SERVICES AGREEMENT
This Services Agreement ("Agreement") is made and entered into as of July 12,
2002, by and between Equitable Life Assurance Society ("Service Provider"), a
New York corporation, on behalf of its Separate Account 206 ("Separate
Account"), and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, a Maryland corporation
("Xxxx Xxxxx").
Xxxx Xxxxx is the principal underwriter for the investment companies listed on
Schedule A ("Funds"). The Funds are registered under the Investment Company Act
of 1940, as amended ("1940 Act").
Service Provider will, on a continuing basis, provide administrative services
and functions comprised of, but not limited to, recordkeeping, reporting and
processing services for certain group annuity contracts issued by Service
Provider to defined contribution plans and other employee benefit plans
(hereinafter the annuity contracts being referred to as the "Plans") that meet
the requirements of Section 401 of the Internal Revenue Code of 1986, as
amended, which services include processing and transfer arrangements for the
investment and reinvestment of Plan assets in funds specified by an investment
adviser, sponsor or administrative committee of the Plan (a "Plan
Representative"), generally upon the direction of Plan beneficiaries (the "Plan
Participants").
Service Provider and Xxxx Xxxxx desire to facilitate the purchase and redemption
of shares of the Funds ("Shares") on behalf of the Plans and the Plan
Participants through one or more omnibus accounts, which number shall be
mutually agreed upon by the parties to this Agreement ("Parties"), in each Fund
(each, an "Account"), subject to the terms and conditions of this Agreement.
Service Provider shall be the record-owner of the shares of the Funds.
In consideration of the promises and mutual agreements contained herein, the
parties hereto agree as follows:
1. Performance of Services. Service Provider will provide, or arrange for the
provision of, the following services (collectively, "Administrative Services"):
(a) establishing and maintaining omnibus accounts with Xxxx Xxxxx or the
transfer agent for the Funds ("Transfer Agent"), such procedure to be agreed to
by Xxxx Xxxxx and the Service Provider; (b) establishing and maintaining
subaccounts and subaccount balances for each Plan and Plan Participant; (c)
processing orders by Plans and Plan Participants to purchase, redeem and
exchange Shares promptly and in accordance with the effective prospectus
relating to such Shares; (d) transmitting to Xxxx Xxxxx, or the Transfer Agent,
on each Business Day (as defined below) a net subscription or net redemption
order reflecting subscription, redemption and exchange orders received by it
with respect to the Plans; (e) receiving and transmitting funds representing
the purchase price or redemption proceeds relating to such orders; (f) mailing
Fund prospectuses, Fund statements of additional information, periodic reports,
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transaction confirmations and subaccount information to Plans and Plan
Participants; (g) answering Plan inquiries about the Funds, the Plans' and Plan
Participants' subaccount balances, and distribution options; and (h) providing
such statistical and other information as may be reasonably requested by Xxxx
Xxxxx or the Funds, or which may be necessary for Xxxx Xxxxx or the Funds to
comply with applicable federal or state laws. Nothing in this Agreement shall
limit Xxxx Xxxxx'x or Service Provider's right to engage one or more
subcontractors or agents (each, a "Designee") to provide all or any portion of
the Services. No such engagement shall relieve Xxxx Xxxxx or service Provider of
its duties, responsibilities, obligations, agreements or liabilities under this
Agreement.
2. The Accounts. Xxxx Xxxxx shall designate each Account with an account number.
Account numbers shall be the means of identification when the Parties are
transacting in the Accounts. The assets in the Accounts are assets of the
Service Provider's Separate Account and are segregated from Service Provider's
own assets. Xxxx Xxxxx agrees to cause the Accounts to be kept open on each
Funds' books regardless of a lack of activity or small position size except to
the extent Service Provider takes specific action to close an Account or to the
extent the Fund's prospectus reserves the right to close accounts which are
inactive or of a small position size. In the latter two cases, Xxxx Xxxxx shall
give at least sixty (60) days prior written notice to Service Provider before
closing an Account.
3. Receipt and Transmission of Orders. On each business day that the New York
Stock Exchange and a Fund is open for business ("Business Day"), Service
Provider shall aggregate and transmit to Xxxx Xxxxx, or the Transfer Agent as
the case may be, all purchase and redemption orders received by the Service
Provider from the Plans and Plan Participants by 9:00 a.m., Eastern Time, on the
next Business Day following the day on which Service Provider received the order
("Trade Date"). All trades communicated to Xxxx Xxxxx by this deadline shall be
treated by Xxxx Xxxxx as if they were received by Xxxx Xxxxx prior to the close
of trading on the Trade Date.
4. Settlement.
(a) Purchases. Service Provider will wire, or arrange for the wire of, the
purchase price of each purchase order to Xxxx Xxxxx'x custodial account so that
either (A) such funds are received by Xxxx Xxxxx'x custodial account prior to
11:30 a.m., Eastern Time, on the next Business Day following the Trade Date, or
(B) Xxxx Xxxxx is provided with a Federal Funds wire system reference number
prior to such 11:30 a.m. deadline, evidencing the entry of the wire transfer of
the purchase price to the applicable custodian into the Federal Funds wire
system prior to such time.
(b) Redemptions. Xxxx Xxxxx shall use its best efforts to cause to be
transmitted, by wire transfer on the same Business Day that Xxxx Xxxxx receives
notice of the redemption order from the Service Provider, to such account as
Service Provider shall direct in writing, the proceeds of all redemption orders
placed by Service Provider by 11:30 a.m., Eastern Time, on the Business Day
immediately following the Trade Date. Should Xxxx Xxxxx need to extend the
settlement on a trade, it shall not exceed 2 (two) days. For purposes of
determining the length of settlement, Xxxx Xxxxx agrees to treat Plan
Participants who
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beneficially hold shares of the Funds through the Plans no less favorably than
other shareholders of the Funds. Each wire transfer of redemption proceeds shall
indicate, on the Federal Funds wire system, the amount attributable to each
Account. If Xxxx Xxxxx fails to comply with conditions regarding redemptions set
forth immediately above, Xxxx Xxxxx, shall indemnify and hold harmless Service
Provider and its Separate Account from any liabilities, costs and damages either
may suffer as a result of such failure.
(c) Agency. Xxxx Xxxxx appoints the Service Provider as its agent for the
limited purpose of accepting purchase and redemption instructions from the Plans
and the Plan Participants.
5. Pricing Information. Xxxx Xxxxx or its designee will furnish Service Provider
on each Business Day between 5:45 and 6:30 p.m., Eastern Time, with net asset
value information calculated as of the close of trading (currently 4:00 p.m.
Eastern Time) on the New York Stock Exchange or as such earlier times at which
the Fund's net asset value is calculated as specified in such Fund's prospectus,
In the event that Xxxx Xxxxx does not supply the values by said time, Xxxx Xxxxx
shall provide additional time for the Service Provider to place orders for the
purchase and redemption of shares. Also, the provisions of Section 6 will apply,
as necessary.
6. Pricing Errors.
(a) If a price adjustment is required, as consistent with views expressed by the
staff of the Securities and Exchange Commission regarding appropriate error
correction standards, to correct any error in the computation of the net asset
value of Fund shares ("Price Error"), Xxxx Xxxxx shall notify Service Provider
as soon as practicable after discovering the Price Error. Prompt notice shall
be made via phone call, as well as facsimile or direct systems access, and shall
state the incorrect price, the correct price and, to the extent communicated, to
the Fund's other shareholders, the reason for the price change.
(b) If a Price Error causes an Account to receive less than the amount to which
it otherwise would have been entitled, Xxxx Xxxxx shall make all necessary
adjustments so that the Account receives the amount to which it would have been
entitled.
(c) In the event of either an underpayment or overpayment, Xxxx Xxxxx shall
reimburse Service Provider for any incurred costs for reprocessing values under
the Plans, such as preparing and mailing revised statements to Participants,
upon receipt from the Service Provider of an invoice or other statement
documenting such costs and expenses. In addition, if, as a result of the Pricing
Error, Service Provider has paid out to a Plan Participant or beneficiary an
amount in excess of what that person should have received, or a Plan Participant
has transferred to a different option under the Plan pursuant to the incorrect
values, Xxxx Xxxxx shall reimburse the Service Provider for the excess amount
upon receipt from the Service Provider of an invoice or other statement
documenting such excess payments.
7. Reports and Proxies. Xxxx Xxxxx will provide Service Provider, at Xxxx
Xxxxx'x expense, with the number of prospectuses, as well as supplements and
amendments thereof; proxy statements; periodic shareholder reports; and such
other information with respect to the
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Funds as Service Provider may reasonably request. Xxxx Xxxxx will bear the
expense of all printing and shipping of these materials to the Plans and Plan
Participants, as well as the cost associated with any proxy voting. Xxxx Xxxxx
will notify Service Provider regarding planned shareholder meetings and proxy
votes no later than one-hundred twenty (120) days prior to such events.
8. Account Information.
(a) Xxxx Xxxxx or its Designee will provide to Service Provider (A) daily
confirmations of account activity on the next Business Day after the Business
Day on which a transaction is effected; (B) monthly statements detailing
activity in each Account; and (C) such other reports as are reasonably requested
by Service Provider.
(b) As to each Fund, Xxxx Xxxxx shall provide Service Provider with all
distribution announcement information as soon as it is announced by each Fund.
The distribution information shall set forth ex-dates, record dates, payable
dates, distribution rates per share, record date share balances, cash and
reinvested payment amounts and all other information reasonably requested by
Service Provider. Where possible, Xxxx Xxxxx shall provide Service Provider with
direct or indirect systems access to Xxxx Xxxxx'x systems for obtaining such
distribution information.
(c) Xxxx Xxxxx shall give Service Provider at least two (2) Business Days prior
notice (by wire or telephone followed by written confirmation) of any dividends
or capital gain distributions payable on the Fund shares. Service Provider
hereby elects to receive all such dividends and distributions as are payable on
a Funds' shares in additional shares of that Fund. Service Provider reserves the
right to revoke this election and to receive all such dividends and capital gain
distributions in cash. Xxxx Xxxxx shall notify the Service Provider of the
ex-dividend date, the payable date, the Shares entitled to a dividend, the
dividend rate per Share and the number of Shares to be issued as payment of such
dividends no later than 4:00 p.m., Eastern Time, on the same Business Day that
such dividend or distribution is made.
9. Other Plan and Participant Communications.
(a) If so requested by Service Provider, Xxxx Xxxxx shall use its best efforts
to review sales literature and other marketing materials prepared by Service
Provider which relate to the Funds, provided that Xxxx Xxxxx is provided at
least five (5) Business Days to review the materials.
(b) Neither Xxxx Xxxxx nor the Funds shall give any information or make any
representations on behalf of the Service Provider or concerning Service
Provider, each Account, or the Plans, other than the information or
representations contained in the registration statement, prospectus or statement
of additional information ("SAI") for the Plans, as such registration statement,
prospectus and SAI may be amended or supplemented from time to time, or in
published reports pertaining to the Plans which are in the public domain or
approved by the Service Provider for distribution to Plan Participants, or in
sales literature or other promotional material approved by Service Provider,
except with the prior
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written permission of Service Provider. Service Provider agrees to respond to
any request for approval within fifteen (15) Business Days of receipt of the
request.
10. Compliance with Laws. Xxxx Xxxxx and Service Provider and their
Designees shall comply with all laws, rules and regulations applicable to them
in connection with the performance of each of their respective obligations under
this Agreement, or applicable to the performance of each of their respective
businesses.
11. Fund Expenses. Service Provider shall not bear any of the
expenses for the cost of registration of the Funds' Shares; preparation and
distribution of the Funds' prospectuses, SAIs, and any related supplements;
proxy materials and reports; and preparation and distribution of other related
statements and notices. No Party shall charge any other party a fee for wiring
funds or for execution of purchases and sales under this Agreement.
12. Representations of Service Provider. Service Provider represents and
warrants that the following are true and shall remain true through the term of
this Agreement:
(a) Service Provider is a corporation duly organized and existing in good
standing under the laws of the State of New York.
(b) Service Provider is authorized to enter into and perform all of its duties
under this Agreement.
(c) Service Provider is not and shall not be a "fiduciary" with respect to the
provision of the Services for any Plan as such term is defined in Section 3(21)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code").
(d) This Agreement constitutes a legal, valid and binding obligation of the
Service Provider, and is fully enforceable against the Service Provider in
accordance with its terms.
(e) To the extent applicable, Service Provider is registered with the
appropriate securities authorities in all states in which its activities make
such registration necessary.
(f) To the best of its knowledge, Service Provider is in material conformity
with all applicable federal and state laws and related regulations.
(g) Service Provider is the owner of the shares in the Funds on behalf of the
Plans and is authorized to act on behalf of each Plan effecting transactions in
its Account.
13. Representations of Xxxx Xxxxx. Xxxx Xxxxx represents and warrants that the
following are true and shall remain true through the term of this Agreement:
(a) Xxxx Xxxxx is a corporation duly organized and existing in good standing
under the laws of the State of Maryland.
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(b) Xxxx Xxxxx is authorized to enter into and perform this Agreement as
principal underwriter for the Funds.
(c) This Agreement constitutes a legal, valid and binding obligation of Xxxx
Xxxxx, and is fully enforceable against Xxxx Xxxxx in accordance with its
terms.
(d) The Funds and Fund Shares are registered under the 1940 and 1933 Acts
respectively.
(e) The investment adviser of each Fund is an adviser registered under the
InvestmentAdvisers Act of 1940, as amended.
(f) No consent or authorization of, filing with, or other act by or in respect
of any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement;
(g) To the best of its knowledge, Xxxx Xxxxx is in material conformity with all
applicable federal and state laws and related regulations.
14. Indemnification;
(a) Xxxx Xxxxx and Service Provider (each an "Indemnitor") shall indemnify and
hold harmless the other, including their respective affiliates (including, in
the case of Xxxx Xxxxx, the Funds), and each of their directors, trustees,
officers, and employees (the "Indemnitees"), against any losses, claims,
damages, liabilities or expenses to which the Indemnitees may become subject
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) directly arise out of or are directly based upon (i) the
Indemnitor's negligence, willful misconduct or violation of applicable law in
connection with the performance of its duties and obligations under this
Agreement, or in connection with the execution of this Agreement; (ii) any
breach by the Indemnitor of any material provision of this Agreement or of a
representation, warranty, or covenant in this Agreement; and (iii) any
"Disclosure Inadequacies" (as defined below) of the Indemnitor. The Indemnitor
will reimburse the Indemnitees for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim or action. This indemnity agreement will be in addition to any other
remedies which the Indemnitees may otherwise have and shall survive the
termination of this Agreement. Where the Indemnitee receives a notice of a claim
for which the Indemnitor may be required to indemnify the Indemnitee, the
Indemnitee shall promptly give notice thereof to the Indemnitor; provided,
however, that the obligation shall not be reduced on account of the failure or
delay of the Indemnitee to give such notice. The Indemnitee may not settle any
action without the written consent of the Indemnitor. The Indemnitor may not
settle any action without the written consent of the Indemnitee unless such
settlement completely and finally releases the Indemnitee from any and all
liability. In either event, consent shall not be unreasonably withheld. The
terms of this section shall survive the Termination of this Agreement.
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(b) A Disclosure Inadequacy of Xxxx Xxxxx means any untrue or alleged untrue
statement of a material fact, or any omission or alleged omission of a material
fact required to be stated to make a statement not misleading in light of the
circumstances in which it is made, contained in a Fund registration statement
under the 1933 Act, in a Fund prospectus, in a Fund SAI, or in any Fund sales
literature or promotional material (including any amendment or supplement to any
of the foregoing) or contained in other information furnished to Service
Provider, in writing, for inclusion in a Plan prospectus, in a Plan SAI, or in
Plan sales literature or promotional material, (including any amendment or
supplement to any of the foregoing) or otherwise for distribution to existing or
prospective Plan Participants; provided, however, that no such statement or
omission, or alleged statement or omission, shall be considered to be a
Disclosure Inadequacy of Xxxx Xxxxx, if the statement or omission in question
was based on and made in conformity with any information (A) included in a
current prospectus or SAI for a Plan (as then supplemented), or (B) otherwise
provided in writing by or on behalf of Equitable or the Separate Account for
public disclosure. A Disclosure Inadequacy of Service Provider means any untrue
or alleged untrue statement of a material fact, or any omission or alleged
omission of a material fact required to be stated to make a statement not
misleading in light of the circumstances in which it is made, contained in a
Plan registration statement under the 1933 Act, in a Plan prospectus, in a Plan
SAI, or in any Plan sales literature or promotional material (including any
amendment or supplement to any of the foregoing) or contained in other
information furnished to Xxxx Xxxxx, in writing, for inclusion in a Fund
prospectus, in a Fund SAI, or in Fund sales literature or promotional material,
(including any amendment or supplement to any of the foregoing) or otherwise for
distribution to existing or prospective Plan Participants; provided, however,
that no such statement or omission, or alleged statement or omission, shall be
considered to be a Disclosure Inadequacy of Service Provider, if the statement
or omission in question was based on and made in conformity with any information
(A) included in a current prospectus or statement of additional information for
a Fund (as then supplemented), or (B) otherwise provided in writing by or on
behalf of Xxxx Xxxxx or a Fund for public disclosure.
15. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed to constitute or create a partnership, association, or joint
venture or agency relationship among Service Provider and Xxxx Xxxxx or the
Funds.
16. Confidentiality. Each Party agrees to take all steps necessary to comply
with all applicable laws, rules and regulations (including, without limitation,
the Securities and Exchange Commission Regulation S-P) protecting the privacy of
consumer nonpublic personal financial information disclosed to each Party under
this Agreement. Service Provider and Xxxx Xxxxx agree that all non-public
records, information, and data relating to the business of the other (including
customer names and information) that are exchanged or negotiated pursuant to
this Agreement or in carrying out this Agreement shall remain confidential, and
shall not be voluntarily disclosed by either party without the prior written
consent of the other party, except as may be required by law or by such Party to
carry out this Agreement or an order of a court, governmental agency or
regulatory body. In addition, Xxxx Xxxxx agrees that neither it nor its
affiliates will use any information about Plan Participants,
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the Plans, Plan Representatives or employers that result from the relationship
with Service Provider, as contemplated by this Agreement, in connection with any
offer to sell or solicitation of any offer to buy any security or financial
product service to or from any such person or entity.
17. Nonexclusivity. Nothing in this Agreement shall be construed or is intended
to prohibit Xxxx Xxxxx or the Funds from establishing a retirement plan
administration or record keeping program or from entering into similar
arrangements with other administrative or record keeping service providers.
Nothing in this Agreement shall be construed or is intended to prohibit Service
Provider from entering into similar arrangements with any other person or entity
regarding other mutual funds or any other type of investment.
18. Termination. Either party may terminate this Agreement by providing
one-hundred twenty (120) days prior written notice to the other Party.
Notwithstanding the foregoing, either Party may terminate this Agreement (i) at
any time by giving thirty (30) days prior written notice to the other Party in
the event of a material breach of this Agreement by the other Party that is not
cured during such thirty (30) day period, and (ii) at any time by giving written
notice to the other Parties: (A) upon institution of formal proceedings relating
to the legality of the terms and conditions of this Agreement by the National
Association of Securities Dealers, Inc., the Securities and Exchange Commission
or any other regulatory body provided that the terminating Party has a
reasonable belief that the institution of formal proceedings is not without
foundation and shall have a material adverse impact on the terminating party;
(B) in the event shares of a Fund are not registered, issued or sold in
conformance with Federal law or such law precludes the use of Fund shares as an
underlying investment medium of the Plans (prompt notice shall be given by
either Party to the other in the event the conditions of this provision occur);
(C) as is required by law, order, or instruction by a court of competent
jurisdiction or a regulatory body or self-regulatory organization with
jurisdiction over the terminating Party; and, (D) at the option of the Parties,
if a Party determines in its sole judgment, exercised in good faith, that the
non-terminating Party has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operation either Party. In addition, this Agreement
may be terminated with respect to any Fund at any time, without the payment of a
penalty, by vote of the Board of Directors ("Board") of any Fund, by vote of
those members of the Board who are not "interested persons" of the Fund as
defined in the 1940 Act, or by vote of a majority of the outstanding voting
securities of any Fund upon thirty (30) days written notice to Xxxx Xxxxx and
Service Provider.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (excluding conflict
of laws principles) applicable to agreements fully executed and to be performed
therein.
20. Assignment. This Agreement shall terminate automatically upon its
assignment.
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21. Expenses. All expenses incident to the performance by each party of its
respective duties under this Agreement shall be paid by that party, except as
otherwise specifically set forth herein.
22. Written Notice. Except as otherwise provided herein, any notice required or
permitted to be given hereunder shall be given both via phone call and in
writing and shall be addressed and delivered to the Parties at the address set
forth below, or such other address as may be designated by either Party by
notice pursuant to the terms hereof.
To: Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Senior Vice President
To: Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: The Legal and Compliance Department
23. Miscellaneous Xxxx Xxxxx Obligations. At its own cost, Xxxx Xxxxx will (a)
prepare such periodic written reports as may reasonably be requested by the
Service Provider on behalf of Service Provider's Board of Trustees and will
arrange to send a representative of the Funds and of the Funds' investment
advisers to the meetings of said Trustees, as requested; (b) provide training
for Service Provider's sales and operations staffs, at the regular place of
business of such staffs, with regard to the Funds, prior to the Service
Provider, on behalf of its Separate Account, making the Funds available to Plan
Participants, and, as necessary, thereafter; and, upon the reasonable request of
a Party (the "Requesting Party") to another Party (the "Requested Party"), (c)
the Requested Party shall provide the Requesting Party with copies of all the
historical records relating to transactions contemplated under this Agreement
that are maintained by the Requested Party in the ordinary course of its
business, and as may enable the Requesting Party or its representatives,
including without limitation its auditors or legal counsel, to (i) comply with
any request of a governmental body or self-regulatory organization or the Plans,
(ii) verify compliance with the terms of this Agreement, (iii) make required
regulatory reports, or (iv) perform general customer supervision.
24. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, such provision shall be fully severable, and this
Agreement shall be enforced and construed as if such provision had never
comprised a part of this Agreement.
25. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
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26. Headings. The headings used herein are for convenience only and shall not be
used in construing or interpreting the provisions of this Agreement.
IN WITNESS THEREOF, the undersigned has executed this Agreement by their
duly authorized officers.
EQUITABLE LIFE ASSURANCE SOCIETY XXXX XXXXX XXXX XXXXXX
OF THE UNITED STATES ON BEHALF OF INCORPORATED
ITS SEPARATE ACCOUNT NUMBER 206
By: /s/ By:
-------------------------- -----------------------
Name: Name:
Title: Senior Vice President Title: Vice President
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SCHEDULE A
Fund(s)
-------
Western Asset Core Portfolio - Institutional Class
Services Agreement (Equitable)
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