INVESTMENT ADVISORY AGREEMENT FOR SUBADVISER
INVESTMENT
ADVISORY AGREEMENT FOR SUBADVISER
AGREEMENT
made as of the 1st day
of May,
2006
by and among Sun Capital Advisers LLC, a Delaware limited liability company
(the
"Investment Adviser"), Sun Capital Advisers Trust, a Delaware statutory trust
(the "Trust"), on behalf of its series, SC FI Large Cap Growth Fund (the
“Fund”), and Pyramis Global Advisors, LLC, a Delaware limited liability company
(the “Subadviser").
WHEREAS,
the Trust is an open-end, management investment company, registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a
series of the Trust;
WHEREAS,
the Investment Adviser and the Subadviser are investment advisers registered
with the Securities and Exchange Commission under the Investment Advisers Act
of
1940, as amended (the “Advisers Act”);
WHEREAS,
pursuant to the provisions of the Investment Advisory Agreement dated May 1,
2006 between the Investment Adviser and the Trust, on behalf of the Fund, the
Investment Adviser may delegate any or all of its portfolio management
responsibilities under that agreement to one or more subadvisers;
WHEREAS,
the Investment Adviser has selected the Subadviser to act as a sub-investment
adviser of the Fund and to provide certain other services, as more fully set
forth below, and the Subadviser is willing to act as such sub-investment adviser
and to perform such services under the terms and conditions hereinafter set
forth;
NOW,
THEREFORE, the Investment Adviser, the Trust and the Subadviser agree as
follows:
1. Investment
Advisory and Management Services.
The
Investment Adviser hereby appoints the Subadviser to serve as subadviser to
the
Fund and the Subadviser hereby accepts such appointment. Subject to the
supervision of the Investment Adviser, Subadviser will regularly provide the
Fund with investment advice and investment management services concerning the
investments of the Fund. The Subadviser will determine what securities shall
be
purchased, held or sold by the Fund and what portion of the Fund's assets shall
be held uninvested in cash and cash equivalents, subject always to the
provisions of the Trust’s Declaration of Trust and By-laws and the 1940 Act, and
to the investment objectives, policies and restrictions applicable to the Fund
(including, without limitation, the requirements of Subchapters L and M of
the
Internal Revenue Code of 1986, as amended) (the "Code"), as each of the same
shall be from time to time in effect or set forth in the Fund’s Prospectus and
Statement of Additional Information, as well as any other investment guidelines
or policies the Trust’s Board of Trustees (the “Board” or “Trustees”) or the
Investment Adviser may from time to time establish and deliver in writing to
the
Subadviser and are agreed to by the Subadviser.
To
carry
out such determinations the Subadviser will exercise full discretion, subject
to
the preceding paragraph, and act for the Fund in the same manner and with the
same force and effect as the Trust might or could do with respect to purchases,
sales or other transactions, as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such purchases, sales
or other transactions. Notwithstanding the foregoing, the Subadviser shall
be
subject to and comply with written instructions from the Investment Adviser,
given in reasonable circumstances, including, without limitation, any
termination of this Agreement.
The
Subadviser will also make its investment professionals, other than portfolio
managers, available to meet with the officers of the Investment Adviser and
the
Trust’s officers and Trustees at least quarterly on due notice to review the
investments and investment program of the Fund in the light of current and
prospective economic and market conditions. The Subadviser shall make a senior
portfolio manager or an appropriate investment professional available for
presentations to the Board of Trustees at a meeting of the Board annually,
as
well as other meetings as may be reasonably requested. On a monthly, quarterly
or annual basis as the Board of Trustees of the Trust or the Investment Adviser
may reasonably request, the Subadviser will furnish to the Investment Adviser
and Trust’s officers and to each of its Trustees, at the Subadviser's expense,
reports on portfolio information, portfolio transactions, and issues of
securities held by the Fund, all in such detail as the Trust or the Investment
Adviser may reasonably request.
The
Subadviser will keep the Trust’s officers and the Investment Adviser informed of
developments materially affecting the Fund’s holdings, and will, upon request,
furnish the Trust’s officers and the Investment Adviser with written information
concerning the same. Upon request of the Investment Adviser and/or the Trust,
the Subadviser shall provide reasonable assistance in connection with the
determination of the fair value of securities in the Fund for which market
quotations are not readily available or if the market price does not reflect
the
security’s fair value. In such instances, the Subadviser will provide reasonable
assistance to the Investment Adviser or the Trust’s valuation committee as the
Investment Adviser or committee makes determinations of the fair value of such
portfolio securities in accordance with the Trust’s valuation procedures. The
Subadviser shall not bear responsibility or liability for the determination
of
accuracy of the valuation of any portfolio securities and other assets of the
Fund.
In
addition, the Subadviser will provide a quarterly certification, in a form
mutually agreed upon by the Investment Adviser and the Subadviser, that the
Subadviser, to the best of its knowledge after due inquiry, has managed the
Fund
in accordance with the provisions of this Section 1 of this Agreement. The
Subadviser acknowledges and agrees that the Investment Adviser may, in its
discretion, provide such quarterly compliance certifications to the Board.
The
Subadviser agrees to correct promptly any failure on its part and to take any
action that the Investment Adviser may reasonably request in connection with
any
breach of this Agreement. The Subadviser shall also provide the officers of
the
Fund with certifications, in a form mutually agreed upon by the Investment
Adviser and Subadviser, supporting the certifications made by the Trust’s
officers pursuant to the Xxxxxxxx-Xxxxx Act of the Fund’s financial statements
and disclosure controls.
The
Subadviser will cooperate with and provide reasonable assistance to the
Investment Adviser and the Fund’s custodian and all other agents and
representatives of the Trust that have a reasonable need to interact with the
Subadviser, and provide prompt responses to reasonable requests made by such
persons. The Subadviser shall have no liability for the acts of omissions of
the
Custodian or other agents.
Unless
and until otherwise directed in writing with specific instructions by the
Investment Adviser or the Trust’s officers or Board at least thirty (30) days
prior to a shareholder meeting and subject to its receipt of all necessary
voting materials, the Subadviser will be responsible for voting all proxies,
including taking action with respect to corporate action elections for proxies
and corporate actions communicated by the Fund or its agents to the Subadviser,
with respect to the securities held by the Fund.
The
Subadviser shall maintain all books and records required by Rule 31a-1 under
the
1940 Act relating to its responsibilities provided hereunder with respect to
the
Fund, and shall preserve such records for the periods and in a manner prescribed
by Rule 31a-2 under the 1940 Act. The Subadviser shall permit the Investment
Adviser, the Fund's officers and its independent public accountants, upon
reasonable prior written request by the Investment Adviser to the Subadviser,
with access to inspect and audit such records at reasonable times during normal
business hours at the Subadviser’s office the books and records of the
Subadviser relating to the Fund and the Subadviser’s performance hereunder and
such other books and records of the Subadviser as are reasonably necessary
to
confirm that the Subadviser has complied with its obligations and duties under
the Agreement (provided, however, that if such books and records contain
information relating to any other client, Subadviser shall provide redacted
copies adequate for these purposes but omitting identifying information
concerning such other clients).
If
any
occasion should arise in which the Subadviser gives any advice to its clients
concerning the shares of the Fund, the Subadviser will act solely as investment
counsel for such clients and not in any way on behalf of the Fund. The
Subadviser's services to the Fund pursuant to this Agreement are not to be
deemed to be exclusive, and it is understood that the Subadviser may render
investment advice, management and other services to others.
The
Subadviser is prohibited from consulting with any other subadviser to any other
series of the Trust concerning the Fund’s transactions in securities or other
assets, except for the purpose of complying with the conditions of Rule
12d3-1(a) and (b) under the 1940 Act.
The
Investment Adviser acknowledges that the Subadviser is not the principal
compliance agent for the Fund or the Investment Adviser, and does not have
access to all of the Fund’s books and records necessary to perform certain
compliance testing. To the extent that the Subadviser has agreed to
perform the services specified in this Section 1 and in accordance with
applicable law (including subchapters M and L of the Code, the Act and the
Advisers Act (“Applicable Law”) and in accordance with the Trust Documents,
policies and determinations of the Board of Trustees of the Trust and the
Investment Adviser and the Fund’s registration statement (collectively, the
“Charter Requirements”) and such services involve compliance with requirements
expressed as a percentage of “total assets” or “net assets” of the Fund, the
Subadviser shall perform such services based upon the market values and
portfolio holdings and transactions reflected on its books and records with
respect to the Fund, and information or instructions provided by the Fund,
the
Investment Adviser or the Fund’s administrator, and shall not be held
responsible under this Agreement as long as it performs such services in
accordance with this Agreement, the Charter Requirements and Applicable Law
based upon the market values and portfolio holdings and transactions reflected
on such books and records, and information or instructions provided by the
Fund,
the Investment Adviser or the Fund’s administrator. The Subadviser shall be
afforded a reasonable time to implement any such instructions.
2. Expenses.
The
Subadviser will bear its own costs of providing services hereunder. The
Subadviser will not be responsible for expenses of the Investment Adviser or
the
Fund, including, but not limited to, the following: the Fund's legal, auditing
and accounting expenses; expenses of maintenance of the Fund's books and records
other than those required to be maintained by the Subadviser, including
computation of the Fund's daily net asset value per share and dividends;
interest, taxes, governmental fees and membership dues incurred by the Fund;
fees of the Fund’s custodian, transfer agent, registrar or other agents;
expenses of preparing the Fund's share certificates; expenses relating to the
redemption or repurchase of the Fund’s shares; expenses of registering and
qualifying Fund shares for sale under applicable federal and state laws;
expenses of preparing, setting in print, printing and distributing prospectuses,
reports, notices and dividends to Fund investors (except that the Subadviser
will be responsible for costs associated with supplements to such documents
and
all regulatory filing requirements necessitated by a change of control of the
Subadviser,
and the
Subadviser will be responsible for costs associated with prospectus supplements
necessitated by a change initiated by the Subadviser in the portfolio manager
or
managers assigned to the Fund); cost of Fund stationery; costs of Trustee,
shareholder and other meetings of the Trust or Fund (except that the Subadviser
will be responsible for costs associated with any shareholder meeting, or any
information statement prepared and distributed in lieu of a shareholder meeting,
necessitated by a change of control of the Subadviser); traveling expenses
of
officers, trustees and employees of the Trust or Fund; fees of the Trust's
trustees and salaries of any officers or employees of the Trust or Fund; and
the
Fund's pro rata portion of premiums on any fidelity bond and other insurance
covering the Trust or Fund and their officers and trustees.
3. Compensation
of Subadviser.
As
compensation for all investment advisory and management services to be rendered
hereunder, the Investment Adviser will pay the Subadviser an annual fee,
computed daily and paid quarterly in arrears, based on the net asset value
of
the Fund, determined as described below. The annual subadvisory fee is expressed
as a percent of the average daily net assets of the Fund as follows:
ASSET
LEVEL
FEE
RATE
$0
to
$250 million
0.45%
$250
million to $750 million 0.40%
Over
$750
million
0.35%
For
any
period less than a full fiscal quarter during which this Agreement is in effect,
the fee shall be prorated according to the proportion which such period bears
to
a full fiscal quarter. The Subadviser's fee shall be payable solely by the
Investment Adviser. The Fund shall have no responsibility for such
fee.
For
purposes hereof, the value of net assets of the Fund shall be computed in the
manner specified in the Fund’s Prospectus and Statement of Additional
Information for the computation of the value of the net assets of the Fund
in
connection with the determination of net asset value of its shares. On any
day
that the net asset value determination is suspended as specified in the Fund’s
Prospectus, the net asset value for purposes of calculating the advisory fee
shall be calculated as of the date last determined.
4. Obligations
of the Investment Adviser.
a. The
Investment Adviser shall provide (or cause the Trust's custodian to provide)
timely information to the Subadviser regarding such matters as the composition
of assets in the Fund, cash requirements and cash available for investment
in
the Fund, and all other information as may be reasonably necessary for the
Subadviser to perform its responsibilities hereunder.
b. The
Investment Adviser has furnished the Subadviser a copy of the Registration
Statement, including the prospectus and statement of additional information,
of
the Fund and agrees during the continuance of this Agreement to furnish the
Subadviser copies of any revisions or supplements thereto within a reasonable
time period before the time the revisions or supplements become effective.
The
Investment Adviser agrees to furnish the Subadviser with copies of any financial
statements or reports made by the Fund to its shareholders, and any further
materials or information which the Subadviser may reasonably request to enable
it to perform its functions under this Agreement.
5. Brokerage
Transactions.
Subject
to the provisions of Section 1 and this Section 5 of this Agreement, the
Subadviser will have full discretionary authority to place orders for the
purchase and sale of securities for the account of the Fund with such brokers
or
dealers as it may select. In the selection of such brokers or dealers and the
placing of such orders, the Subadviser is directed at all times to seek for
the
Fund best overall terms available. In assessing the best overall terms available
for any transaction, the Subadviser shall consider all factors it deems
relevant, including the breadth of the market in and the price of the security,
the financial condition and execution capability of the broker or dealer, and
the reasonableness of the commission, if any, with respect to the specific
transaction and on a continuing basis. It is also understood, however, that
it
is desirable for the Fund that the Subadviser have access to supplemental
investment and market research and security and economic analyses provided
by
certain brokers who may execute brokerage transactions at higher commissions
to
the Fund than may result when allocating brokerage to other brokers solely
on
the basis of seeking the most favorable price and efficient execution.
Therefore, the Subadviser is authorized to place orders for the purchase and
sale of securities for the Fund with such certain brokers, subject to Section
28(e) of the Securities and Exchange Act of 1934, as amended, and any other
applicable laws and regulations and to review and oversight by the Investment
Adviser and the Trust’s Board of Trustees. It is understood that the services
provided by such brokers may be useful to the Subadviser in connection with
its
services to other clients.
On
occasions when the Subadviser deems the purchase or sale of a security to be
in
the best interests of the Fund as well as other clients of the Subadviser,
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 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.
In
connection with purchases or sales of portfolio securities for the account
of
the Fund, neither the Subadviser nor any of its affiliated persons, will act
as
a principal or agent or receive directly or indirectly any compensation in
connection with the purchase or sale of investment securities by the Fund,
except as permitted by applicable law and with the express written consent
of
the Trust and the Investment Adviser.
The
Subadviser will advise the Fund’s custodian and the Investment Adviser on a
prompt basis of each purchase and sale of a portfolio security, specifying
such
information as may be reasonably required.
6. Standard
of Care and Liability of Subadviser.
The
Subadviser will not be liable for any loss sustained by reason of the adoption
of any investment policy or the purchase, sale, or retention of any security
on
the recommendation of the Subadviser, whether or not such recommendation shall
have been based upon its own investigation and research or upon investigation
and research made by any other individual, firm or corporation, if such
recommendation shall have been made and such other individual, firm, or
corporation shall have been selected, with due care and in good faith; but,
subject to the last paragraph of Section 1, nothing herein contained will be
construed to protect the Subadviser against any liability to the Investment
Adviser, the Fund or its shareholders by reason of the Subadviser’s willful
misfeasance, bad faith or gross negligence generally in the performance of
its
duties hereunder or its reckless disregard of its obligations and duties under
this Agreement. For purposes of this Agreement, the term “gross negligence” will
be deemed to include (a) the Subadviser’s causing the Fund to be in violation of
any investment policy or restriction set forth in the Fund’s prospectus or
Statement of Additional Information or any written guidelines or instruction
provided by the Trust’s Board of Trustees or the Investment Adviser; and (b) the
Subadviser’s causing the Fund to fail to satisfy the asset percentage
diversification requirements
set forth in section 817(h) of Subchapter L of the Code or the source of income
and asset percentage diversification requirements set forth in section 851
of
Subchapter M of the Code, or, in each case, any successor provision of the
Code.
The
Subadviser will indemnify and hold harmless the Investment Adviser, its
affiliated persons and the Fund (collectively, the "Indemnified Persons") to
the
fullest extent permitted by law against any and all loss, damage, judgments,
fines, amounts paid in settlement and attorneys fees incurred by any Indemnified
Person to the extent resulting, in whole or in part, from any of the
Subadviser’s acts or omissions in the paragraph above, any breach of any duty or
warranty hereunder of the Subadviser or any inaccuracy of any representation
of
the Subadviser made hereunder, provided, however, that nothing herein contained
will provide indemnity to any Indemnified Person for liability resulting from
its own willful misfeasance, bad faith, or gross negligence in the performance
of its duties or reckless disregard of such duties.
The
Investment Adviser shall indemnify and hold harmless the Subadviser to the
fullest extent permitted by law against any and all loss, damage, judgments,
fines, amounts paid in settlement and attorneys fees incurred by the Subadviser
to the extent resulting, in whole or in part, from (x) the Investment Adviser's
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or its reckless disregard of its obligations and duties under
this Agreement and (y) any breach of any duty or warranty hereunder of the
Investment Adviser or any inaccuracy of any representation of the Investment
Adviser made hereunder, provided, however, that nothing herein contained will
provide indemnity to the Subadviser for liability resulting from its own willful
misfeasance, bad faith, or gross negligence in the performance of its duties
or
reckless disregard of such duties.
Neither
the Investment Adviser nor the Subadviser shall be obligated to make any
indemnification payment in respect of any settlement as to which it has not
been
notified and consented, such consent not to be unreasonably
withheld.
7. Term
and Termination.
This
Agreement shall remain in force until December 31,
2007
and from year to year thereafter, but only so long as such continuance, and
the
continuance of the Investment Adviser as investment adviser of the Fund, is
specifically approved at least annually by the vote of a majority of the
Trustees who are not interested persons of the Subadviser or the Investment
Adviser of the Fund, cast in person at a meeting called for the purpose of
voting on such approval and by a vote of the Board of Trustees or of a majority
of the outstanding voting securities of the Fund. The aforesaid requirement
that
continuance of this Agreement be "specifically approved at least annually"
shall
be construed in a manner consistent with the 1940 Act and the rules and
regulations thereunder. This Agreement may, upon 60 days' written notice to
the
Subadviser, be terminated at any time without the payment of any penalty, (a)
by
the Fund, by the Board of Trustees or by vote of a majority of the outstanding
voting securities of the Fund, or (b) by the Investment Adviser. This Agreement
may, upon 120 days written notice to the Trust and the Investment Adviser,
be
terminated at any time, without payment of any penalty, by the Subadviser.
This
Agreement shall automatically terminate in the event of its assignment.
8. Interpretation
of Terms; Captions.
In
interpreting the provisions of this Agreement, the definitions contained in
Section 2(a) of the 1940 Act (including specifically the definitions of
"interested person," "affiliated person," "assignment," "control" and "vote
of a
majority of the outstanding voting securities"), shall be applied, subject,
however, to such exemptions as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. Captions used herein are for
reference only and shall not limit or otherwise affect the meaning of any
provision of this Agreement.
9. Registration
Statement Information Concerning Subadviser.
The
Subadviser has reviewed the current Prospectus and Statement of Additional
Information of the Trust, relating to the Fund, as provided by the Investment
Adviser, and represents and warrants that with respect to disclosure about
the
Subadviser or information relating directly or indirectly to the Subadviser,
such Prospectus and Statement of Additional Information contains no untrue
statement of any material fact and does not omit any statement of material
fact
which was required to be stated therein or necessary to make the statements
contained therein not misleading. The Subadviser agrees to review the Fund’s
Prospectus and Statement of Additional Information on at least an annual basis
in connection with the Trust’s annual update to its Registration Statement on
Form N-1A to ensure that the description of the Fund’s investment policies and
strategies followed by the Subadviser as decribed therein is consistent with
the
policies and strategies the Subadviser uses or intends to use.
10. Other
Representations and Agreements.
(i) Each
of
the parties hereto represents that the Agreement has been duly authorized,
executed and delivered by all required corporate action.
(ii) Each
of
the Subadviser and Investment Adviser represents that it has adopted and
implemented and shall maintain written policies and procedures with respect
to
its services pursuant to this Agreement that are reasonably designed to prevent
violation of the Federal Securities Laws (as defined in Rule 38a-1 under the
0000 Xxx) and the Advisers Act and the rules thereunder as required by Rule
206(4)-7 under the Advisers Act.
(iii) The
Trust
represents that it has adopted and implemented and shall maintain written
policies and procedures that are reasonably designed to prevent violation of
the
Federal Securities Laws as defined in Rule 38a-1 under the 1940
Act.
(iv) Each
of
the Subadviser and Investment Adviser represents that it has adopted a written
code of ethics that complies with the requirements of Rule 17j-1 under the
1940
Act and Rule 204A-1 under the Advisers Act, which it has provided to the Trust.
The Subadviser represents that it has policies and procedures regarding the
detection and prevention and the misuse of material, nonpublic information,
whether concerning the Fund or otherwise, by the Subadviser and its employees
as
required by the Xxxxxxx Xxxxxxx and Securities Fraud Enforcement Act of 1988.
(v) The
Subadviser agrees to comply with the requirements of the 1940 Act, the Advisers
Act, the Securities Act of 1933, the Securities Exchange Act of 1934, the
Commodity Exchange Act and the respective rules and regulations thereunder,
as
applicable, as well as with respect to all other applicable federal and state
securities laws, rules, and regulations as
well
as requirements imposed by the Subadviser’s fiduciary duties to the Fund that
relate to the services and relationships described in this Agreement and to
the
conduct of its business as a registered investment adviser to the Fund.
| (vi) |
The
Subadviser agrees to notify promptly the Investment Adviser and the
Trust
|
in
writing of the occurrence of any event which could have a material impact on
the
performance of its duties under this Agreement, including but not limited to:
(a) the occurrence of any event that could disqualify the Subadviser from
serving as an investment adviser pursuant to Section 9 of the 1940 Act; (b)
any
material change to the Subadviser’s business activities that could have a
material impact on the performance of its duties under this Agreement; (c)
any
event that would constitute a change of control of the Subadviser; (d) any
change in the portfolio manager team; and (e) the existence of any pending
regulatory audit, investigation, examination, complaint or other inquiry (other
than routine audits or regulatory examinations or inspections) relating to
the
Subadviser’s services to the Fund; and (f) any material violation of the
Subadviser’s code of ethics which violation involves or affects the Fund.
(vii)
Each
of
the Subadviser and the Investment Adviser represents and warrants that it is
a
duly registered investment adviser under the Advisers Act and a duly registered
investment adviser in all jurisdictions in which it is required to be so
registered, and will continue to be so registered for so long as this Agreement
remains in effect.
(viii)
Each
of
the Subadviser and the Investment Adviser represents and warrants that it
currently maintains, and shall continue to maintain as long as this Agreement
is
in effect, Directors & Officers, Errors & Omissions and fidelity bond
insurance coverage it deems sufficient.
(ix) Each
of
the parties hereto agrees to cooperate with each other party to the extent
permitted by applicable laws, regulations or orders in connection with any
investigation or inquiry relating to this Agreement or the Trust.
11.
Confidentiality.
It is
understood that all information furnished by one party to the other parties
(including their respective agents, employees and representatives) hereunder
shall be treated as confidential and shall not be disclosed to third parties,
except if it is otherwise in the public domain other than through the fault
of
the receiving party or, with notice to the other party, as may be necessary
to
comply with applicable laws, rules, regulations, subpoenas or court orders.
Without
limiting the foregoing, the Investment Adviser acknowledges that the securities
holdings of the Fund constitute information of value to the Subadviser, and
agrees (1) not to use for any purpose, other than for the Investment Adviser
or
the Trust, or their agents, to supervise or monitor Subadviser, the holdings
or
trade related information of the Fund; and (2) not to disclose the Fund’s
holdings, except: (a) as required by applicable law or regulation; (b) as
required by state or federal regulatory authorities; (c) to the Trust’s Trustees
and their counsel, counsel to the Trust, counsel to the Investment Adviser,
the
Fund’s administrator or any sub-administrator, the independent accountants and
any other agent of the Trust or the Investment Adviser; (d) in conformity with
the disclosure set forth in the Fund’s currently effective registration
statement; or (e) as otherwise agreed to by the parties in writing.
Further,
the Investment Adviser agrees that information supplied by Subadviser, including
approved lists, internal procedures, compliance procedures and any board
materials, is valuable to Subadviser, and the Investment Adviser agrees not
to
disclose any of the information contained in such materials, except: (i) as
required by applicable law or regulation; (ii) as required by state or federal
regulatory authorities; (iii) to the Trust’s Trustees or their counsel, counsel
to the Trust, counsel to the Investment Adviser, the Fund’s administrator or any
sub-administrator, the independent accountants and any other agent of the Trust
or the Investment Adviser; or (iv) as otherwise agreed to by the parties in
writing.
The
Subadviser may release portfolio holdings information with respect to the Fund
only: (i) with the prior written consent of the Trust’s Chief Compliance
Officer; provided, however, that the Subadviser may, without such prior written
consent, disclose portfolio holdings information to the Fund’s Investment
Adviser, Trustees, officers, custodian, fund accounting agent, principal
underwriter, auditors and counsel (collectively, the “Fund’s Service Providers”)
solely in connection with the performance of its advisory duties for the Fund,
or if required or requested by any regulatory authority with jurisdiction,
judicial or administrative process or otherwise by applicable law or regulation;
and (ii) if the release of the portfolio holdings information is in conformity
with the disclosure set forth in the Fund’s currently effective Registration
Statement.
12. Use
of
Subadviser’s Name and Logo.
The
parties agree that the name of the Subadviser, the names of any its parent
or
affiliates and any derivative, logo, trademark, service xxxx or trade name
are
the valuable property of the Subadviser and its affiliates. During the term
of
this Agreement, the Investment Adviser and the Trust shall have the
non-exclusive right to use the names and logos of the Subadviser and its
affiliates in all materials relating to the Funds, including all prospectuses,
proxy statements, reports to shareholders, sales literature and other written
materials prepared for distribution to shareholders of the Trust or the public.
However, prior to printing or distributing of any materials which refer to
the
Subadviser, the Investment Adviser shall consult with the Subadviser and shall
furnish to the Subadviser a copy of such materials. The Subadviser agrees to
cooperate with the Investment Adviser and to review such materials promptly.
The
Investment Adviser shall not print or distribute such materials if the
Subadviser reasonably objects in writing, within five (5) business days of
its
receipt of such copy (or such other time as may be mutually agreed, which would
include longer time periods for review of the Funds’ prospectus and other parts
of the registration statement), to the manner in which its name and logo are
to
be used.
The
Subadviser understands and agrees that the Fund will be offered and sold to
insurance company separate accounts as underlying investments for variable
insurance products issued by those insurance companies. The Investment Adviser
represents that it will have an agreement with each insurance company that
invests in the Fund obligating the insurance company to furnish the Investment
Adviser with a copy of any offering materials, sales literature or other
promotional materials for the variable insurance products that also name the
Fund. The Investment Adviser represents that it will follow the procedures
established in accordance with the preceding paragraph to seek the Subadviser’s
prior approval for any such materials submitted by the insurance companies
to
the Investment Adviser that include the name and/or logo of the Subadviser
or
its affiliates. The Investment Adviser shall have no liability whatsoever to
the
Subadviser or its affiliates for any failure by an insurance company to submit
materials to the Investment Adviser.
Upon
termination of this Agreement, the Investment Adviser and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names except as required by law or regulation, and except for
references, in prospectuses, Statements of Additional Information or marketing
material, to the Subadviser having served as the Fund’s subadviser for the term
of this Agreement. If the Investment Adviser or the Trust makes any unauthorized
use of Subadviser’s names, derivatives, logos, trademarks or service marks or
trade names, the parties acknowledge that the Subadviser shall suffer
irreparable harm for which monetary damages are inadequate and thus, the
Subadviser shall be entitled to injunctive relief.
13. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts, except to the extent in conflict with U.S.
federal law, in which event U.S. federal law will control.
14. Entire
Agreement; Amendments.
This
Agreement states the entire agreement of the parties hereto, and is intended
to
be the complete and exclusive statement of the terms hereof. It may not be
added
to or changed orally, and may not be modified or rescinded except by a writing
signed by the parties hereto and in accordance with the 1940 Act or pursuant
to
applicable orders or interpretations of the Securities and Exchange
Commission.
15. Severability.
Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms or provisions of this Agreement or affecting the validity
or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction.
16. Independent
Contractor.
In the
performance of the Subadviser's duties hereunder, the Subadviser is and shall
be
an independent contractor and except as otherwise expressly provided herein
or
otherwise authorized in writing, shall have no authority to act for or represent
the Trust, the Fund or the Investment Adviser in any way or otherwise be deemed
to be an agent of the Trust, the Fund or the Investment Adviser.
17. Notices.
Any
notice under this Agreement shall be delivered, mailed or faxed to the addresses
or fax numbers set forth below, as the case may be, or such other address or
number as any party may specify in writing to the others:
If
to the
Trust or Fund:
One
Sun
Life Executive Park
Wellesley,
MA 02481
Attn:
President
If
to the
Investment Adviser:
Sun
Capital Advisers LLC
One
Sun
Life Executive Park
Wellesley,
MA 02481
Attn:
Chief Counsel
If
to the
Subadviser:
Pyramis
Global Advisors, LLC
00
Xxxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Chief Administrative Officer
If
delivered, such notices shall be deemed given upon receipt by the other party
or
parties. If mailed, such notices shall be deemed given seven (7) days after
being mailed. If faxed, notices shall be deemed given on the next business
day
after confirmed transmission to the correct fax number.
18. Limitation
of Liability.
It is
understood and expressly stipulated that neither the holders of shares of the
Fund nor the Trustees shall be personally liable hereunder. All persons dealing
with the Fund must look solely to the property of the Fund for the enforcement
of any claims against the Fund.
19. Execution
in Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
1
::ODMA\PCDOCS\LEGALDOCS\57599\4
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
By:/s/
XXXXX M.A. XXXXXXXX
Xxxxx
M.
A. Xxxxxxxx
Its: President
SUN
CAPITAL ADVISERS LLC
By:
/s/
XXXXX M.A. XXXXXXXX
Xxxxx
M.
A. Xxxxxxxx
Its: President
By:
/s/
XXXXX X. XXXXX
Xxxxx
X.
Xxxxx
Its: Senior
V.P. & Chief Financial Officer
PYRAMIS
GLOBAL ADVISORS, LLC
By:
/s/
XXXXXX XXXXXXXX
Xxxxxx
XxXxxxxx
Its: Senior
Vice President, Chief Administrative Officer
