EXHIBIT (d)(xvi)
SUBADVISORY AGREEMENT
This SUBADVISORY AGREEMENT is dated as of October 15, 1998, as
amended and restated May 1, 2001, by and between SUNAMERICA ASSET MANAGEMENT
CORP., a Delaware corporation (the "Adviser"), and U.S. BANCORP XXXXX XXXXXXX
ASSET MANAGEMENT, INC., a Delaware corporation (the "Subadviser").
WITNESSETH:
WHEREAS, SunAmerica Series Trust, a Massachusetts business trust (the
"Trust") and First American Asset Management ("FAAM"), a division of U.S. Bank
National Association, have entered into an Investment Advisory and Management
Agreement dated as of September 11, 1992, as amended from time to time (the
"Advisory Agreement"), pursuant to which FAAM agreed to provide investment
management, advisory and administrative services to the Trust; and
WHEREAS, as of the date of this Agreement, FAAM transferred
substantially all of its assets and liabilities (including, but not limited to,
the Advisory Agreement) into the Subadviser (the "Reorganization"); and
WHEREAS, the Reorganization did not result in an "assignment" of the
Advisory Agreement within the meaning of Section 15(a)(4) of the Investment
Company Act of 1940, as amended (the "Act"); however, the parties nonetheless
wish to restate the Advisory Agreement with this Agreement, which merely
reflects the Subadviser (in place of FAAM) as the subadviser to the Trust and
changes the execution and effective date of the Advisory Agreement; and
WHEREAS, the Trust is registered under the Act as an open-end
management investment company and may issue shares of beneficial interest, no
par value per share, in separately designated portfolios representing separate
funds with their own investment objectives, policies and purposes; and
WHEREAS, the Subadviser is engaged in the business of rendering
investment advisory services and is a national banking association with trust
and investment powers organized under the laws of the United States and exempt
from registration as an investment adviser under the Investment Advisers Act of
1940 (the "Advisers Act"), as amended; and
WHEREAS, the Adviser desires to retain the Subadviser to furnish
investment advisory services to the investment portfolio or portfolios of the
Trust listed on Schedule A attached hereto (the "Portfolio(s)"), and the
Subadviser is willing to furnish such services;
NOW, THEREFORE, it is hereby agreed between the parties hereto as
follows:
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1. DUTIES OF THE SUBADVISER. The Adviser hereby engages the services of
the Subadviser in furtherance of its Investment Advisory and Management
Agreement with the Trust. Pursuant to this Subadvisory Agreement and subject to
the oversight and review of the Adviser, the Subadviser will manage the
investment and reinvestment of the assets of each Portfolio listed on Schedule A
attached hereto. The Subadviser will determine in its discretion and subject to
the oversight and review of the Adviser, the securities to be purchased or sold,
will provide the Adviser with records concerning its activities which the
Adviser or the Trust is required to maintain, and will render regular reports to
the Adviser and to officers and Trustees of the Trust concerning its discharge
of the foregoing responsibilities. The Subadviser shall discharge the foregoing
responsibilities subject to the control of the officers and the Trustees of the
Trust and in compliance with such policies as the Trustees of the Trust may from
time to time establish and communicate in writing to the Subadviser, and in
compliance with (a) the objectives, policies, and limitations for the
Portfolio(s) set forth in the Trust's current prospectus and statement of
additional information as most recently provided by the Adviser to the
Subadviser, and (b) applicable laws and regulations.
The Subadviser represents and warrants to the Adviser that
each of the Portfolios set forth in Schedule A will at all times be operated and
managed (1) in compliance with all applicable federal and state laws governing
its investments; and (2) so as to comply with such information provided by the
Adviser to the Subadviser which is intended to protect the treatment of the
variable annuity contracts which invest in the Portfolios (hereinafter
"Contracts") as annuity contracts for purposes of the Internal Revenue Code of
1986, as amended (the "Code"), and the eligibility of the Contracts to qualify
for sale to the public in any state where they may otherwise be sold, and to
minimize any taxes and/or penalties payable by the Trust or such Portfolio(s).
The Subadviser represents and warrants that, unless directions given by the
Trustees or the Adviser to the Subadviser prevent the Subadviser from doing so,
the Subadviser will cause the Portfolio(s) to comply with (a) the provisions of
the Act and rules adopted thereunder which relate to the investment of the
Portfolio(s)' assets; and (b) the diversification requirements specified in the
Internal Revenue Service's regulations under Section 817(h) of the Code. The
Subadviser further represents and warrants that to the extent that any
statements or omissions made in any Registration Statement for the Contracts or
shares of the Trust, or any amendment or supplement thereto, are made in
reliance upon and in conformity with information furnished by the Subadviser
expressly for use therein ("Furnished Information"), such Registration Statement
and any amendments or supplements thereto will, with respect to the Furnished
Information, when they become effective, conform in all material respects to the
requirements of the Securities Act of 1933 and the rules and regulations of the
Commission thereunder (the "1933 Act") and the Act and will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
Further, any statements or omissions in any Registration Statement for the
Contracts or shares of the Trust, or any amendment or supplement thereto, which
are made based upon Furnished Information and which have been provided to
Subadviser for its review, shall be deemed acknowledged and approved by
Subadviser, unless Subadviser provides Adviser with written indication to the
contrary within 5 business days of its receipt of the Registration Statement,
amendment or supplement for review.
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The Subadviser accepts such employment and agrees, at its own
expense, to render the services set forth herein and to provide the office
space, furnishings, equipment and personnel required by it to perform such
services on the terms and for the compensation provided in this Agreement.
2. PORTFOLIO TRANSACTIONS. The Subadviser is responsible for decisions
to buy or sell securities and other investments of the assets of each Portfolio,
broker-dealers and futures commission merchants' selection, and negotiation of
brokerage commission and futures commission merchants' rates. As a general
matter, in executing portfolio transactions, the Subadviser may employ or deal
with such broker-dealers or futures commission merchants as may, in the
Subadviser's best judgement, provide prompt and reliable execution of the
transactions at favorable prices and reasonable commission rates. In selecting
such broker-dealers or futures commission merchants, the Subadviser shall
consider all relevant factors including price (including the applicable
brokerage commission, dealer spread or futures commission merchant rate), the
size of the order, the nature of the market for the security or other
investment, the timing of the transaction, the reputation, experience and
financial stability of the broker-dealer or futures commission merchant
involved, the quality of the service, the difficulty of execution, the execution
capabilities and operational facilities of the firm involved, and, in the case
of securities, the firm's risk in positioning a block of securities. Subject to
such policies as the Trustees may determine and communicate in writing to the
Subadviser and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), 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 the Subadviser's having caused a Portfolio to pay
a member of an exchange, broker or dealer an amount of commission for effecting
a securities transaction in excess of the amount of commission another member of
an exchange, broker or dealer would have charged for effecting that transaction,
if the Subadviser determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such member of an exchange, broker or dealer viewed in terms of
either that particular transaction or the Subadviser's overall responsibilities
with respect to such Portfolio and to other clients as to which the Subadviser
exercises investment discretion. In accordance with Section 11(a) of the 1934
Act and Rule 11a2-2(T) thereunder, and subject to any other applicable laws and
regulations including Section 17(e) of the Act and Rule 17e-1 thereunder, the
Subadviser may engage its affiliates, the Adviser and its affiliates or any
other subadviser to the Trust and its respective affiliates, as broker-dealers
or futures commission merchants to effect portfolio transactions in securities
and other investments for a Portfolio. The Subadviser will promptly communicate
to the Adviser and to the officers and the Trustees of the Trust such
information relating to portfolio transactions as they may reasonably request.
3. COMPENSATION OF THE SUBADVISER. The Subadviser shall not be entitled
to receive any payment from the Trust and shall look solely and exclusively to
the Adviser for payment of all fees for the services rendered, facilities
furnished and expenses paid by it hereunder. As full compensation for the
Subadviser under this Agreement, the Adviser agrees to pay the Subadviser a fee
at the annual rates set forth in Schedule A hereto with respect to each
Portfolio listed thereon. Such fee shall be accrued daily and paid monthly as
soon as practicable
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after the end of each month (i.e., the applicable annual fee rate divided by 365
applied to each prior day's net assets in order to calculate the daily accrual).
If the Subadviser shall provide its services under this Agreement for less than
the whole of any month, the foregoing compensation shall be prorated.
4. OTHER SERVICES. At the request of the Trust or the Adviser, the
Subadviser in its discretion may make available to the Trust, office facilities,
equipment, personnel and other services. Such office facilities, equipment,
personnel and services shall be provided for or rendered by the Subadviser and
billed to the Trust or the Adviser at the Subadviser's cost.
5. REPORTS. The Trust, the Adviser and the Subadviser agree to furnish
to each other, if applicable, current prospectuses, statements of additional
information, proxy statements, reports of shareholders, certified copies of
their financial statements, and such other information with regard to their
affairs and that of the Trust as each may reasonably request.
6. STATUS OF THE SUBADVISER. The services of the Subadviser to the
Adviser and the Trust are not to be deemed exclusive, and the Subadviser shall
be free to render similar services to others so long as its services to the
Trust are not impaired thereby. The Subadviser shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
7. CERTAIN RECORDS. The Subadviser hereby undertakes and agrees to
maintain, in the form and for the period required by Rule 31a-2 under the Act,
all records relating to the investments of the Portfolio(s) that are required to
be maintained by the Trust pursuant to the requirements of Rule 31a-1 of that
Act. Any records required to be maintained and preserved pursuant to the
provisions of Rule 31a-1 and Rule 31a-2 promulgated under the Act which are
prepared or maintained by the Subadviser on behalf of the Trust are the property
of the Trust and will be surrendered promptly to the Trust or the Adviser on
request.
The Subadviser agrees that all accounts, books and other
records maintained and preserved by it as required hereby shall be subject at
any time, and from time to time, to such reasonable periodic, special and other
examinations by the Securities and Exchange Commission, the Trust's auditors,
the Trust or any representative of the Trust, the Adviser, or any governmental
agency or other instrumentality having regulatory authority over the Trust.
8. REFERENCE TO THE SUBADVISER. Neither the Trust nor the Adviser or
any affiliate or agent thereof shall make reference to or use the name of the
Subadviser or any of its affiliates in any advertising or promotional materials
without the prior approval of the Subadviser, which approval shall not be
unreasonably withheld.
9. LIABILITY OF THE SUBADVISER. In the absence of willful misfeasance,
bad faith, gross negligence or reckless disregard of obligations or duties
("disabling conduct") hereunder on the part of the Subadviser (and its officers,
directors, agents, employees, controlling persons, shareholders and any other
person or entity affiliated with the Subadviser) the Subadviser shall not be
subject to liability to the Trust or to any shareholder of the Trust for any act
or omission in
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the course of, or connected with, rendering services hereunder, including
without limitation, any error of judgment or mistake of law or for any loss
suffered by any of them in connection with the matters to which this Agreement
relates, except to the extent specified in Section 36(b) of the Act concerning
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Except for such disabling conduct, the Adviser shall
indemnify and hold harmless the Subadviser (and its officers, directors,
partners, agents, employees, controlling persons, shareholders and any other
person or entity affiliated with the Subadviser) from any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) arising from the Subadviser's conduct under this Agreement. Subadviser
hereby agrees to indemnify, defend and protect Adviser (and its officers,
directors, partners, agents, employees, controlling persons, shareholders and
any other person or entity affiliated with the Adviser) and hold Adviser
harmless, from and against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) arising out of
Subadviser's disabling conduct. In no case is any indemnity provided in this
Agreement in favor of any person deemed to protect such other persons against
any liability to which such person would 1 1 otherwise be subject by reasons of
willful misfeasance, bad faith, or gross negligence in the performance of his,
her or its duties or by reason of his, her or its reckless disregard of
obligation and duties under this Agreement.
10. PERMISSIBLE INTERESTS. Trustees and agents of the Trust are or may
be interested in the Subadviser (or any successor thereof) as directors,
partners, officers, or shareholders, or otherwise; directors, partners,
officers, agents, and shareholders of the Subadviser are or may be interested in
the Trust as trustees, or otherwise; and the Subadviser (or any successor) is or
may be interested in the Trust in some manner.
11. TERM OF THE AGREEMENT. This Agreement shall continue in full force
and effect with respect to each Portfolio until two years from the date hereof,
and from year to year thereafter so long as such continuance is specifically
approved at least annually (i) by the vote of a majority of those Trustees of
the Trust who are not parties to this Agreement or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Portfolio voting separately from any other
series of the Trust.
With respect to each Portfolio, this Agreement may be
terminated at any time, without payment of a penalty by the Portfolio or the
Trust, by vote of a majority of the Trustees, or by vote of a majority of the
outstanding voting securities (as defined in the Act) of the Portfolio, voting
separately from any other series of the Trust, or by the Adviser, on 90 days'
written notice to the Subadviser. With respect to each Portfolio, this Agreement
may be terminated by the Subadviser at any time, without the payment of any
penalty, on 90 days' written notice to the Adviser and the Trust; provided,
however, that this Agreement may not be terminated by the Subadviser unless
another subadvisory agreement has been approved by the Trust in accordance with
the Act, or after six months' written notice, whichever is earlier. The
termination of this Agreement with respect to any Portfolio or the addition of
any Portfolio to Schedule A hereto (in the manner required by the Act) shall not
affect the continued effectiveness of this Agreement with respect to each other
Portfolio subject hereto. This
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Agreement shall automatically terminate in the event of its assignment (as
defined by the Act). This Agreement will also terminate in the event that the
Advisory Agreement by and between the Trust and the Adviser is terminated.
12. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
13. AMENDMENTS. This Agreement may be amended by mutual consent in
writing, but the consent of the Trust must be obtained in conformity with the
requirements of the Act.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York and the applicable provisions of the Act. To
the extent the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Act, the
latter shall control.
15. PERSONAL LIABILITY. The Declaration of the Trust establishing the
Trust (the "Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, and, in accordance with that Declaration, no
Trustee, shareholder, officer, employee or agent of the Trust shall be held to
any personal liability, nor shall resort be had to their private property for
satisfaction of any obligation or claim or otherwise in connection with the
affairs of the Trust, but the "Trust Property" only shall be liable.
16. SEPARATE SERIES. Pursuant to the provisions of the Declaration,
each Portfolio is a separate series of the Trust, and all debts, liabilities,
obligations and expenses of a particular Portfolio shall be enforceable only
against the assets of that Portfolio and not against the assets of any other
Portfolio or of the Trust as a whole.
17. NOTICES. All notices shall be in writing and deemed properly given
when delivered or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
Subadviser: U.S. BANCORP XXXXX XXXXXXX
ASSET MANAGEMENT, INC.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Secretary
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Adviser: SunAmerica Asset Management Corp.
The SunAmerica Center
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Senior Vice President and
General Counsel
with a copy to: SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Associate General Counsel
IN WITNESS WHEREOF, the parties have caused their respective duly
authorized officers to execute this Agreement as of the date first above
written.
SUNAMERICA ASSET MANAGEMENT CORP.
By: /s/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: President
U.S. BANCORP XXXXX XXXXXXX ASSET
MANAGEMENT, INC., A DIVISION OF U.S. BANK
NATIONAL ASSOCIATION
By: /s/ Authorized Signatory
------------------------
Name: Authorized Signatory
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SCHEDULE A
ANNUAL FEE
(AS A PERCENTAGE OF THE AVERAGE DAILY NET
ASSETS THE SUBADVISER
PORTFOLIO(S) MANAGES IN THE PORTFOLIO)
------------------------------ ------------------------------------------
Equity Income Portfolio 0.30%
Equity Index Portfolio 0.125%
Small Company Value Portfolio 0.80%
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