Exhibit (h)(2)(ix)
FOURTH AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
FOURTH AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT, effective as
of May 1, 2002 by and between The Equitable Life Assurance Society of the United
States (the "Manager") and EQ Advisors Trust (the "Trust") ("Agreement"), on
behalf of each series of the Trust set forth in Schedule A attached hereto (each
a "Portfolio," and collectively, the "Portfolios").
WHEREAS, the Trust is a Delaware business trust organized under the
Amended and Restated Agreement and Declaration of Trust ("Declaration of
Trust"), and is registered under the Investment Company Act of 1940, as amended
("1940 Act"), as an open-end management company of the series type, and each
Portfolio is a series of the Trust;
WHEREAS, the Trust and the Manager have entered into an Amended and
Restated Investment Management Agreement dated May 1, 2000, and subsequently
amended as of September 1, 2000, and September 1, 2001 ("Management Agreement"),
pursuant to which the Manager provides investment management services to each
Portfolio for compensation based on the value of the average daily net assets of
each such Portfolio;
WHEREAS, the Trust and the Manager have determined that it is
appropriate and in the best interests of each Portfolio and its shareholders to
maintain the expenses of each Portfolio at a level below the level to which each
such Portfolio would normally be subject during its start-up period and,
therefore, initially entered into an Expense Limitation Agreement, dated as of
April 14, 1997, ("Expense Limitation Agreement") and subsequently amended on
December 9, 1997, March 3, 1998, December 31, 1998, May 1, 1999, May 1, 2000,
May 1, 2001, and September 1, 2001 in order to maintain each Portfolio's expense
ratios at the Maximum Annual Operating Expense Limit (as hereinafter defined)
specified for such Portfolio in Schedule A hereto;
WHEREAS, the Trust and the Manager desire to extend the term of the
Expense Limitation Agreement, with respect to each Portfolio, for an additional
one year period until May 1, 2003, regardless of the current expiration date of
the Expense Limitation Agreement as to each such Portfolios;
WHEREAS, the Trust and the Manager desire to modify the Expense
Limitation Agreement with respect to reimbursement of Portfolio Operating
Expenses by the Trust to the Manager;
NOW THEREFORE, the parties hereto agree that the Expense Limitation
Agreement is hereby modified, amended and restated in its entirety as of the
date hereof as follows:
1. Expense Limitation.
1.1. Appicable Expense Limit. To the extent that the aggregate expenses
of every character incurred by a Portfolio in any fiscal year, including but not
limited to investment management fees of the Manager (but excluding interest,
taxes, brokerage commissions, other expenditures which are capitalized in
accordance with generally accepted accounting principles,
other extraordinary expenses not incurred in the ordinary course of such
Portfolio's business and amounts payable pursuant to a plan adopted in
accordance with Rule 12b-1 under the 0000 Xxx) and expenses for which payment
has been made through the use of all or a portion of brokerage commissions (or
markups or markdowns) generated by that Portfolio ("Portfolio Operating
Expenses"), exceed the Maximum Annual Operating Expense Limit, as defined in
Section 1.2 below, such excess amount (the "Excess Amount") shall be the
liability of the Manager.
1.2. Maximum Annual Operating Expense Limit. The Maximum Annual
Operating Expense Limit with respect to each Portfolio shall be the amount
specified in Schedule A based on a percentage of the average daily net assets of
each Portfolio. That Maximum Annual Operating Expense Limit for each Portfolio
contemplates that certain expenses for each Portfolio may be paid through the
use of all or a portion of brokerage commissions (or markups or markdowns)
generated by that Portfolio.
1.3. Method of Computation. To determine the Manager's liability with
respect to the Excess Amount, each month the Portfolio Operating Expenses for
each Portfolio shall be annualized as of the last day of the month. If the
annualized Portfolio Operating Expenses for any month of a Portfolio exceed the
Maximum Annual Operating Expense Limit of such Portfolio, the Manager shall
first waive or reduce its investment management fee for such month by an amount
sufficient to reduce the annualized Portfolio Operating Expenses to an amount no
higher than the Maximum Annual Operating Expense Limit. If the amount of the
waived or reduced investment management fee for any such month is insufficient
to pay the Excess Amount, the Manager may also remit to the appropriate
Portfolio or Portfolios an amount that, together with the waived or reduced
investment management fee, is sufficient to pay such Excess Amount.
1.4. Year-End Adjustment. If necessary, on or before the last day of
the first month of each fiscal year, an adjustment payment shall be made by the
appropriate party in order that the amount of the investment management fees
waived or reduced and other payments remitted by the Manager to the Portfolio or
Portfolios with respect to the previous fiscal year shall equal the Excess
Amount.
2. Reimbursement of Fee Waivers and Expense Reimbursements.
2.1. Reimbursement. If in any year in which the Management Agreement is
still in effect and the estimated aggregate Portfolio Operating Expenses of such
Portfolio for the fiscal year are less than the Maximum Annual Operating Expense
Limit for that year, subject to approval by the Trust's Board of Trustees as
provided in Section 2.2 below, the Manager shall be entitled to reimbursement by
such Portfolio, in whole or in part as provided below, of the investment
management fees waived or reduced and other payments remitted by the Manager to
such Portfolio pursuant to Section 1 hereof. The total amount of reimbursement
to which the Manager may be entitled ("Reimbursement Amount") shall equal, at
any time, the sum of all investment management fees previously waived or reduced
by the Manager and all other payments remitted by the Manager to the Portfolio,
pursuant to Section 1 hereof, during any of the previous five (5) fiscal years
(or previous three (3) fiscal years for the EQ/Alliance Premier Growth
Portfolio, EQ/Alliance Technology Portfolio, EQ/AXP New Dimensions Portfolio,
EQ/AXP Strategy Aggressive Portfolio, EQ/Xxxxxxx Socially Responsible Portfolio,
EQ/Capital
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Guardian International Portfolio, EQ/Capital Guardian U.S. Equity Portfolio,
EQ/Capital Guardian Research Portfolio, EQ/FI Mid Cap Portfolio, EQ/Janus Large
Company Growth Portfolio and EQ/Xxxxxxx Focus Portfolio, or prior two (2) fiscal
years for the EQ/Balanced Portfolio) (see Schedule B hereto), less any
reimbursement previously paid by such Portfolio to the Manager, pursuant to
Sections 2.2 or 2.3 hereof, with respect to such waivers, reductions, and
payments. The Reimbursement Amount shall not include any additional charges or
fees whatsoever, including, e.g., interest accruable on the Reimbursement
Amount.
2.2. Board Approval. No reimbursement shall be paid to the Manager with
respect to any Portfolio pursuant to this provision unless the Trust's Board of
Trustees has determined that the payment of such reimbursement is in the best
interests of such Portfolio and its shareholders. The Trust's Board of Trustees
shall determine at least annually in advance whether any reimbursement may be
paid to the Manager. Upon receipt of such approval, the Manager shall provide to
the Board, on a quarterly basis, the reimbursed amounts paid to the Manager for
the prior quarter.
2.3. Method of Computation. To determine each Portfolio's accrual, if
any, to reimburse the Manager for the Reimbursement Amount, each month the
Portfolio Operating Expenses of each Portfolio shall be annualized as of the
last day of the month. If the annualized Portfolio Operating Expenses of a
Portfolio for any month are less than the Maximum Annual Operating Expense Limit
of such Portfolio, such Portfolio shall accrue into its net asset value an
amount payable to the Manager sufficient to increase the annualized Portfolio
Operating Expenses of that Portfolio to an amount no greater than the Maximum
Annual Operating Expense Limit of that Portfolio, provided that such amount paid
to the Manager will in no event exceed the total Reimbursement Amount. For
accounting purposes, amounts accrued pursuant to this Section 2 shall be a
liability of the Portfolio for purposes of determining the Portfolios net asset
value.
2.4. Payment and Year-End Adjustment. Amounts accrued pursuant to this
Agreement shall be payable to the Manager as of the last day of each month. If
necessary, on or before the last day of the first month of each fiscal year, an
adjustment payment shall be made by the appropriate party in order that the
actual Portfolio Operating Expenses of a Portfolio for the prior fiscal year
(including any reimbursement payments hereunder with respect to such fiscal
year) do not exceed the Maximum Annual Operating Expense Limit.
3. Term and Termination of Agreement.
This Agreement shall continue in effect with respect to all Portfolios
until May 1, 2003 and shall thereafter continue in effect with respect to each
Portfolio from year to year provided such continuance is specifically approved
by a majority of the Trustees of the Trust who (i) are not "interested persons"
of the Trust or any other party to this Agreement, as defined in the 1940 Act,
and (ii) have no direct or indirect financial interest in the operation of this
Agreement ("Non-Interested Trustees"). Nevertheless, this Agreement may be
terminated by either party hereto, without payment of any penalty, upon ninety
(90) days' prior written notice to the other party at its principal place of
business; provided that, in the case of termination by the Trust, such action
shall be authorized by resolution of a majority of the Non-Interested Trustees
of the Trust or by a vote of a majority of the outstanding voting securities of
the Trust.
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4. Miscellaneous.
4.1. Captions. The captions in this Agreement are included for
convenience of reference only and in no other way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
4.2. Interpretation. Nothing herein contained shall be deemed to
require the Trust or the Portfolios to take any action contrary to the Trust's
Declaration of Trust or By-Laws, or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or to relieve or
deprive the Trust's Board of Trustees of its responsibility for and control of
the conduct of the affairs of the Trust or the Portfolios.
4.3. Definitions. Any question of interpretation of any term or
provision of this Agreement, including but not limited to the investment
management fee, the computations of net asset values, and the allocation of
expenses, having a counterpart in or otherwise derived from the terms and
provisions of the Management Agreement or the 1940 Act, shall have the same
meaning as and be resolved by reference to such Management Agreement or the 1940
Act.
IN WITNESS WHEREOF, the parties have caused this Fourth Amended and
Restated Expense Limitation Agreement to be signed by their respective officers
thereunto duly authorized and their respective corporate seals to be hereunto
affixed, as of the day and year first above written.
EQ ADVISORS TRUST
ON BEHALF OF EACH OF ITS PORTFOLIOS
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
Vice President and Chief Financial
Officer
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Executive Vice President and
Chief Investment Officer
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SCHEDULE A
MAXIMUM ANNUAL OPERATING EXPENSE LIMITS
This Agreement relates to the following Portfolios of the Trust:
Maximum Annual
Name of Portfolio Operating Expense Limit
----------------- -----------------------
EQ/AXP New Dimensions Portfolio 0.70%
EQ/AXP Strategy Aggressive Portfolio 0.75%
EQ/Alliance Premier Growth Portfolio 0.90%
EQ/Alliance Technology Portfolio 0.90%
EQ/Balanced Portfolio 0.65%
EQ/Xxxxxxxxx Diversified Value Portfolio 0.70%
EQ/Xxxxxxx Socially Responsible Portfolio 0.80%
EQ/Capital Guardian International Portfolio 0.95%
EQ/Capital Guardian Research Portfolio 0.70%
EQ/Capital Guardian U.S. Equity Portfolio 0.70%
EQ/Emerging Markets Equity Portfolio 1.55%
EQ/Evergreen Omega Portfolio 0.70%
EQ/FI Mid Cap Portfolio 0.75%
EQ/FI Small/Mid Cap Portfolio 0.85%
EQ/International Equity Index Portfolio 0.85%
EQ/Janus Large Cap Growth Portfolio 0.90%
EQ/X.X. Xxxxxx Core Bond Portfolio 0.55%
EQ/Lazard Small Cap Value Portfolio 0.85%
EQ/Xxxxxxx Focus Portfolio 0.90%
EQ/MFS Investors Trust Portfolio 0.70%
EQ/MFS Research Portfolio 0.70%
EQ/Mercury Basic Value Equity Portfolio 0.70%
EQ/Xxxxxx Growth & Income Value Portfolio 0.70%
EQ/Xxxxxx International Equity Portfolio 1.00%
EQ/Xxxxxx Voyager Portfolio 0.70%
EQ/Small Company Index Portfolio 0.60%
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SCHEDULE B
REIMBURSEMENT PERIOD
Five Year Reimbursement Period:
-------------------------------
EQ/Xxxxxxxxx Diversified Value Portfolio
EQ/Evergreen Omega Portfolio
EQ/FI Small/Mid Cap Value Portfolio
EQ/International Equity Index Portfolio
EQ/X.X. Xxxxxx Core Bond Portfolio
EQ/Lazard Small Cap Value Portfolio
EQ/Mercury Basic Value Equity Portfolio
EQ/MFS Investors Growth Portfolio
EQ/MFS Research Portfolio
EQ/Emerging Markets Equity Portfolio
EQ/Xxxxxx Growth & Income Value Portfolio
EQ/Xxxxxx International Equity Portfolio
EQ/Xxxxxx Voyager Portfolio
EQ/Small Company Index Portfolio
Three Year Reimbursement Period:
--------------------------------
EQ/Alliance Premier Growth Portfolio
EQ/Alliance Technology Portfolio
EQ/AXP New Dimensions Portfolio
EQ/AXP Strategy Aggressive Portfolio
EQ/Xxxxxxx Socially Responsible Portfolio
EQ/Capital Guardian International Portfolio
EQ/Capital Guardian Research Portfolio
EQ/Capital Guardian U.S. Equity Portfolio
EQ/FI Mid Cap Portfolio
EQ/Janus Large Company Growth Portfolio
EQ/Xxxxxxx Focus Portfolio
Two Year Reimbursement Period:
------------------------------
EQ/Balanced Portfolio
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