EX-24.2(g)(3)
-------------
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT dated as of [ ], 2003, among Partners Balanced Trust, a
Delaware statutory trust (the "Trust"), BlackRock Advisors, Inc., a Delaware
corporation (the "Advisor"), and Wellington Management Company, LLP, a
Massachusetts limited liability partnership (the "Sub-Advisor").
WHEREAS, the Advisor has agreed to furnish investment advisory
services to the Trust, a closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Advisor wishes to retain the Sub-Advisor to provide it
with certain sub-advisory services as described below in connection with
Advisor's advisory activities on behalf of the Trust;
WHEREAS, the advisory agreement between the Advisor and the Trust
dated [ ], 2003 (such agreement or the most recent successor agreement between
such parties relating to advisory services to the Trust is referred to herein
as the "Advisory Agreement") contemplates that the Advisor may sub-contract
investment advisory services with respect to the Trust to a sub-advisor
pursuant to a sub-advisory agreement agreeable to the Trust and approved in
accordance with the provisions of the 1940 Act; and
WHEREAS, this Agreement has been approved by the Trust's Board of
Trustees and the Trust's sole initial shareholder in accordance with the
provisions of the 1940 Act, and the Sub-Advisor is willing to furnish such
services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, it is agreed by and between the
parties hereto as follows:
1. Appointment. The Advisor hereby appoints the Sub-Advisor to act
as sub-advisor with respect to the Trust and the Sub-Advisor accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. Services of the Sub-Advisor. Subject to the succeeding
provisions of this Agreement, the oversight and supervision of the Advisor and
the direction and control of the Trust's Board of Trustees, the Sub-Advisor
will perform certain of the day-to-day operations of the Trust, which may
include one or more of the following services, at the request of the Advisor:
(a) acting as investment advisor for and managing the investment and
reinvestment of the equity portfolio of the Trust and those assets of the
Trust as the Advisor may from time to time request and in connection therewith
have discretion in purchasing and selling assets for the Trust in accordance
with the terms hereof; (b) arranging, subject to the provisions of Section 3
hereof, for the purchase and sale of assets of the Trust; (c) providing
investment research and credit analysis concerning the Trust's investments;
(d) assisting the Advisor in determining what portion of the Trust's assets
will be invested in cash, cash equivalents and money market instruments; (e)
placing orders for all purchases and sales of such investments made for the
Trust, and (f) maintaining those books and records with respect to the Trust's
portfolio transactions as are required by subparagraphs (b)(5), (6), (7), (9),
(10) and (11) of Rule 31a-1 (as modified, amended or reclassified from time to
time) under the 1940 Act and the Rules and Regulations of the Securities and
Exchange Commission (the "SEC") promulgated under the 1940 Act (the "1940 Act
Rules"). In addition, the Sub-Advisor will keep the Trust and the Advisor
informed of developments materially affecting the Trust and shall, on its own
initiative, furnish to the Trust from time to time whatever information the
Sub-Advisor believes appropriate for this purpose. The Sub-Advisor will
periodically communicate to the Advisor, at such times as the Advisor may
direct, information concerning the purchase and sale of assets for the Trust,
including: (a) the name of the issuer, (b) the amount of the purchase or sale,
(c) the name of the broker or dealer, if any, through which the purchase or
sale is effected, (d) the CUSIP number of the instrument, if any, and (e) such
other information as the Advisor may reasonably require for purposes of the
Advisor and other service providers fulfilling their obligations to the Trust
under their agreements with the Trust and the Trust fulfilling its obligations
under the 1940 Act, the 1940 Act Rules and various policies and procedures
adopted by the Trust and communicated to the Sub-Advisor by the Trust.
3. Covenants of the Sub-Advisor. In the performance of its duties
under this Agreement, the Sub-Advisor covenants to the Advisor and the Trust
that it shall:
(a) at all times conform to, and act in accordance with, any
requirements imposed by: (i) the provisions of the 1940 Act, the 1940 Act
Rules and the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and all applicable Rules and Regulations of the SEC promulgated
thereunder (the "Advisers Act Rules"); (ii) any other applicable provision of
law; (iii) the provisions of the Agreement and Declaration of Trust and the
By-Laws of the Trust, as such documents are amended from time to time; (iv)
the investment objectives, policies and restrictions of the Trust (as
currently in effect and as they may be amended or supplemented from time to
time) as stated in the Trust's Prospectus and Statement of Additional
Information and the resolutions of the Trust's Board of Trustees; and (v) any
policies and determinations of the Board of Trustees of the Trust applicable
to the Sub-Advisor or the Sub-Advisor's duties and obligations under this
agreement. The Trust agrees to provide written copies to the Sub-Advisor of
documents (and any amendments thereto) referred to in Section 3, subparagraphs
(a)(iii) to (a)(v) above;
(b) keep the Advisor fully informed as to the composition of
the Trust's assets under the Sub-Advisor's management;
(c) performing its duties hereunder so that the Trust meets
the income and asset diversification requirements of Section 851 of the
Internal Revenue Code of 1986, as amended;
(d) place orders for the purchase or sale of assets by the
Trust either directly with the issuer or with any broker or dealer. Subject to
the other provisions of this paragraph, in placing orders with brokers and
dealers, the Sub- Advisor will attempt to obtain the best price and the most
favorable execution of its orders. In placing orders with brokers or dealers,
the Sub-Advisor will consider the experience and skill of the firm's
securities traders as well as the firm's financial responsibility and
administrative efficiency. Consistent with the foregoing obligations, and
subject to any other instructions from the Trust or the Advisor, the
Sub-Advisor may select brokers on the basis of the research, statistical and
pricing services they provide to the Trust and other clients of the Advisor or
the Sub- Advisor. Information and research received from such brokers will be
in addition to, and not in lieu of, the services required to be performed by
the Sub-Advisor hereunder. A commission paid to such brokers may be higher
than that which another qualified broker would have charged for effecting the
same transaction, provided that the Sub-Advisor determines in good faith that
such commission is reasonable in terms either of the transaction or the
overall responsibility of the Sub- Advisor to the Trust and the Sub-Advisor's
other clients and that the total commissions paid by the Trust will be
reasonable in relation to the benefits to the Trust over the long-term. In
addition, the Sub-Advisor, subject to the approval of the Trust's Board of
Trustees, is authorized to take into account the sale of shares of the Trust
in allocating purchase and sale orders for portfolio securities to brokers or
dealers (including brokers and dealers that are affiliated with the Advisor or
the Sub- Advisor), provided that the Sub-Advisor believes that the quality of
the transaction and the commission are comparable to what they would be with
other qualified firms. On occasions when the Sub-Advisor deems the purchase or
sale of a security to be in the best interest of the Trust as well as other
clients of the Sub-Advisor, it may allocate such transactions in the manner it
considers to be the most equitable and consistent with its fiduciary
obligation to the Trust and to such other clients. In no instance, however,
will the Trust's securities be purchased from or sold to the Advisor, the
Sub-Advisor or any affiliated person thereof, except to the extent permitted
by the SEC or by applicable law;
(e) vote all proxies solicited by or with respect to the
issuers of securities which assets of the Trust are invested consistent with
the Sub- Advisor's proxy voting guidelines as approved by the Board of
Trustees of the Trust based upon the best interests of the Trust. The
Sub-Advisor will maintain appropriate records and make appropriate disclosures
detailing its voting of proxies on behalf of the Trust (including, without
limitation, such records and disclosures as required by the Advisers Act Rules
and the 1940 Act Rules) and (1) will provide to the Trust at least quarterly a
report setting forth the proposals voted on and how the Trust's shares were
voted since the prior report, including the name of the corresponding issuers,
and (2) will comply with the 1940 Act and the 1940 Act Rules with respect to
voting of proxies by the Trust;
(f) if requested by the Advisor, provide the Advisor, no later
than the 45th day following the end of each of the Trust's semi-annual fiscal
period and fiscal year, with a letter to shareholders (to be subject to
review, approval and editing by the Advisor and, if so determined,
incorporated into any report by the Advisor);
(g) provide reports to the Trust's Board of Trustees for
consideration at meetings of the Board on the investment program for the Trust
and the issuers and securities represented in the Trust's portfolio, and will
furnish the Advisor or the Trust's Board of Trustees with such periodic and
special reports and attend such meetings as the Trustees or the Advisor may
reasonably request;
(h) cooperate with the Trust's independent public accountants
and take all reasonable action in the performance of services and obligations
under this Agreement to assure that the information needed by such accountants
and that is not otherwise available from the Trust or its agents is made
available to them for the expression of their opinion without any
qualification as to the scope of their examination, including, but not limited
to, their opinion included in the Trust's annual report under the 1940 Act;
(i) promptly notify the Advisor and the Trust of (1) any
financial or other condition that will or is likely to impair the
Sub-Advisor's ability to fulfill its commitment under this Agreement, and (2)
any reduction, non-renewal or restrictive modification to the Sub-Advisor's
fidelity bond, errors and omissions or other similar insurance policies and
any claims or payments thereunder;
(j) use reasonable compliance techniques as the Advisor or the
Board of Trustees of the Trust may adopt, including any written compliance
procedures;
(k) maintain disclosure controls and procedures reasonably
designed to ensure that any information provided to the Trust for inclusion in
any filings made with the SEC or delivered to shareholders is materially
accurate and complete and otherwise complies with applicable disclosure
requirements;
(l) furnish to the Advisor any information in the possession
of the Sub-Advisor that is required to be filed by the Advisor or the Trust
with the SEC or sent to shareholders under the 1940 Act, the 1940 Act Rules,
the Advisers Act or the Advisers Act Rules or any exemptive or other relief
that the Advisor or the Trust obtains from the SEC;
(m) immediately notify the Advisor and the Trust of any
inquiry or proceeding by any regulatory or self regulatory body or any
judicial or arbitration proceeding by any person relating to the Sub-Advisor
or its affiliates that may adversely affect the ability of the Sub-Advisor, or
its relevant employees, to provide services in accordance with the terms
hereof or that relate to the Trust or the Sub-Advisor; and
(n) notify the Advisor and the Trust of any material change in
the partners of its firm, the portfolio manager of the Trust or any other
significant changes to the Sub-Advisor's management structure within a
reasonable time following such change.
4. Covenants of the Advisor. In the performance of its duties under
this Agreement, the Advisor covenants to the Sub-Advisor that it shall:
(a) keep the Sub-Advisor fully advised of the Trust's
investment objectives, and any modifications and changes thereto, as well as
any specific investment restrictions or limitations by sending the Sub-Advisor
copies of each registration statement of the Trust, following the filing
thereof with the SEC;
(b) furnish the Sub-Advisor with a copy of any financial
statement or report prepared for the Trust by its independent public
accountants, and with copies of any financial statements or reports made by
the Trust to shareholders or to any governmental body or securities exchange
and to inform the Sub-Advisor of the results of any audits or examinations by
regulatory authorities pertaining to the Trust; and
(c) furnish the Sub-Advisor with any further materials or
information which the Sub-Advisor may reasonably request to enable it to
perform its functions under this Agreement.
5. Services Not Exclusive. Nothing in this Agreement shall prevent
the Sub-Advisor or any partner, officer, employee or other affiliate thereof
from acting as investment advisor for any other person, firm or corporation,
or from engaging in any other lawful activity, and shall not in any way limit
or restrict the Sub-Advisor or any of its partners, officers, employees or
agents from buying, selling or trading any securities for its or their own
accounts or for the accounts of others for whom it or they may be acting;
provided, however, that the Sub-Advisor will undertake no activities which, in
its reasonable good faith judgment, will adversely affect the performance of
its obligations under this Agreement.
6. Disclosure about Sub-Advisor. The Sub-Advisor has reviewed the
registration statement of the Trust in the form declared effective by the SEC
that contains disclosure about the Sub-Advisor, and represents and warrants
that, with respect to the disclosure about the Sub-Advisor or information
describing the Sub-Advisor and provided by or approved in writing by the
Sub-Advisor, such registration statement contains, as of the date of such
registration statement and the date hereof, no untrue statement of any
material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. If at any time such disclosure or information becomes inaccurate
in any material respect, the Sub-Advisor will promptly provide corrective
disclosure to the Advisor and the Trust. The Sub-Advisor further represents
and warrants that it is a duly registered investment advisor under the
Advisers Act and will maintain such registration so long as this Agreement
remains in effect. The Sub- Advisor will provide or offer to provide the
Advisor and the Trust with a copy of the Sub-Advisor's Form ADV, from time to
time if and when it is amended.
7. Books and Records. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Sub-Advisor hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any such records upon the Trust's request;
provided that the Sub-Advisor may retain copies of such records. The
Sub-Advisor further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under the 1940 Act (to the extent such books and records are not maintained by
the Advisor or the Trust's custodian, its transfer agent or shareholder
servicing agent).
8. Agency Cross Transactions. From time to time, the Sub- Advisor
or brokers or dealers affiliated with it may find themselves in a position to
buy for certain of their brokerage clients (each an "Account") securities
which the Sub-Advisor's investment advisory clients wish to sell, and to sell
for certain of their brokerage clients securities which advisory clients wish
to buy. Where one of the parties is an advisory client, the Advisor or the
affiliated broker or dealer cannot participate in this type of transaction
(known as an agency cross transaction) on behalf of an advisory client and
retain commissions from both parties to the transaction without the advisory
client's consent. This is because in a situation where the Sub-Advisor is
making the investment decision (as opposed to a brokerage client who makes his
own investment decisions), and the Sub-Advisor or an affiliate is receiving
commissions from one or both sides of the transaction, there is a potential
conflicting division of loyalties and responsibilities on the Sub-Advisor's
part regarding the advisory client. The SEC has adopted an Advisers Act Rule
which permits the Sub-Advisor or its affiliates to participate on behalf of an
Account in certain agency cross transactions if the advisory client has given
written consent in advance. By execution of this Agreement, the Trust
authorizes the Sub-Advisor or its affiliates to participate in agency cross
transactions involving an Account on the one hand, and the Trust or the other.
The Sub-Advisor will provide the Advisor and the Trust with all information
about such transactions requested by either of them from time to time. The
Trust may revoke its consent at any time by written notice to the Sub-Advisor.
9. Expenses. During the term of this Agreement, the Sub- Advisor
will bear all costs and expenses of its employees and any overhead incurred by
the Sub-Advisor in connection with its duties hereunder.
10. Compensation.
(a) The Advisor agrees to pay the Sub-Advisor and the
Sub-Advisor agrees to accept as full compensation for all services rendered by
the Sub-Advisor as such, a monthly fee in arrears at an annual rate equal to
50% of the Investment Advisory Fee (as that term is defined in the Advisory
Agreement) actually received by the Advisor (or any successor thereto) or any
affiliate of the Advisor (or of such successor) or such other amount agreed to
by the Advisor and Sub-Advisor from time to time. For any period less than a
month during which this Agreement is in effect, the fee shall be prorated
according to the proportion which such period bears to a full month of 28, 29,
30 or 31 days, as the case may be.
(b) The Advisor and the Sub-Advisor agree that the Sub-
Advisor shall pay 50% of the amount of the Trust's offering costs in excess of
$0.04 per common share up to a maximum of 50% of the total payments actually
received by the Sub-Advisor pursuant to Section 10(a) of this Agreement during
the first twelve months of operations of the Fund, or such other amount agreed
to by the Advisor and Sub-Advisor from time to time.
11. Indemnification.
(a) Subject to Section 11(c), the Advisor agrees to indemnify
the Sub-Advisor and each of the Sub-Advisor's partners, officers, employees,
agents, associates and controlling persons and the directors, partners,
members, officers, employees and agents thereof (including any individual who
serves at the Sub-Advisor's request as director, officer, partner, member,
trustee or the like of another entity) (each such person being a "Sub-Advisor
Indemnitee") against any liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
counsel fees (all as provided in accordance with applicable state law)
reasonably incurred by such Sub-Advisor Indemnitee in connection with the
defense or disposition of any action, suit or other proceeding, whether civil
or criminal, before any court or administrative or investigative body in which
such Sub-Advisor Indemnitee may be or may have been involved as a party or
otherwise or with which such Sub-Advisor Indemnitee may be or may have been
threatened, while acting in any capacity set forth herein or thereafter by
reason of such Sub-Advisor Indemnitee having acted in any such capacity,
except with respect to any matter as to which such Sub-Advisor Indemnitee
shall have been adjudicated not to have acted in good faith in the reasonable
belief that such Sub-Advisor Indemnitee's action was in the best interest of
the Trust and furthermore, in the case of any criminal proceeding, so long as
such Sub-Advisor Indemnitee had no reasonable cause to believe that the
conduct was unlawful; provided, however, that (1) no Sub-Advisor Indemnitee
shall be indemnified hereunder against any liability to the Advisor or any
expense of such Sub-Advisor Indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence or (iv) reckless disregard
of the duties involved in the conduct of such Sub-Advisor Indemnitee's
position (the conduct referred to in such clauses (i) through (iv) being
sometimes referred to herein as "disabling conduct"), (2) as to any matter
disposed of by settlement or a compromise payment by such Sub-Advisor
Indemnitee, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided unless
there has been a determination that such settlement or compromise is in the
best interests of the Trust and that such Sub-Advisor Indemnitee appears to
have acted in good faith in the reasonable belief that such Sub-Advisor
Indemnitee's action was in the best interest of the Trust and did not involve
disabling conduct by such Sub-Advisor Indemnitee and (3) with respect to any
action, suit or other proceeding voluntarily prosecuted by any Sub-Advisor
Indemnitee as plaintiff, indemnification shall be mandatory only if the
prosecution of such action, suit or other proceeding by such Sub-Advisor
Indemnitee was authorized by a majority of the full Board of Trustees of the
Trust.
(b) Subject to Section 11(d) and notwithstanding Section 12 of
this Agreement, the Sub-Advisor agrees to indemnify and hold harmless the
Advisor and each of the Advisor's directors, officers, employees, agents,
associates and controlling persons and the directors, partners, members,
officers, employees and agents thereof (including any individual who serves at
the Advisor's request as director, officer, partner, member, trustee or the
like of another entity) (each such person being an "Advisor Indemnitee")
against any liabilities and expenses, including amounts paid in satisfaction
of judgments, in compromise or as fines and penalties, and counsel fees (all
as provided in accordance with applicable state law) reasonably incurred by
such Advisor Indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any court
or administrative or investigative body in which such Advisor Indemnitee may
be or may have been involved as a party or otherwise or with which such
Advisor Indemnitee may be or may have been threatened, while acting in any
capacity set forth herein or thereafter by reason of such Advisor Indemnitee
having acted in any such capacity, except with respect to any matter as to
which such Advisor Indemnitee shall have been adjudicated not to have acted in
good faith in the reasonable belief that such Advisor Indemnitee's action was
in the best interest of the Trust and furthermore, in the case of any criminal
proceeding, so long as such Advisor Indemnitee had no reasonable cause to
believe that the conduct was unlawful; provided, however, that (1) no Advisor
Indemnitee shall be indemnified hereunder against any liability to the
Sub-Advisor or any expense of such Advisor Indemnitee arising by reason of (i)
willful misfeasance, (ii) bad faith, (iii) gross negligence or (iv) reckless
disregard of the duties involved in the conduct of such Advisor Indemnitee's
position (the conduct referred to in such clauses (i) through (iv) being
sometimes referred to herein as "disabling conduct"), (2) as to any matter
disposed of by settlement or a compromise payment by such Advisor Indemnitee,
pursuant to a consent decree or otherwise, no indemnification either for said
payment or for any other expenses shall be provided unless there has been a
determination that such settlement or compromise is in the best interests of
the Trust and that such Advisor Indemnitee appears to have acted in good faith
in the reasonable belief that such Advisor Indemnitee's action was in the best
interest of the Trust and did not involve disabling conduct by such Advisor
Indemnitee and (3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any Advisor Indemnitee as plaintiff, indemnification
shall be mandatory only if the prosecution of such action, suit or other
proceeding by such Advisor Indemnitee was authorized by a majority of the full
Board of Trustees of the Trust.
(c) The Advisor shall not be liable under Paragraph (a) of
this Section 11 with respect to any claim made against a Sub-Advisor
Indemnitee unless such Sub-Advisor Indemnitee shall have notified the Advisor
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 such Sub-Advisor Indemnitee (or after such Sub-Advisor Indemnitee shall
have received notice of such service on any designated agent), but failure to
notify the Advisor of any such claim shall not relieve the Advisor from any
liability which it may have to the Sub-Advisor Indemnitee against whom such
action is brought except to the extent the Advisor is prejudiced by the
failure or delay in giving such notice. In case any such action is brought
against the Sub-Advisor Indemnitee, the Advisor will be entitled to
participate, at its own expense, in the defense thereof or, after notice to
the Sub-Advisor Indemnitee, to assume the defense thereof, with counsel
satisfactory to the Sub-Advisor Indemnitee. If the Advisor assumes the defense
of any such action and the selection of counsel by the Advisor to represent
the Advisor and the Sub-Advisor Indemnitee would result in a conflict of
interests and therefore, would not, in the reasonable judgment of the
Sub-Advisor Indemnitee, adequately represent the interests of the Sub-Advisor
Indemnitee, the Advisor will, at its own expense, assume the defense with
counsel to the Advisor and, also at its own expense, with separate counsel to
the Sub-Advisor Indemnitee, which counsel shall be satisfactory to the Advisor
and to the Sub-Advisor Indemnitee. The Sub-Advisor Indemnitee shall bear the
fees and expenses of any additional counsel retained by it, and the Advisor
shall not be liable to the Sub-Advisor Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by the Sub-Advisor Indemnitee
independently in connection with the defense thereof other than reasonable
costs of investigation. The Advisor shall not have the right to compromise on
or settle the claim without the prior written consent of the Sub-Advisor
Indemnitee if the compromise or settlement results, or may result in, a
finding of wrongdoing on the part of the Sub-Advisor Indemnitee.
(d) The Sub-Advisor shall not be liable under Paragraph (b) of
this Section 11 with respect to any claim made against an Advisor Indemnitee
unless such Advisor Indemnitee shall have notified the Sub-Advisor 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 such
Advisor Indemnitee (or after such Advisor Indemnitee shall have received
notice of such service on any designated agent), but failure to notify the
Sub-Advisor of any such claim shall not relieve the Sub-Advisor from any
liability which it may have to the Advisor Indemnitee against whom such action
is brought except to the extent the Sub-Advisor is prejudiced by the failure
or delay in giving such notice. In case any such action is brought against the
Advisor Indemnitee, the Sub-Advisor will be entitled to participate, at its
own expense, in the defense thereof or, after notice to the Advisor
Indemnitee, to assume the defense thereof, with counsel satisfactory to the
Advisor Indemnitee. If the Sub-Advisor assumes the defense of any such action
and the selection of counsel by the Sub-Advisor to represent both the
Sub-Advisor and the Advisor Indemnitee would result in a conflict of interests
and therefore, would not, in the reasonable judgment of the Advisor
Indemnitee, adequately represent the interests of the Advisor Indemnitee, the
Sub-Advisor will, at its own expense, assume the defense with counsel to the
Sub-Advisor and, also at its own expense, with separate counsel to the Advisor
Indemnitee, which counsel shall be satisfactory to the Sub-Advisor and to the
Advisor Indemnitee. The Advisor Indemnitee shall bear the fees and expenses of
any additional counsel retained by it, and the Sub- Advisor shall not be
liable to the Advisor Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by the Advisor Indemnitee independently in
connection with the defense thereof other than reasonable costs of
investigation. The Sub-Advisor shall not have the right to compromise on or
settle the claim without the prior written consent of the Advisor Indemnitee
if the compromise or settlement results, or may result in a finding of
wrongdoing on the part of the Advisor Indemnitee.
12. Limitation on Liability.
(a) The Sub-Advisor will not be liable for any error of
judgment or mistake of law or for any loss suffered by the Advisor or by the
Trust in connection with the performance of this Agreement, except a loss
resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or from
reckless disregard by it of its duties under this Agreement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto acknowledge and agree that, as provided in
Section 5.1 of Article V of the Declaration of Trust, as amended and restated,
this Agreement is executed by the trustees and/or officers of the Trust, not
individually but as such trustees and/or officers of the Trust, and the
obligations hereunder are not binding upon any of the trustees or shareholders
individually but bind only the estate of the Trust.
13. Duration and Termination. This Agreement shall become effective
as of the date hereof and, unless sooner terminated with respect to the Trust
as provided herein, shall continue in effect for a period of two years.
Thereafter, if not terminated, this Agreement shall continue in effect with
respect to the Trust in accordance with the requirement of the 1940 Act and
the 1940 Act Rules. Notwithstanding the foregoing, this Agreement may be
terminated by the Trust or the Advisor at any time, without the payment of any
penalty, upon giving the Sub- Advisor 60 days' notice (which notice may be
waived by the Sub-Advisor), provided that such termination by the Trust or the
Advisor shall be directed or approved by the vote of a majority of the
Trustees of the Trust in office at the time or by the vote of the holders of a
majority of the voting securities of the Trust at the time outstanding and
entitled to vote, or by the Sub-Advisor on 60 days' written notice (which
notice may be waived by the Trust and the Advisor), and will terminate
automatically upon any termination of the Advisory Agreement between the Trust
and the Advisor. This Agreement will also immediately terminate in the event
of its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested person" and "assignment" shall
have the same meanings of such terms in the 1940 Act and the 1940 Act Rules;
provided however that no transfer may be made by the Sub-Advisor under Rule
2a-6 of the 1940 Act without the approval of a majority of the Trust's Board
of Trustees who are not interested persons of the Trust.)
14. Confidential Relationship. Information furnished by the Trust
or by one party to another relating to the Trust, is confidential and shall
not be disclosed to third parties unless required by law or unless the Trust
otherwise consents. Advisor and Sub-Advisor, on behalf of themselves and their
affiliates and representatives, agree to keep confidential all records and
other information relating to the other party (as the case may be), except
after prior notification to and approval in writing by Advisor or the
Sub-Advisor (as the case may be), which approval shall not be unreasonably
withheld, and may not be withheld, where the Advisor or the Sub-Advisor or any
affiliate would be exposed to civil or criminal contempt proceedings for
failure to comply or when requested to divulge such information by duly
constituted authorities. Without limiting the generality of the foregoing, the
Sub-Advisor shall not take any action which shall result in a violation or
breach of the Trust's Fair Disclosure Policy or Privacy Policy as in effect
from time to time and provided to the Sub-Advisor by the Trust.
15. Notices. Any notice under this Agreement shall be in writing to
the other party at such address as the other party may designate from time to
time for the receipt of such notice and shall be deemed to be received on the
earlier of the date actually received or on the fourth day after the postmark
if such notice is mailed first class postage prepaid.
16. Amendment of this Agreement. No provision of this Agreement may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. Any amendment of this Agreement
shall be subject to approval to the extent required by the 1940 Act and the
1940 Act Rules.
17. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding on, and shall inure to the
benefit of the parties hereto and their respective successors.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York for contracts
to be performed entirely therein without reference to choice of law principles
thereof and in accordance with the applicable provisions of the 1940 Act.
19. Counterparts. This Agreement may be executed in counterparts by
the parties hereto, each of which shall constitute an original counterpart,
and all of which, together, shall constitute one Agreement.
20. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this Agreement's subject matter.
21. Severability. Should any part of this Agreement be held invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors.
22. Use of Name "Wellington." The Advisor or the Trust shall not
use the name "Wellington," "Wellington Management" or "Wellington Management
Company, LLP" or any variations thereof without the prior written consent of
the Sub- Advisor.
Where the effect of a requirement of the 1940 Act reflected in or
contemplated by any provision of this Agreement is altered by a rule,
regulation or order of the SEC, whether of special or 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 instrument
to be executed by their duly authorized officers designated below as of the
day and year first above written.
BLACKROCK ADVISORS, INC.
By:____________________________________
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
WELLINGTON MANAGEMENT COMPANY, LLP
By:____________________________________
Name: Xxxxxx Xxxxxx
Title: Managing Director
PARTNERS BALANCED TRUST
By:____________________________________
Name: Xxxx X. Xxxxxxxx
Title: Secretary
