Exhibit (d)(4)(i)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of August 18, 2003, by and between The Equitable Life
Assurance Society of the United States, a New York stock life insurance
corporation (the "Manager"), and TCW Investment Management Company, a
corporation organized under the laws of the State of California ("Adviser").
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 Large Cap Growth Portfolio and AXA Premier VIP
Small/Mid Cap Value Portfolio are each a series of the Trust (collectively and
individually referred to herein as a "Fund");
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and is the
investment manager to the Trust;
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 Fund 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 Fund of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
the Fund;
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 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 Fund 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 Fund, 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 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 Fund 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 Fund or its agent; and
(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.
C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) 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"); (ii) 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 Fund; (iii) the Trust's
Compliance Manual and other policies and procedures adopted from time to time by
the Board of Trustees of the Trust; and (iv) the written instructions of the
Manager. Prior to commencement of the Adviser's services hereunder, the Manager
shall provide the Adviser with current copies of the Prospectus, SAI, Compliance
Manual and other relevant policies and procedures that are adopted by the Board
of Trustees and applicable to the Adviser. 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. In furnishing services hereunder, the Adviser will not consult with
any other adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any
other investment company under common control with the Trust concerning
transactions of the Fund in securities of other assets. (This shall not be
deemed to prohibit the Adviser from 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 Fund
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
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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 and delivered to Adviser
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 Fund, in the name of the Allocated
Portion or its nominees, the Adviser shall use its best 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 Fund.
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
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 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 Fund 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 the principles of "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 the principles of best execution, the Board of
Trustees or the Manager may direct the Adviser to effect transactions in Fund
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) recognize
broker-dealers for the sale of Fund shares.
H. 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 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.
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I. 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.
J. 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.
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.
Commencing on the date of this Agreement and while this Agreement is in
effect, the Adviser may not provide investment advisory services to an account
opened after this agreement that is a registered investment company the same
size or smaller than the Allocated Portion with a similar investment objective
and strategies for an advisory fee at a lower rate (excluding performance-based
fee rates) than is charged under this Agreement, unless the Adviser voluntarily
and unconditionally reduces the fee rate charged hereunder to the lowest level
at which it provides such services to such other registered investment
companies.
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 Fund, 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
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was contained in information fursnished to the Manager or the Trust by the
Adviser Indemnitees (as defined below) for use herein and was reporduced without
material change in the Trust's materials.
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 Fund 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
contained in information fursished to the Manager or the Trust by the Adviser
Indemnitees for use therein and was reproduced without material change in the
Trust's materials.
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
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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 Fund, 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 Fund 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 Fund,
provided, however, that routine regulatory examinations shall not be required to
be reported by this provisions.
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
president, Chief Operating Officer, Chief Compliance Officer or a vice-president
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 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 material
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, 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 the senior portfolio manager(s) of the
Allocated Portion, in each case prior to or, promptly after, such change. The
Adviser agrees to bear all reasonable expenses of the Fund, if any, arising out
of an assignment or change in control.
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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 Fund, 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 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 duties. In the event of the termination of this
Agreement, such 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.
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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 Independent
Trustees of any party to this Agreement 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
Fund, 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.
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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 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 the Fund if a majority of the
outstanding voting securities of the Fund 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 Fund affected by the amendment or
all the Funds of the Trust. Any amendments to this Agreement must be in writing
and signed by both parties.
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
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. The specific person to whom notice
shall be provided for each party will be specified in writing to the other
party. 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
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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: TCW Investment Management Company
Attn: Xxxx Xxxxxxx & Xxxxx Xxxxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
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 Fund. 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 Fund, nor
from the Trustees or any individual Trustee of the Trust.
22. 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.
23. 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.
11
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 TCW INVESTMENT MANAGEMENT
SOCIETY OF THE UNITED STATES COMPANY
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
---------------------------------- -----------------------------------
Xxxxx X. Xxxxx Xxxxxx X. Xxxx
Executive Vice President Senior Vice President
By: /s/ Xxxxx X. Xxxx, Xx.
-----------------------------------
Xxxxx X. Xxxx, Xx.
President
12
APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
TCW INVESTMENT MANAGEMENT COMPANY
Related Portfolios Annual Advisory Fee Rate***
-------------------------------------- --------------------------------------
Large Cap Growth Portfolios, which 0.50% of the TCW Allocated Portion's
shall consist of the following average daily net assets up to and
Allocated Portion and Other Allocated including $100 million; and 0.40% of
Portion** (collectively referred to the TCW Allocated Portion's average
as "Large Cap Growth Portfolios"): daily net assets in excess of
$100 million
AXA Premier VIP Large Cap Growth
Portfolio*
AXA Premier Large Cap Growth Fund*
Small/Mid Cap Value Portfolios, which 0.55% of the TCW Allocated Portion's
shall consist of the following average daily net assets up to and
Allocated Portion and Other Allocated including $100 million; and 0.45% of
Portion** (collectively referred to as the TCW Allocated Portion's average
"Small/Mid Cap Value Portfolios"): daily net assets in excess of
$100 million
AXA Premier VIP Small/Mid Cap Value
Portfolio*
AXA Premier Small/Mid Cap Value Fund*
* 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 "TCW Allocated Portion."
** Other Allocated Portions are other registered investment companies (or series
or portions thereof) that are managed by the Manager and advised by the Adviser,
which are classified "Large Cap Growth Portfolios" or "Small/Mid Cap Value
Portfolios."
*** The daily advisory fee for the Related Portfolios is calculated by
multiplying the aggregate net assets of the Related Portfolios 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. The daily fee applicable to each Allocated Portion is the portion
of the daily advisory fee for the Related Portfolios equal to the Allocated
Portion's net assets relative to the aggregate net assets of the Related
Portfolios, including the Allocated Portion, used in the fee calculation
13
