Mid-Cap Stock Portfolio
of the
ULTRA SERIES FUND
INVESTMENT SUB-ADVISORY AGREEMENT
Between
CIMCO Inc.
and
Heartland Advisors, Inc.
(April 13, 1999)
THIS AGREEMENT ("Agreement") is made this 13th day of April, 1999, by and
between CIMCO Inc., an Iowa corporation (the "Adviser"), and Heartland Advisors,
Inc. (the "Sub-Adviser"), a Wisconsin corporation.
1. Representations.
(a) Ultra Series Fund (the "Trust") is a Delaware business trust
organized with one or more series of shares and is registered as an
open-end management investment company under the Investment Company Act
of 1940, as amended (the "ICA").
(b) The Adviser and the Sub-Adviser each is an investment adviser
registered under the Investment Advisers Act of 1940, as amended (the
"Advisers Act").
(c) The Board of Trustees of the Trust (the "Trustees") have engaged
the Investment Adviser to act as investment adviser for the Mid-Cap
Stock Fund (the "Portfolio"), one series of the Trust, under the terms
of a management agreement, dated February 7, 1997, with the Trust (the
"Management Agreement").
(d) The Adviser, acting pursuant to the Management Agreement, wishes to
engage the Sub-Adviser, and the Trustees have approved the engagement
of the Sub-Adviser, to provide investment advice and other investment
services set forth below.
2. Investment Services. The Adviser hereby engages the services of Sub-Adviser
in connection with Adviser's management of the Portfolio. Pursuant to this
Agreement and subject to the oversight and supervision of the Adviser and the
Trustees, the Sub-Adviser shall manage the investment and reinvestment of that
portion of the Portfolio as Adviser shall determine from time to time
(hereinafter referred to as the "Sub-Portfolio").
Adviser intends to use a manager-of-managers approach to manage the Portfolio.
The number of sub-advisers, the named sub-advisers, and the percentage of assets
of the Portfolio managed by each sub-adviser shall be determined by the Trustees
and the Adviser from time to time; provided, however, the Sub-Adviser shall be
given not less than thirty (30) days advance written notice of all changes
affecting this Agreement or the Sub-Adviser's role hereunder.
The Sub-Adviser shall formulate and implement a continuous investment program
for the Sub-Portfolio conforming to the investment objective, investment
policies and restrictions of the Sub-Portfolio as set forth in the Prospectus
and Statement of Additional Information of the Fund as in effect from time to
time (together, the "Registration Statement"), the Agreement and Declaration of
Trust and By-laws of the Fund, any investment guidelines or other instructions
received by the Sub-Adviser in writing from the Adviser from time to time and
all applicable securities laws and related regulations. Any amendments to the
foregoing documents (excluding securities laws and regulations) will not be
deemed effective with respect to the Sub-Adviser until the Sub-Adviser's receipt
thereof.
The Adviser acknowledges and agrees that the Sub-Adviser is hereby authorized,
to freely exercise on behalf of the Trust, its rights as a shareholder of the
various companies in which the Sub-Portfolio may invest including, but not
limited to its right to, (a) communicate its views on matters of policy to
management, the board of directors and other shareholders of a portfolio company
and (b) take such other steps, either individually or as part of a group, to (i)
influence a portfolio company's decision-making process, (ii) seek changes in a
company's management or board of directors, (iii) effect the sale of all or some
of a portfolio company's assets and (iv) vote to participate in or oppose a
takeover effort by or of a portfolio company whenever the Sub-Adviser believes
such activities may affect the value of the Trust's investment ("control
actions"). The Adviser understands that such control actions could result in
additional expense to the Trust, including expenses associated with operational
or regulatory requirements and the ongoing cost of potential litigation as a
plaintiff. However, no expense shall be incurred without the written consent of
the Adviser. The Adviser further understands that such control actions also
could restrict the Trust's ability to freely trade in the securities of a
portfolio company with respect to which it is deemed to be investing for
control, which might adversely affect the Trust's liquidity as well as the
valuation of those securities. Greater public disclosure could be required
regarding the Trust's investment and trading strategies in regulatory filings
relating to such securities.
The appropriate officers and employees of the Sub-Adviser will be available to
consult with the Adviser, the Trust and the trustees at reasonable times and
upon reasonable notice concerning the business of the Sub-Portfolio, including
valuations of securities which are not registered for public sale, not traded on
any securities market or otherwise may be deemed illiquid for purposes of the
ICA; provided it is understood that the Sub-Adviser is not responsible for daily
pricing of the Sub-Portfolio's assets except for recommending to the Adviser
upon request proposed valuations for portfolio securities when market quotations
are not readily available.
Sub-Adviser shall not be responsible for the provision of administrative,
bookkeeping or accounting services to the Portfolio or Sub-Portfolio, except as
specifically provided herein, as required by the ICA or the Advisers Act or as
may be necessary for the Sub-Adviser to supply to the Adviser, the Portfolio or
the Portfolio's shareholders the information required to be provided by the
Sub-Adviser hereunder. To the extent the Sub-Adviser agrees to perform any such
services, they shall be performed based upon the books and records the
Sub-Adviser maintains with respect to the Sub-Portfolio. Any records maintained
hereunder shall be the property of the Fund and surrendered promptly upon
request.
2. Compliance Monitoring and Reporting The parties acknowledge and agree that
the Sub-Adviser shall not be the compliance agent or administrator for the Trust
or for the Adviser. However, the Sub-Adviser shall supervise and monitor the
activities of its representatives, personnel and agents in connection with the
investment program of the Sub-Portfolio. In furnishing the services under this
Agreement, the Sub-Adviser shall manage the Sub-Portfolio in accordance with the
requirements of: (i) the ICA and the regulations promulgated thereunder; (ii)
Subchapters L and M (including, respectively, Section 817(h) and Sections
851(b)(1), (2), (3), and (4) of the Internal Revenue Code and the regulations
promulgated thereunder; (iii) other applicable provisions of state or federal
law; (iv) the Agreement and Declaration of Trust and By-Laws of the Trust; (v)
policies and determinations of the Trust and the Adviser provided to the
Sub-Adviser in writing; (vi) the fundamental and non-fundamental investment
policies and restrictions as may be amended from time to time by the Portfolio's
shareholders or Trustees and communicated to the Sub-Adviser in writing; (vii)
the Registration Statement; and (viii) investment guidelines or other
instructions provided to the Sub-Adviser in writing from the Adviser.
Notwithstanding the foregoing, the Sub-Adviser shall have no responsibility to
monitor compliance with limitations or restrictions for which information from
the Adviser or its authorized agents is required to enable the Sub-Adviser to
monitor compliance with such limitations or restrictions unless such information
is accurately, completely and timely provided to the Sub-Adviser in writing.
The Sub-Adviser shall be responsible for the preparation and filing of any
reports required to be filed under Sections 13 and 16 of the Securities and
Exchange Act of 1934, as amended (the "1934 Act") with respect to securities
held in the Sub-Portfolio. The Sub-Adviser shall not be responsible for the
preparation or filing of any other reports required of the Portfolio or
Sub-Portfolio by any governmental or regulatory agency, except as expressly
agreed to in writing.
The Adviser and Sub-Adviser shall cooperate with each other in providing
information, reports and other materials to regulatory and administrative bodies
having proper jurisdiction over the Adviser, the Sub-Adviser, the Portfolio or
the Sub-Portfolio; provided, however, that this agreement to cooperate does not
apply to the provision of information, reports and other materials which either
of them reasonably believes a regulatory or administrative body does not have
the authority to request or is the respective party's privileged or confidential
information.
3. Execution of Portfolio Transactions. Subject to the supervision and control
of the Adviser, which in turn is subject to the supervision and control of the
Trustees, the Sub-Adviser in its discretion shall determine which issuers and
securities or other investments shall be purchased, held, sold or exchanged by
the Sub-Portfolio or otherwise represented in the Sub-Portfolio's investment
portfolio from time to time and, subject to the provisions of this section 3 of
the Agreement, shall place orders with and give instructions to brokers, dealers
and others for all such transactions and cause such transactions to be executed.
Custody of the Sub-Portfolio shall be maintained by a custodian bank (the
"Custodian") designated by the Trust, and the Adviser shall authorize the
Custodian to honor orders and instructions by employees of the Sub-Adviser
designated by the Sub-Adviser to settle transactions in respect of the
Sub-Portfolio. No assets may be withdrawn from the Sub-Portfolio other than for
settlement of transactions on behalf of the Sub-Portfolio, except upon the
written authorization of appropriate officers of the Trust who shall have been
certified as such by proper authorities of the Trust prior to the withdrawal.
In connection with the investment and reinvestment of the assets of the
Sub-Portfolio, the Sub-Adviser is responsible for the selection of
broker-dealers to execute purchase, sale, exchange and other transactions for
the Sub-Portfolio in conformity with the policy regarding brokerage as set forth
in the Registration Statement, or as the Trustees may determine form time to
time, as well as the negotiation of brokerage commission rates with such
executing broker-dealers. Generally, the Sub-Adviser's primary consideration in
placing Sub-Portfolio investment transactions with broker-dealers for execution
will be to obtain, and maintain the availability of, best execution at the best
available price.
Consistent with this policy, the Sub-Adviser, in selecting broker-dealers and
negotiating brokerage commission rates, will take all relevant factors into
consideration, including, but not limited to: the best price available; the
reliability, integrity and financial condition of the broker-dealer; the size
and difficulty in executing the order; and the value of the expected
contribution of the broker-dealer to the investment performance of the
Sub-Portfolio on a continuing basis. Subject to such polices and procedures as
the Trustees may determine and communicate in writing to the Sub-Adviser, the
Sub-Adviser shall have discretion to effect investment transactions for the
Sub-Portfolio through broker-dealers (including, to the extent permissible under
applicable law, broker-dealers affiliated with the Sub-Adviser) qualified to
obtain best execution of such transactions who provide brokerage and /or
research services, as such services are defined in section 28(e) of the 1934
Act, and to cause the Sub-Portfolio to pay any such broker-dealers an amount of
commission for effecting a portfolio investment transaction, if the Sub-Adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage or research services provided by such
broker-dealer, viewed in terms of either that particular investment or the
Sub-Adviser's overall responsibilities with respect to the Sub-Portfolio and
other accounts as to which the Sub-Adviser exercises investment discretion as
such term is defined in section 3(a)(35) of the Securities and Exchange Act of
1934 (the "1934 Act") (the "Separate Accounts"). The Sub-Adviser shall not be
required to use a broker-dealer which provides research services to the Adviser
or other sub-advisers or to use a particular broker-dealer which the Adviser has
recommended.
On occasions when the Sub-Adviser deems the purchase or sale of a security to be
in the best interest of the Sub-Portfolio as well as other Separate Accounts,
the Sub-Adviser, in good faith and conformity with its responsibilities under
applicable laws, rules and regulations may, but shall not be required to,
aggregate the securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions and achieve more efficient
execution. In the event of such an allocation, the allocation of securities and
the related transaction expenses shall be made by the Sub-Adviser among the
Sub-Portfolio, the Portfolio and other clients of the Sub-Adviser in such manner
as the Sub-Adviser reasonably believes is fair and equitable and consistent with
its fiduciary obligations.
4. Proxy Voting; Class Actions. Unless the Adviser gives the Sub-Adviser written
instructions to the contrary, the Sub-Adviser shall use its good faith judgment
in a manner which it reasonably believes best serves the interests of the
Portfolio's shareholders to vote or abstain from voting all proxies solicited by
or with respect to the issuers of securities in which assets of the
Sub-Portfolio may be invested. Sub-Adviser's sole responsibility with respect to
matters of Class Actions received by the Trust relating to securities held in
the Sub-Portfolio shall be to consult with the Adviser and/or the Trustees
regarding the merits thereof.
5. Reports by the Sub-Adviser. The Sub-Adviser shall report to the Adviser with
such frequency and in such form as may be mutually agreed from time to time
information concerning transactions and performance of the Sub-Portfolio,
including information required in the Registration Statement or information
necessary for the Adviser to review the Sub-Portfolio or discuss the management
of it. The Sub-Adviser shall permit the books and records maintained with
respect to the Sub-Portfolio to be inspected and audited by the Trust, the
Adviser or their respective agents at all reasonable times during normal
business hours upon reasonable notice. The Sub-Adviser shall immediately notify
both the Adviser and the Trust of any legal process served upon it in connection
with its activities hereunder, including any legal process served upon it on
behalf of the Adviser, the Portfolio or the Trust. The Sub-Adviser shall
promptly notify the Adviser of any changes in any information regarding the
Sub-Adviser or the investment program for the Sub-Portfolio as described in the
Registration Statement.
6. Compensation of the Sub-Adviser. For the services rendered hereunder, Adviser
shall pay Sub-Adviser at the end of each month, a fee at the annual rate of 0.60
of the average daily net assets of the Sub-Portfolio.
Sub-Adviser's fee shall be accrued daily at 1/365th of the applicable annual
rate set forth above. For the purpose of accruing compensation, the net assets
of the Sub-Portfolio shall be determined by the method and on the dates set
forth in the Trust's Registration Statement, as amended from time to time, and
in accordance with such valuation procedures as adopted by the Fund. In the
event of termination of this Agreement, all compensation due through the date of
termination shall be calculated on a pro-rated basis through the date of
termination and paid within thirty business days of the termination date.
The Adviser and the Sub-Adviser shall not be considered as partners or
participants in a joint venture. The Sub-Adviser is an independent contractor
and, unless otherwise expressly provided herein or otherwise authorized, shall
have no authority to act or represent the Adviser, the Trust or the Portfolio or
to otherwise act as agent for any of them.
The Sub-Adviser shall provide the office space, furnishings, equipment and
personnel and shall pay such other of its expenses required to perform the
services to be provided under this Agreement, but shall not be obligated to pay
any expenses of the Adviser, the Portfolio or the Fund. Except as otherwise
specifically provided herein, the Adviser, the Portfolio and the Fund shall not
be obligated to pay any expenses of the Sub-Adviser.
7. Delivery of Documents to the Sub-Adviser. On or before the effective date of
this Agreement, the Adviser shall furnish the Sub-Adviser with true, correct and
complete copies of each of the following documents each of which is hereby
acknowledged as received by the Sub-Adviser by its signature below:
(a) The Agreement and Declaration of Trust of the Fund, as in
effect on the date hereof;
(b) The By-Laws of the Fund, as in effect on the date hereof;
(c) The resolutions of the Trustees approving the engagement of the
Sub-Adviser as portfolio manager of the Sub-Portfolio and approving the
form of this Agreement;
(d) The resolutions of the Trustees selecting the Adviser as investment
manager to the Portfolio and approving the form of the Management
Agreement;
(e) The Management Agreement;
(f) The Code of Ethics of the Fund and of the Adviser, as in
effect on the date hereof;
(g) The Registration Statement of the Fund; and
(h) A list of affiliates of the Fund, the Adviser, other sub-advisers
to the Fund and their respective officers, directors, trustees, and
shareholders to the extent such affiliations will affect or limit
investment management of the Sub-Portfolio.
The Adviser shall furnish the Sub-Adviser from time to time with copies of all
amendments of or supplements to the foregoing, if any. Such amendments or
supplements as to items (a) through (f) and (h) above shall be provided promptly
and in no event later than 30 days from the date such materials become available
to the Adviser. Such amendments or supplements as to item (g) above shall be
provided not later than the end of the business day next following the date such
amendments or supplements become known to the Adviser. Any amendments or
supplements to the foregoing shall not be deemed effective with respect to the
Sub-Adviser until the Sub-Adviser's receipt thereof. The Adviser shall provide
such additional information as the Sub-Adviser may reasonably request in
connection with the performance of its duties hereunder.
8. Delivery of Documents to the Adviser. On or before the effective date of this
Agreement, the Sub-Adviser shall furnish the Adviser with true, correct and
complete copies of each of the following documents each of which is hereby
acknowledged as received by the Adviser by its signature below:
(a) At least 48 hours prior to execution of this Agreement, the
Sub-Adviser's Form ADV as filed with the Securities and Exchange
commission as of the date hereof;
(b) Separate lists of persons who the Sub-Adviser wishes to have
authorized to give written and/or oral instructions to Custodians of
Trust assets for the Sub-Portfolio;
(c) The Code of Ethics of the Sub-Adviser, as in effect on the date
hereof; and
(d) Any other portfolio management policies or procedures affecting
management of the Sub-Portfolio the Adviser reasonably requests.
The Sub-Adviser shall furnish the Adviser from time to time with copies of all
amendments of or supplements to the foregoing, if any. Such amendments or
supplements shall be provided promptly and in no event later than 30 days from
the date such materials become available to the Sub-Adviser. Any amendments or
supplements to the foregoing will not be deemed effective with respect to the
Adviser until the Adviser's receipt thereof. The Sub-Adviser shall provide
additional information as the Adviser may reasonably request in connection with
the Sub-Adviser's performance of its duties under this Agreement.
9. Confidential Treatment. The parties hereto understand 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, the Trust or such persons the Adviser may designate in connection
with the Sub-Portfolio. The parties also understand that any information
supplied to the Sub-Adviser by the Adviser or the Trust in connection with the
performance of its obligations hereunder, is to be regarded as confidential and
for use only by the Sub-Adviser in connection with its obligation to provide
investment advice and other services to the Sub-Portfolio. This paragraph shall
not apply to information, reports or other materials that are either public
information or required to be disclosed by federal or state regulatory
authorities.
10. Use of Name. The Adviser shall not use, and shall not permit the Trust to
use, the Sub-Adviser's name (or that of any of its affiliates) or any derivative
thereof, or logo, servicemark or trademark owned by the Sub-Adviser in any Trust
sales literature or other public communication without prior approval by the
Sub-Adviser.
11. Representations of the Parties. Each party hereto hereby further represents
and warrants to the other that: (i) it is registered as an investment adviser
under the Advisers Act; and (ii) it will promptly notify the other if it ceases
to be so registered, if its registration is suspended for any reason, or if it
is notified by any regulatory organization or court of competent jurisdiction
that it should show cause why its registration should not be suspended or
terminated; and (iii) it is duly authorized to enter into this Agreement and to
perform its obligations hereunder.
The Sub-Adviser further represents that it has adopted a written Code of Ethics
in compliance with Rule 17j-1(b) of the ICA. The Sub-Adviser shall be subject to
such Code of Ethics and shall not be subject to any other Code of Ethics,
including the Adviser's Code of Ethics, unless specifically adopted by the
Sub-Adviser. The Adviser further represents and warrants to the Sub-Adviser that
(i) the appointment of the Sub-Adviser by the Adviser has been duly authorized
and (ii) it has acted and will continue to act in connection with the
transactions contemplated hereby, and the transactions contemplated hereby are,
in conformity with the ICA, the Fund's governing documents and other applicable
law.
12. Liability. The federal laws impose responsibilities 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
Trust, the Portfolio or the Adviser may have under applicable law.
13. Other Activities of the Sub-Adviser. The Adviser agrees that the Sub-Adviser
and any of its shareholders or employees, and persons affiliated with the
Sub-Adviser or with any such shareholder or employee, may render investment
management, advisory or brokerage services to other investors and institutions,
and that such investors and institutions may own, purchase or sell securities or
other interests in property that are in the same as, similar to, or different
from those which are selected for purchase, holding or sale for the
Sub-Portfolio. The Adviser further acknowledges that the Sub-Adviser and any of
its shareholders or employees, and persons affiliated with the sub-Adviser shall
be in all respects free to take action with respect to investments in securities
or other interests in property that are the same as, similar to, or different
from those selected for purchase, holding or sale for the Sub-Portfolio. Subject
to applicable securities laws and regulations, nothing in this Agreement shall
impose upon the Sub-Adviser any obligation (i) to purchase or sell, or recommend
for purchase or sale, for the Sub-Portfolio any security which the Sub-Adviser,
its shareholders, employees or persons affiliated with the Sub-Adviser may
purchase or sell for their own respective accounts or for the account of any
other client of the Sub-Adviser, advisory or otherwise, or (ii) to abstain from
the purchase or sale of any security of issuers named on the list provided by
the Adviser pursuant to subparagraph 7(h) hereof for the Sub-Adviser's other
clients, advisory or otherwise.
14. Continuance and Termination. This Agreement shall become effective only
after it is approved by the Trustees and shall remain in full force and effect
for two years from the effective date hereof, and is renewable annually
thereafter by specific approval of the Trustees or by vote of a majority of the
outstanding voting securities of the Portfolio. Any such renewal shall be
approved by the vote of a majority of the Trustees who are not interested
persons under the ICA, cast in person (or as otherwise permitted under the ICA)
at a meeting called for the purpose of voting on such renewal. This Agreement
may be terminated without penalty at any time by the Adviser or the Sub-Adviser
upon 60 days written notice, and will automatically terminate in the event of
(i) its "assignment" by either party to this Agreement, as such term is defined
in the ICA, subject to such exemptions as may be granted by the Securities and
Exchange Commission by rule, regulation or order, or (ii) upon termination of
the Management Agreement, provided the Sub-Adviser has received prior written
notice thereof.
15. Notification. Unless otherwise expressly agreed in writing, any notice,
instruction or other communication required or contemplated by this Agreement
shall be in writing . All such communications shall be addressed to the
recipient at the address set forth below, provided that either party may, by
notice, designate a different recipient and/or address for such party.
Adviser: CIMCO Inc.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Senior Vice President
Sub-Adviser: Heartland Advisors, Inc.
000 X. Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx Xxxxx
Senior Vice President and General Counsel
16. Limitation of Liability and Indemnification. Neither the Sub-Adviser nor any
of its officers, directors, employees, shareholders, nor any other person
performing executive, administrative, trading or other functions for the
Sub-Portfolio (at the direction or request of the Sub-Adviser) or the
Sub-Adviser in connection with the discharge of its obligations undertaken or
reasonably assumed with respect to this Agreement, shall be liable for any error
of judgment or mistake of law or for any loss suffered by the Adviser, the Fund
or the Portfolio or its shareholders in connection with the matters to which
this Agreement relates, except for loss resulting from willful misfeasance, bad
faith, or gross negligence or from the reckless disregard of such duties by the
Sub-Adviser. In no case shall the Sub-Adviser be liable for any loss incurred by
reason of any act or omission of the Trust, the Adviser, or their respective
agents including the Trust's custodian or any broker-dealer.
The Sub-Adviser shall indemnify and hold harmless the Adviser, its directors,
officers, and employees, any affiliated person of the Adviser and each
controlling person of the Adviser if any, against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses), to which the Adviser or any such other indemnified person may become
subject arising out of the Sub-Adviser's responsibilities as investment manager
of the Sub-Portfolio to the extent of and as a result of the willful misconduct,
bad faith, or gross negligence by the Sub-Adviser, any of the Sub-Adviser's
employees or representatives or any affiliate of, or any person, acting on
behalf of the Sub-Adviser; provided, however, that in no case is the
Sub-Adviser's indemnity in favor of the Adviser or any other such indemnified
person deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misconduct, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
The Adviser agrees to indemnify and hold harmless the Sub-Adviser, its
directors, officers, employees and shareholders, any affiliated person of the
Sub-Adviser and each controlling person of the Sub-Adviser, if any, against any
and all losses, claims, damages, liabilities or litigation (including reasonable
legal and other expenses), to which the Sub-Adviser or any such other
indemnified person may become subject arising out of the Adviser's
responsibilities as investment manager of the Portfolio (i) to the extent of and
as a result of the willful misconduct, bad faith or gross negligence by the
Adviser, any of the Adviser's employees or representatives or any affiliate of,
or any person, other than the Sub-Adviser, acting on behalf of the Adviser, or
(ii) as a result of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including any amendment
thereof or any supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement therein not misleading, if such a statement or omission was made other
than in reliance upon and in conformity with written information furnished by
the Sub-Adviser, or any affiliated person of the Sub-Adviser or other than upon
verbal information confirmed by the Sub-Adviser in writing; provided, however,
that in no case is the Adviser's indemnity in favor of the Sub-Adviser or any
other such indemnified person of the Sub-Adviser deemed to protect such person
against any liability to which any such person would otherwise be subject by
reason of willful misconduct, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations and
duties under this Agreement.
It is agreed that the obligations of the indemnifying party under this section
shall extend to expenses and costs (including reasonable attorneys fees)
incurred by the indemnified party as a result of any litigation brought by the
indemnifying party alleging the indemnified party's- failure to perform its
obligations and duties in the manner required under this Agreement unless
judgment is rendered for the indemnifying party. It is further agreed that the
indemnity of the indemnifying party under this section shall not apply unless
the indemnified party shall have notified the indemnifying party in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of a claim hereunder shall have been served upon the
indemnified party.
17. Conflict of Laws. The provisions of this Agreement shall be subject to all
applicable statutes, laws, rules and regulations, including, without limitation,
the applicable provisions of the ICA and rules and regulations promulgated
thereunder. To the extent that any provision contained herein conflicts with any
such applicable provision of law or regulation, the latter shall control. The
terms and provisions of this Agreement shall be interpreted and defined in a
manner consistent with the provisions and definitions of the ICA. If any
provision of this Agreement shall be held or made invalid by a court decision,
statue, rule or otherwise, the remainder of this Agreement shall continue in
full force and effect and shall not be affected by such invalidity.
18. Amendments, Waivers, etc. Provisions of this Agreement may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. This Agreement may be amended at any time by written mutual consent
of the parties, subject to the requirements of the ICA and rules and regulations
promulgated and orders granted thereunder.
19. Governing State Law. This Agreement is made under, and shall be governed by
and construed in accordance with, the laws of the State of Wisconsin.
20. Severability. Each provision of this Agreement is intended to be severable.
If any provision of this Agreement is held to be illegal or made invalid by
court decision, statute, rule or otherwise, such illegality or invalidity will
not affect the validity or enforceability of the remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers as of the date first above written.
Attest: CIMCO Inc.
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx, President
Attest: Heartland Advisors, Inc.
/s/ Xxxx Xxxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxxxxx, Secretary Xxxxxxx X. Xxxxxxxxx, President
