INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 1st day of May, 2004, by and between Xxxxxxxxx Xxxxxx
Management, Inc., a New York corporation ("Xxxxxxxxx Xxxxxx") (the "Adviser"),
and Met Investors Advisory LLC, a Delaware limited liability company (the
"Manager").
WHEREAS, the Manager serves as investment manager of Met Investors Series
Trust (the "Trust"), a Delaware business trust which has filed a registration
statement (the "Registration Statement") under the Investment Company Act of
1940, as amended (the "1940 Act") and the Securities Act of 1933, as amended
(the "1933 Act") pursuant to a management agreement dated December 8, 2000, as
amended from time to time (the "Management Agreement"); and
WHEREAS, the Trust is comprised of several separate investment portfolios,
one of which is the Xxxxxxxxx Xxxxxx Real Estate Portfolio (the "Portfolio");
and
WHEREAS, the Manager desires to avail itself of the services, information,
advice, assistance and facilities of an investment adviser to assist the Manager
in performing investment advisory services for the Portfolio; and
WHEREAS, the Adviser is registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and is engaged in the business of
rendering investment advisory services to investment companies and other
institutional clients and desires to provide such services to the Manager;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, it is agreed as follows:
1. Employment of the Adviser. The Manager hereby employs the Adviser to
manage the investment and reinvestment of the assets of the Portfolio, subject
to the control and direction of the Trust's Board of Trustees, for the period
and on the terms hereinafter set forth. The Adviser hereby accepts such
employment and agrees during such period to render the services and to assume
the obligations herein set forth for the compensation herein provided. The
Adviser shall for all purposes herein be deemed to be an independent contractor
and shall, except as expressly provided or authorized (whether herein or
otherwise), have no authority to act for or represent the Manager, the Portfolio
or the Trust in any way. The Adviser may execute account documentation,
agreements, contracts and other documents requested by brokers, dealers,
counterparties and other persons in connection with its management of the assets
of the Portfolio, provided the Adviser receives the express agreement and
consent of the Manager and/or the Trust's Board of Trustees to execute futures
account agreements, ISDA Master Agreements and other documents related thereto,
which consent shall not be unreasonably withheld. In such respect, and only for
this limited purpose, the Adviser shall act as the Manager's and the Trust's
agent and attorney-in-fact.
Copies of the Trust's Registration Statement, as it relates to the
Portfolio (the "Registration Statement"), and the Trust's Declaration of Trust
and Bylaws (collectively, the "Charter Documents"), each as currently in effect,
have been or will be delivered to the Adviser. The Manager agrees, on an ongoing
basis, to notify the Adviser of each change in the fundamental and
non-fundamental investment policies and restrictions of the Portfolio before
they become effective and to provide to the Adviser as promptly as practicable
copies of all amendments and supplements to the Registration Statement before
filing with the Securities and Exchange Commission ("SEC") and amendments to the
Charter Documents. The Manager will promptly provide the Adviser with any
procedures applicable to the Adviser adopted from time to time by the Trust's
Board of Trustees and agrees to promptly provide the Adviser copies of all
amendments thereto. The Adviser will not be bound to follow any change in the
investment policies, restrictions or procedures of the Portfolio or Trust,
however, until it has received written notice of any such change from the
Manager.
The Manager shall timely furnish the Adviser with such additional
information as may be reasonably necessary for or requested by the Adviser to
perform its responsibilities pursuant to this Agreement. The Manager shall
cooperate with the Adviser in setting up and maintaining brokerage accounts and
other accounts the Adviser deems advisable to allow for the purchase or sale of
various forms of securities pursuant to this Agreement.
2. Obligations of and Services to be Provided by the Adviser. The Adviser
undertakes to provide the following services and to assume the following
obligations:
a. The Adviser shall manage the investment and reinvestment of the
portfolio assets of the Portfolio, all without prior consultation with the
Manager, subject to and in accordance with the investment objective and
policies of the Portfolio set forth in the Trust's Registration Statement
and the Charter Documents, as such Registration Statement and Charter
Documents may be amended from time to time, in compliance with the
requirements applicable to registered investment companies under applicable
laws and those requirements applicable to both regulated investment
companies and segregated asset accounts under Subchapters M and L of the
Internal Revenue Code of 1986, as amended (the "Code") and any written
instructions which the Manager or the Trust's Board of Trustees may issue
from time-to-time in accordance therewith. In pursuance of the foregoing,
the Adviser shall make all determinations with respect to the purchase and
sale of portfolio securities and shall take such action necessary to
implement the same. The Adviser shall render such reports to the Trust's
Board of Trustees and the Manager as they may reasonably request concerning
the investment activities of the Portfolio, provided that the Adviser shall
not be responsible for Portfolio accounting. Unless the Manager gives the
Adviser written instructions to the contrary, the Adviser shall, in good
faith and in a manner which it reasonably believes best serves the
interests of the Portfolio's shareholders, direct the Portfolio's custodian
as to how to vote such proxies as may be necessary or advisable in
connection with any matters submitted to a vote of shareholders of
securities held by the Portfolio.
b. To the extent provided in the Trust's Registration Statement, as
such Registration Statement may be amended from time to time, the Adviser
shall, in the name of the Portfolio, place orders for the execution of
portfolio transactions with or through such brokers, dealers or other
financial institutions as it may select including affiliates of the Adviser
and, complying with Section 28(e) of the Securities Exchange Act of 1934,
may pay a commission on transactions in excess of the amount of commission
another broker-dealer would have charged. In addition, subject to seeking
the most favorable price and best execution available, the Adviser may also
consider sales of shares of the Trust as a factor in the selection of
brokers and dealers. Subject to seeking the most favorable price and
execution, the Board of Trustees or the Manager may cause 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 which the Trust is required to pay or for which the Trust is
required to arrange payment; or (ii) finance activities that are primarily
intended to result in the sale of Trust shares.
c. In connection with the placement of orders for the execution of the
portfolio transactions of the Portfolio, the Adviser shall create and
maintain all necessary records pertaining to the purchase and sale of
securities by the Adviser on behalf of the Portfolio in accordance with all
applicable laws, rules and regulations, including but not limited to
records required by Section 31(a) of the 1940 Act. All records shall be the
property of the Trust and shall be available for inspection and use by the
SEC, the Trust, the Manager or any person retained by the Trust at all
reasonable times. Where applicable, such records shall be maintained by the
Adviser for the periods and in the places required by Rule 31a-2 under the
1940 Act.
d. The Adviser shall bear its expenses of providing services pursuant
to this Agreement, but shall not be obligated to pay any expenses of the
Manager, the Trust, or the Portfolio, including without limitation: (a)
interest and taxes; (b) brokerage commissions and other costs in connection
with the purchase or sale of securities or other investment instruments for
the Portfolio; and (c) custodian fees and expenses.
e. The Adviser and the Manager acknowledge that the Adviser is not the
compliance agent for the Portfolio or for the Manager, and does not have
access to all of the Portfolio's books and records necessary to perform
certain compliance testing. To the extent that the Adviser has agreed to
perform the services specified in this Section 2 in accordance with the
Trust's Registration Statement and Charter Documents, written instructions
of the Manager and any policies adopted by the Trust's Board of Trustees
applicable to the Portfolio (collectively, the "Charter Requirements"), and
in accordance with applicable law (including Subchapters M and L of the
Code, the 1940 Act and the Advisers Act ("Applicable Law")), the Adviser
shall perform such services based upon its books and records with respect
to the Portfolio (as specified in Section 2.c. hereof), which comprise a
portion of the Portfolio's books and records, and upon information and
written instructions received from the Trust, the Manager or the Trust's
administrator, and shall not be held responsible under this Agreement so
long as it performs such services in accordance with this Agreement, the
Charter Requirements and Applicable Law based upon such books and records
and such information and instructions provided by the Trust, the Manager or
the Trust's administrator. The Adviser shall have no responsibility to
monitor certain limitations or restrictions for which the Adviser has not
been provided sufficient information in accordance with Section 1 of this
Agreement or otherwise. All such monitoring shall be the responsibility of
the Manager.
f. The Adviser makes no representation or warranty, express or
implied, that any level of performance or investment results will be
achieved by the Portfolio or that the Portfolio will perform comparably
with any standard or index, including other clients of the Adviser, whether
public or private.
g. The Adviser shall be responsible for the preparation and filing of
Schedule 13G and Form 13F on behalf of the Portfolio. The Adviser shall not
be responsible for the preparation or filing of any other reports required
of the Portfolio by any governmental or regulatory agency, except as
expressly agreed to in writing.
3. Compensation of the Adviser. In consideration of services rendered
pursuant to this Agreement, the Manager will pay the Adviser a fee at the
annual rate of the value of the Portfolio's average daily net assets set
forth in Schedule A hereto. Such fee shall be accrued daily and paid
monthly as soon as practicable after the end of each month. If the Adviser
shall serve for less than the whole of any month, the foregoing
compensation shall be prorated. For the purpose of determining fees payable
to the Adviser, the value of the Portfolio's net assets shall be computed
at the times and in the manner specified in the Trust's Registration
Statement.
4. Activities of the Adviser. The services of the Adviser hereunder
are not to be deemed exclusive, and the Adviser shall be free to render
similar services to others and to engage in other activities, so long as
the services rendered hereunder are not impaired.
The Adviser shall be subject to a written code of ethics adopted by it
that conforms to the requirements of Rule 17j-1(b) of the 1940 Act, and
shall not be subject to any other code of ethics, including the Manager's
code of ethics, unless specifically adopted by the Adviser.
5. Use of Names. The Adviser hereby consents to the Portfolio being
named the Xxxxxxxxx Xxxxxx Real Estate Portfolio. The Manager shall not use
the name "Xxxxxxxxx Xxxxxx" and any of the other names of the Adviser or
its affiliated companies and any derivative or logo or trade or service
xxxx thereof, or disclose information related to the business of the
Adviser or any of its affiliates in any prospectus, sales literature or
other material relating to the Trust in any manner not approved prior
thereto by the Adviser; provided, however, that the Adviser shall approve
all uses of its name and that of its affiliates which merely refer in
accurate terms to its appointment hereunder or which are required by the
SEC or a state securities commission; and provided, further, that in no
event shall such approval be unreasonably withheld. The Adviser shall not
use the name of the Trust, the Manager or any of their affiliates in any
material relating to the Adviser in any manner not approved prior thereto
by the Manager; provided, however, that the Manager shall approve all uses
of its or the Trust's name which merely refer in accurate terms to the
appointment of the Adviser hereunder or which are required by the SEC or a
state securities commission; and, provided, further, that in no event shall
such approval be unreasonably withheld.
The Manager recognizes that from time to time directors, officers and
employees of the Adviser may serve as directors, trustees, partners,
officers and employees of other corporations, business trusts, partnerships
or other entities (including other investment companies) and that such
other entities may include the name "Xxxxxxxxx Xxxxxx" or any derivative or
abbreviation thereof as part of their name, and that the Adviser or its
affiliates may enter into investment advisory, administration or other
agreements with such other entities.
Upon termination of this Agreement for any reason, the Manager shall
within 30 days cease and cause the Portfolio to cease all use of the name
and xxxx "Xxxxxxxxx Xxxxxx."
6. Liability and Indemnification.
a. Except as may otherwise be provided by the 1940 Act or any other
federal securities law, the Adviser shall not 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 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 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 1940 Act ) and all controlling persons (as described in
Section 15 of the 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 1940 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 Registration Statement, 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
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 1940 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
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
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 0000 Xxx) 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 1940 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, (ii) any failure by the Manager to properly notify
the Adviser of changes to the Registration Statement or any Charter
Requirements that leads to any such losses, claims, damages, liabilities or
litigation to which any of the Adviser Indemnitees may be subject or (iii)
any untrue statement of a material fact contained in the Registration
Statement, 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 which 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 an Adviser Indemnitee for use
therein.
7. Limitation of Trust's Liability. The Adviser acknowledges that it
has received notice of and accepts the limitations upon the Trust's
liability set forth in its Agreement and Declaration of Trust. The Adviser
agrees that any of the Trust's obligations shall be limited to the assets
of the Portfolio and that the Adviser shall not seek satisfaction of any
such obligation from the shareholders of the Trust nor from any Trust
officer, employee or agent of the Trust.
8. Renewal, Termination and Amendment. This Agreement shall continue
in effect, unless sooner terminated as hereinafter provided, until December
31, 2005 and shall continue in full force and effect for successive periods
of one year thereafter, but only so long as each such continuance as to the
Portfolio is specifically approved at least annually by vote of the holders
of a majority of the outstanding voting securities of the Portfolio or by
vote of a majority of the Trust's Board of Trustees; and further provided
that such continuance is also approved annually by the vote of a majority
of the Trustees who are not parties to this Agreement or interested persons
of any such party. This Agreement may be terminated as to the Portfolio at
any time, without payment of any penalty, by the Trust's Board of Trustees,
by the Manager, or by a vote of the majority of the outstanding voting
securities of the Portfolio upon 60 days' prior written notice to the
Adviser, or by the Adviser upon 90 days' prior written notice to the
Manager, or upon such shorter notice as may be mutually agreed upon. This
Agreement shall terminate automatically and immediately upon termination of
the Management Agreement between the Manager and the Trust. This Agreement
shall terminate automatically and immediately in the event of its
assignment. The terms "assignment" and "vote of a majority of the
outstanding voting securities" shall have the meaning set forth for such
terms in the 1940 Act. This Agreement may be amended at any time by the
Adviser and the Manager, subject to approval by the Trust's Board of
Trustees and, if required by applicable SEC rules, regulations, or orders,
a vote of a majority of the Portfolio's outstanding voting securities.
9. Confidential Relationship. Any information and advice furnished by
any party to this Agreement to the other party or parties shall be treated
as confidential and shall not be disclosed to third parties without the
consent of the other party hereto except as required by law, rule or
regulation.
The Manager hereby consents to the disclosure to third parties of (i)
investment results and other data of the Manager or the Portfolio in
connection with providing composite investment results of the Adviser and
(ii) investments and transactions of the Manager or the Portfolio in
connection with providing composite information of clients of the Adviser.
10. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
11. Custodian. The Portfolio assets shall be maintained in the custody
of its custodian. Any assets added to the Portfolio shall be delivered
directly to such custodian. The Adviser shall have no liability for the
acts or omissions of any custodian of the Portfolio's assets. The Adviser
shall have no responsibility for the segregation requirement of the 1940
Act or other applicable law other than to notify the custodian of
investments that require segregation and appropriate assets for
segregation.
12. Information. The Manager hereby acknowledges that it and the
Trustees of the Trust have been provided with all information necessary in
connection with the services to be provided by the Adviser hereunder,
including a copy of Part II of the Adviser's Form ADV at least 48 hours
prior to the Manager's execution of this Agreement, and any other
information that the Manager or the Trustees deem necessary.
13. Miscellaneous. This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof.
Each party agrees to perform such further actions and execute such further
documents as are necessary to effectuate the purposes hereof. This
Agreement shall be construed and enforced in accordance with and governed
by the laws of the State of Delaware and the applicable provisions of the
1940 Act. The captions in this Agreement are included for convenience only
and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed in
several counterparts, all of which together shall for all purposes
constitute one Agreement, binding on all the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
MET INVESTORS ADVISORY LLC
BY:
-------------------------------------
Authorized Officer
XXXXXXXXX XXXXXX, LLC
BY:
-------------------------------------
Authorized Officer
SCHEDULE A
Percentage of average daily net assets
Xxxxxxxxx Xxxxxx Real Estate 0.40% of first $200 million of such
Portfolio assets, plus 0.35% of such assets over
$200 million up to $750 million,
plus 0.30% of such assets over
$750 million
