Exhibit (d)(xviii)
SUBADVISORY AGREEMENT
This SUBADVISORY AGREEMENT is dated as of August 21, 2001, amended
and restated July 29, 2002 by and between SUNAMERICA ASSET MANAGEMENT CORP., a
Delaware corporation (the "Adviser"), and XXXXXXXXX INVESTMENT MANAGEMENT, INC.,
a Delaware corporation (the "Subadviser").
WITNESSETH:
WHEREAS, the Adviser and Seasons Series Trust, a Massachusetts business
trust (the "Trust"), have entered into an Investment Advisory and Management
Agreement dated as of January 1, 1999, as amended from time to time (the
"Advisory Agreement"), pursuant to which the Adviser has agreed to provide
investment management, advisory and administrative services to the Trust; and
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company and
may issue shares of beneficial interest, par value $.01 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 an "investment adviser" as defined under the Investment
Advisers Act of 1940, 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:
1. DUTIES OF THE SUBADVISER. (a) The Adviser hereby engages the
services of the Subadviser in furtherance of the Advisory 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 a portion 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 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, and (b) applicable laws
and regulations. The Subadviser shall manage the portion of the assets of a
Portfolio allocated to it as if it was a separate operating portfolio and the
provisions, representations and warranties of this Section 1 of the Subadvisory
Agreement shall apply only the portion of assets of a Portfolio managed by the
Subadviser.
The Subadviser represents and warrants to the Adviser that the
portion of assets allocated to it of each Portfolio will at all times be
operated and managed (a) in compliance with all applicable federal and state
laws, including securities, commodities and banking laws, governing its
operations and investments; (b) so as not to jeopardize either the treatment of
the variable annuity contracts which offer the Portfolio(s) (the "Contracts") as
annuity contracts for purposes of the Internal Revenue Code of 1986, as amended
(the "Code"), or the eligibility of the Contracts to qualify for sale to the
public in any state where they may otherwise be sold; and (c) to minimize any
taxes and/or penalties payable by the Trust or the Portfolio(s). Without
limiting the foregoing, the Subadviser represents and warrants that it will
manage the portion of assets allocated to it of each Portfolio in compliance
with (a) the diversification requirements specified in the Internal Revenue
Services's regulations under Section 817(h) of the Code; (b) the provisions of
the 1940 Act and rules adopted thereunder; (c) applicable state insurance laws;
(d) the objectives, policies, restrictions and limitations for the Portfolio(s)
as set forth in the Trust's current prospectus and statement of additional
information as most recently provided by the Adviser to the Subadviser; and (e)
the policies and procedures as adopted by the Trustees of the Trust. The Adviser
agrees that it, and not the Subadviser, shall be solely responsible for insuring
that each Portfolio set forth in Schedule A managed by the Subadviser (i)
qualifies as a "regulated investment company" under Subchapter M, chapter 1 of
the Code; and (ii) complies with any limits in its current prospectus or
statement of additional information concerning concentration of investments or
the amount of assets that may be invested by the Portfolio in any one or more
securities. Should the Adviser determine that the Portfolio is not in compliance
with Subchapter M, chapter 1 of the Code, the Subadviser agrees to follow
instructions of the Adviser to remedy such non-compliance. The Subadviser shall
furnish information to the Adviser, as requested, for purposes of compliance
with the distribution requirements necessary to avoid payment of any excise tax
pursuant to Section 4982 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, such Registration Statement and any
amendments or supplements thereto will, 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 1940
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.
The Subadviser agrees: (a) to maintain a level of errors and
omissions or professional liability insurance coverage that, at all times during
the course of this Agreement, is appropriate given the nature of its business,
and (b) from time to time and upon reasonable request, to supply evidence of
such coverage to the Adviser.
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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. (a) The Subadviser is responsible for
decisions to buy or sell securities and other investments for a portion 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 judgment, 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 transaction1 1 , 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, 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 1940 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; provided, however, that for each Portfolio the average annual
percentage of portfolio transactions which are engaged in with the Subadviser's
affiliates, the Adviser and its affiliates or any other subadviser to the Trust
and its respective affiliates, may not exceed 25% of the Portfolio's total
transactions in securities and other investments during the Trust's fiscal year.
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. To the extent consistent with applicable law, the
Subadviser may aggregate purchase or sell orders for the Portfolio with
contemporaneous purchase or sell orders of other clients of the Subadviser or
its affiliated persons. In such event,
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allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by the Subadviser in the manner the
Subadviser determines to be equitable and consistent with its and its
affiliates' fiduciary obligations to the Portfolio and to such other clients.
The Adviser hereby acknowledges that such aggregation of orders may not result
in more favorable pricing or lower brokerage commissions in all instances.
(b) Notwithstanding Section 2(a) above, for such purposes as obtaining
investment research products and services, covering fees and expenses, and
rewarding sales or distribution, the Adviser may direct the Subadviser to effect
a specific percentage of a Portfolio's transactions in securities and other
investments to certain broker-dealers and futures commission merchants. In
designating the use of a particular broker-dealer or futures commission
merchant, the Adviser and Subadviser acknowledge:
(1) All brokerage transactions are subject to best execution. As such,
the Subadviser will use its best efforts to direct non-risk
commission transactions to a particular broker-dealer or futures
commission merchant designated by the Adviser provided that the
Subadviser obtains best execution;
(2) Such direction may result in the Subadviser paying a higher
commission, depending upon the Subadviser's arrangements with the
particular broker-dealer or futures commission merchant, or such
other factors as market conditions, share values, capabilities of
the particular broker-dealer or futures commission merchant, etc.;
(3) If the Subadviser directs payments of an excessive amount of
commissions, the executions may not be accomplished as rapidly. In
addition, the Subadviser may forfeit the possible advantage derived
from the aggregation of multiple orders as a single "bunched"
transaction where the Subadviser would, in some instances, be in a
better position to negotiate commissions; and
(4) The Subadviser does not make commitments to allocate fixed or
definite amounts of commissions to brokers. As such the Subadviser
may be unable to fulfill the Adviser's request for direction due to
the reasons stated above.
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 to the Subadviser a
fee at the annual rates set forth in Schedule A hereto with respect to the
portion of the assets managed by the Subadviser for each Portfolio listed
thereon. Such fee shall be accrued daily and paid monthly as soon as practicable
after the end of each month (i.e., the applicable annual fee rate divided by 365
applied to each prior days' net assets in order to calculate the daily accrual).
For purposes of calculating the Subadviser's fee, the average daily net asset
value of a Portfolio shall mean the average daily net assets for which the
Subadviser actually provides advisory services, and shall be determined by
taking an average of all
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determinations of such net asset value during the month. 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 in order to facilitate meetings or other
similar functions. 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. ADVERTISING. Subadviser shall not provide or in any way distribute
any sales or advertising materials, whether or not related to the Trust, to any
employee or representative of SunAmerica Capital Services, Inc. ("SACS") or its
affiliates, including wholesaling personnel, unless such material has been
received and approved, in writing, by the Adviser.
8. PROXY VOTING. The Subadviser will vote proxies relating to the
Assets of each Portfolio for which Subadviser exercises investment discretion.
Subadviser will vote all such proxies in accordance with such proxy voting
guidelines as Subadviser may, from time to time, establish. Subadviser will not,
however, advise or act for the Adviser, the Trust or a Portfolio in any legal
proceedings, including bankruptcies or class actions, involving securities held
or previously held by a Portfolio or the issuers of the securities ("Legal
Proceedings"). The Adviser will instruct the custodian and other parties
providing services to the Trust promptly to forward to Subadviser copies of all
proxies and shareholder communications relating to securities held by each
Portfolio (other than materials relating to Legal Proceedings). The Adviser
agrees that Subadviser will not be responsible or liable for failing to vote any
proxies where it has not received such proxies or related shareholder
communications on a timely basis.
9. CERTAIN RECORDS. The Subadviser hereby undertakes and agrees to
maintain, in the form and for the period required by Rule 31a-2 under the 1940
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 the 1940 Act. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the
1940
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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.
10. 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.
11. LIABILITY OF THE SUBADVISER. (a) 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/trustees, 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 Adviser (and its officers,
directors/trustees, agents, employees, controlling persons, shareholders and any
other person or entity affiliated with the Adviser) or to the Trust (and its
officers, directors/trustees, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Trust) for any
act or omission in 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
1940 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 the Subadviser (and its officers,
directors/trustees, 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 Subadviser's rendering of services under this Agreement.
(b) The Subadviser agrees to indemnify and hold harmless the
Adviser (and its officers, directors/trustees, agents, employees, controlling
persons, shareholders and any other person or entity affiliated with the
Adviser) and/or the Trust (and its officers, directors/trustees, agents,
employees, controlling persons, shareholders and any other person or entity
affiliated with the Trust) against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses), to
which the Adviser and/or the Trust and their affiliates or such officers,
directors/trustees, agents, employees, controlling persons and shareholders may
become subject under the 1940 Act, the 1933 Act, under other statutes, common
law or otherwise, which arise from the Subadviser's disabling conduct, including
but not limited to any material failure by the Subadviser to comply with the
provisions and representations and warranties set forth in Section 1 of this
Agreement; provided, however, that in no case is the Subadviser's indemnity in
favor of any person deemed to protect such other persons against any liability
to which such person would otherwise be subject by reasons of willful
misfeasance, bad
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faith, or gross negligence in the performance of his, her or its duties or by
reason of his, her or its reckless disregard of obligations and duties under
this Agreement.
(c) The Subadviser shall not be liable to the Adviser for (i) any
acts of the Adviser or any other subadviser to the Portfolio with respect to the
portion of the assets of a Portfolio not managed by Subadviser; and (ii)
reasonable acts of the Subadviser which result from a failure of the Adviser to
provide accurate and current information with respect to any records maintained
by the Adviser or any other subadviser to a Portfolio, which records are not
also maintained by or otherwise available to the Subadviser upon reasonable
request.
12. PERMISSIBLE INTERESTS. Trustees and agents of the Trust are or may
be interested in the Subadviser (or any successor thereof) as
directors/trustees, partners, officers, or shareholders, or otherwise;
directors/trustees, 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.
13. 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 0000 Xxx) of the Portfolio, voting separately from
any other series of the Trust, or by the Adviser, on not less than 30 nor more
than 60 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 1940 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
0000 Xxx) shall not affect the continued effectiveness of this Agreement with
respect to each other Portfolio subject hereto. This 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.
14. 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.
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15. 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 1940 Act.
16. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York and the applicable provisions of the 1940 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 1940 Act, the
latter shall control.
17. 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," as defined in the Declaration,
only shall be liable.
18. 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.
19. 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: Xxxxxxxxx Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xx, XX 00000
Attention: Xxxxx XxXxxxx
President
Adviser: SunAmerica Asset Management Corp.
The SunAmerica Center
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
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
Secretary, Seasons Series Trust
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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 and Chief Executive Officer
XXXXXXXXX INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxx XxXxxxx
----------------------------------------
Name: Xxxxx XxXxxxx
Title: President
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