INVESTMENT ADVISORY AGREEMENT FOR SUBADVISER
INVESTMENT
ADVISORY AGREEMENT FOR SUBADVISER
AGREEMENT
made as of the __ day of
______, 2007 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 Goldman Mid Cap
Value
Fund (the “Fund”), and Xxxxxxx Sachs Asset Management, L.P., a Delaware limited
partnership (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 and Management Agreement dated _____, 2007 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, provided that the Subadviser acknowledges in writing receipt of
such
guidelines or policies.
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,
upon and in accordance with written instructions from the Investment Adviser,
effect such portfolio transactions for the Fund as the Investment Adviser may
from time to time direct. Such instructions will be given in
reasonable circumstances, including, without limitation, any termination of
this
Agreement.
The
Subadviser will also make its
officers and employees 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. From time to
time 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 transactions and reports on 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, on its own initiative, furnish the Trust’s officers and the
Investment Adviser from time to time with such information.
The
Subadviser agrees as follows with respect to securities held both by the Fund
and by another registered investment company sponsored by the Subadviser (“GS
Proprietary Fund”):(i) to immediately notify the Investment Adviser if the
Subadviser believes that market quotations are not readily available or the
market price does not reflect the security’s fair value; (ii) to provide
assistance to the Investment Adviser, the Trust’s valuation committee and the
Fund’s pricing agent in making determinations of the fair value of such
portfolio securities in accordance with the Trust’s valuation procedures; and
(iii) to provide to the Investment Adviser the value assigned to such security
within such GS Proprietary Fund, and the basis for the decision, pursuant to
the
Subadviser’s procedures for determining the fair value of a
security. With respect to securities that are not also held by a GS
Proprietary Fund, the Subadviser agrees to (i) and (ii) above to the extent
the
Subadviser has actual knowledge of a valuation situation of the type described
above. Notwithstanding the foregoing, the Subadviser shall not be
responsible for any valuation determinations made with respect to the
Fund.
In
addition, the Subadviser will
provide a quarterly certification, in the form provided by the Investment
Adviser from time to time, that the Subadviser has managed the Fund in
accordance with the provisions 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 supporting certifications in connection with such
certifications of the Fund’s financial statements and disclosure controls
pursuant to the Xxxxxxxx-Xxxxx Act.
The
Subadviser will cooperate with and
provide reasonable assistance to the Investment Adviser, the Fund’s custodian
and foreign custodians, transfer agent and all other agents and representatives
of the Trust and the Investment Adviser, keep all such persons fully informed
as
to such matters as they may reasonably deem necessary to the performance of
their obligations to the Trust, on behalf of the Fund, and the Investment
Adviser, provide prompt responses to reasonable requests made by such persons
and maintain any appropriate interaction with each to promote the exchange
of
information.
Unless
and until otherwise directed in
writing by the Investment Adviser or the Trust’s officers or Board, the
Subadviser will be responsible for voting all proxies pursuant to its internal
proxy voting policies and procedures, as adopted by the Board for the Fund,
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 Investment
Adviser understands that the Subadviser establishes from time to time guidelines
for the voting of proxies and may employ the services of a proxy voting service
to exercise proxies in accordance with the Subadviser’s guidelines, as adopted
by the Board for the Fund. For the avoidance of doubt and except as
may be explicitly provided by applicable law, the Subadviser shall not incur
any
liability to the Investment Adviser or the Trust by reason of any exercise
of,
or failure to exercise, any discretion with respect to any and all filings
in
connection with any securities litigation or class action lawsuit involving
securities held or that were held in the Fund and shall not incur any liability
for any failure arising from an act or omission of a person other than the
Subadviser with respect to such filings.
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 to inspect and audit
such
records at reasonable times during normal business hours upon due
notice.
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.
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 or any change in the
portfolio manager or managers assigned by the Subadviser to manage 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
calculate the fees and pay the Subadviser an annual fee, computed daily and
paid
quarterly in arrears, which varies in accordance with the net asset value of
the
Fund. The annual subadvisory fee is expressed as a percent of the
average daily net assets of the Fund as follows:
ASSET
LEVEL FEE
RATE
All
Assets 0.40%
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 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 at, or, if practicable, 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 the Trust’s Declaration of Trust and
By-laws, 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 this Section 5 and
absent instructions from the Investment Adviser or the Trust, 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 will act in accordance with its duty to obtain
best execution, taking into account best price as an important factor in its
decisions. 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 applicable laws and
regulations and review by the Investment Adviser and the Trust’s Board of
Trustees from time to time with respect to the extent and continuation of this
practice. 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 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
over time and consistent with its fiduciary obligations to the Fund and to
such
other clients. The Subadviser will report on such allocations at the
request of the Investment Adviser, the Fund or the Trust's Board of Trustees,
providing such information as the number of aggregated trades to which the
Fund
was a party, the broker(s) to whom such trades were directed and the basis
of
the allocation for the aggregated trades.
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 the name of the issuer, the description
and
amount or number of shares of the security purchased or sold, the market price,
commission and gross or net price, trade date, settlement date and identity
of
the effecting broker or dealer, and such other information as may be reasonably
required.
6. Standard
of Care and Liability of Subadviser. The Subadviser will not be
liable for any act or omission, including but not limited to 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 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: (a) the Subadviser’s causing the Fund to
be in violation of any applicable federal or state law, rule or regulation
or
any investment policy or restriction set forth in the Fund’s prospectus or
Statement of Additional Information or any written guidelines or instruction
provided in writing by the Trust’s Board of Trustees or the Investment Adviser
provided that the Subadviser acknowledges in writing receipt of such guidelines
or instruction, (b) the Subadviser’s causing the Fund to fail to satisfy the
diversification requirements of § 817(h) of Subchapter L of the Code, or
the diversification or source of income requirements of Subchapter M of the
Code, or (c) the Subadviser’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.
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 (i) any of the Subadviser’s acts or omissions
specified in (a), (b) or (c) above, (ii)any breach of any duty or warranty
hereunder of the Subadviser or any inaccuracy of any representation of the
Subadviser made hereunder, or (iii) the Subadviser’s causing the Fund to be in
violation of any applicable investment policy or restriction of the Subadviser,
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 (i) 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, (ii) any breach
of
any duty or warranty hereunder of the Investment Adviser or any inaccuracy
of
any representation of the Investment Adviser made hereunder, or (iii) the
Investment Adviser’s causing the Fund to be in violation of any applicable
federal or state law, rule or regulation or any applicable investment policy
or
restriction of the Investment Adviser, 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, 2008] 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 Registration Statement of the Trust, relating to the Fund as filed
with the Securities and Exchange Commission and represents and warrants that
with respect to disclosure about the Subadviser or information relating directly
or indirectly to the Subadviser, such Registration Statement contains, on or
after the effective date thereof, 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 as requested
by
the Investment Adviser 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 described
therein is consistent with the policies and strategies the Subadviser uses
or
intends to use.
::ODMA\PCDOCS\LEGALDOCS\82800\1
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 the Investment Adviser represents and warrants that it
is
an investment adviser duly registered with the Securities and Exchange
Commission 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.
(iii) Each
of the Subadviser and the 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.
(iv) The
Subadviser 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 maintain for the term of this Agreement and provide
evidence thereof to the Fund or the Investment Adviser upon request a blanket
bond and professional liability (error and omissions) insurance in an amount
reasonably acceptable to the Investment Adviser and the Board.
(vi) Each
of the Subadviser and the Investment Adviser 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 laws, rules, regulations and case law that
relate to the services and relationships described in this Agreement and to
the
conduct of its business as a registered investment adviser.
(vii) 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
material change in the portfolio manager or portfolio management team; (e)
the
existence of any pending or threatened 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.
(viii) Each
of the parties to this Agreement 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.
(ix) The
Investment Adviser represents that the Trust has implemented an anti-money
laundering program and a customer identification program (“CIP”) that each
comply with the requirements of applicable law, including the Bank Secrecy
Act
and U.S.A. PATRIOT Act of 2001 and the regulations promulgated
thereunder. The Investment Adviser agrees that the Subadviser shall
not have any responsibility or liability arising out of any non-compliance
by
the Fund with applicable anti-money laundering regulations.
(x) The
Investment Adviser represents that the Trust has policies and procedures with
respect to excessive and short-term trading. The Subadviser
acknowledges and agrees that, because shares of the Trust are sold to insurance
company separate accounts as underlying investment for variable annuities and
variable life insurance policies, the Trust has limited ability to monitor
trading activity by owners of such variable products and must rely primarily
on
the insurance companies to detect and curtail excessive trading.
11. Confidentiality
of Portfolio Holdings Information. 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, the
Board, 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 Name. It is understood that the name “Xxxxxxx, Sachs &
Co.” or “Xxxxxxx Xxxxx” or any derivative thereof, any tradename, trademark,
trade device, service xxxx, symbol or logo associated with those names are
the
valuable property of the Subadviser or its affiliates and that the Investment
Adviser has the right to use such name (or derivative or logo) with respect
to
the Fund, in offering materials or promotional or sales-related materials of
the
Fund, only with the prior written approval of the Subadviser, such approval
not
to be unreasonably withheld, and for so long as the Subadviser is Subadviser
of
the Fund. Notwithstanding the foregoing, the Subadviser’s approval is
not required when (i) previously approved materials are re-issued with minor
modifications, (ii) the Investment Adviser and Subadviser identify materials
which they jointly determine do not require the Subadviser’s approval and (iii)
such name (or derivative or logo) is used in the Fund’s Registration Statement,
shareholder reports, or other documents filed with the Securities and Exchange
Commission. Upon termination of this Agreement, the Fund and the
Investment Adviser shall forthwith cease to use such name (or derivative or
logo) with respect to the Fund, except as required by law or regulation, and
except for references, in the Fund’s Registration Statement, shareholder reports
or other documents filed with the Securities and Exchange Commission, or in
the
Fund’s marketing material, to the Subadviser having served as the Fund’s
subadviser for the term of this Agreement.
During
the term of this Agreement, the
Subadviser shall not use the Investment Adviser’s name, or the Fund’s or the
Trust’s name, respectively, without the prior written approval of the Investment
Adviser or the Trust. Upon termination of this Agreement, the
Subadviser shall forthwith cease to use such names.
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 or mailed to the addresses set
forth below, or such other address 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: General
Counsel
If
to the Subadviser:
Xxxxxxx
Xxxxx Asset Management,
L.P.
00
Xxx Xxxx
Xxx
Xxxx, XX 0000
Attn:
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.
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.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
By:
Xxxxx
M.
A. Xxxxxxxx
Its: President
SUN
CAPITAL ADVISERS LLC
By:
Xxxxx
M. A. Xxxxxxxx
Its: President
By:
Xxxxx
X. Xxxxx
Its: Managing
Director, Chief Financial Officer
XXXXXXX
XXXXX ASSET MANAGEMENT, L.P.
By:
Its:
::ODMA\PCDOCS\LEGALDOCS\82800\1
