EXHIBIT 99.24(b)(6)
PRINCIPAL UNDERWRITING AGREEMENT
PRINCIPAL UNDERWRITING
AGREEMENT
This PRINCIPAL UNDERWRITING AGREEMENT (the "Agreement") is
made this day of , 1997, by and between Orchard
Series Fund, a Delaware business trust (the "Trust") and One
Orchard Equities, Inc., a Colorado corporation (the "Distributor").
WHEREAS, the Trust is registered as an investment company
under the Investment Company Act of 1940 (the "1940 Act") and has
shares of beneficial interest which represent separate investment
portfolios of the Trust (each a Fund, and collectively, the
"Funds") named in Schedule A to this Agreement and which are or
will be registered under the Securities Act of 1933 (the "1933
Act") and the securities acts of various states and jurisdictions;
and
WHEREAS, the Distributor is or will be prior to acting as
Distributor of the Funds, registered as a broker/dealer under the
provisions of the Securities Exchange Act of 1934 and is a member
in good standing of the National Association of Securities Dealers,
Inc.; and
WHEREAS, the Distributor desires to act as the exclusive
principal underwriter of the Funds;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein provided, the Trust and Distributor hereby
agree as follows:
Appointment of Underwriter. The Trust appoints the Distributor as
the exclusive sales agent for distribution of the Funds (other than
sales made directly by the Trust) and agrees that it will deliver
to the Distributor such shares of the Funds as the Distributor may
sell. The Distributor agrees to use its best efforts to promote
the sale of the Funds, but is not obligated to sell any specific
number of shares.
Independent Contractor. The Distributor will undertake and
discharge its obligations hereunder as an independent contractor
and shall have no authority or power to obligate or bind the Trust
by its actions, conduct or contracts, except that the Distributor
is authorized to accept orders for the purchase or repurchase of
shares of the Funds as agent of the Trust. The Distributor may
appoint sub-agents or distribute the Funds through dealers (or
otherwise) as it may determine necessary or desirable from time to
time. This Agreement shall not, however, be construed as
authorizing any dealer or other person to accept orders for sale or
repurchase on behalf of the Trust or any Fund or otherwise to act
as agent of the Trust or any Fund for any purpose.
Offering Price. Shares of the Funds shall be offered for sale at
a price equivalent to their net asset value determined in the
manner set forth in the then current prospectus and statements of
additional information of the Trust relating to the Funds. All
orders shall be subject to acceptance by the Trust, and the Trust
reserves the right, in its sole discretion, to reject any order
received. Neither the Trust nor any Fund shall be liable to anyone
for failure to accept any order.
Payment for Shares. At or prior to the time of delivery of any
shares, the Distributor will pay or cause to be paid to the Trust
for the account of the applicable Fund, an amount in cash equal to
the net asset value of such shares. In the event that the
Distributor pays for shares sold by it prior to its receipt of
payment from purchasers, the Distributor is authorized to reimburse
itself for the net asset value of such shares from the offering
price of such shares when received by the Distributor.
Purchases for Your Own Account. The Distributor shall not purchase
shares of any Fund for its own account for purposes of resale to
the public, but it may purchase shares for its own investment
account upon its written assurance to the Trust that the purchase
is for investment purposes only and that the shares will not be
resold except through redemption by the Trust.
Allocation of Expenses. The Distributor shall bear the expense of
preparing, printing and distributing advertising, sales literature,
prospectuses and statements of additional information. The Trust
shall bear the expense of registering shares of the Funds under the
1933 Act and the Trust under the 1940 Act, qualifying shares for
sale under the blue sky laws of any state, the preparation and
printing of prospectuses, statements of additional information and
reports required to be filed with the Securities and Exchange
Commission and other authorities, the preparation, printing and
mailing of prospectuses and statements of additional information to
shareholders of the Funds and the direct expenses of the issuance
of shares.
Furnishing of Information. The Trust will furnish to the
Distributor such information with respect to the Trust and the
Funds in such form and signed by such officers of the Trust as the
Distributor may reasonably request, and the Trust warrants that the
statements therein contained when so signed will be true and
correct. The Trust will also furnish to the Distributor such
information and will take such action as the Distributor may
reasonably request in order to qualify the shares for sale to the
public under the blue sky laws or in jurisdictions in which the
Distributor may wish to offer them. If requested by the
Distributor, the Trust will furnish to the Distributor at least
annually audited financial statements of its books and accounts
certified by independent public accountants, and such additional
information regarding its financial condition, as the Distributor
may reasonably request from time to time.
Conduct of Business. Other than currently effective prospectuses
and statements of additional information, the Distributor will not
issue any sales material or statements except literature or
advertising which conforms to the requirements of federal and state
securities laws and rules and regulations thereunder and which have
been filed, where necessary, with the appropriate regulatory
authorities. The Distributor will furnish to the Trust copies of
all such material prior to its use and no such material shall be
published if the Trust shall reasonably and promptly object.
The Distributor shall comply with the applicable federal and
state laws and regulations where shares of the Funds are offered
for sale and conduct its affairs with the Trust and with dealers,
brokers or investors in accordance with the Conduct Rules of the
NASD.
Other Activities. Services provided by the Distributor pursuant to
this Agreement shall not be deemed to be exclusive, and the
Distributor may render similar services and act as an underwriter,
distributor or dealer for other investment companies.
Term of Agreement. This Agreement shall become effective on the
date indicated and shall remain in effect for a period of two (2)
years from the date of this Agreement. This Agreement shall
continue annually thereafter for successive one (1) year periods if
approved at least annually (i) by a vote of a majority of the
outstanding voting securities of the Trust or by a vote of the
trustees of the Trust (the "Trustees"), and (ii) by a vote of a
majority of the Trustees who are parties to this Agreement or
interested persons of any such party, cast in person at a meeting
called for the purpose of voting on this Agreement.
Termination. This Agreement: (i) may be terminated at any time
without the payment of any penalty, either by vote of the Trustees
or by a vote of a majority of the outstanding voting securities of
the Trust, on sixty (60) days' written notice to the Distributor;
(ii) shall terminate immediately in the event of its assignment ;
and (iii) may be terminated by the Distributor on sixty (60) days'
written notice to the Trust.
Suspension of Sales. The Trust reserves the right at all times to
suspend or limit the public offering of shares upon written notice
to the Distributor.
Miscellaneous. This Agreement shall be subject to the laws of the
State of Colorado and shall be interpreted and construed to further
and promote the operation of the Trust as an open-end investment
company. As used herein, the terms "net asset value," "offering
price," "investment company," "open-end investment company,"
"assignment," "principal underwriter," "interested person," and
"majority of the outstanding voting securities," shall have the
meanings set forth in the 1933 Act and the 1940 Act, as applicable,
and the rules and regulations thereunder.
Liability. Nothing contained herein shall be deemed to protect the
Distributor against any liability to the Trust or to its
shareholders to which the Distributor would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in
the performance of its duties hereunder, or by reason of reckless
disregard of its obligations and duties hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized at Englewood, Colorado, on the day and year first
written above.
ORCHARD SERIES FUND
By:
Name: X.X. Xxxx
Title: President
ONE ORCHARD EQUITIES, INC.
By:
Name: R.E. Xxxxxxxx
Title: President
Schedule A
Orchard Money Market Fund
Orchard Preferred Stock Fund
Orchard Index 600 Fund
Orchard Index 500 Fund
Orchard Index Pacific Fund
Orchard Index European Fund
