SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement") made
this 1st day of April , 2003 by and between GW Capital Management, LLC, doing
business as Maxim Capital Management, LLC, a Colorado limited liability company
registered as an investment adviser under the Investment Advisers Act of 1940
("the Adviser"), BNY Investment Advisors, a separately identifiable division of
The Bank of New York, a New York State chartered bank, registered as an
investment adviser under the Investment Advisers Act of 1940 ("the
Sub-adviser"), and Orchard Series Fund, a Delaware business trust ("the Fund"),
this Agreement embodying the arrangement whereby the Sub-adviser will act as an
investment adviser to the portfolios of the Fund (the "Portfolios") listed in
Schedule A attached hereto and commencing on the dates specified therein, as
such Schedule may be amended from time to time by mutual written agreement, in
conjunction with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the Adviser,
a copy of which has been provided to the Sub-adviser. This advisory agreement
and all amendments thereto are hereinafter referred to as "the MCM Agreement".
In the MCM Agreement, the Adviser agreed to act as adviser to and manager of the
Fund. In that capacity it agreed to manage the investment and reinvestment of
the assets of any portfolio of the Fund in existence or created in the future
and to administer the Fund's affairs. The Adviser wishes to obtain assistance
with respect to its aforesaid advisory and management role with respect to the
Portfolios only to the extent described herein, and the Fund by this Agreement
agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolios, and, subject to the
review of the Board of Directors of the Fund ("the Board"), to manage the
investment and reinvestment of the assets of the Portfolios and to administer
its affairs, for the period and on the terms and conditions set forth in this
Agreement. The Sub-adviser hereby accepts such employment and agrees during such
period, at its own expense to render the services and to assume the obligations
herein set forth for the compensation provided for herein. The Sub-adviser shall
for all purposes herein be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized by this Agreement or
otherwise, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolios, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of
the Portfolios;
(b) consult with the Adviser and with the Board and furnish to
the Adviser and the Board recommendations with respect to an overall
investment plan for the Portfolios for approval, modification, or
rejection by the Board;
(c) seek out specific investment opportunities for the Portfolios
consistent with an overall investment plan approved by the Adviser and
the Board;
(d) take such steps as are necessary to implement any overall
investment plan approved by the Board for the Portfolios including
making and carrying out decisions to acquire or dispose of permissible
investments as set forth in the Fund's Registration Statement,
management of investments and any other property of the Portfolios and
providing or obtaining such services as may be necessary in managing,
acquiring or disposing of investments, consulting as appropriate with
the Adviser;
(e) regularly report to the Adviser and the Board with respect to
the implementation of any approved overall investment plan and any other
activities in connection with management of the assets of the
Portfolios;
(f) communicate as appropriate to the Adviser adequate and timely
information on investment related activity within the Portfolios,
including, but not limited to purchases, sales and contractual
commitments ;
(g) arrange with the applicable broker or dealer at the time of
the purchase or sale of investments or other assets of the Portfolios
for the appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least
annually in person to the Board with respect to the implementation of
the approved investment plan and any other activities in connection with
management of the assets of the Portfolios;
(i) maintain all records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments
or other assets of the Portfolios required to be maintained by
Sub-adviser;
(j) arrange with the Adviser an administrative process which
permits the Adviser to appropriately reflect in its daily determination
of unit values, the transactions, positions and obligations of the
Portfolios resulting from the investment management services provided to
the Portfolios;
(k) vote all shares held by the Portfolios.
In connection with the rendering of the services required to be provided
by the Sub-adviser under this Agreement, the Sub-adviser may, to the extent it
deems appropriate and subject to compliance with the requirements of applicable
laws and regulations, and upon receipt of written approval of the Fund, make use
of its affiliated companies, if any, and their employees; provided that the
Sub-adviser shall supervise and remain fully responsible for all such services
in accordance with and to the extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolios.
The Adviser will continue to provide all of the services described in
the MCM Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolios would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Portfolios and/or Fund as stated in its Registration
Statement, as amended from time to time, filed with the Securities and Exchange
Commission, its Articles of Incorporation and Bylaws, as amended from time to
time, and the provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay
within 10 business days of month end as monthly compensation to the Sub-adviser
for the services rendered by the Sub-adviser with respect to the Portfolios, as
described in Schedule B attached hereto for the initial two year term of the
agreement, and as such Schedule may be amended from time to time by mutual
written agreement thereafter.
Payment to the Sub-adviser will be made monthly by the Adviser based on
the average daily net assets of the Portfolios during each month. If this
Agreement is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio). As
described in the MCM Agreement, the Fund and/or the Adviser pays all other
expenses incurred in the operation of the Portfolios and all of its general
administrative expenses. The Subadviser shall not be responsible for the
following expenses of the Fund: organization and certain offering expenses of
the Fund (including out-of-pocket expenses, but not including the Subadviser's
overhead and employee costs); fees payable to the Subadviser and to any other
Fund advisers or consultants; legal expenses; auditing and accounting expenses;
interest expenses; telephone, telex, facsimile, postage and other communications
expenses; taxes and governmental fees; fees, dues and expenses incurred by or
with respect to the Fund in connection with membership in investment company
trade organizations; fees and expenses of the Fund's Administrator or of any
transfer agent, registrar, or dividend disbursing agent of the Fund; payments to
the Administrator for maintaining the Fund's financial books and records and
calculating its daily net asset value; other payments for portfolio pricing or
valuation services to pricing agents, accountants, bankers and other
specialists, if any; expenses of preparing share certificates; other expenses in
connection with the issuance, offering, distribution or sale of securities
issued by the Fund; expenses relating to investor and public relations; expenses
of registering and qualifying shares of the Fund for sale; freight, insurance
and other charges in connection with the shipment of the Fund's portfolio
securities; brokerage commissions or other costs of acquiring or disposing of
any portfolio securities or other assets of the Fund, or of entering into other
transactions or engaging in any investment practices with respect to the Fund;
expenses of printing and distributing prospectuses, Statements of Additional
Information, reports, notices and dividends to stockholders; costs of stationery
or other office supplies; any litigation expenses; and costs of stockholders'
and other meetings.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolios, subject to the provisions of Article II regarding
coordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that will
execute the purchases and sales of portfolio securities for the Portfolios and
will use its best efforts to obtain the most favorable net results and execution
of the Portfolios' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolios for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are not
to be deemed exclusive and the Sub-adviser will be free to render similar
services or other services to others so long as the Sub-adviser fulfills its
rights and obligations under this Agreement. It is understood that directors,
officers, employees and shareholders of the Fund are or may become interested in
the Sub-adviser, as directors, officers, employees or shareholders or otherwise,
and that directors, officers, employees or shareholders of the Sub-adviser are
or may become similarly interested in the Fund, and that the Sub-adviser is or
may become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolios in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolios may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or sub-adviser, or by the Sub-adviser or its affiliates. Because of
different investment objectives or other factors, a particular security may be
bought by the Sub-adviser or its affiliates or for one or more clients when one
or more clients are selling the same security. If purchases or sales of
securities for the Portfolios or other entities for which the Sub-adviser or its
affiliates act as investment adviser or sub-adviser or for their advisory
clients arise for consideration at or about the same time, the Fund agrees that
the Sub-adviser may make transactions in such securities, insofar as feasible,
for the respective entities and clients in a manner deemed equitable to all. To
the extent that transactions on behalf of more than one client of the
Sub-adviser during the same period may increase the demand for securities being
purchased or the supply of securities being sold, the Fund recognizes that there
may be an adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolios as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolios
and to such other accounts or companies. The Fund recognizes that in some cases
this procedure may adversely affect the size of the position obtainable for the
Portfolios.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as hereunder) unless and until it is approved by the Board of
Directors of the Fund including a majority of directors who are not parties to
this Agreement or interested persons of any such party to this Agreement, and by
a majority of the shareholders of each of the Portfolios.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date first
above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of each of the
Portfolios, and (b) by the vote of a majority of the members of the Board, who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days
prior written notice;
(b) shall be subject to termination, without the payment of any
penalty, by the Board or by vote of a majority of the outstanding
voting securities of each of the Portfolios, on sixty days
written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the Fund on
behalf of , the Adviser and the Sub-adviser; provided that no
material amendment of this Agreement shall be effective without
specific approval of such amendment by (i) the Board, including a
majority of those directors who are not parties to this Agreement
or interested persons of such a party, cast in person at a
meeting called for the purpose of voting on such approval, and
(ii) a majority of the outstanding shares of each of the
Portfolios; and
(d) shall automatically terminate upon assignment by any party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolios shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner; provided, however, that the Sub-adviser may make such records and
accounts available to its legal counsel, independent auditors and as required by
law. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement, except to the extent that such
independent contractors are found to have been selected with reckless disregard
or gross negligence. In no event shall the Sub-adviser be liable (i) for acting
in accordance with instructions from the Adviser except to the extent that such
instructions are carried out with reckless disregard or gross negligence by the
Sub-adviser, (ii) for special, consequential or punitive damages, (iii) for the
acts or omissions of the Adviser or other agents of the Adviser, or (iv) for any
losses due to forces beyond the control of the Sub-adviser and without the fault
or negligence of Sub-adviser, including, without limitation, strikes, work
stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold the
Adviser harmless and to indemnify and protect the Adviser from and against any
and all lawsuits or other claims brought against the Adviser as a result of the
activities (or omissions by the Sub-adviser to carry out its obligations
hereunder) of the Sub-adviser under this Agreement, including the activities (or
such omissions) of the Sub-adviser's officers and directors, agents, employees,
controlling persons, shareholders, and any other person or entity affiliated
with the Sub-adviser or retained by it to perform or assist in the performance
of its obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the MCM Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the MCM Agreement (or omissions by the
Adviser to carry out its obligations hereunder or thereunder), including the
activities (or such omissions) of the Adviser's officers, directors, agents,
employees, controlling persons, shareholders, and any other person or entity
affiliated with the Adviser or retained by it to perform or assist in the
performance of its obligations under this Agreement or the MCM Agreement;
provided, however, that in no event is Adviser's indemnity in favor of
Sub-adviser deemed to protect Sub-adviser against any liability to which the
Sub-adviser would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations or duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolios for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents at least 10 days
prior to distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolios.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used in the
particular Disclosure Document. The Fund and the Adviser will notify the
Sub-adviser promptly of the happening of any event which in the judgment of the
Fund or the Adviser makes any statement made in the Disclosure Documents untrue
in any material respect or requires the making of any changes in the Disclosure
Documents in order to make the statements therein, in the light of circumstances
under which they were made, not misleading in any material respect, except that
the Fund and the Adviser need not make such notification with respect to
information in the Disclosure Documents based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used in the particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser that
the information furnished in writing by it which the Fund has informed it is to
be used in a particular Disclosure Document, will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading as
required by the provisions of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940,
as amended, and other applicable laws. The Sub-adviser will notify the Fund and
the Adviser promptly of the happening of any event which in the judgment of the
Sub-adviser makes any statement made in the Disclosure Documents untrue in any
material respect or requires the making of any changes in the Disclosure
Documents in order to make the statements therein, in the light of circumstances
under which they were made, not misleading in any material respect, except that
the Sub-adviser need only make such notification with respect to information in
the Disclosure Documents based upon information furnished in writing to the Fund
or the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser
was to be used in the particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used in the particular
Disclosure Document. In case any action or proceeding shall be brought against
the Fund or the Adviser, their directors or officers, or any such controlling
persons, in respect of which indemnity may be sought against the Sub-adviser,
the Sub-adviser shall have the rights and duties given to the Fund and the
Adviser, and the Fund or the Adviser, their directors or officers, or such
controlling persons shall have the rights and duties given to the Sub-adviser,
by the preceding paragraph.
D. The agreements, representations and indemnification contained in this
Article XI shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of the Sub-adviser Indemnified Party or
by or on behalf of the Fund or the Adviser, its directors and officers, or any
person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be interpreted and construed in accordance with the
internal substantive laws (and not the choice of law rules) of the State of
Colorado and the applicable provisions of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Securities and Exchange Commission
thereunder, including such exemptions therefrom as the Securities and Exchange
Commission may grant. Words and phrases used herein shall be interpreted in
accordance with that Act and those rules and regulations. As used with respect
to the Portfolios, the term "majority of the outstanding shares" means the
lesser of (i) 67% of the shares represented at a meeting at which more than 50%
of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Non-Compete
The Adviser and Sub-adviser acknowledge that, in the course of providing
services under this Agreement, Sub-adviser may be introduced to current or
prospective customers (hereinafter a "Customer") of the Fund or any affiliate of
the Adviser and, as a result of such introduction may have access to or obtain
information about such Customer. In the event said Customer ultimately utilizes
the Fund or any affiliate of the Adviser as an investment product provider for
any defined contribution plan offered by Customer, Sub-adviser agrees:
(a) not knowingly to utilize any confidential information regarding the
Customer and/or its employees' participation in such defined
contribution plan(s) which Sub-adviser receives as a result of
providing services under this Agreement in non-Fund business of the
Sub-adviser or its affiliates;
(b) not knowingly to attempt to contact the Customer without prior
notification to the Adviser; and
(c) not knowingly to attempt to sell any mutual funds affiliated with
Sub-adviser directly to Customer on a stand-alone basis if the
Portfolios are included either directly or indirectly in the
Customer's defined contribution plan(s).
In the event such Customer does not utilize the Fund or any affiliate of
the Adviser as an investment product provider, Sub-adviser is not subject to any
of the foregoing terms and conditions.
For purposes of this Section XV, defined contribution plan shall mean
401(a), 401(k), 457 and 403(b) plans.
For purposes of this Section XV, introduction shall mean inclusion of
the Portfolios in the defined contribution product offered to that Customer's
consideration.
The following situations are not subject to the provisions of this
Section XV:
(a) Customer has a pre-existing relationship with Sub-adviser; or
(b) Sub-adviser or any of its affiliates makes other funds available
to another defined contribution plan product provider and that
product provider bids on the Customer's case using publicly
available information; or
(c) no introduction to Customer is made.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon personal delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: GW CAPITAL MANAGEMENT, LLC
By:
----------------------------------
Name: Name:
Title:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Witness: ORCHARD SERIES FUND
By:
-----------------------------------
Name: Name:
Title:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Witness: BANK OF NEW YORK
By:
------------------------------------
Name: Name:
Title:
By:
-------------------------------
Name:
Title:
Address: Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Schedule A
Orchard S&P 500 Index(R) Fund
Orchard Index 600 Fund
Orchard DJIA (SM) Index Fund
Orchard Nasdaq-100 Index(R) Fund
Schedule B
Fee Rate (as a % of average daily net asset value).
___% on net assets for each Portfolio listed in Schedule A
