EXHIBIT NO. 99.4(n)
SUB-INVESTMENT ADVISORY AGREEMENT
SUB-INVESTMENT ADVISORY AGREEMENT, dated this 29th day of December,
2000, by and between MASSACHUSETTS FINANCIAL SERVICES COMPANY ("MFS") a Delaware
corporation, and SUN CAPITAL ADVISERS, INC. ("Sun Capital"), a Delaware
corporation.
WHEREAS, MFS and Sun Capital are investment advisers registered under
the Investments Advisers Act of 1940;
WHEREAS, MFS is the investment adviser to the MFS Institutional Real
Estate Investment Fund (the "Fund"), an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, MFS desires to retain Sun Capital to provide sub-investment
advisory services to the Fund, in accordance with the terms and conditions
hereinafter set forth, and Sun Capital is willing to accept such retention in
accordance with such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, and other good and valuable
consideration the receipt and adequacy of which is hereby acknowledged by both
parties, the parties covenant and agree as follows:
ARTICLE 1. APPOINTMENT OF SUN CAPITAL; INVESTMENT GUIDELINES. Pursuant
to valid and proper authority and in accordance with applicable law, MFS hereby
appoints Sun Capital to have full discretion and authority to manage, invest and
reinvest the assets of the Fund. Sun Capital hereby accepts this appointment and
agrees to provide such sub-investment advice in accordance with and subject to:
(i) the investment objectives, policies, guidelines and restrictions
(collectively, the "Investment Guidelines") set forth in the Fund's then-current
prospectus and Statement of Additional Information; (ii) such revised investment
guidelines as may from time to time be furnished in writing to Sun Capital by
MFS; (iii) any applicable procedures, policies and guidelines adopted by the
Fund's Board of Trustees and furnished to Sun Capital in writing and (iv)
applicable provisions of the 1940 Act and the Investment Advisers Act of 1940,
as amended (the "Advisers Act"), and the rules and regulations and any orders
thereunder.
ARTICLE 2. DUTIES OF SUN CAPITAL; AUTHORIZATION TO TAKE ACTIONS;
SELECTION OF BROKERS. Sun Capital shall provide the Fund with such
sub-investment advice and supervision as may from time to time be necessary for
the proper investment of the Fund, subject to the provisions of Article 1
hereof. Sun Capital shall have full investment discretion to determine from time
to time what securities shall be purchased, sold or exchanged and what portion
of the assets of the Fund shall be held uninvested, subject to the provisions of
Article 1 hereof. Without limiting the generality of the foregoing, MFS warrants
that it has full authority to authorize Sun Capital, and that MFS hereby
authorizes Sun Capital, to enter into, on behalf of the Fund, futures contracts,
forward foreign currency exchange contracts, options on securities, options on
indices, options on foreign currency and other foreign currency transactions,
swaps, options on swaps, forward rate agreements and other similar types of
investment instruments, and MFS hereby warrants that transactions in such
investment vehicles constitute part of the normal course of investing the assets
held in the Fund. Sun Capital may invest all or any portion of the assets of the
Fund in any common, collective, commingled or group trust fund ("collective
trust"), including without limitation the use of money market or other
short-term investment funds, and may maintain any cash or cash balances in such
collective trust; provided that the use of such investment technique shall be
permissible only if the securities held within such collective trusts are
consistent with the Investment Guidelines. To the extent that all or any portion
of the assets of the Fund are invested in one or more open-end investment
companies for which Sun Capital or its affiliate acts as investment adviser and
for which certain affiliates of Sun Capital act as shareholder servicing agent
and as distributor, the investment advisory fee set forth in Appendix A hereto
shall be waived in its entirety or prorated.
Sun Capital 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. Sun Capital shall permit
MFS, 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. Sun Capital shall perform such compliance testing as it deems reasonable
based upon its books and records and shall certify compliance to MFS
accordingly.
A. PROXY VOTING Sun Capital shall: (i) determine the manner in which
any voting rights, rights to consent to corporate actions, conversion rights,
subscription rights, tender rights, appraisal rights and any other rights
pertaining to any portfolio securities held in the Fund shall be exercised,
and/or (ii) execute all such certificates, proxies, consents and other documents
necessary or appropriate.
B. PORTFOLIO SECURITY BANKRUPTCY Sun Capital shall have the authority
to file proofs of claim, ballots and other related documents on behalf of the
Fund in all bankruptcy and other litigation matters when and if Sun Capital
deems the filing thereof to be necessary or appropriate in carrying out its
duties hereunder. Sun Capital shall cause any and all distributions therefrom
received by Sun Capital to be promptly forwarded to the Custodian.
C. BROKERAGE TRANSACTIONS Sun Capital shall take, on behalf of the
Fund, all actions which it deems necessary to implement the investment policies
determined as provided above, and in particular to place all orders for the
purchase or sale of portfolio securities for the Fund with brokers or dealers
selected by it, and to that end, Sun Capital is authorized to give instructions
to the Custodian as to the delivery of securities and payments of cash with
respect to securities transactions for the Fund. In connection with the
selection of such brokers or dealers and the placing of such orders, Sun Capital
is directed to seek for the Fund execution at the most reasonable price by
responsible brokerage firms at reasonably competitive commission rates. In
fulfilling this requirement, Sun Capital shall not be deemed to have acted
unlawfully or to have breached any duty, created by this Agreement or otherwise,
solely by reason of its having caused the Fund to pay a broker or dealer an
amount of commission for effecting a securities transaction in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction, if Sun Capital determined in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or Sun Capital's overall responsibilities with respect to
the Fund and to other clients of Sun Capital as to which Sun Capital exercises
investment discretion. Sun Capital shall not be responsible for any acts or
omissions by any such broker or dealer, provided that Sun Capital is not
negligent in the selection of such broker or dealer. Subject to the foregoing
provisions of this paragraph, MFS reserves the right to suggest that all or any
part of the securities transactions for the Fund be directed by Sun Capital to
specific securities brokerage firms.
On occasions when Sun Capital deems the purchase or sale of a security
to be in the best interests of the Fund as well as other clients of Sun Capital,
Sun Capital, 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 Sun Capital in the manner Sun Capital considers to be the most equitable
and consistent with its fiduciary obligations to the Fund and to such other
clients. Sun Capital will report on such allocations at the request of MFS, 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.
Subject to the foregoing provisions of this Article 3 and at the direction of
MFS or the Trust, Sun Capital may also consider sales of Fund shares as a factor
in the selection of brokers or dealers for the Fund's portfolio transactions.
In connection with purchases or sales of portfolio securities for the
account of the Fund, neither Sun Capital 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 Fund and MFS.
Sun Capital will advise the Fund's custodian and MFS 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.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES. Sun Capital shall
furnish at its own expense sub-investment advisory and administrative services,
office space, equipment and clerical personnel necessary for serving as
sub-investment adviser to the Fund, and investment advisory facilities and
executive and supervisory personnel for managing the investments and effecting
the portfolio transactions. Sun Capital will not be responsible for expenses of
MFS 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 Sun Capital, 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 custodians, transfer agents, registrars 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; cost of Fund stationery; costs
of Trustee, shareholder and other meetings of the MFS Institutional Trust (the
"Trust") or the Fund; 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 the Fund and their
officers and trustees.
ARTICLE 4. COMPENSATION OF SUN CAPITAL. For the services to be rendered
and the facilities provided, MFS shall pay to Sun Capital an investment advisory
fee, computed daily and paid monthly in arrears, at the annual rate set forth on
Appendix A hereto. If Sun Capital shall serve for less than the whole of any
quarterly period, the compensation to Sun Capital will be prorated. For all
purposes of this Agreement, including without limitation the computation of Sun
Capital's compensation hereunder, the assets of the Fund shall be valued in
accordance with valuation policies and procedures adopted by the Fund's Board of
Trustees.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SUN CAPITAL. Sun Capital
represents and warrants that it is an investment adviser registered as such
under the Advisers Act.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF MFS. MFS represents and
warrants that it is an investment adviser registered as such under the Advisers
Act, that it is duly authorized to appoint Sun Capital as sub-investment adviser
to manage (including without limitation the power to acquire and dispose of)
assets of the Fund, and that notice of such appointment has been given (or
concurrently herewith is being given) to the Custodian.
ARTICLE 7. LIMITATION OF LIABILITY OF SUN CAPITAL. Sun Capital shall
not be liable for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in the management of
the Fund, except for willful misfeasance, bad faith or gross negligence in the
performance of its duties and obligations hereunder. No provision contained in
this Article 7 is intended to detract from any right that MFS may have under
applicable federal securities laws.
ARTICLE 8. ACTIVITIES OF SUN CAPITAL. The services of Sun Capital to
the Fund are not deemed to be exclusive, Sun Capital being free to render
investment advisory and/or other services to others. Directors, officers and
employees of Sun Capital, and Sun Capital and its clients, are or may become
interested in MFS as a shareholder or otherwise.
ARTICLE 9. CONFIDENTIAL RELATIONSHIP. The terms and conditions of this
Agreement, and all information and recommendations furnished by Sun Capital to
MFS or the Fund, shall be treated as confidential by the parties, and shall not
be disclosed to third parties except as required by applicable law, rule or
regulation, in response to appropriate requests of regulatory authorities, or as
otherwise expressly agreed to in writing by the parties.
ARTICLE 10. DURATION AND TERMINATION; AMENDMENT. This Agreement shall
become effective on the date first above written and shall remain in force and
effect for an initial period of two years, and from year to year thereafter, but
only so long as such continuance, and the continuance of MFS 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 Sun Capital or MFS,
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 Sun Capital, 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 MFS. This Agreement may, upon not more than 60
days' written notice to the Fund and MFS, be terminated at any time, without
payment of any penalty, by Sun Capital. This Agreement shall automatically
terminate in the event of its assignment. This Agreement may be modified or
amended only by the mutual written agreement of MFS and Sun Capital. Any
termination of this Agreement shall not, in any case, affect or preclude the
consummation of any transaction initiated by Sun Capital prior to its receipt or
transmission of the notice of termination (or, if Sun Capital continues to act
until the selection of a successor by MFS, any transaction initiated during the
period during which Sun Capital so continues to act), in which case all of the
terms and conditions of this Agreement shall apply to such transaction.
ARTICLE 11. NOTICES. All notices, instructions and other communications
pursuant to this Agreement shall be deemed duly given to or received by the
appropriate party as of the date on which it is delivered in writing (or, if
mailed, on the third business day after the date on which it is deposited in the
United States mail, first-class postage prepaid) to the attention of the person
or persons at the address set forth below:
(a) to MFS:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxx
(b) to Sun Capital:
One Sun Life Executive Park
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xxxxx M.A. Xxxxxxxx, President
or to such other address or addresses as either of the parties shall
subsequently furnish to the other party in writing.
ARTICLE 12. INDEPENDENT CONTRACTOR. In the performance of Sun Capital's
duties hereunder, Sun Capital 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 Fund or MFS in any
way or otherwise be deemed to be an agent of the Fund or MFS.
ARTICLE 13. GOVERNING LAW; JURISDICTION. Except to the extent otherwise
provided in the 1940 Act or the Advisers Act, the Agreement shall be governed
by, construed and enforced in accordance with the internal laws of The
Commonwealth of Massachusetts. The parties agree that any action or suit
involving this Agreement or the performance by either party of its obligations
hereunder will be conducted exclusively in courts located within The
Commonwealth of Massachusetts.
ARTICLE 14. GENERAL PROVISIONS. This Agreement (including without
limitation the Appendices hereto) sets forth the entire and exclusive
understanding of the parties and supersedes and cancels any and all prior
agreements between the parties, whether written or oral, relating to the
investment management of the Fund. If at any time any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be deemed to be deleted from this
Agreement and shall be of no further force or effect. No provision of this
Agreement shall be construed so as to violate, or so as to cause either party to
violate, applicable provisions of the 1940 Act or the Advisers Act or any other
federal or state securities or other law, rule, regulation or order.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, and under their respective seals, all as of the day
and year first written above.
SUN CAPITAL ADVISERS, INC.
By: XXXXX M.A. XXXXXXXX
-------------------------------
Name: Xxxxx M.A. Xxxxxxxx
Title: President
By: XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Executive Vice President
APPENDIX A
FEE SCHEDULE
MFS shall pay Sun Capital a sub-advisory fee computed daily and paid monthly in
arrears at the annual rate of 0.35%.
