Adviser
acknowledges and agrees that the Prospectus will at all times be in
compliance with all disclosure requirements under all applicable
federal and state laws and regulations relating to the Trust or a Fund,
including, without limitation, the 1940 Act, and the rules and
regulations thereunder, and that the Subadviser shall have no liability
in connection therewith, except as to the accuracy of material
information furnished by the Subadviser to a Fund or to the Adviser
specifically for inclusion in the Prospectus. The Subadviser hereby
agrees to provide to the Adviser in a timely manner such information
relating to the Subadviser and its relationship to, and actions for, a
Fund as may be required to be contained in the Prospectus or in the
Trust's registration statement on Form N-1 A.
(c) VOTING OF PROXIES. The Subadviser shall have the power to
vote, either in person or by proxy, all securities in which the
Subadviser Assets may be invested from time to time, and shall not be
required to seek or take instructions from the Adviser or the Fund or
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take any action with respect thereto. If both the Subadviser and
another entity managing assets of a Fund have invested in the same
security, the Subadviser and such other entity will each have the power
to vote its pro rata share of the security.
The Subadviser will establish a written procedure for proxy
voting in compliance with current applicable rules and regulations,
including but not limited to Rule 30b1-4 under the 1940 Act. The
Subadviser will provide the Adviser or its designee, a copy of such
procedure and establish a process for the timely distribution of the
Subadviser's voting record with respect to the Fund's securities and
other information necessary for the Fund to complete information
required by Form N-1A under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act,
and Form N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, as amended,
respectively.
(d) AGENT. Subject to any other written instructions of the
Adviser or the Trust, the Subadviser is hereby appointed the Adviser's
and the Trust's agent and attorney-in-fact for the limited purposes of
executing account documentation, agreements, contracts and other
documents as the Subadviser shall be requested by brokers, dealers,
counterparties and other persons in connection with its management of
the Subadviser Assets. The Subadviser agrees to provide the Adviser and
the Trust with copies of any such agreements executed on behalf of the
Adviser or the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the
supervision of the Adviser and the Trust's Board of Trustees, to
establish and maintain accounts on behalf of the Fund with, and place
orders for the purchase and sale of the Subadviser Assets with or
through, such persons, brokers or dealers (collectively, "Broker(s)")
as Subadviser may elect and negotiate commissions to be paid on such
transactions. The Subadviser, however, is not required to obtain the
consent of the Adviser or the Trust's Board of Trustees prior to
establishing any such brokerage account. The Subadviser shall place all
orders for the purchase and sale of portfolio investments for a Fund's
account with Brokers selected by the Subadviser. In the selection of
such Brokers and the placing of such orders, the Subadviser shall seek
to obtain for the Fund the most favorable price and execution
available, except to the extent it may be permitted to pay higher
brokerage commissions for brokerage and research services, as provided
below. In using its reasonable efforts to obtain for a Fund the most
favorable price and execution available, the Subadviser, bearing in
mind such Fund's best interests at all times, shall consider all
factors it deems relevant, including price, the size of the
transaction, the breadth and nature of the market for the security, the
difficulty of the execution, the amount of the commission, if any, the
timing of the transaction, market prices and trends, the reputation,
experience and financial stability of the Broker involved, and the
quality of service rendered by the broker in other transactions.
Subject to such policies as the Trustees may determine, or as may be
mutually agreed to by the Adviser and the Subadviser, the Subadviser
shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its
having caused a Fund to pay a broker that provides brokerage and
research services (within the meaning of Section 28(e) of the
Securities Exchange Act of 1934) to the Subadviser an amount of
commission for effecting a Fund investment transaction that is in
excess of the amount of commission that another broker would have
charged for effecting that transaction if but only if, the Subadviser
determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services provided
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by such Broker or dealer viewed in terms of either that particular
transaction or the overall responsibility of the Subadviser and its
affiliates with respect to the accounts as to which it and its
affiliates exercise investment discretion.
It is recognized that the services provided by such Brokers
may be useful to the Subadviser in connection with the Subadviser's and
its affiliates' services to other clients. On occasions when the
Subadviser deems the purchase or sale of a security to be in the best
interests of a Fund as well as other clients of the Subadviser and its
affiliates, the Subadviser, to the extent permitted by applicable laws
and regulations, may, but shall be under no obligation to, aggregate
the securities to be sold or purchased in order to obtain the most
favorable price or lower brokerage commissions and efficient execution.
In such event, allocation of securities so sold or purchased, as well
as the expenses incurred in the transaction, will be made by the
Subadviser in the manner the Subadviser considers to be the most
equitable and consistent with its fiduciary obligations to the Fund and
to such other clients. It is recognized that in some cases, this
procedure may adversely affect the price paid or received by the Fund
or the size of the position obtainable for, or disposed of by, the
Fund.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other
instruments from or sell securities or other instruments to a Fund;
provided, however, the Subadviser and any affiliated person of the
Subadviser may purchase securities or other instruments from or sell
securities or other instruments to a Fund if such transaction is
permissible under applicable laws and regulations or orders, including,
without limitation, the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
The Subadviser, including its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe and
comply with Rule 17j-1 and the Subadviser's Code of Ethics (which shall
comply in all material respects with Rule 17j-1), as the same may be
amended from time to time. On a quarterly basis, the Subadviser will
either (i) certify to the Adviser that the Subadviser and its Access
Persons have complied with the Subadviser's Code of Ethics with respect
to the Subadviser Assets or (ii) identify any violations which have
occurred with respect to the Subadviser Assets.
(g) BOOKS AND RECORDS. The Subadviser shall maintain separate
detailed records of all matters pertaining to management of the Trust
(the "Subadviser's Records") including, without limitation, brokerage
and other records of all securities transactions. The Subadviser
acknowledges that the Fund's records are property of the Trust. The
Subadviser's Records shall be available to the Adviser at any time upon
reasonable request during normal business hours and shall be available
for telecopying without delay to the Adviser during any day that the
Fund is open for business. The Subadviser shall not be responsible for
the provision of administrative, bookkeeping or accounting services to
the Trust. The Adviser hereby acknowledges that the Subadviser is not
responsible for pricing portfolio securities, and that the Adviser, the
Trust and the Subadviser will rely on the pricing agent chosen by the
Board of Trustees for the prices of securities; provided, however, that
to the extent that such pricing agents are unable to provide prices for
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certain securities, the Subadviser will assist the Adviser in obtaining
a price for such securities.
(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISER. From
time to time as the Adviser or a Fund may request, the Subadviser will
furnish the requesting party reports on portfolio transactions and
reports on Subadviser Assets held in the portfolio, all in such detail
as the Adviser or a Fund may reasonably request. The Subadviser will
also inform the Adviser in a timely manner of material changes in
portfolio managers responsible for Subadviser Assets, any changes in
the ownership or management of the Subadviser, or of material changes
in the control of the Subadviser. Upon reasonable request, the
Subadviser will make available its officers and employees to meet with
the Trust's Board of Trustees to review the Subadviser Assets.
The Subadviser will maintain compliance procedures for each
Fund that it believes is adequate to ensure each Fund's compliance, and
will provide such information as may be required for a Fund or the
Adviser to comply with their respective obligations, under applicable
laws, including, without limitation, the Code, the 1940 Act, the
Advisers Act, the Securities Act of 1933, as amended (the "Securities
Act") and any state securities laws, and any rule or regulation
thereunder.
(i) CUSTODY ARRANGEMENTS. The Subadviser shall on each business
day provide the Adviser and the Trust's custodian such information as
the Adviser and the Trust's custodian may reasonably request in such
form as may be mutually agreed upon relating to all transactions
concerning the Subadviser Assets.
(j) HISTORICAL PERFORMANCE INFORMATION. To the extent agreed upon
by the parties, the Subadviser will provide the Trust with historical
performance information on similarly managed investment companies or
for other accounts to be included in the Prospectus or for any other
uses permitted by applicable law.
3. INDEPENDENT CONTRACTOR. In the performance of its duties hereunder,
the Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent a Fund, the Trust or the Adviser in any way or
otherwise be deemed an agent of a Fund, the Trust or the Adviser.
4. EXPENSES. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased for a
Fund. The Subadviser shall, at its sole expense, employ or associate itself with
such persons as it believes to be particularly fitted to assist it in the
execution of its duties under this Agreement. The Subadviser shall not be
responsible for the Trust's, a Fund's or Adviser's expenses, including any
extraordinary and non-recurring expenses. The Trust or the Adviser, as the case
may be, shall reimburse the Subadviser for any expenses of a Fund or the Adviser
as may be reasonably incurred by such Subadviser on behalf of such Fund or the
Adviser, including any extraordinary and non-recurring expenses. The Subadviser
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shall keep and supply to the Trust and the Adviser reasonable records of all
such expenses.
5. COMPENSATION. For the services provided and the expenses assumed
with respect to the Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee listed for each Fund on Exhibit A. Such fees will be
computed daily and payable no later than the seventh (7th) business day
following the end of each month, from the Adviser or the Trust, calculated at an
annual rate based on the Subadviser Assets' average daily net assets.
The method of determining net asset value of the Subadviser Assets for
purposes hereof shall be the same as the method of determining net asset value
for purposes of establishing the offering and redemption price of the shares of
the Trust as described in the Fund's Prospectus. If this Agreement shall be
effective for only a portion of a month, the aforesaid fee shall be prorated for
the portion of such month during which this Agreement is in effect.
6. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered as an investment adviser under
the Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to
Rule 4.14 under the Commodity Exchange Act, as amended (the "CEA"),
with the Commodity Futures Trading Commission (the "CFTC") and the
National Futures Association (the "NFA"), or is not required to file
such exemption;
(c) The Subadviser is a Delaware statutory trust, duly organized
and validly existing under the laws of the State of Delaware with the
power to own and possess its assets and carry on its business as it is
now being conducted;
(d) The execution, delivery and performance by the Subadviser of
this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action on the part of its Board of
Trustees, and no action by, or in respect of or filing with, any
governmental body, agency or official is required on the part of the
Subadviser for the execution, delivery and performance by the
Subadviser of this Agreement, and the execution, delivery and
performance by the Subadviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Subadviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Subadviser;
(e) The Form ADV of the Subadviser provided to the Adviser is a
true and complete copy of the form, including that part or parts of the
Form ADV filed with the SEC, that part or parts maintained in the
records of the Adviser, and/or that part or parts provided or offered
to clients, in each case as required under the Advisers Act and rules
thereunder, and the information contained therein is accurate and
complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading. In
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addition, the Subadviser agrees to promptly provide the Trust with
updates of its Form ADV.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule
4.14 under the CEA with the CFTC and the NFA or is not required to file
such exemption;
(c) The Adviser is a statutory trust duly organized and validly
existing under the laws of the State of Delaware with the power to own
and possess its assets and carry on its business as it is now being
conducted;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized
by all necessary action on the part of its shareholders or directors,
and no action by or in respect of or filing with, any governmental
body, agency or official is required on the part of the Adviser for the
execution, delivery and performance by the Adviser of this Agreement,
and the execution, delivery and performance by the Adviser of this
Agreement do not contravene or constitute a default under (i) any
provision of applicable law, rule or regulation, (ii) the Adviser's
governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Adviser;
(e) The Form ADV of the Adviser provided to the Subadviser and the
Trust is a true and complete copy of the form, including that part or
parts of the Form ADV filed with the SEC, that part or parts maintained
in the records of the Adviser, and/or that part or parts provided or
offered to clients, in each case as required under the Advisers Act and
rules thereunder, and the information contained therein is accurate and
complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading;
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement; and
(g) The Adviser and the Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Adviser to enter
into this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a statutory trust duly formed and validly
existing under the laws of the State of Delaware with the power to own
and possess its assets and carry on its business as it is now being
conducted;
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(b) The Trust is registered as an investment company under the
1940 Act and the Fund's shares are registered under the Securities Act;
(c) The execution, delivery and performance by the Trust of this
Agreement are within the Trust's powers and have been duly authorized
by all necessary action on the part of the Trust and its Board of
Trustees, and no action by or in respect o f; or filing with, any
governmental body, agency or official is required on the part of the
Trust for the execution, delivery and performance by the Adviser of
this Agreement, and the execution, delivery and performance by the
Trust of this Agreement do not contravene or constitute a default under
(i) any provision of applicable law, rule or regulation, (ii) the
Trust's governing instruments, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Trust;
and
(d) The Trust acknowledges that it received a copy of the
Subadviser's Form ADV prior to execution of this Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser, the
Adviser and the Trust pursuant to Sections 6, 7 and 8, respectively, shall
survive for the duration of this Agreement and the parties hereto shall promptly
notify each other in writing upon becoming aware that any of the foregoing
representations and warranties are no longer true.
10. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. In the absence of willful misfeasance, bad faith or
gross negligence on the part of the Subadviser or a reckless disregard
of its duties hereunder, the Subadviser, each of its affiliates and all
respective partners, officers, directors and employees ("Affiliates")
and each person, if any, who within the meaning of the Securities Act
controls the Subadviser ("Controlling Persons") shall not be subject to
any expenses or liability to the Adviser, the Trust or a Fund or any of
a Fund's shareholders. In the absence of willful misfeasance, bad faith
or gross negligence on the part of the Adviser or a reckless disregard
of its duties hereunder, the Adviser, any of its Affiliates and each of
the Adviser's Controlling Persons, if any, shall not be subject to any
liability to the Subadviser, for any act or omission in the case of, or
connected with, rendering services hereunder or for any losses that may
be sustained in the purchase, holding or sale of Subadviser Assets;
provided, however, that nothing herein shall relieve the Adviser and
the Subadviser from any of their obligations under applicable law,
including, without limitation, the federal and state securities laws
and the CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the Adviser
and the Trust, and their respective Affiliates and Controlling Persons
for any liability and expenses, including reasonable attorneys' fees,
which the Adviser and the Trust and their respective Affiliates and
Controlling Persons may sustain as a result of the Subadviser's willful
misfeasance, bad faith, gross negligence, reckless disregard of its
duties hereunder or violation of applicable law, including, without
limitation, the federal and state securities laws or the CEA. Subject
8
to the above standard of care, the Subadviser will indemnify the
Adviser and the Trust, and their respective Affiliates and Controlling
Persons for any liability and expenses, including reasonable attorneys'
fees, to which they may be subjected as a result of the Subadviser
providing inaccurate historical performance calculations concerning the
Subadviser's composite account data or historical performance
information on similarly managed investment companies or accounts,
except that the Adviser and the Trust and their respective Affiliates
and Controlling Persons shall not be indemnified for any liability or
expense resulting from their negligence or willful misconduct in using
such information.
The Adviser shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including reasonable
attorneys' fees, which may be sustained as a result of the Adviser's willful
misfeasance, bad faith, gross negligence, reckless disregard of its duties
hereunder or violation of applicable law, including, without limitation, the
federal and state securities laws or the CEA.
11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until February 27, 2006, with respect to any Fund covered by
this Agreement initially and, for any Fund subsequently added to this
Agreement, an initial period of no more than two years that terminates
on the second February 27th that occurs following the effective date of
this Agreement with respect to such Fund, and thereafter shall continue
automatically for successive annual periods with respect to each of the
Funds, provided such continuance is specifically approved at least
annually by the Trust's Board of Trustees or vote of the lesser of (a)
67% of the shares of a Fund represented at a meeting if holders of more
than 50% of the outstanding shares of a Fund are present in person or
by proxy or (b) more than 50% of the outstanding shares of a Fund;
provided that in either event its continuance also is approved by a
majority of the Trust's Trustees who are not "interested persons" (as
defined in the 0000 Xxx) of any party to this Agreement, by vote cast
in person at a meeting called for the purpose of voting on such
approval.
(b) TERMINATION. Notwithstanding whatever may be provided herein
to the contrary, this Agreement may be terminated at any time, without
payment of any penalty:
(i) By vote of a majority of the Trust's Board of Trustees, or by
"vote of a majority of the outstanding voting securities" of the Fund
(as defined in the 1940 Act), or by the Adviser, in each case, upon at
least 60 days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to the
other parties in the event of a breach of any provision of this
Agreement by either of the other parties; or
(iii) By the Subadviser upon at least 60 days' written notice to
the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined
in the 0000 Xxx) and shall terminate automatically in the event of its
assignment or upon the termination of the Advisory Agreement.
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12. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in each Fund.
13. REFERENCE TO SUBADVISER. Neither the Adviser nor any Affiliate or
agent of the Adviser shall make reference to or use the name of Subadviser or
any of its Affiliates, or any of their clients, except references concerning the
identity of and services provided by Subadviser to a Fund, which references
shall not differ in substance from those included in the Fund's Prospectus and
this Agreement, in any advertising or promotional materials without the prior
approval of Subadviser, which approval shall not be unreasonably withheld or
delayed. The Adviser hereby agrees to make all reasonable efforts to cause the
Fund and any Affiliate thereof to satisfy the foregoing obligation.
14. AMENDMENT. This Agreement may be amended by mutual consent of the
parties, provided that the terms of any material amendment shall be approved by:
(a) the Trust's Board of Trustees or by a vote of a majority of the outstanding
voting securities of the Fund (as required by the 1940 Act), and (b) the vote of
a majority of those Trustees of the Trust who are not "interested persons" of
any party to this Agreement cast in person at a meeting called for the purpose
of voting on such approval, if such approval is required by applicable law.
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the Funds
and the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto shall
treat as confidential all information pertaining to the Funds and the actions of
the Subadviser, the Adviser and the Funds in respect thereof.
16. NOTICE. Any notice that is required to be given by the parties to
each other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Federated Investment Management Company
Federated Investors Tower
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxx, Fund Administrator
Facsimile: (000) 000-0000
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(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
17. JURISDICTION. This Agreement shall be governed by and construed to
be consistent with the Advisory Agreement and in accordance with substantive
laws of the State of Delaware without reference to choice of law principles
thereof and in accordance with the 1940 Act. In the case of any conflict, the
1940 Act shall control.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
19. CERTAIN DEFINITIONS. For the purposes of this Agreement and except
as otherwise provided herein, "interested person," "affiliated person," and
"assignment" shall have their respective meanings as set forth in the 1940 Act,
subject, however, to such exemptions as may be granted by the SEC.
20. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
21. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
22. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under the
Declaration of Trust made and dated as of September 30, 2004, as has been or may
be amended from time to time, and to which reference is hereby made.
23. FEDERATED INVESTMENT MANAGEMENT COMPANY. The Trust and the Adviser
are hereby expressly put on notice of the limitation of liability as set forth
in the Declaration of Trust of the Subadviser and agree that the obligations
assumed by the Subadviser pursuant to this Subadvisory Agreement will be limited
in any case to the Subadviser and its assets and the Adviser and the Trust shall
not seek satisfaction of any such obligations from the shareholders of the
11
Subadviser, the trustees of the Subadviser, officers, employees or agents of the
Subadviser, or any of them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
(formerly Nationwide Separate Account Trust)
By:
-----------------------------------------------
Name:
Title:
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
(formerly Villanova Mutual Fund Capital Trust)
By:
-----------------------------------------------
Name:
Title:
SUBADVISER
FEDERATED INVESTMENT MANAGEMENT COMPANY
By:
-----------------------------------------------
Name:
Title:
12
EXHIBIT A
SUBADVISORY AGREEMENT
BY AND AMONG GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND FEDERATED INVESTMENT MANAGEMENT COMPANY
EFFECTIVE MAY 2, 2005
FUNDS OF THE TRUST ADVISORY FEES
------------------ -------------
Federated GVIT High Income Bond Fund 0.40% on Subadviser Assets up to $50 million
0.25% on Subadviser Assets of $50 million
and more but less than $250 million
0.20% on Subadviser Assets of $250 million
and more but less than $500 million
0.15% for Subadviser Assets of $500 million
and more
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EXHIBIT B
SUBADVISORY AGREEMENT AMONG
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND
FEDERATED INVESTMENT MANAGEMENT COMPANY
EFFECTIVE MAY 2, 2005
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to a discrete portion of
the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in
connection with the Adviser's (i) overall supervisory responsibility for the
general management and investment of the Fund's assets; (ii) determination of
the allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager. This prohibiton also does not apply to communications or
disclosures required by applicable law or necessary in order to comply (or
ensure compliance) with applicable law.
