Exhibit 6(d)
MERCURY HW VARIABLE TRUST
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 1st day of February, 1998, and amended and restated as
of October 6, 2000, by and between MERCURY HW VARIABLE TRUST (formerly known as
HOTCHKIS AND WILEY VARIABLE TRUST), a Massachusetts business trust (the
"Trust"), on behalf of the Mercury Total Return Bond VIP Portfolio (formerly
known as the Total Return Bond VIP Series) (the "Portfolio"), and FUND ASSET
MANAGEMENT, L.P., an affiliate of HOTCHKIS AND WILEY, which was formerly
operated as a division of the Capital Management Group of Merrill Lynch Asset
Management, L.P. (now known as Merrill Lynch Investment Managers, L.P.), and
which has assumed its duties under this Agreement (the "Advisor").
WITNESSETH:
WHEREAS, the Trust has been organized and intends to operate as an
investment company registered under the Investment Company Act of 1940 ("1940
Act") and is currently comprised of four series, one of which is the Portfolio;
and each series will engage in the business of investing and reinvesting its
assets; and
WHEREAS, the Advisor is a registered investment adviser under the
Investment Advisers Act of 1940 and engages in the business of providing
investment advisory services; and
WHEREAS, the Trust's Board of Trustees, including a majority of the
Trustees who are not parties to this Agreement or "interested persons" (as
defined in the 1940 Act) of any such party, and the Portfolio's initial
shareholder have approved this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed by and between the parties hereto as
follows:
1. In General
The Advisor agrees, all as more fully set forth herein, to act as
managerial investment advisor to the Trust with respect to the investment of the
assets of the Portfolio and to supervise and arrange the purchase and sale of
securities held in the portfolio of the Portfolio.
2. Duties and Obligations of the Advisor with respect to Investment of
Assets of the Portfolio
(a) Subject to the succeeding provisions of this section and subject
to the direction and control of the Board of Trustees of the Trust,
the Advisor shall:
(i) Decide what securities or other assets shall be purchased
or sold by the Trust with respect to the Portfolio and when;
and
(ii) Arrange for the purchase and the sale of securities or
other assets held in the portfolio of the Portfolio by placing
purchase and sale orders for the Trust with respect to the
Portfolio.
(b) Any investment purchases or sales made by the Advisor shall at
all times conform to, and be in accordance with, any requirements
imposed by: (1) the provisions of the 1940 Act and of any rules or
regulations in force thereunder; (2) any other applicable provisions
of law; (3) the provisions of the Declaration of Trust and By-Laws
of the Trust as amended from time to time; (4) any policies and
determinations of the Board of Trustees of the Trust; and (5) the
fundamental policies of the Trust relating to the Portfolio, as
reflected in the Trust's Registration Statement under the 1940 Act,
or as amended by the shareholders of the Portfolio.
(c) The Advisor shall give the Trust the benefit of its best
judgment and effort in rendering services hereunder, but the Advisor
shall not be liable for any loss sustained by reason of the
purchase, sale or retention of any security whether or not such
purchase, sale or retention shall have been based on its own
investigation and research or upon investigation and research made
by any other individual, firm or corporation, if such purchase, sale
or retention shall have been made and such other individual, firm or
corporation shall have been selected in good faith. Nothing herein
contained shall, however, be construed to protect the Advisor
against any liability to the Trust or its security holders by reason
of willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reason of its reckless disregard of
obligations and duties under this Agreement.
(d) Nothing in this Agreement shall prevent the Advisor or any
affiliated person (as defined in the 1940 Act) of the Advisor from
acting as investment advisor or manager and/or principal underwriter
for any other person, firm or corporation and shall not in any way
limit or restrict the Advisor or any such affiliated person from
buying, selling or trading any securities for its or their own
accounts or the accounts of others for whom it or they may be
acting, provided, however, that the Advisor expressly represents
that it will undertake no activities which, in its judgment, will
adversely affect the performance of its obligations to the Trust
under this Agreement.
(e) It is agreed that the Advisor shall have no responsibility or
liability for the accuracy or completeness of the Trust's
Registration Statement under the 1940 Act or the Securities Act of
1933 except for information supplied by the Advisor for inclusion
therein. The Trust may indemnify the Advisor to the full extent
permitted by the Trust's Declaration of Trust.
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3. Broker-Dealer Relationships
The Advisor is responsible for decisions to buy and sell securities for
the Portfolio, broker-dealer selection, and negotiation of brokerage commission
rates. The Advisor's primary consideration in effecting a securities transaction
will be execution at the most favorable price. In selecting a broker-dealer to
execute each particular transaction, the Advisor will take the following into
consideration: the best net price available; the reliability, integrity and
financial condition of the broker-dealer; the size of and difficulty in
executing the order; and the value of the expected contribution of the
broker-dealer to the investment performance of the Portfolio on a continuing
basis. Accordingly, the price to the Portfolio in any transaction may be less
favorable than that available from another broker-dealer if the difference is
reasonably justified by other aspects of the portfolio execution services
offered. Subject to such policies as the Board of Trustees of the Trust may
determine, the Advisor shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by reason of its
having caused the Portfolio to pay a broker or dealer that provides brokerage or
research services to the Advisor 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 Advisor
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
Advisor's overall responsibilities with respect to the Trust. The Advisor is
further authorized to allocate the orders placed by it on behalf of the
Portfolio to such brokers or dealers who also provide research or statistical
material, or other services, to the Trust, the Advisor, or any affiliate of
either. Such allocation shall be in such amounts and proportions as the Advisor
shall determine, and the Advisor shall report on such allocations regularly to
the Trust, indicating the broker-dealers to whom such allocations have been made
and the basis therefor. The Advisor is also authorized to consider sales of
shares as a factor in the selection of brokers or dealers to execute portfolio
transactions, subject to the requirements of best execution, i.e., that such
brokers or dealers are able to execute the order promptly and at the best
obtainable securities price.
4. Allocation of Expenses
The Advisor agrees that it will furnish the Trust, at the Advisor's
expense, with all office space and facilities, and equipment and clerical
personnel necessary for carrying out its duties under this Agreement. The
Advisor (or an affiliate thereof) will also pay all compensation of all
Trustees, officers and employees of the Trust who are affiliated persons of the
Advisor. All operating costs and expenses relating to the Portfolio not
expressly assumed by the Advisor under this Agreement shall be paid by the Trust
from the assets of the Portfolio, as applicable, including, but not limited to
(i) interest and taxes; (ii) brokerage commissions; (iii) insurance premiums;
(iv) compensation and expenses of the Trust's Trustees other than those
affiliated with the Advisor; (v) legal and audit expenses; (vi) fees and
expenses of the Trust's custodian, shareholder servicing or transfer agent and
accounting services agent; (vii) expenses incident to the issuance of the
Portfolio's shares, including issuance on the payment of, or reinvestment of,
dividends; (viii) fees and expenses incident to the registration under Federal
or state securities laws of the Trust or the shares of the Portfolio; (ix)
expenses of preparing, printing and mailing
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reports and notices and proxy materials to shareholders of the Portfolio; (x)
all other expenses incident to holding meetings of the Portfolio's shareholders;
(xi) dues or assessments of or contributions to the Investment Company Institute
or any successor; (xii) such non-recurring expenses as may arise, including
litigation affecting the Trust and the legal obligations which the Trust may
have to indemnify its officers and Trustees with respect thereto; and (xiii) all
expenses which the Trust or the Portfolio agree to bear in any distribution
agreement or in any plan adopted by the Trust and/or the Portfolio pursuant to
Rule 12b-1 under the 1940 Act.
5. Compensation of the Advisor
The Trust agrees to pay the Advisor and the Advisor agrees to accept as
full compensation for all services rendered by the Advisor hereunder, an annual
management fee, payable monthly and computed on the value of the average net
assets of the Portfolio as of the close of business each business day, at the
annual rate of .55%.
6. Duration and Termination
(a) This Agreement shall go into effect on the date hereof and
shall, unless terminated as hereinafter provided, continue in effect
until February 1, 2000, and thereafter from year to year, but only
so long as such continuance is specifically approved at least
annually by the Trust's Board of Trustees, including the vote of a
majority of the Trustees who are not parties to this Agreement or
"interested persons" (as defined in the 1940 Act) of any such party
cast in person at a meeting called for the purpose of voting on such
approval, or by the vote of the holders of a "majority" (as so
defined) of the outstanding voting securities of the Portfolio and
by such a vote of the Trustees.
(b) This Agreement may be terminated by the Advisor at any time
without penalty upon giving the Trust sixty (60) days' written
notice (which notice may be waived by the Trust) and may be
terminated by the Trust at any time without penalty upon giving the
Advisor sixty (60) days' written notice (which notice may be waived
by the Advisor), provided that such termination by the Trust shall
be directed or approved by the vote of a majority of all of its
Trustees in office at the time or by the vote of the holders of a
majority (as defined in the 1940 Act) of the voting securities of
the Trust at the time outstanding and entitled to vote. This
Agreement shall automatically terminate in the event of its
assignment (as so defined).
7. Use of Advisor's Name
The Trust may use the name "Hotchkis and Wiley Variable Trust" or any name
including the words "Hotchkis and Wiley" only for so long as this Agreement or
any other advisory agreement relating to the Trust is in effect. If the
Agreement or any other advisory agreement relating to the Trust is no longer in
effect, the Trust will (to the extent that it lawfully can) cease to use such a
name or any other name indicating that it is advised by or otherwise connected
with
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the Advisor, or any organization that shall have succeeded to the Advisor's
business. In no event shall the Trust use the name "Hotchkis and Wiley Variable
Trust" or any name including the words "Hotchkis and Wiley" if the Advisor's
function is transferred or assigned to a company over which Merrill Lynch & Co.,
Inc. does not have control.
8. Agreement Binding Only on Trust Property
The Advisor understands that the obligations of this Agreement are not
binding upon any shareholder of the Trust personally, but bind only the Trust's
property; the Advisor represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by duly authorized persons and their seals to be
hereunto affixed, all as of the day and year first above written.
MERCURY HW VARIABLE TRUST
/s/
Nancy D. Celick
President
ATTEST:
/s/
Turner Swan
Secretary
FUND ASSET MANAGEMENT, L.P.
/s/
Nancy D. Celick
First Vice President
ATTEST:
/s/
Turner Swan
Attorney
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