DRAFT - APRIL 26, 2001
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of [insert date], 2001, by and between The Equitable
Life Assurance Society of the United States, a New York stock life insurance
corporation (the "Manager"), and BlackRock Institutional Management Corporation,
a corporation organized under the laws of the State of Delaware ("Adviser").
WHEREAS, the Manager has entered into an Investment Management Agreement
dated [May 15, 2001] with the Equitable Trust ("Trust") an investment company
registered under the Investment Company Act of 1940, as amended ("Investment
Company Act");
WHEREAS, the Equitable Money Market Fund is a series of the Trust ("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 Fund 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 Fund 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 Fund and determine the
composition of the assets of the Fund, 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 Fund or are under consideration for inclusion in the Fund;
(ii) formulate and implement a continuous investment program for the
Fund;
(iii) take whatever steps are necessary to implement the investment
program for the Fund 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 Fund, 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 Fund, 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 other
investment/asset in the Fund for which market quotations are not readily
available;
(vi) provide any and all material composite information, records and
supporting documentation about accounts the Adviser manages, if
appropriate, which are relevant to the Fund and that have investment
objectives, policies, and strategies substantially similar to those
employed by the Adviser in managing the Fund 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.
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C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) the Trust's Agreement and
Declaration of Trust, as the same may be hereafter modified and/or amended from
time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the same
may be hereafter modified and/or amended from time to time ("By-Laws"); (iii)
the currently effective Prospectus and Statement of Additional Information of
the Trust filed with the SEC and delivered to the Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the
Fund; (v) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust; and (vi) the
written instructions of the Manager. Prior to commencement of the Adviser's
services hereunder, the Manager shall provide the Adviser with current copies of
the Trust Declaration, By-Laws, Prospectus, SAI, Compliance Manual and other
relevant policies and procedures that are adopted by the Board of Trustees. The
Manager undertakes to provide the Adviser with copies of other written notice of
any amendments, modifications or supplements to any such above-mentioned
document.
D. The Adviser, at its expense, will furnish: (i) all necessary facilities
and personnel, including salaries, expenses and fees of any personnel required
for them to faithfully perform their duties under this Agreement; and (ii)
administrative facilities, including bookkeeping, and all equipment necessary
for the efficient conduct of the Adviser's duties under this Agreement.
E. 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 directed at all times to
seek to execute transactions for the Fund (i) in accordance with any written
policies, practices or procedures that may be established by the Board of
Trustees or the Manager from time to time and which have been provided to the
Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any
orders for the purchase or sale of investments for the Fund, in the name of the
Fund or its nominees, the Adviser shall, subject to Section 3.F. below, use its
best efforts to obtain for the Fund "best", 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.
F. Subject to the appropriate policies and procedures approved by the Board
of Trustees, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause the Fund to
pay a broker or dealer that provides brokerage or research services to the
Manager, the Adviser and the Fund 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 seeking "best
execution", the Manager or the Adviser may also consider sales of shares of the
Trust as a factor in the selection of brokers and dealers. Subject to seeking
"best execution", the Board of Trustees or the Manager may cause the Adviser to
effect transactions in Fund securities through broker-dealers in a manner that
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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; provided, however that in the event of any such direction, Adviser
shall not be responsible for seeking to obtain best execution.
G. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Fund 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 Fund 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 Fund. 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 Fund, 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 Fund 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 Fund.
H. The Adviser will maintain all accounts, books and records with respect
to the Fund as are required of an investment adviser of a registered investment
company pursuant to the Investment Company Act and Advisers Act and the rules
thereunder and shall file with the SEC all forms pursuant to Section 13 of the
Exchange Act, with respect to its duties as are set forth herein.
I. The Adviser will, unless and until otherwise directed by the Manager or
the Board of Trustees, vote proxies with respect to the Fund's securities and
exercise rights in corporate actions or otherwise in accordance with the
Adviser's proxy viting 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 Fund
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 Fund based on the net assets of the Fund on each day
and accrued on a daily basis.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall 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 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
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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 Fund 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 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 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 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 made in reliance upon
information furnished to the Manager or the Trust.
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
Fund 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.
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D. The Manager (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best or its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (v) will
promptly notify Adviser of the occurrence of any event that would disqualify
Manager from serving as investment manager of an investment company pursuant to
Section 9(a) of the Investment Company Act or otherwise. The Manager will also
promptly notify the Adviser if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before
or by any court, public board or body, involving the affairs of the 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 provision.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, a
Managing Director of the Adviser shall certify to the Manager that the Adviser
has complied with the requirements of Rule 17j-1 during the previous year and
that there has been no material violation of the Adviser's code of ethics or, if
such a material violation has occurred, that appropriate action was taken in
response to such violation. Upon the written request of the Manager, the Adviser
shall permit the Manager, its employees or its agents to examine the reports
required to be made to the Adviser by Rule 17j-1(c)(1) and all other records
relevant to the Adviser's code of ethics.
C. The Adviser has provided the Trust and the Manager with a copy of its
Form ADV, 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 material amendments to the Trust and the Manager at least
annually. Such amendments shall reflect all changes in the Adviser's
6
organizational structure, professional staff or other significant developments
affecting the Adviser, as required by the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment of
this Agreement or change of control of the Adviser, as applicable, and any
changes in the key personnel who are either the portfolio manager(s) of the Fund
or senior management of the Adviser, in each case prior to or promptly after,
such change. The Adviser agrees to bear all reasonable expenses of the Fund, if
any, arising out of an assignment or change in control.
E. The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, the 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 Fund
in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Fund 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 Fund 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
7
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.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect unless it has first been
approved: (i) by a vote of a majority of those trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act) of any party to
this Agreement ("Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a majority of the
Fund's outstanding securities. This Agreement will continue in effect for a
period more than two years from the date of its execution only so long as such
continuance is specifically approved at least annually by the 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
8
Company Act or other applicable laws and regulations. If the Manager or the
Trust makes any unauthorized use of the Adviser's names, derivatives, logos,
trademarks or service marks or trade names, the parties acknowledge that the
Adviser shall suffer irreparable harm for which monetary damages may be
inadequate and thus, the Adviser shall be entitled to injunctive relief, as well
as any other remedy available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of the 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.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Adviser without the prior written consent of the Trust
and the Manager shall result in the automatic termination of this Agreement, as
provided in Section 13 hereof. Notwithstanding the foregoing, no assignment
shall be deemed to result from any changes in the directors, officers or
employees of such Adviser except as may be provided to the contrary in the
Investment Company Act or the rules or regulations thereunder. The Adviser
agrees that it will notify the Trust and the Manager of any changes in its
directors, officers or employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Fund.
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
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Xxxxxxxx Xxxxx, Vice President and Counsel
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: Equitable Trust
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: BlackRock Institutional Management Corporation
[insert name/title]
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, 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
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special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
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 BLACKROCK INSTITUTIONAL
SOCIETY OF THE UNITED STATES MANAGEMENTCORPORATION
By: By:
----------------------------- -------------------------------
Xxxxx X. X'Xxxx Xxxxxxxx Xxxx
Executive Vice President Chairman and Chief Executive Officer
11
DISTRIBUTION AGREEMENT
between
EQUITABLE TRUST
and
AXA ADVISORS, LLC
(APPLICABLE TO CLASS A, CLASS B1, CLASS B2, CLASS B3, CLASS C
AND CLASS Z SHARES)
THIS AGREEMENT made this ___ day of ________, 2001, by and between EQUITABLE
TRUST, a Delaware business trust (the "Trust"), with respect to the series of
beneficial interest set forth on Appendix A to this Agreement, and any
applicable classes thereof, (a "Fund",), and AXA ADVISORS, LLC, a [Delaware
limited liability company] (the "Distributor").
W I T N E S S E T H: In consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
FIRST: The Trust on behalf of the Fund hereby appoints the Distributor and such
affiliates of the Distributor as enter into similar agreements as its exclusive
agents for the sale of shares of the Fund to the public directly and/or through
investment dealers and financial institutions in the United States and
throughout the world.
SECOND: The Trust shall not sell any shares of the Fund except through one of
its agents and under the terms and conditions set forth in paragraph FOURTH
below. Notwithstanding the provisions of the foregoing sentence, however, this
appointment does not preclude sales of shares of the Fund directly through the
Funds' transfer agent(s) in the manner set forth in a Fund's Registration
Statement. As used in this Agreement, the term "Registration Statement" shall
mean the currently effective registration statement of the Fund, and any
supplements thereto, under the Securities Act of 1933 (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act").
THIRD: The Distributor hereby accepts appointment as agent for the sale of the
shares of the Fund and agrees that it will use its best efforts to sell such
shares; provided, however, that:
o the Distributor may, and when requested by the Trust on behalf of the Fund
shall, suspend its efforts to effectuate such sales at any time when, in
the opinion of the Distributor or of the Trust, no sales should be made
because of market or other economic considerations or abnormal
circumstances of any kind; and
o the Trust may withdraw the offering of the shares of the Fund (i) at any
time with the consent of the Distributor, or (ii) without such consent when
so required by the provisions of any statute or of any order, rule or
regulation of any governmental body having jurisdiction. It is mutually
understood and agreed that the Distributor does not undertake to sell any
specific amount of the shares of the Fund. The Trust shall have the right
to specify minimum amounts for initial and subsequent orders for the
purchase of shares of the Fund.
FOURTH: The public offering price of Class A, Class B1, Class B2, Class B3
(Class B1, Class B2 and Class B3 are together "Class B"), Class C and Class Z
shares of the Fund (the "offering price") shall be the net asset value per share
of the Fund plus a sales charge, if any. Net asset value per share shall be
determined in accordance with the provisions of the Registration Statement of
the Fund.
As compensation for its service activities under this Agreement with respect to
Class A, Class B and Class C shares, the Distributor shall receive from the
Trust a service fee, based on the amount of sales of such shares attributable to
the Distributor, at the rate and under the terms and conditions of the
distribution plan adopted by the Trust on behalf of the Fund pursuant to Rule
12b-1 under the 1940 Act (the "12b-1 Plan"), as such Plan is amended from time
to time, and subject to any further limitations on such fee as the Board of
Trustees may impose.
As compensation for its activities under this Agreement with respect to the
distribution of Class A and Class C shares, the Distributor shall retain the
initial sales charges, if any, based on the amount of sales of such shares
attributable to the Distributor, on purchases of Class A and Class C shares as
set forth in the Registration Statement. The Distributor is authorized to
collect the gross proceeds derived from the sale of the Class A and Class C
shares, remit the net asset value thereof to the Trust upon receipt of the
proceeds and retain the initial sales charge, if any.
As compensation for its activities under this Agreement with respect to the
distribution of the Class A, Class B and Class C shares, the Distributor shall
receive all contingent deferred sales charges, based on the amount of sales of
such shares attributable to the Distributor, imposed on redemptions of Class A,
Class B and Class C shares of the Fund. Whether and at what rate a contingent
deferred sales charge will be imposed with respect to a redemption shall be
determined in accordance with, and in the manner set forth in, the Registration
Statement.
As compensation for its activities under this Agreement with respect to the
distribution of the Class B and Class C shares, the Distributor shall receive
from the Trust a distribution fee, based on the amount of sales of such shares
attributable to the Distributor, at the rate and under the terms and conditions
of the 12b-1 Plan, as such Plan is amended from time to time, and subject to any
further limitations on such fee as the Board of Trustees may impose.
The Distributor may reallow any or all of the initial sales charges, contingent
deferred sales charges, or service fees which it is paid under this Agreement
with respect to Class A, Class B or Class C shares to such dealers as the
Distributor may from time to time determine. The Trust shall have no obligation
to compensate or reimburse the Distributor for any services performed by it
hereunder with respect to Class Z shares.
FIFTH: The Distributor shall act as agent of the Trust on behalf of the Fund in
connection with the sale and repurchase of shares of the Fund. Except with
respect to such sales and repurchases, the Distributor shall act as principal in
all matters relating to the promotion of the sale of shares of the Fund and
shall enter into all of its own engagements, agreements and contracts as
principal on its own account. The Distributor may enter into agreements with
investment dealers and financial institutions selected by the Distributor,
authorizing such investment dealers and financial institutions to offer and sell
shares of the Fund to the public upon the terms and conditions set forth
therein, which shall not be inconsistent with the provisions of this Agreement.
Each agreement shall provide that the investment dealer and financial
institution shall act as a principal, and not as an agent, of the Trust on
behalf of the Fund.
SIXTH: The Fund shall bear:
o the expenses of qualification of shares of the Fund for sale in connection
with such public offerings in such states as shall be selected by the
Distributor, and of continuing the qualification therein until the
Distributor notifies the Trust that it does not wish such qualification
continued; and
o all legal expenses in connection with the foregoing.
SEVENTH: The Distributor shall bear the expenses of printing from the final
proof and distributing the Funds' prospectuses and statements of additional
information (including supplements thereto) relating to public offerings made by
the Distributor pursuant to this Agreement (which shall not include those
prospectuses and statements of additional information, and supplements thereto,
to be distributed to shareholders of the Fund), and any other promotional or
sales literature used by the Distributor or furnished by the Distributor to
dealers in connection with such public offerings, and expenses of advertising in
connection with such public offerings.
The Distributor may be reimbursed for all or a portion of such expenses, or may
receive reasonable compensation for distribution related services, to the extent
those services are deemed to be appropriate subjects for the payment of "service
fees" under Rule 2830 of the Conduct Rules of the National Association of
Securities Dealers, Inc. and permitted by the 12b-1 Plan.
EIGHTH: The Distributor will accept orders for the purchase of shares of the
Fund only to the extent of purchase orders actually received and not in excess
of such orders, and it will not avail itself of any opportunity of making a
profit by expediting or withholding orders. It is mutually understood and agreed
that the Trust may reject purchase orders where, in the judgment of the Trust,
such rejection is in the best interest of the Trust.
NINTH: The Trust, on behalf of the Fund, and the Distributor shall each comply
with all applicable provisions of the 1940 Act, the 1933 Act and all other
federal and state laws, rules and regulations governing the issuance and sale of
shares of the Fund.
TENTH: In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the
Distributor, the Trust on behalf of the Fund agrees to indemnify the Distributor
against any and all claims, demands, liabilities and expenses which the
Distributor may incur under the 1933 Act, or common law or otherwise, arising
out of or based upon any alleged untrue statement of a material fact contained
in any Registration Statement or prospectus of a Fund, or any omission to state
a material fact therein, the omission of which makes any statement contained
therein misleading, unless such statement or omission was made in reliance upon,
and in conformity with, information furnished to the Trust or the Fund in
connection therewith by or on behalf of the Distributor. The Distributor agrees
to indemnify the Trust and the Fund against any and all claims, demands,
liabilities and expenses which the Trust or a Fund may incur arising out of or
based upon any act or deed of the Distributor or its sales representatives which
has not been authorized by the Trust or a Fund in its prospectus or in this
Agreement.
The Distributor agrees to indemnify the Trust and the Fund against any and all
claims, demands, liabilities and expenses which the Trust or the Fund may incur
under the 1933 Act, or common law or otherwise, arising out of or based upon any
alleged untrue statement of a material fact contained in any Registration
Statement or prospectus of a Fund, or any omission to state a material fact
therein if such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust or a Fund in connection
therewith by or on behalf of the Distributor.
Notwithstanding any other provision of this Agreement, the Distributor shall not
be liable for any errors of the Fund' transfer agent(s), or for any failure of
any such transfer agent to perform its duties.
ELEVENTH: Nothing herein contained shall require the Trust to take any action
contrary to any provision of its Agreement and Declaration of Trust, or to any
applicable statute or regulation.
TWELFTH: This Agreement shall become effective with respect to the Fund as of
the date hereof, shall continue in force and effect until __________, 2003, and
shall continue in force and effect from year to year thereafter, provided, that
such continuance is specifically approved with respect to the Fund at least
annually (a)(i) by the Board of Trustees of the Trust or (ii) by the vote of a
majority of the outstanding voting securities (as defined in Section 2(a)(42) of
the 1940 Act), and (b) by vote of a majority of the Trust's trustees who are not
parties to this Agreement or "interested persons" (as defined in Section
2(a)(19) of the 0000 Xxx) of any party to this Agreement cast in person at a
meeting called for such purpose.
THIRTEENTH: This Agreement may be terminated with respect to the Fund at any
time, without the payment of any penalty, by vote of the Board of Trustees of
the Trust or by vote of a majority of the outstanding voting securities of the
Fund, or by the Distributor, on sixty (60) days' written notice to the other
party.
This Agreement shall automatically terminate in the event of its assignment, the
term "assignment" having the meaning set forth in Section 2(a)(4) of the 1940
Act.
FOURTEENTH: Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage prepaid, to the other party at such address as the
other party may designate for the receipt of notices. Until further notice to
the other party, it is agreed that the addresses of both the Trust and the
Distributor shall be [ ].
FIFTEENTH: Notice is hereby given that, as provided by applicable law, the
obligations of or arising out of this Agreement are not binding upon any of the
shareholders of the Trust individually, but are binding only upon the assets and
property of the Trust and that the shareholders shall be entitled, to the
fullest extent permitted by applicable law, to the same limitation on personal
liability as stockholders of private corporations for profit.
SIXTEENTH: This Agreement shall be deemed to be a contract made in the State of
Delaware and governed by, construed in accordance with and enforced pursuant to
the internal laws of the State of Delaware without reference to its conflicts of
laws rules.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate on the day and year first above written.
EQUITABLE TRUST
By: _________________________________
Name: __________________________
Title: President
ATTEST:
NAME:
TITLE:
AXA ADVISORS, LLC
By: _______________________________
Name: ________________________
Title: President
ATTEST:
NAME:
TITLE:
APPENDIX A
TO
DISTRIBUTION AGREEMENT
OF
EQUITABLE TRUST
CLASS A, CLASS B1, CLASS B2, CLASS B3, CLASS C AND CLASS Z SHARES
EQUITABLE MONEY MARKET FUND
