Exhibit 99.h(iii)
[FORM OF]
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
This Agreement is entered into as of November 9, 2001, by and among
SunAmerica Capital Services, Inc., a Delaware corporation ("SACS"), and [TRUST],
a [FORM of] trust (the "Trust").
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended ("1940 Act"), and offers shares of
beneficial interests ("Shares") in several series (each a "Fund" and
collectively, the "Funds"), each Fund having its own investment objectives and
investment policies and issuing Shares in several classes ("Classes");
WHEREAS, Class I Shares of the Funds are sold exclusively to (i)
employee retirement benefit plans (each a "Plan" and collectively, the "Plans")
for the benefit of their participants ("Participants") and (ii) the Aggressive
Growth LifeStyle Fund, Moderate Growth LifeStyle Fund and Conservative Growth
LifeStyle Fund series of Sun America Strategic Investment Series, Inc. (each a
"LifeStyle Fund" and collectively the "LifeStyle Funds");
WHEREAS, SACS desires to provide, or arrange, at its own expense, for
the provision of certain administrative and shareholder services to the Plans
and their Participants and the LifeStyle Funds and their shareholders in
connection with their investments in Class I Shares of the Funds;
WHEREAS, the services to be provided directly or indirectly by SACS
hereunder will benefit each Fund by relieving it of the expense it would incur
if such services were to be provided by the Fund; and
WHEREAS, the Trust desires that SACS provide or arrange for the
provision of such services.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE PARTIES
1.01. ADMINISTRATIVE AND SHAREHOLDER SERVICES. SACS shall perform or
arrange for the performance of the administrative and
recordkeeping services (the "Administrative Services")
described in Schedule A attached hereto, as such Schedule A
may be amended from time to time with the mutual consent of
the parties
hereto, with respect to Class I Shares of the Funds purchased,
held or redeemed by a Plan. SACS shall perform or arrange for
the performance of the shareholder services (the "Shareholder
Services") described in Schedule B attached hereto, as such
Schedule B may be amended from time to time with the mutual
consent of the parties hereto, with respect to Class I Shares
of the Funds purchased, held or redeemed by a LifeStyle Fund.
SACS and any person(s) with whom it contracts for the
provision of such services shall perform the Administrative
Services or Shareholder Services as an independent contractor
and not as an employee or agent of the Trust or any Fund.
Neither SACS nor any person(s) with whom it contracts for the
provision of such services shall not be or be held out to be
an agent of the Trust or any Fund. SACS shall perform, or
arrange for the provision of the Administrative Services and
the Shareholder Services in accordance with procedures
established from time to time by the agreement of the Trust
and SACS, and subject to terms and conditions set forth in the
Trust's current prospectus.
1.02. EQUIPMENT. SACS shall maintain adequate offices, personnel,
computers and other equipment necessary to perform or arrange
for the provision of the services contemplated by this
Agreement. SACS shall notify the Trust or its agent promptly
in the event that SACS becomes unable for any reason to
perform or arrange for the provision of the services
contemplated by, or any other of its obligations under, this
Agreement. SACS shall maintain or cause the maintenance of
back-up files of the records required to be maintained
hereunder and shall store such back-up files in a secure
off-premises location, so that, in the event of a power
failure or other interruption of whatever cause at the
location of the records, SACS's records are maintained intact
and transactions can be processed at another location.
1.03. DISCLOSURE TO PLANS. SACS or its Agent shall take all steps
necessary to ensure that the arrangements provided for in this
Agreement are properly disclosed to the Plans.
1.04. CONFIDENTIALITY OF INFORMATION. The parties hereto agree that
all books, records, information, computer programs and data
pertaining to the business of any other party which are
exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall be kept confidential and
shall not be voluntarily disclosed to any other person, except
as may be permitted hereunder or may be required by law. This
provision shall not apply to information lawfully in the
possession of a party prior to the term hereof that has been
lawfully obtained from other sources or independently
developed by a party without reference to or reliance on
information obtained from any other party hereto. This
provision shall survive the termination of this Agreement.
1.05. COMPLIANCE WITH LAW. Each of the parties shall at all
times comply with all applicable federal and state laws and
regulations thereunder, including the rules of any self
regulatory organization, in connection with the performance of
each of the parties responsibilities under this Agreement.
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1.06. NO IMPAIRMENT OF TRUST'S AUTHORITY. No provision of this
Agreement shall limit in any way the authority of the Trust to
take such action as it deems appropriate in connection with
matters relating to the operation of the Funds and the sale of
Shares.
1.07. AUTHORITY OF SACS. SACS acknowledges that it is not authorized
by the Trust or any Fund to register the transfer of Shares or
to transfer record ownership of Shares, and that only the
Trust or its agent is authorized to perform such activities.
2. COMPENSATION
2.01. EXPENSES. SACS shall bear all expenses arising out of the
performance of the Administrative Services and the Shareholder
Services. SACS shall not receive (nor shall any agent of SACS
receive) from the Trust or any Fund (or from any affiliate of
the Trust) any monetary compensation or reimbursement for such
expenses.
2.02. TRUST'S AND FUND EXPENSES. The Trust shall bear all the
expenses of the Funds hereunder and shall not receive (nor
shall any agent of the Trust receive) from SACS any monetary
compensation or reimbursement for such expenses.
2.03. FEES. In consideration of SACS's performance or arrangement of
the performance of the Administrative Services and the
Shareholder Services, the Trust, from the assets of each Fund,
severally and not jointly, shall pay either to SACS the fees
(the "Fees") described in Schedule C attached hereto, as such
Schedule C may be amended from time to time with the mutual
consent of SACS and the Trust.
2.04. CALCULATION AND PAYMENT OF FEES. The Fees shall be calculated
in the manner described in Schedule C hereto and shall be due
each calendar month from the Trust on behalf of each Fund for
which SACS performs or arranges for the provision of
Administrative Services or Shareholder Services pursuant to
this Agreement. The Trust shall make a payment of Fees for a
calendar month within thirty (30) days after the last day of
such month. SACS shall have sixty (60) days following receipt
of the payment to verify the amount of the payment and after
such time the amount will be considered final.
3. REPRESENTATIONS AND WARRANTIES
3.01. SACS REPRESENTATIONS. SACS represents and warrants to the
Trust and each Fund that:
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(a) it is a corporation duly organized and validly existing
and in good standing under the laws of the State of
Delaware;
(b) it has full power and authority under applicable law to
carry on its business, and is registered or licensed as
required, in each jurisdiction where it conducts its
business;
(c) it maintains and knows of no reason why it cannot or will
not, during the term hereof, maintain adequate offices,
personnel, procedures, computers and other equipment
necessary to perform the services contemplated by this
Agreement; and
(d) its entering into and performing this Agreement are duly
authorized by any necessary corporate actions and will
not violate any provision of applicable law or regulation
or order of any court, governmental or regulatory body,
or any agreement or instrument by which it is bound.
3.02. TRUST'S REPRESENTATIONS. The Trust represents on its own
behalf, and for each Fund, and warrants to SACS that the
entering into and the performing of this Agreement by the
Trust are duly authorized and will not violate any provision
of applicable law, regulation or order of any court,
governmental or regulatory body, or any agreement or
instrument by which the Trust and the Funds are bound.
4. INDEMNIFICATION
4.01. BY THE TRUST. The Trust, on behalf of each Fund, shall
indemnify and hold SACS (including any affiliate of SACS), and
the directors, trustees, officers and employees of SACS
harmless from and against any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and
liabilities ("Losses") arising out of or attributable to:
(a) the Trust's, its agent's, or the Fund's refusal or
failure to comply with the provisions of this Agreement
or applicable law;
(b) the bad faith, negligence or willful misconduct of the
Trust, its agent, or any Fund; or
(c) the breach of any representation or warranty of the Trust
on behalf of itself or a Fund hereunder, in each case
except to the extent such Losses arise out of or are
attributable to another party's breach of any provision
of this Agreement or the bad faith, negligence or willful
misconduct of another party in performing its obligations
hereunder.
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4.02. BY SACS. SACS shall indemnify and hold the Trust, each
affiliate of the Trust, each Fund, and the trustees, officers
and employees of the Trust and each harmless from and against
any and all Losses arising out of or attributable to:
(a) SACS's or its agent's refusal or failure to comply with
the provisions of this Agreement or applicable law or
with instructions properly given hereunder;
(b) SACS's or its agent's performance of or failure to
perform the Administrative Services and/or the
Shareholder Services;
(c) the bad faith, negligence or willful misconduct of SACS
or its agent;
(d) SACS's or its agent's furnishing to any Plan, Plan
Participant, Plan sponsor, authorized Plan committee or
Plan trustee any materially inaccurate, misleading or
untimely information regarding any Fund or the Shares
through no fault of the Trust, its agent, or any Fund; or
(e) the breach of any representation or warranty of SACS
hereunder, in each case except to the extent such Losses
arise out of or are attributable to another party's
breach of any provision of this Agreement or the bad
faith, negligence or willful misconduct of another party
in performing its obligations hereunder.
4.03. ACTS OF GOD. In the event that any party is unable to perform
its obligations under the terms of this Agreement because of
acts of God, strikes, equipment or transmission failure or
damage beyond its reasonable control, or other causes beyond
its reasonable control, such party shall not be liable to any
other party for any damages resulting from such failure to
perform or otherwise from such causes.
4.04. NO CONSEQUENTIAL DAMAGES. No party to this agreement shall be
liable to any other party for consequential damages under any
provision of this Agreement.
4.05. CLAIM PROCEDURE. In order that the indemnification provisions
contained herein shall apply, upon the assertion of a claim or
loss for which any party (the "Indemnitor") may be required to
indemnify another party (the "Indemnitee"), the Indemnitee
shall promptly notify the Indemnitor of such assertion or
loss, and shall keep the Indemnitor advised with respect to
all developments concerning any such claim. The Indemnitor
shall have the option to participate at its expense with the
Indemnitee in the defense of any such claim. In the event that
there is more than one
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Indemnitor with respect to any such claim, the Indemnitors
shall agree as to their exercise of this option. The
Indemnitee shall in no case confess any claim or make any
compromise in any case in which the Indemnitor may be required
to indemnify it except with the Indemnitor's prior written
consent. The obligations of the Trust and SACS under this
Section 4 shall survive the termination of this Agreement.
5. ACKNOWLEDGMENTS
5.01. FEES SOLELY FOR NON-ADVISORY, NON-DISTRIBUTION SERVICES. The
parties hereto acknowledge that the Fees are for
administrative, recordkeeping and shareholder services only
and do not constitute payment in any manner for investment
advisory or distribution services or services of an
underwriter or principal underwriter within the meaning of the
1933 Act or the 0000 Xxx. The parties acknowledge that
affiliates of SACS have provided and will continue to provide
certain services to the Plans as agent of the Plans, which
together with SACS, may involve, among other things, preparing
informational or promotional materials relating to their
services that may refer to the Funds and responding to
telephone inquiries from Plan Participants. The parties
acknowledge that the provision of such services and any other
actions of SACS related to the Funds and not specifically
authorized herein are outside the scope of this Agreement.
5.02. SUPERVISION. The Trust and SACS acknowledge that neither the
Trust nor any Fund undertakes to supervise SACS or an agent of
SACS in the performance of the Administrative Services or the
Shareholder Services; that neither the Trust nor any Fund
shall be responsible for the performance of the Administrative
Services or the Shareholder Services by SACS or its agent(s);
that neither the Trust nor any Fund shall be responsible for
the accuracy of the records maintained for the Plans; and that
neither the Trust nor any Fund shall be responsible for the
performance of other functions by SACS or its agent(s) for the
Plans, the Participants, the LifeStage Funds and their
shareholders.
5.03. AGENTS OF SACS. To the extent agents of SACS perform services
under this Agreement that are the responsibility of SACS, SACS
shall be responsible for, and assume all liability for
(including any obligation for indemnification as provided in
Sections 4.02 or 4.03 hereof, as applicable), the actions and
inaction of such agents as if such services had been provided
by SACS.
6. AMENDMENT AND TERMINATION OF AGREEMENT
6.01. AMENDMENT. Except as otherwise provided herein, this Agreement
may be amended or modified only by a written instrument
executed by all the parties affected thereby; provided that an
amendment solely to add or
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remove any Fund may be made, and shall be valid and binding,
by the addition or removal of the relevant to or from the
signature page hereof without requiring the other parties'
signatures and shall be effective as of the date of execution,
unless any other party objects in writing within thirty (30)
days after receiving notice of such amendment.
6.02. TERMINATION WITHOUT CAUSE. This Agreement may be terminated by
any party upon ninety (90) days written notice to each other
party.
6.03. TERMINATION BY TRUST FOR CAUSE. This Agreement may be
terminated by the Trust with respect to any Fund immediately
upon notice to each other party in the event that (a) SACS
becomes unable for any reason to perform the services
contemplated by this Agreement, or (b) the performance by SACS
of the services contemplated by this Agreement becomes in the
Trust's reasonable judgment unlawful or becomes unacceptable
to the Trust.
6.04. TERMINATION PROCEDURES. Upon termination of this Agreement,
each party shall return to each other party all copies of
confidential or proprietary materials or information received
from such other party hereunder, other than materials or
information required to be retained by such party under
applicable laws or regulations. The provision shall survive
the termination of this Agreement.
7. ASSIGNMENT AND DELEGATION
7.01. ASSIGNMENT AND DELEGATION. Except as otherwise provided
herein, neither the Agreement nor any rights, duties or
obligations hereunder may be assigned or delegated by any
party without the written consent of the other parties.
7.02. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted
successors and assigns.
8. NOTICES
Notices hereunder shall be in writing, shall be signed by an authorized
officer, and shall be deemed to have been duly given if delivered personally,
sent by certified mail (return receipt requested), or sent by facsimile machine
in accordance with procedures established by agreement of the Trust and the
Service Provider or SACS, and if it is addressed to a party either sat its
address below or at as changed addressed specified by it in a notice to the
other parties hereto:
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Trust: [TRUST]
SACS:
9. MISCELLANEOUS
9.01. MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance
with the laws of the State of Massachusetts, without regard to
conflicts of laws principles.
9.02. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether
oral or written. All exhibits and schedules hereto, as amended
from time to time, are incorporated herein and made a part
hereof. References herein to exhibits and schedules refer to
such exhibits and schedules as so amended. Nothing contained
in this Agreement is intended to convey rights to any third
parties, such as Plans, Plan trustees, Participants or
LifeStage Fund shareholders.
9.03. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original document and
all of which together shall be deemed one and the same
instrument.
9.04. LIMITATION OF LIABILITY OF THE TRUST, TRUSTEES AND
SHAREHOLDERS. This Agreement is executed on behalf of the
Trust by an officer of the Trust as an officer and not
individually and that the obligations of this Agreement are
not binding upon any of the Trustees, officers or shareholders
of the Trust individually, but are binding only upon the
assets and property of the relevant Fund. A copy of the
Amended and Restated Agreement and Declaration of Trust of the
Trust is on file with the Secretary of the State of
Massachusetts.
9.05. HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement.
9.06. SEVERABILITY. If any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any
reason, the remaining provisions and portions of the Agreement
shall be unaffected thereby and shall remain in full force and
effect to the fullest extent by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
[TRUST]
By:
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Name:
-------------------------------
Title:
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SUNAMERICA CAPITAL SERVICES, INC.
By:
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Name:
-------------------------------
Title:
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SCHEDULE A
ADMINISTRATIVE SERVICES
1. SACS, or its agent, shall maintain adequate records for each Plan reflecting
Shares purchased and redeemed, including the date, price and number of Shares
purchased, redeemed or exchanged; dividend reinvestment dates and amounts of
dividends paid for at least the current year to date; records of distributions
and dividend payments; Share transfers; investment allocation changes; and
overall control records. Such records shall be preserved, maintained and made
available in accordance with the provisions of applicable law and regulations,
and copies or, if required, originals shall be surrendered promptly to the Trust
on and in accordance with its request. Records surrendered hereunder shall be in
machine-readable form, except to the extent that such records have been
maintained only in paper form.
2. SACS, or its agent, shall disburse or credit to the Plans, and maintain
records of, all proceeds of Share redemptions and distributions not reinvested
in Shares.
3. SACS, or its agent, shall cause and oversee the timely and accurate transfer
of funds in connection with Plan accounts with the Funds.
4. SACS , or its agent, shall prepare and deliver periodic account statements to
the Plans showing for each Plan the total number of Shares held as of the
statement closing date, purchases and redemptions of Shares during the statement
period, and dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Shares), including dates and prices for
all transactions.
5. Subject to the terms of the agreements with each Plan, and to the extent
required by applicable law, SACS, or its agent, shall deliver or cause the
delivery of prospectuses, proxy materials (where pass-through voting is
required), periodic reports to shareholders, and other materials provided to
SACS by the Trust on behalf of the Funds.
6. SACS, or its agent, shall receive Instructions from the Service Provider or
the trustee and/or custodian of the Plans and communicate Orders to the Trust or
its agent as specified in the Agreement.
7. SACS, or its agent, shall transmit Orders to the Trust or its agent and, in
accordance with applicable law, send to the Plans confirmations related to the
processing of Instructions and Orders.
8. SACS, or its agent, shall maintain daily and monthly purchase summaries
(expressed in both Share and dollar amounts) for each Plan.
9. SACS, or its agent, shall use its best efforts to arrange for payment for net
purchases of Shares attributable to all Orders executed on a given Business Day
to be
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wired to the Trust or its agent by 12:00 PM (noon) eastern time the first
Business Day following receipt of such orders by the Service Provider. The Trust
agrees that it will use its best efforts to arrange for payment for net
redemptions for Shares attributable to all orders executed prior to 4:00 PM on a
given Business Day to be wired to the trustee and/or custodian of the Plans by
12:00 PM (noon) eastern time the first Business Day following receipt of such
orders by the Transfer Agent.
10. SACS, or its agent, shall transmit to the Trust or its agent, or to any Fund
designated by the Trust, such occasional and periodic reports as the Trust shall
reasonably request from time to time to enable it or such Fund to comply with
applicable laws and regulations.
11. SACS, or its agent, shall establish a voice response system and make
customer service representatives accessible to respond to Plan or Participant
inquiries regarding, among other things, Share prices, account balances,
dividend amounts, dividend payment dates, and any information changes concerning
a Plan or Participant.
12. SACS, or its agent, shall provide average cost basis reporting to Plan
Participants to assist them in preparing their income tax returns.
13. SACS, or its agent, shall prepare and file with the appropriate governmental
agencies such tax-related information, returns and reports as are required under
applicable laws or regulations to be filed for reporting (a) dividends and other
distributions, (b) amounts withheld on dividends and other distributions and
payments, and (c) gross proceeds of sales transactions.
14. SACS, or its agent, shall assist with the solicitation of proxies from Plan
Participants, as requested from time to time by the Trust.
15. SACS, or its agent, shall establish Internet access for Participants to view
account balances and perform certain limited transactions as determined by the
Service Provider and SACS.
16. SACS, or its agent, shall perform all testing and Plan compliance services,
including consulting on proposed Plan amendments, determining Plan eligibility,
calculating Plan service and vesting, and processing forfeitures.
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SCHEDULE B
SHAREHOLDER SERVICES
SACS, or its agent, shall provide to shareholders of each Class of Shares of
each LifeStage Fund (other than Institutional Class I shareholders, who will
receive the Administrative Services) in respect of such Shares, all of the
services customarily provided by full-service brokerage firms to their
customers, including, without limitation:
1. Maintenance of records;
2. Providing customers with periodic statements showing their LifeStage Fund
holdings;
3. Aggregating and processing customer purchase and redemption orders and
providing sub-accounting services for shares held beneficially;
4. Processing dividend payments;
5. Forwarding shareholder communications such as proxies, shareholder reports,
dividend and tax notices and updating prospectuses;
6. Receiving, tabulating and transmitting proxies executed by beneficial
owners;
7. Responding to customer inquiries; and
8. Providing information on customers' investments.
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SCHEDULE C
ADMINISTRATIVE AND SHAREHOLDER SERVICE FEES
The Trust, on behalf of the Funds, will pay SACS a monthly fee
at an annualized rate of 0.25 percent (25 basis points) of the average daily net
assets of each Fund (other than the LifeStyle Funds) attributable to Class I
Shares. If SACS begins or ceases to perform Administrative and Shareholder
Services during the month, such fee shall be prorated according to the
proportion which such portion of the month bears to the full month.
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