Exhibit (d)(23)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of July 15, 2002, 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 Amended and Restated Investment
Management Agreement dated May 1, 2000 with EQ Advisors Trust ("Trust")
("Investment Management Agreement") 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 EQ/High Yield Portfolio is a series of the Trust
("Portfolio");
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 Portfolio that has been allocated to Adviser ("Allocated
Portion") 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 Portfolio of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
the Portfolio;
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 Portfolio, 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 Portion 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 Portfolio 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 Portfolio, the Adviser will coordinate the
investment and reinvestment of the assets of the Allocated Portion and determine
the composition of the assets of the Allocated Portion, 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 Portion or are under consideration for inclusion in the
Allocated Portion;
(ii) formulate and implement a continuous investment program for the
Allocated Portion;
(iii) take whatever steps are necessary to implement the investment
program for the Allocated Portion 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 Portion;
(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 Portion, 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 Portion, 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 Portion 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 Portion and that have
investment objectives, policies, and strategies substantially similar to
those employed by the Adviser in managing the Allocated Portion that may be
reasonably necessary, under applicable laws, to allow the Portfolio or its
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 Portfolio or its 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 Portion, 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
Portfolio; (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, 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.
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E. 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 Portfolio, in
the name of the Allocated Portion or its nominees, the Adviser shall use its
reasonable efforts to obtain for the Allocated Portion "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 Portfolio. 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.
F. 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
Portion to pay a broker or dealer that provides brokerage or research services
to the Manager, the Adviser and the Allocated Portion an amount of commission
for effecting a Portfolio 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 Portfolio 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 Portfolio shares.
G. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Allocated Portion 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 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 Portion.
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 Portion, 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 Portion any
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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
Portion.
H. The Adviser will maintain all accounts, books and records with respect
to the Allocated Portion 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.
I. The Adviser will, unless and until otherwise directed by the Manager or
the Board of Trustees, vote proxies with respect to the 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.
J. 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 Portfolio 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 Portion 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 Portion based on the net
assets of the Allocated Portion 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 Portfolio,
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 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
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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 Portion,
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 Portfolio 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 Portion 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 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 Portfolio,
provided, however, that routine regulatory examinations shall not be required to
be reported by this provision.
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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 Portfolio 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 Portfolio, 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 Portion 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.
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 Portfolio, 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
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governmental authority. However, the Adviser may use the performance of the
Allocated Portion in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Allocated Portion 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 first above written,
provided that this Agreement shall not take effect unless it has first been
approved: (i) by a vote of a majority of those trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act) of any party to
this Agreement ("Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a majority of the
Portfolio's outstanding securities. This Agreement will continue in effect for a
period more than two years from the date of its execution only so long as such
continuance is specifically approved at least annually by the
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Board of Trustees provided that in such event such continuance shall also be
approved 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.
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
Portfolio, 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 the Portfolio (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 the Portfolio if a
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majority of the outstanding voting securities of the Portfolio vote to approve
the amendment, notwithstanding that the amendment may not have been approved by
a majority of the outstanding voting securities of any other Portfolio affected
by the amendment or all the Portfolios 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 Counsel
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: EQ Advisors Trust
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Xxxxxxxx, 0xx 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 Portfolio. 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
Portfolio, 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/ Xxxxx X. Xxxxxx
----------------------------- -----------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
Executive Vice President Managing Director
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APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
Portfolio Annual Advisory Fee
--------- -------------------
EQ/High Yield Portfolio 0.25% of the PIMCO Allocated Portion's
average daily net assets
* Fee to be paid with respect to this Portfolio shall be based only on the
portion of the Portfolio'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 Portfolio is calculated by multiplying the
aggregate net assets of the Portfolio 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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