Exhibit (d)(xvii)
SHORT DURATION BOND PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 29th day of November, 2002, is among Enterprise
Accumulation Trust (the "Fund"), a Massachusetts business trust, Enterprise
Capital Management, Inc., a Georgia corporation (hereinafter referred to as the
"Adviser"), and MONY Capital Management, Inc., a Delaware corporation
(hereinafter referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement with
the Fund ("Investment Adviser's Agreement"). Pursuant to the Investment
Adviser's Agreement, the Adviser has agreed to render investment advisory and
certain other management services to all of the portfolios of the Fund, and the
Fund has agreed to employ the Adviser to render such services and to pay to the
Adviser certain fees therefore. The Investment Adviser's Agreement recognizes
that the Adviser may enter into agreements with other investment advisers who
will serve as Portfolio Managers to the portfolios.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Short Duration Bond Portfolio, a series of
the Fund (the "Short Duration Bond Portfolio"), securities investment advisory
services for the Short Duration Bond Portfolio.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund, the
Adviser and the Portfolio Manager agree as follows:
(1) The Fund and the Adviser hereby employ the Portfolio Manager to
render certain investment advisory services to the Short Duration Bond
Portfolio, as set forth herein. The Portfolio Manager hereby accepts such
employment and agrees to perform such services on the terms herein set
forth, and for the compensation herein provided.
(2) The Portfolio Manager shall furnish the Short Duration Bond
Portfolio advice with respect to the investment and reinvestment of the
assets of the Short Duration Bond Portfolio, or such portion of the assets
of the Short Duration Bond Portfolio as the Adviser shall specify from
time to time, in accordance with the investment objectives, restrictions
and limitations of the Short Duration Bond Portfolio which are in the
Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly reconciliation of
the Short Duration Bond Portfolio to the holdings report provided by the
Fund's custodian and bring any material or significant variances regarding
holdings or valuations to the attention of the Adviser.
(4) The Portfolio Manager shall maintain all books and records with
respect to the Short Duration Bond Portfolio's portfolio transactions
required by subparagraphs (b)(5), (6), (7), (9), (10) and (11) and
paragraph (f) of Rule 31a-1 under the Investment Company Act of 1940 ("▇▇▇
▇▇▇▇ ▇▇▇") and shall render to the Fund's Board of Trustees such periodic
and special reports as
the Fund's Board of Trustees may reasonably request. The Portfolio Manager
shall timely furnish to the Adviser all information relating to the
Portfolio Manager's services under this Agreement needed by the Adviser to
keep the other books and records of the Short Duration Bond Portfolio
required by Rule 31a-1 under the 1940 Act. The Portfolio Manager agrees
that all records that it maintains on behalf of the Short Duration Bond
Portfolio are property of the Short Duration Bond Portfolio and the
Portfolio Manager will surrender promptly to the Short Duration Bond
Portfolio any of such records upon the Short Duration Bond Portfolio's
request; provided, however, that the Portfolio Manager may retain a copy
of such records. The Portfolio Manager further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act any such records as
are required to be maintained by it pursuant to this Agreement. The
Portfolio Manager shall perform a monthly reconciliation of the Short
Duration Bond Portfolio to the holdings report provided by the Fund's
custodian and bring any material or significant variances regarding
holdings or valuations to the attention of the Adviser.
(5) The Portfolio Manager shall for all purposes herein be deemed to
be an independent contractor. The Portfolio Manager has no authority to
act for or represent the Fund or the Short Duration Bond Portfolio in any
way except to direct securities transactions pursuant to its investment
advice hereunder. The Portfolio Manager is not an agent of the Fund or the
Short Duration Bond Portfolio.
(6) It is understood that the Portfolio Manager does not, by this
Agreement, undertake to assume or pay any costs or expenses of the Fund or
the Short Duration Bond Portfolio.
(6) (a) The Adviser agrees to pay the Portfolio Manager for its
services to be furnished under this Agreement, with respect to each
calendar month after the effective date of this Agreement, on the
twentieth (20th) day after the close of each calendar month, a sum equal
to 0.0083 of 1% of the average of the daily closing net asset value of the
Short Duration Bond Portfolio managed by the Portfolio Manager during such
month. (that is, 0.10 of 1% per year).
(6) (b) The payment of all fees provided for hereunder shall be
prorated and reduced for sums payable for a period less than a full month
in the event of termination of this Agreement on a day that is not the end
of a calendar month.
(6) (c) For the purposes of this Paragraph 6, the daily closing net
asset values of the Short Duration Bond Portfolio shall be computed in the
manner specified in the Registration Statement for the computation of the
value of such net assets in connection with the determination of the net
asset value of the Short Duration Bond Portfolio's shares.
(7) The services of the Portfolio Manager hereunder are not to be
deemed to be exclusive, and the Portfolio Manager is free to render
services to others and to engage in other activities so long as its
services hereunder are not impaired thereby. Without in any way relieving
the Portfolio Manager of its responsibilities hereunder, it is agreed that
the Portfolio Manager may employ others to furnish factual information,
economic advice and/or research, and investment recommendations, upon
which its investment advice and service is furnished hereunder. The
Portfolio Manager, may, from time to time hereafter, act as investment
adviser to one or more other investment companies and fiduciary or other
managed accounts, provided that when the Portfolio Manager purchases or
sells securities of the same issuer on behalf of two or more advisory
clients, the available securities will be allocated in a manner believed
by the Portfolio Manager to be equitable to each client.
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(8) In the absence of willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder, or reckless
disregard of its obligations and duties hereunder, the Portfolio Manager
shall not be liable to the Fund, the Short Duration Bond Portfolio or the
Adviser or to any shareholder or shareholders of the Fund, the Short
Duration Bond Portfolio or the Adviser for any mistake of judgment, act or
omission in the course of, or connected with, the services to be rendered
by the Portfolio Manager hereunder; except that the Portfolio Manager
shall be held liable for any losses resulting from its negligent
management which result in transactional errors or omissions including,
but not limited to, incorrect, delayed or omitted trade advices arising
from the Portfolio manager's negligence which result in mispricing the
Short Duration Bond Portfolio; and the Portfolio Manager shall be
obligated to make the Short Duration Bond Portfolio whole and absorb
related transfer agent costs which result from the transaction.
(9) The Portfolio Manager will not take, and will take necessary
steps to prevent its officers and trustees from taking, at any time, a
short position in any shares of any holdings of any portfolios of the
Short Duration Bond Portfolio. The Portfolio Manager also will cooperate
with the Fund in adopting a written policy prohibiting ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with respect to Short Duration Bond Portfolio transactions insofar as such
transactions may relate to the Portfolio Manager.
(10) In connection with the management of the investment and
reinvestment of the assets of the Short Duration Bond Portfolio, the
Portfolio Manager is authorized to select the brokers or dealers that will
execute purchase and sale transactions for the Short Duration Bond
Portfolio, and is directed to use its best efforts to obtain the best
available price and most favorable execution with respect to such
purchases and sales of Short Duration Bond securities for the Fund.
Subject to this primary requirement, and maintaining as its first
consideration the benefits for the Short Duration Bond Portfolio and its
shareholders, the Portfolio Manager shall have the right, subject to the
approval of the Board of Trustees of the Fund and of the Adviser, to
follow a policy of selecting brokers and dealers who furnish statistical
research and other services to the Short Duration Bond Portfolio, the
Adviser or the Portfolio Manager and, subject to the Rules of Fair
Practice of the National Association of Securities Dealers, Inc., to
select brokers and dealers who sell shares of portfolios of the Fund.
(11) The Fund may terminate this Agreement by thirty (30) days
written notice to the Adviser and the Portfolio Manager at any time,
without the payment of any penalty, by vote of the Portfolio's Board of
Trustees, or by vote of a majority of its outstanding voting securities.
The Adviser may terminate this Agreement by thirty (30) days written
notice to the Portfolio Manager and the Short Duration Bond Portfolio
Manager may terminate this Agreement by thirty (30) days written notice to
the Adviser, without the payment of any penalty. This Agreement shall
immediately terminate in the event of its assignment, unless an order is
issued by the Securities and Exchange Commission conditionally or
unconditionally exempting such assignment from the provisions of Section
15 (a) of the 1940 Act, in which event this Agreement shall remain in full
force and effect.
(12) Subject to prior termination as provided above, this Agreement
shall continue in force from the date of execution until November 29,
2004, and from year to year thereafter if its continuance after said date:
(1) is specifically approved on or before said date and at least annually
thereafter by vote of the Board of Trustees of the Fund, including a
majority of those Trustees who are not parties to this Agreement or
interested persons of any such party, or by vote of a majority of the
outstanding voting securities of the Short Duration Bond Portfolio, and
(2) is
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specifically approved at least annually by the vote of a majority of
Trustees of the Fund who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the
purpose of voting on such approval.
(13) The Adviser shall indemnify and hold harmless the Portfolio
Manager, its officers and trustees and each person, if any, who controls
the Portfolio Manager within the meaning of Section 15 of the Securities
Act of 1933 (any and all such persons shall be referred to as "Indemnified
Party"), against any loss, liability, claim, damage or expense (including
the reasonable cost of investigating or defending any alleged loss,
liability, damages or expense and reasonable counsel fees incurred in
connection therewith), arising by reason of any matter to which this
Portfolio Manager's Agreement relates. However, in no case (i) is this
indemnity to be deemed to protect any particular Indemnified Party against
any liability to which such Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of reckless disregard of its
obligations and duties under this Portfolio Manager's Agreement or (ii) is
the Adviser to be liable under this indemnity with respect to any claim
made against any particular Indemnified Party unless such Indemnified
Party shall have notified the Adviser in writing within a reasonable time
after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Portfolio Manager or
such controlling persons.
The Portfolio Manager shall indemnify and hold harmless the Adviser
and each of its trustees and officers and each person if any who controls
the Adviser within the meaning of Section 15 of the Securities Act of
1933, against any loss, liability, damage or expense described in the
foregoing indemnity, but only with respect to the Portfolio Manager's
willful misfeasance, bad faith or gross negligence in the performance of
its duties under this Portfolio Manager's Agreement. In case any action
shall be brought against the Adviser or any person so indemnified, in
respect of which indemnity may be sought against the Portfolio Manager,
the Portfolio Manager shall have the rights and duties given to the
Adviser, and the Adviser and each person so indemnified shall have the
rights and duties given to the Portfolio Manager by the provisions of
subsection (i) and (ii) of this section.
(14) Except as otherwise provided in Paragraph 13 hereof and as may
be required under applicable federal law, this Portfolio Manager's
Agreement shall be governed by the laws of the State of Georgia.
(15) The Portfolio Manager agrees to notify the parties within a
reasonable period of time regarding a material change in the ownership of
the Portfolio Manager.
(16) The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein,
shall have the respective meanings specified in the Investment Company Act
of 1940 as now in effect or as hereafter amended.
(17) Unless otherwise permitted, all notices, instructions and advice
with respect to security transactions or any other matters contemplated by
this Agreement shall be deemed duly given when received in writing:
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by the Portfolio Manager:
MONY Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
by the Adviser: Enterprise Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Fund: Enterprise Accumulation Trust c/o Enterprise
Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or by such other person or persons at such address or addresses as
shall be specified by the applicable party, in each case, in a notice
similarly given. Each party may rely upon any notice or other
communication from the other reasonably believed by it to be genuine.
(18) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same agreement.
(19) This Agreement constitutes the entire agreement between the
Portfolio Manager, the Adviser and the Fund relating to the Short Duration
Bond Portfolio.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their duly authorized officers and attested as of the date first above written.
ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- ------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- ------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
MONY CAPITAL MANAGEMENT, INC.
ATTEST: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ By: /s/ WILL ▇ ▇▇▇▇▇▇▇
------------------------- ------------------------------------
Secretary
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: President & CEO
---------------------------------
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