Exhibit (d)(18)(i)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of July 31, 2003, by and between The Equitable Life
Assurance Society of the United States, a New York stock life insurance
corporation (the "Manager"), and Pacific Investment Management Company LLC
("PIMCO"), a limited liability company organized under the laws of the State of
Delaware ("Adviser").
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Manager has entered into an Investment Management Agreement
dated November 30, 2001 with the AXA Premier VIP Trust ("Trust") an investment
company registered under the Investment Company Act of 1940, as amended
("Investment Company Act");
WHEREAS, the Trust's shareholders are and will be primarily separate
accounts maintained by insurance companies for variable life insurance policies
and variable annuity contracts (the "policies") under which income, gains and
losses, whether or not realized, from assets allocated to such accounts are, in
accordance with the Policies, credited to or charged against such accounts
without regard to other income, gains, or losses of such insurance companies; as
well as other shareholders as permitted under Section 817(h) of the Internal
Revenue Code of 1986, as amended ("Code"), and the rules and regulations
thereunder with respect to the qualification of variable annuity contracts and
variable life insurance policies as insurance contracts under the Code;
WHEREAS, the AXA Premier VIP Core Bond Portfolio and AXA Premier VIP High
Yield Portfolio is each a series of the Trust ("Funds");
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Trustees of the Trust and the Manager desire that the
Manager retain the Adviser to render investment advisory and other services to
the portion of the Funds that have been allocated to Adviser ("Allocated
Portions") in the manner and on the terms hereinafter set forth;
WHEREAS, the Manager has the authority under the Investment Management
Agreement with the Trust to select advisers for each Fund of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
the Funds;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as an investment adviser for
the Fund, subject to the supervision and oversight of the Manager and the
Trustees of the Trust, and in accordance with the terms and conditions of this
Agreement. The Adviser will be an independent contractor and will have no
authority to act for or represent the Trust or the Manager in any way or
otherwise be deemed an agent of the Trust or the Manager except as expressly
authorized in this Agreement or another writing by the Trust, the Manager and
the Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of the Allocated Portions will be maintained in the custody of a
custodian (who shall be identified by the Manager in writing). The Adviser will
not have custody of any securities, cash or other assets of the Funds and will
not be liable for any loss resulting from any act or omission of the custodian
other than acts or omissions arising in reliance on instructions of the Adviser.
3. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to the Funds, the Adviser will coordinate the
investment and reinvestment of the assets of the Allocated Portions and
determine the composition of the assets of the Allocated Portions, subject
always to the supervision and control of the Manager and the Trustees of the
Trust.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and
advisable by the Adviser in its discretion, pertinent economic,
statistical, financial, and other information affecting the economy
generally and individual companies or industries, the securities of which
are included in the Allocated Portions or are under consideration for
inclusion in the Allocated Portions;
(ii) formulate and implement a continuous investment program for the
Allocated Portions;
(iii) take whatever steps are necessary to implement the investment
program for the Allocated Portions by arranging for the purchase and sale
of securities and other investments, including issuing directives to the
administrator of the Trust as necessary for the appropriate implementation
of the investment program of the Allocated Portions;
(iv) keep the Trustees of the Trust and the Manager fully informed in
writing on an ongoing basis as agreed by the Manager and Adviser of all
material facts concerning the investment and reinvestment of the assets in
the Allocated Portions, the Adviser and its key investment personnel and
operations, make regular and periodic special written reports of such
additional information concerning the same as may reasonably be requested
from time to time by the Manager or the Trustees of the Trust and the
Adviser will attend meetings with the Manager and/or the Trustees, as
reasonably requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by the
Trustees of the Trust, which may be amended from time to time, provide
assistance in determining the fair value of all securities and other
investments/assets in the Allocated Portions, as necessary, and use
reasonable efforts to arrange for the provision of valuation information or
a price(s) from a party(ies) independent of the Adviser for each security
or
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other investment/asset in the Allocated Portions for which market prices
are not readily available;
(vi) provide any and all material composite performance information,
records and supporting documentation about accounts the Adviser manages, if
appropriate, which are relevant to the Allocated Portions and that have
investment objectives, policies, and strategies substantially similar to
those employed by the Adviser in managing the Allocated Portions that may
be reasonably necessary, under applicable laws, to allow the Funds or their
agent to present information concerning Adviser's prior performance in the
Trust's Prospectus and SAI (as hereinafter defined) and any permissible
reports and materials prepared by the Funds or their agent;
(vii) cooperate with and provide reasonable assistance to the Manager,
the Trust's administrator, the Trust's custodian and foreign custodians,
the Trust's transfer agent and pricing agents and all other agents and
representatives of the Trust and the Manager, 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 and the Manager, provide
prompt responses to reasonable requests made by such persons and maintain
any appropriate interfaces with each so as to promote the efficient
exchange of information; and
(vii) execute account documentation, agreements, contracts and other
documents as the Adviser shall be requested by the brokers, dealers,
counterparties and other persons to execute in connection with its
management of the assets of the Allocated Portions, provided that the
Adviser receives the express agreement and consent of the Manager and/or
the Trust's Board of Trustees to execute such documentation, agreements and
other documents. In such respect, and only for this limited purpose, the
Adviser shall act as the Manager's and/or the Trust's agent and
attorney-in-fact.
C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) the Trust's Agreement and
Declaration of Trust, as the same may be hereafter modified and/or amended from
time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the same
may be hereafter modified and/or amended from time to time ("By-Laws"); (iii)
the currently effective Prospectus and Statement of Additional Information of
the Trust filed with the SEC and delivered to the Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the
Funds; (v) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust; and (vi) the
written instructions of the Manager. Prior to the commencement of the Adviser's
services hereunder, the Manager shall provide the Adviser with current copies of
the Trust Declaration, By-Laws, Prospectus, SAI, Compliance Manual and other
relevant policies and procedures that are adopted by the Board of Trustees. The
Manager undertakes to provide the Adviser with copies or other written notice of
any amendments, modifications or supplements to any such above-mentioned
document.
D. The Adviser shall have no responsibility under this Agreement with
respect to the management of assets of the Fund other than the portion of the
Fund's assets with respect to which the Adviser provides investment advice. In
furnishing services hereunder, the Adviser will not consult with any other
adviser to (i) the Funds, (ii) any other Funds of the Trust or (iii) any other
investment company under common control with the Trust concerning transactions
of the Funds in securities of other assets. (This shall not be deemed to
prohibit the Adviser from
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consulting with any of its affiliated persons concerning transactions in
securities or other assets. This shall also not be deemed to prohibit the
Adviser from consulting with any of the other covered advisers concerning
compliance with paragraphs (a) and (b) of Rule 12d3-1.)
E. The Adviser, at its expense, will furnish: (i) all necessary
facilities and personnel, including salaries, expenses and fees of any personnel
required for them to faithfully perform their duties under this Agreement; and
(ii) administrative facilities, including bookkeeping, and all equipment
necessary for the efficient conduct of the Adviser's duties under this
Agreement.
F. The Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Adviser is directed at all times to
seek to execute transactions for the Allocated Portion (i) in accordance with
any written policies, practices or procedures that may be established by the
Board of Trustees or the Manager from time to time and which have been provided
to the Adviser or (ii) as described in the Trust's Prospectus and SAI. In
placing any orders for the purchase or sale of investments for the Funds, in the
name of the Allocated Portions or their nominees, the Adviser shall use its
reasonable efforts to obtain for the Allocated Portions "best execution",
considering all of the circumstances, and shall maintain records adequate to
demonstrate compliance with this requirement. In no instance will portfolio
securities be purchased from or sold to the Adviser, or any affiliated person
thereof, except in accordance with the Investment Company Act, the Advisers Act
and the rules under each, and all other federal and state laws or regulations
applicable to the Trust and the Funds. Adviser shall not be liable for any act
or omission of any securities brokerage firm or firms designated by the Manager
or chosen with reasonable care.
G. Subject to the appropriate policies and procedures approved by the
Board of Trustees, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause the Allocated
Portions to pay a broker or dealer that provides brokerage or research services
to the Manager, the Adviser and the Allocated Portions an amount of commission
for effecting a Fund transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if the
Adviser determines, in good faith, that such amount of commission is reasonable
in relationship to the value of such brokerage or research services provided
viewed in terms of that particular transaction or the Adviser's overall
responsibilities to the Funds or its other advisory clients. To the extent
authorized by Section 28(e) and the Trust's Board of Trustees, the Adviser shall
not be deemed to have acted unlawfully or to have breached any duty created by
this Agreement or otherwise solely by reason of such action. In addition,
subject to seeking "best execution", the Manager or the Adviser may also
consider sales of shares of the Trust as a factor in the selection of brokers
and dealers. Subject to seeking best execution, the Board of Trustees or the
Manager may direct the Adviser to effect transactions in portfolio securities
through broker-dealers in a manner that will help generate resources to: (i) pay
the cost of certain expenses that the Trust is required to pay or for which the
Trust is required to arrange payment; or (ii) recognize broker-dealers for the
sale of each Fund's shares.
H. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Allocated Portions as well as other clients of
the Adviser, the Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. Allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction, will be
made by the Adviser in the manner which the Adviser considers to be the most
equitable and consistent with its fiduciary obligations to the Allocated Portion
and to its other clients over time. The Manager agrees that
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Adviser and its affiliates may give advice and take action in the performance of
their duties with respect to any of their other clients that may differ from
advice given, or the timing or nature of actions taken, with respect to the
Allocated Portions. The Manager also acknowledges that Adviser and its
affiliates are fiduciaries to other entities, some of which have the same or
similar investment objectives (and will hold the same or similar investments) as
the Allocated Portions, and that Adviser will carry out its duties hereunder
together with its duties under such relationships. Nothing in this Agreement
shall be deemed to confer upon Adviser any obligation to purchase or to sell or
to recommend for purchase or sale for the Allocated Portions any investment that
Adviser, its affiliates, officers or employees may purchase or sell for its or
their own account or for the account of any client, if in the sole and absolute
discretion of Adviser it is for any reason impractical or undesirable to take
such action or make such recommendation for the Allocated Portions.
I. The Adviser will maintain all accounts, books and records with respect
to the Allocated Portions as are required of an investment adviser of a
registered investment company pursuant to the Investment Company Act and
Advisers Act and the rules thereunder and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
J. The Adviser will, unless and until otherwise directed by the Manager
or the Board of Trustees, vote proxies with respect to each Allocated Portion's
securities and exercise rights in corporate actions or otherwise in accordance
with the Adviser's proxy voting guidelines, as amended from time to time, which
shall be provided to the Trust and the Manager.
K. The Adviser is expressly authorized to rely upon any and all
instructions, approvals and notices given on behalf of the Manager by any one or
more of those persons designated as representatives of the Funds whose names are
listed in the Trust's Compliance Manual, as amended from time to time.
4. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to the
Allocated Portions as specified in Appendix A to this Agreement. Payments shall
be made to the Adviser on or about the fifth day of each month; however, this
advisory fee will be calculated daily for the Allocated Portions based on the
net assets of the Allocated Portions on each day and accrued on a daily basis.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by the Manager or the Trust as a result of any error of judgment or
mistake of law by the Adviser or its Affiliates with respect to the Funds,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Adviser or its Affiliates
for, and the Adviser shall indemnify and hold harmless the Trust, the Manager,
all affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "Manager
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Manager Indemnitees may become subject under the 1933 Act, the Investment
Company Act, the Advisers Act, or under any other statute, at common law
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or otherwise arising out of or based on (i) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Adviser in the performance of any
of its duties or obligations hereunder or (ii) any untrue statement of a
material fact contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Allocated
Portion or the omission to state therein a material fact known to the Adviser
which was required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was made in reliance upon
information furnished to the Manager or the Trust by the Adviser Indemnitees (as
defined below) for use therein.
B. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, the Manager and the Trust shall not be liable
for any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser as a result of any error of
judgment or mistake of law by the Manager with respect to the Allocated
Portionss, except that nothing in this Agreement shall operate or purport to
operate in any way to exculpate, waive or limit the liability of the Manager
for, and the Manager shall indemnify and hold harmless the Adviser, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the 1933 Act) (collectively, "Adviser Indemnitees") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) to which any of the Adviser Indemnitees may become subject
under the 1933 Act, the Investment Company Act, the Advisers Act, or under any
other statute, at common law or otherwise arising out of or based on (i) any
willful misconduct, bad faith, reckless disregard or gross negligence of the
Manager in the performance of any of its duties or obligations hereunder or (ii)
any untrue statement of a material fact contained in the Prospectus and SAI,
proxy materials, reports, advertisements, sales literature, or other materials
pertaining to the Funds or the omission to state therein a material fact known
to the Manager that was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon information furnished to the Manager or the Trust by the Adviser
Indemnitees.
6. REPRESENTATIONS OF MANAGER
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the
Trust to delegate to the Adviser the provision of investment services to the
Allocated Portions as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue
to comply with the requirements imposed upon the Manager by applicable law and
regulations.
D. The Manager (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best or its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (v) will
promptly notify Adviser of the occurrence of any event that
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would disqualify Manager from serving as investment manager of an investment
company pursuant to Section 9(a) of the Investment Company Act or otherwise. The
Manager will also promptly notify the Adviser if it is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, involving the
affairs of the Funds, provided, however, that routine regulatory examinations
shall not be required to be reported by this provision.
7. REPRESENTATIONS OF ADVISER
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to meet
for so long as this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has the authority to enter into and perform
the services contemplated by this Agreement; and (v) will promptly notify
Manager of the occurrence of any event that would disqualify the Adviser from
serving as an investment adviser of an investment company pursuant to Section
9(a) of the Investment Company Act or otherwise. The Adviser will also promptly
notify the Funds and the Manager if it is served or otherwise receives notice of
any action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, involving the affairs of the
Funds, provided, however, that routine regulatory examinations shall not be
required to be reported by this provision.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, the
compliance officer of the Adviser shall certify to the Manager that the Adviser
has complied with the requirements of Rule 17j-1 during the previous year and
that there has been no material violation of the Adviser's code of ethics or, if
such a material violation has occurred, that appropriate action was taken in
response to such violation. Upon the written request of the Manager, the Adviser
shall permit the Manager, its employees or its agents to examine the reports
required to be made to the Adviser by Rule 17j-1(c)(1) and all other records
relevant to the Adviser's code of ethics.
C. The Adviser has provided the Trust and the Manager with a copy of its
Form ADV, Part II which as of the date of this Agreement is its Form ADV as most
recently filed with the Securities and Exchange Commission and promptly will
furnish a copy of all amendments to the Trust and the Manager at least annually.
Such amendments shall reflect all changes in the Adviser's organizational
structure, professional staff or other significant developments affecting the
Adviser, as required by the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment of
this Agreement or change of control of the Adviser, as applicable, and any
changes in the key personnel who are either the portfolio manager(s) of the
Allocated Portions or senior management of the Adviser, in each case prior to or
promptly after, such change. The Adviser agrees to bear all reasonable expenses
of the Trust, if any, arising out of an assignment or change in control.
E. The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
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F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, the Funds, the Manager or any of their respective affiliates in offering,
marketing or other promotional materials without the express written consent of
the Manager, except as required by rule, regulation or upon the request of a
governmental authority. However, the Adviser may use the performance of the
Allocated Portions in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Allocated Portions and the
Trust are not to be deemed to be exclusive, and the Adviser shall be free to
render investment advisory or other services to others and to engage in other
activities. It is understood and agreed that the directors, officers, and
employees of the Adviser are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as
partners, officers, directors, trustees, or employees of any other firm or
corporation.
9. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Adviser hereunder, provided that no such person
shall perform any services with respect to the Allocated Portion that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Adviser, and neither the Manager nor the Trust shall
have any obligations with respect thereto or otherwise arising under the
Agreement.
10. REGULATION
The Adviser shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
11. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Trust and shall be under its control; however, the Trust
shall furnish to the Adviser such records and permit it to retain such records
(either in original or in duplicate form) as it shall reasonably require in
order to carry out its business. In the event of the termination of this
Agreement, such other records shall promptly be returned to the Trust by the
Adviser free from any claim or retention of rights therein, provided that the
Adviser may retain any such records that are required by law or regulation. The
Manager and the Adviser shall keep confidential any information obtained in
connection with its duties hereunder and disclose such information only if the
Trust has authorized such disclosure or if such disclosure is expressly required
or requested by applicable federal or state regulatory authorities, or otherwise
required by law.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date of its execution. This
Agreement will continue in effect for a period more than one year from the date
of its execution only so long as such continuance is specifically approved at
least annually by the Board of Trustees provided that in such event such
continuance shall also be approved by the vote of a majority of the
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Independent Trustees cast in person at a meeting called for the purpose of
voting on such approval.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Funds, on sixty (60) days' written notice to the Manager and the Adviser, or by
the Manager or Adviser on sixty (60) days' written notice to the Trust and the
other party. This Agreement will automatically terminate, without the payment of
any penalty, (i) in the event of its assignment (as defined in the Investment
Company Act), or (ii) in the event the Investment Management Agreement between
the Manager and the Trust is assigned (as defined in the Investment Company Act)
or terminates for any other reason. This Agreement will also terminate upon
written notice to the other party that the other party is in material breach of
this Agreement, unless the other party in material breach of this Agreement
cures such breach to the reasonable satisfaction of the party alleging the
breach within thirty (30) days after written notice.
14. USE OF ADVISER'S NAME
The parties agree that the name of the Adviser, the names of any affiliates
of the Adviser and any derivative or logo or trademark or service xxxx or trade
name are the valuable property of the Adviser and its affiliates. The Manager
and the Trust shall have the right to use such name(s), derivatives, logos,
trademarks or service marks or trade names only with the prior written approval
of the Adviser, which approval shall not be unreasonably withheld or delayed so
long as this Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Trust agree that they will review with
the Adviser any advertisement, sales literature, or notice prior to its use that
makes reference to the Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the Adviser
may review the context in which it is referred to, it being agreed that the
Adviser shall have no responsibility to ensure the adequacy of the form or
content of such materials for purposes of the Investment Company Act or other
applicable laws and regulations. If the Manager or the Trust makes any
unauthorized use of the Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Adviser shall be entitled to injunctive relief, as well as any other remedy
available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of each Fund (unless such approval is not required by Section
15 of the Investment Company Act as interpreted by the SEC or its staff or
unless the SEC has granted an exemption from such approval requirement) and by
the vote of a majority of the Independent Trustees cast in person at a meeting
called for the purpose of voting on such approval. The required shareholder
approval shall be effective with respect to each Fund if a majority of the
outstanding voting securities of the Funds vote to approve the amendment,
notwithstanding that the amendment may not have been approved by a majority of
the
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outstanding voting securities of any other Fund affected by the amendment or all
the Funds of the Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Adviser without the prior written consent of the Trust
and the Manager shall result in the automatic termination of this Agreement, as
provided in Section 13 hereof. Notwithstanding the foregoing, no assignment
shall be deemed to result from any changes in the directors, officers or
employees of such Adviser except as may be provided to the contrary in the
Investment Company Act or the rules or regulations thereunder. The Adviser
agrees that it will notify the Trust and the Manager of any changes in its key
employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Allocated Portion.
18. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: The Equitable Life Assurance Society of the United States
Xxxxxxxx Xxxxx, Vice President and Associate General Counsel
1290 Avenue of the Americas, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: AXA Premier VIP Trust
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Americas, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: PIMCO
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Legal Officer
cc: Xxxxxx X. Xxxxxxxx, Vice President
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20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
21. TRUST AND SHAREHOLDER LIABILITY
The Manager and Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agree that obligations assumed by the
Trust pursuant to this Agreement shall be limited in all cases to the Trust and
its assets, and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of the Funds. The Manager
and Adviser further agree that they shall not seek satisfaction of any such
obligation from the shareholders or any individual shareholder of the Funds, nor
from the Trustees or any individual Trustee of the Trust.
22. REPRESENTATIONS AND AGREEMENTS OF THE MANAGER
The Manager represents to the Adviser that the Manager has all necessary
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby, and such execution, delivery and performance
will not violate any applicable law, rule regulation, governing document (e.g.,
Certificate of Incorporation or Bylaws), contract or other material agreement
binding upon the Manager.
23. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
24. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
THE EQUITABLE LIFE ASSURANCE PACIFIC INVESTMENT MANAGEMENT
SOCIETY OF THE UNITED STATES COMPANY LLC
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Benz
----------------------------------- -----------------------------------
Xxxxx X. Xxxxx Xxxxxxx X. Benz
Executive Vice President Managing Director
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APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
Funds Annual Advisory Fee
-------------------------------------- --------------------------------------
AXA Premier VIP Core Bond Portfolio* 0.25% of the PIMCO Allocated Portion's
average daily net assets
AXA Premier VIP High Yield Portfolio* 0.25% of the PIMCO Allocated Portion's
average daily net assets
* Fee to be paid with respect to this Fund shall be based only on the portion of
the Fund's average daily net assets advised by the Adviser, which may be
referred to as the "PIMCO Allocated Portion."
**The daily advisory fee for the Fund is calculated by multiplying the aggregate
net assets of the Fund at the close of the immediately preceding business day by
the annual Advisory Fee Rate calculated as set forth above and then dividing the
result by the number of days in the year.
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