Exhibit (d)(2)(U)
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made this 1st day of May, 2002, among The GCG Trust (the
"Trust"), a Massachusetts business trust, Directed Services, Inc. (the
"Manager"), a New York corporation, and X.X. XXXXXX XXXXXXX ASSET MANAGEMENT
(LONDON) LIMITED ("Portfolio Manager"), a company incorporated under the laws of
England) acting through its office at 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Trust is authorized to issue separate series, each of which
will offer a separate class of shares of beneficial interest, each series having
its own investment objective or objectives, policies, and limitations;
WHEREAS, the Trust currently offers shares in multiple series, may offer
shares of additional series in the future, and intends to offer shares of
additional series in the future;
WHEREAS, pursuant to a Management Agreement, effective as of October
24, 1997, a copy of which has been provided to the Portfolio Manager, the Trust
has retained the Manager to render advisory, management, and administrative
services with respect to the Trust's series;
WHEREAS, the Trust and the Manager wish to retain the Portfolio Manager to
furnish investment advisory services to one or more of the series of the Trust,
and the Portfolio Manager is willing to furnish such services to the Trust and
the Manager;
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Trust, the Manager,
and the Portfolio Manager as follows:
1. APPOINTMENT. The Trust and the Manager have full power and authority to
appoint the Portfolio Manager to deal with the Trust's series in
accordance with the terms of this Agreement. The Trust and the Manager
hereby appoint Portfolio Manager to act as portfolio manager to the series
of the Trust designated on Schedule A of this Agreement (each a "Series")
for the periods and on the terms set forth in this Agreement. The
Portfolio Manager accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
In the event the Trust designates one or more series other than the Series
with respect to which the Trust and the Manager wish to retain the
Portfolio Manager to render investment advisory services hereunder, they
shall promptly notify the Portfolio Manager in writing. If the Portfolio
Manager is
willing to render such services, it shall so notify the Trust and Manager
in writing, whereupon such series shall become a Series hereunder, and be
subject to this Agreement.
2. PORTFOLIO MANAGEMENT DUTIES AND AUTHORITY. Subject to the supervision of
the Trust's Board of Trustees and the Manager, the Portfolio Manager will
provide a continuous investment program for each Series' portfolio and
determine the composition of the assets of each Series' portfolio,
including determination of the purchase, retention, or sale of the
securities, cash, and other investments contained in the portfolio. The
Portfolio Manager will provide investment research and conduct a
continuous program of evaluation, investment, sales, and reinvestment of
each Series' assets by determining the securities and other investments
that shall be purchased, entered into, sold, closed, or exchanged for the
Series, when these transactions should be executed, and what portion of
the assets of each Series should be held in the various securities and
other investments in which it may invest, and the Portfolio Manager is
hereby authorized to execute and perform such services and transactions on
behalf of each Series. In accordance with the forgoing duties, the
Portfolio Manager is hereby authorized to act as agent for the Series to
order deposits and the investment of cash and purchases and sales of
securities for the Series' account and in the name of the Trust. This
authorization shall be a continuing one and shall remain in full force and
effect until this Agreement is terminated in accordance with the
provisions of Section 15 hereof. To the extent permitted by the investment
policies of each Series, the Portfolio Manager shall make decisions for
the Series as to foreign currency matters and make determinations as to
and execute and perform foreign currency exchange contracts on behalf of
the Series and shall have the authority to act in such capacity as the
Portfolio Manager deems necessary or desirable in order to carry out its
duties hereunder for the Series so long as not expressly prohibited by the
terms of this Agreement, the 1940 Act or other securities laws or
regulations. The Portfolio Manager will provide the services under this
Agreement in accordance with each Series' investment objective or
objectives, policies, and restrictions as stated in the Trust's
Registration Statement filed with the Securities and Exchange Commission
("SEC"), as from time to time amended (the "Registration Statement"),
copies of which shall be sent to the Portfolio Manager by the Manager
prior to the commencement of this Agreement and promptly upon filing any
such amendment with the SEC. The Portfolio Manager further agrees as
follows:
(A) The Portfolio Manager will (1) manage each Series so that no action
or omission on the part of the Portfolio Manager will cause a Series
to fail to meet the requirements to qualify as a regulated
investment company specified in Section 851 of the Internal Revenue
Code of 1986, as amended (the "Code") (other than the requirements
for the Trust to register under the 1940 Act and to file with its
tax return an election to be a regulated investment company, both of
which shall not be the responsibility of the Portfolio Manager), (2)
manage each Series so that no action or omission on the part of the
Portfolio Manager shall cause a Series to fail to comply with the
diversification requirements of Section 817(h) of the Code, and the
regulations issued thereunder, and (3) use reasonable efforts to
manage the Series so that no action or omission on the part of the
Portfolio Manager shall cause a Series to fail to comply
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with any other rules and regulations pertaining to investment
vehicles underlying variable annuity or variable life insurance
policies that the Manger has identified for the Portfolio Manager.
The Manager will notify the Portfolio Manager promptly if the
Manager believes that a Series is in violation of any requirement
specified in the first sentence of this paragraph. The Manager or
the Trust will notify the Portfolio Manager of any pertinent
changes, modifications to, or interpretations of Section 817(h) of
the Code and regulations issued thereunder and of the other rules or
regulations pertaining to investment vehicles underlying variable
annuity or variable life insurance policies that the Manager has
identified for the Portfolio Manager.
(B) On occasions when the Portfolio Manager deems the purchase or sale
of a security to be in the best interest of a Series as well as of
other investment advisory clients of the Portfolio Manager or any of
its affiliates, the Portfolio Manager may, to the extent permitted
by applicable laws and regulations, but shall not be obligated to,
aggregate the securities to be so sold or purchased with those of
its other clients where such aggregation is not inconsistent with
the policies set forth in the Registration Statement. In such event,
allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Portfolio
Manager in accordance with the requirements of rules of the United
Kingdom's Financial Services Authority ("FSA") (which in certain
markets and under certain conditions may take up to five days) and
in a manner that is fair and equitable in the judgment of the
Portfolio Manager in the exercise of its fiduciary obligations to
the Trust and to such other clients. The Manager and the Board shall
have the right to review the Portfolio Manager's manner of
allocation and to direct that the Portfolio Manager no longer
aggregate securities to be sold or purchased for the Series with
securities to be sold or purchased for the Portfolio Manager's other
clients, provided, however, that any such direction to the Portfolio
Manager shall be implemented on a prospective basis only. The Trust
and the Manager recognize that, in some cases, the Portfolio
Manger's allocation procedure may limit the size of the position
that may be acquired or sold for the Series and that not aggregating
trades for the Series with trades for other clients of the Portfolio
Manager could adversely affect the price paid or received by the
Series. The Trust and the Manager recognize that each individual
aggregated transaction may operate to the advantage or disadvantage
of the Series.
(C) In connection with the purchase and sale of securities for each
Series, the Portfolio Manager will arrange for the transmission to
the custodian and portfolio accounting agent for the Series on a
daily basis, such confirmation, trade tickets, and other documents
and information, including, but not limited to, Cusip, Sedol, or
other numbers that identify securities to be purchased or sold on
behalf of the Series, as may be reasonably necessary to enable the
custodian and portfolio accounting agent to perform their
administrative and recordkeeping responsibilities with respect to
the Series. The Portfolio Manager shall have authority to issue to
the custodian such instructions as it may consider appropriate in
connection with the settlement of any transaction relating to the
Series which it has initiated. The Manager shall ensure that the
custodian is obliged to comply with any instructions of the
Portfolio Manager
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given in accordance with this Agreement. With respect to portfolio
securities to be purchased or sold through the Depository Trust
Company, the Portfolio Manager will arrange for the automatic
transmission of the confirmation of such trades to the Trust's
custodian and portfolio accounting agent.
(D) The Portfolio Manager will assist the portfolio accounting agent for
the Trust in determining, consistent with the procedures and
policies stated in the Registration Statement, the value of any
portfolio securities or other assets of the Series for which the
portfolio accounting agent seeks assistance from or identifies for
review by the Portfolio Manager.
The Portfolio Manager will make available to the Trust and the
Manager, promptly upon reasonable request, all of the Series'
investment records and ledgers maintained by the Portfolio Manager
(which shall not include the records and ledgers maintained by the
custodian and portfolio accounting agent for the Trust) as are
necessary to assist the Trust and the Manager to comply with
requirements of the 1940 Act and the Investment Advisers Act of 1940
(the "Advisers Act"), as well as other applicable laws. The
Portfolio Manager will furnish to regulatory authorities having the
requisite authority any information or reports in connection with
such services which may be requested in order to ascertain whether
the operations of the Trust are being conducted in a manner
consistent with applicable laws and regulations.
(E) The Portfolio Manager will provide reports to the Trust's Board of
Trustees for consideration at meetings of the Board on the
investment program for the Series and the issuers and securities
represented in the Series' portfolio, and will furnish the Trust's
Board of Trustees with respect to the Series such periodic and
special reports as the Trustees and the Manager may reasonably
request.
(F) The Portfolio Manager will upon request of the Manager issue such
reports by electronic mail to such electronic mail address as the
Manager shall specify in writing to the Portfolio Manager from time
to time (the "E-Mail Address"), provided that the Manager and the
Portfolio Manager agree that if such reports are only issued by
electronic mail: (a) such reports shall be deemed delivered to the
Manager upon acknowledgment of their receipt by the Manager; (b) the
Portfolio Manager shall not be liable to the Manager for any delay
or failure of delivery (for whatever reason) of any such report sent
by electronic mail, it being acknowledged by the Manager that hard
copy reports are available from the Portfolio Manager upon request;
(c) in the event that, notwithstanding that the Portfolio Manager
has addressed such reports to the E-Mail Address, such reports
arrive with or are seen by any person other than the Manager, the
Manager agrees that the Portfolio Manager shall be deemed not to
have breached any duty of confidentiality agreed to the Manager, and
the Portfolio Manager shall not be liable for any loss, claim, cost,
expense or other liability suffered by the Series as a result
thereof, save as may be inconsistent with FSA Rules.
(G) In rendering the services required under this Agreement, the
Portfolio Manager may, from time to time, employ or associate with
itself such person or persons as it believes necessary to
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assist it in carrying out its obligations under this Agreement. The
Portfolio Manager may not retain, employ or associate itself with
any company that would be an "investment adviser," as that term is
defined in the 1940 Act, to the Series unless the contract with such
company is approved by a majority of the Trust's Board of Trustees
and a majority of Trustees who are not parties to any agreement or
contract with such company and who are not "interested persons," as
defined in the 1940 Act, of the Trust, the Manager, or the Portfolio
Manager, or any such company, and is approved by the vote of a
majority of the outstanding voting securities of the applicable
Series of the Trust to the extent required by the 1940 Act. The
Portfolio Manager shall be responsible for making reasonable
inquiries and for reasonably ensuring that no associated person of
the Portfolio Manager, or of any company that the Portfolio Manager
has retained, employed, or with which it has associated, with
respect to the investment management of the Series, to the best of
the Portfolio Manager's knowledge, has, in any material connection
with the handling of assets:
(i) been convicted, in the last ten (10) years, of any felony or
misdemeanor arising out of conduct involving embezzlement,
fraudulent conversion, or misappropriation of funds or
securities, involving violations of Sections 1341, 1342, or
1343 of Xxxxx 00, Xxxxxx Xxxxxx Code, or involving the
purchase or sale of any security; or
(ii) been found by any state regulatory authority, within the last
ten (10) years, to have violated or to have acknowledged
violation of any provision of any state insurance law
involving fraud, deceit, or knowing misrepresentation; or
(iii) been found by any federal or state regulatory authorities,
within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state
securities laws involving fraud, deceit, or knowing
misrepresentation.
(H) In using spot and forward foreign exchange contracts for the Series
as an investment the parties represent the following:
(i) That the Manager is properly and lawfully established with
full power and authority to enter into spot and forward
foreign exchange contracts, to perform its obligations under
such foreign exchange contracts and to procure the Portfolio
Manager to enter into such foreign exchange contracts on its
behalf.
(ii) That the Manager may not, except for purposes of redemptions,
expenses, and other costs of doing business, encumber funds
which the Portfolio Manager has under the Portfolio Manager's
management or which benefit from the Portfolio Manager's
investment advice. If the Manager requires funds for any
redemptions, expenses, and other costs of doing business, the
Portfolio Manager will make funds available in a reasonably
timely manner for the Manager to meet such obligations. The
Manager
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reserves the right to segregate assets upon notice to the
Portfolio Manager and provide different arrangements for
investment management with respect to those assets.
(iii) That the Portfolio Manager has been granted full power and
authority to enter into foreign exchange contracts as agent on
the Manager's behalf and to give instructions for settlement
for the same.
(iv) That the Portfolio Manager has full authority to instruct the
Trust's custodian in conformity with its mandate.
(v) That in the event of the termination of this Agreement, the
Portfolio Manager may, if legally and operationally possible,
offer the Series' counterparty the option to leave open any
existing foreign exchange contracts or to close them out at
prevailing market rates.
(I) The Manager understands that the Commodity Futures Trading
Commission ("CFTC") and other regulatory agencies require that
anyone trading in certain derivative instruments must advance
collateral to meet initial and daily variation margins. The
Portfolio Manager is hereby authorized to instruct the Trust's
custodian to advance cash or securities as collateral to an account
agreed upon by the Manager and the broker to meet margin payments as
required by the rules of exchanges or markets on which derivatives
are dealt by the Portfolio Manager as the Series' agent. The
Portfolio Manager is authorized to select the brokerage firms
through which derivatives are traded and cleared for the Series' and
to sign as the Series' agent any account agreements or other
documents required or deemed appropriate by such brokers or by the
Portfolio Manager;
In connection with the Series potential transactions in futures contracts and
options on futures contracts, the Portfolio Manager is obliged to inform the
Manager and the Trust of the following:
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION (THE
"COMMISSION") IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS
ACCOUNT AGREEMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE
COMMISSION. THE COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A
TRADING PROGRAM, OR UPON THE ADEQUACY, OR ACCURACY OF COMMODITY TRADING ADVISOR
DISCLOSURE. CONSEQUENTLY, THE COMMISSION HAS NOT REVIEWED OR APPROVED THIS
ACCOUNT AGREEMENT.
THE MANAGER AND THE TRUST SHOULD ALSO BE AWARE THAT THE PORTFOLIO MANAGER ON
BEHALF OF THE SERIES MAY ENGAGE IN TRADING FOREIGN FUTURES OR OPTIONS CONTRACTS.
TRANSACTIONS ON MARKETS LOCATED OUTSIDE THE UNITED STATES, INCLUDING MARKETS
FORMALLY LINKED TO A UNITED STATES MARKET MAY BE SUBJECT TO REGULATIONS WHICH
OFFER DIFFERENT OR DIMINISHED PROTECTION. FURTHER, UNITED STATES REGULATORY
AUTHORITIES MAY BE UNABLE TO COMPEL THE
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ENFORCEMENT OF THE RULES OF REGULATORY AUTHORITIES OR MARKETS IN NON-UNITED
STATES JURISDICTIONS WHERE TRANSACTIONS ON BEHALF OF THE SERIES MAYBE EFFECTED.
3. BROKER-DEALER SELECTION. The Portfolio Manager is hereby authorized to
place orders for the purchase and sale of securities and other investments
for each Series' portfolio, with or through such persons, brokers or
dealers and to negotiate commissions to be paid on such transactions and
to supervise the execution thereof. The Portfolio Manager's primary
consideration in effecting any such transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
Registration Statement, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature
of the market for the security, the timing of the transaction, the
reputation, the experience and financial stability of the broker-dealer
involved, the quality of the service, the difficulty of execution, and the
execution capabilities and operational facilities of the firms involved,
and the firms risk in positioning a block of securities. Accordingly, the
price to a Series in any transaction may be less favorable than that
available from another broker-dealer if the difference is reasonably
justified, in the judgment of the Portfolio Manager in the exercise of its
fiduciary obligations to the Trust, by other aspects of the portfolio
execution services offered. In accordance with the requirements of FSA
Rules, the Portfolio Manager hereby notifies the Manager that, to the
extent permitted by the 1940 Act, FSA Rules and any procedures adopted by
the Series, it may effect transactions in which it has, directly or
indirectly, a material interest or a relationship with another party,
which may involve a potential conflict with the Portfolio Manager's duty
to the Manager.
Subject to such policies as the Board of Trustees may determine and
consistent with Section 28(e) of the Securities Exchange Act of 1934, the
Portfolio Manager may effect a transaction on behalf of the Series with a
broker-dealer who provides brokerage and research services to the
Portfolio Manager notwithstanding the fact that the commissions payable
with respect to any such transaction may be greater than the amount of any
commission another broker-dealer might have charged for effecting that
transaction, if the Portfolio Manager determines in good faith that such
amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker-dealer, viewed in
terms of either that particular transaction or the Portfolio Manager's or
its affiliate's overall responsibilities with respect to the Series and to
their other clients as to which they exercise investment discretion. The
Portfolio Manager's policy on such soft dollar commissions is available
upon request, which also lists any soft dollar commission arrangements
which maybe relevant to the Manager.
Subject to the overriding objective of obtaining best execution of
portfolio transactions on behalf of the Series, the Manager may consult
with the Portfolio Manager about directing portfolio transactions on
behalf of the Series to broker-dealers on the basis of additional criteria
reasonably considered appropriate by the Manager. The Portfolio Manager
has authority to commit the Series to invest in a security offered in an
underwriting or sub-underwriting or other offer for sale of
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securities of a type and to the extent permitted by the 1940 Act and the
Trust's procedures. To the extent consistent with this Agreement, the 1940
Act and the Trust's procedures, the Portfolio Manager is further
authorized to allocate orders placed by it on behalf of the Series to the
Portfolio Manager as agent if it is registered as a broker-dealer with the
SEC or to any of its affiliated broker-dealers as agents.
Such allocation shall be in such amounts and proportions as the Portfolio
Manager shall determine consistent with the above standards, and the
Portfolio Manager will report on said allocation regularly to the Board
indicating the broker-dealers to which such allocations have been made and
will provide such other information on the allocations as the Board may
reasonably request.
4. DISCLOSURE ABOUT PORTFOLIO MANAGER. The Portfolio Manager has reviewed the
post-effective amendment to the Registration Statement for the Trust filed
with the SEC that contains disclosure about the Portfolio Manager, and
represents and warrants that, with respect to the disclosure about or
information relating, directly or indirectly, to the Portfolio Manager, to
the Portfolio Manager's knowledge, such Registration Statement contains,
as of 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 not
misleading. The Portfolio Manager further represents and warrants that it
is a duly registered investment adviser under the Advisers Act, or
alternatively that it is not required to be a registered investment
adviser under the Advisers Act to perform the duties described in this
Agreement, and that it is a duly registered investment adviser in all
states in which the Portfolio Manager is required to be registered and
will maintain such registration so long as this Agreement remains in
effect. The Portfolio Manager will provide the Manager with a copy of the
Portfolio Manager's Form ADV, Part II at the time the Form ADV and any
amendment is filed with the SEC, and a copy of its written code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act, together
with evidence of its adoption.
The Portfolio Manager is also regulated by the United Kingdom's Financial
Services Authority ("FSA") and nothing in this Agreement shall exclude any
liability of the Portfolio Manager to the Series arising under the United
Kingdom Financial Services and Markets Xxx 0000 ("FSMA"), any rules or
regulations made under it, or FSA Rules. All services provided by the
Portfolio Manager under this agreement are provided on the basis that the
Series is an intermediate customer under FSA Rules.
5. EXPENSES. During the term of this Agreement, the Portfolio Manager will
pay all expenses incurred by it and its staff and for their activities in
connection with its portfolio management duties under this Agreement. The
Manager or the Trust shall be responsible for all the expenses of the
Trust's operations including, but not limited to:
(A) Expenses of all audits by the Trust's independent public
accountants;
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(B) Expenses of the Series' transfer agent, registrar, dividend
disbursing agent, and shareholder recordkeeping services;
(C) Expenses of the Series' custodial services including recordkeeping
services provided by the custodian;
(D) Expenses of obtaining quotations for calculating the value of each
Series' net assets;
(E) Expenses of obtaining Portfolio Activity Reports and Analyses of
International Management Reports (as appropriate) for each Series;
(F) Expenses of maintaining the Trust's tax records;
(G) Salaries and other compensation of any of the Trust's executive
officers and employees, if any, who are not officers, directors,
stockholders, or employees of the Portfolio Manager or an affiliate
of the Portfolio Manager;
(H) Taxes due on capital or income held or collected against the Trust;
(I) Brokerage fees and commissions, transfer fees, registration fees,
taxes and similar liabilities and costs properly payable or incurred
in connection with the purchase and sale of portfolio securities for
the Series;
(J) Costs, including the interest expense, of borrowing money;
(K) Costs and or fees incident to meetings of the Trust's shareholders,
the preparation and mailings of prospectuses and reports of the
Trust to its shareholders, the filing of reports with regulatory
bodies, the maintenance of the Trust's existence, and the regulation
of shares with federal and state securities or insurance
authorities;
(L) The Trust's legal fees, including the legal fees related to the
registration and continued qualification of the Trust's shares for
sale;
(M) Trustees' fees and expenses to trustees who are not officers,
employees, or stockholders of the Portfolio Manager or any affiliate
thereof;
(N) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(O) Association membership dues;
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(P) Extraordinary expenses of the Trust as may arise including expenses
incurred in connection with litigation, proceedings, and other
claims (unless the Portfolio Manager is responsible for such
expenses under Section 13 of this Agreement), and the legal
obligations of the Trust to indemnify its Trustees, officers,
employees, shareholders, distributors, and agents with respect
thereto; and
(Q) Organizational and offering expenses.
6. COMPENSATION. For the services provided to each Series, the Manager will
pay the Portfolio Manager a fee, payable as described in Schedule B.
The fee will be prorated to reflect any portion of a calendar month that
this Agreement is not in effect among the parties. In accordance with the
provisions of the Management Agreement, the Manager is solely responsible
for the payment of fees to the Portfolio Manager, and the Portfolio
Manager agrees to seek payment of its fees solely from the Manager.
A statement has been provided by the Portfolio Manager describing the
Series' rights to compensation, if any, in the event that the Portfolio
Manager is unable to meet its liabilities.
7. SEED MONEY. The Manager agrees that the Portfolio Manager shall not be
responsible for providing money for the initial capitalization of the
Series.
8. COMPLIANCE.
(A) The Trust and the Manager acknowledge that the Portfolio Manager is
not the compliance agent for any Series or for the Trust or the
Manager, and does not have access to all of each Series' books and
records necessary to perform certain compliance testing. To the
extent that the Portfolio Manager has agreed to perform the services
specified in Section 2 in accordance with the Trust's registration
statement, the Trust's Amended and Restated Agreement and
Declaration of Trust and By-Laws, the Trust's Prospectus and any
policies adopted by the Trust's Board of Trustees applicable to the
Series (collectively, the "Charter Requirements"), and in accordance
with applicable law (including Subchapters M and L of the Code, the
1940 Act and the Advisers Act ("Applicable Law")), the Portfolio
Manager shall perform such services based upon its books and records
with respect to each Series, which comprise a portion of each
Series' books and records, and upon information and written
instructions received from the Trust, the Manager or the Trust's
administrator, and shall not be held responsible under this
Agreement so long as it performs such services in accordance with
this Agreement, the Charter Requirements and Applicable Law based
upon such books and records and such information and instructions
provided by the Trust, the Manager, or the Trust's administrator.
The Manager shall promptly provide the Portfolio Manager with copies
of the Trust's registration statement, the Trust's Amended and
Restated Agreement and Declaration
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of Trust and By-Laws, the Trust's currently effective Prospectus and
any written policies and procedures adopted by the Trust's Board of
Trustees applicable to the Portfolio and any amendments or revisions
thereto. The Portfolio Manager agrees that it shall promptly notify
the Manager and the Trust (1) in the event that the SEC or other
governmental authority has censured the Portfolio Manager; placed
limitations upon its activities, functions or operations; suspended
or revoked its registration, if any, as an investment adviser; or
has commenced proceedings or an investigation that may result in any
of these actions, (2) upon having a reasonable basis for believing
that the Series has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code, or (3)
upon having a reasonable basis for believing that the Series has
ceased to comply with the diversification provisions of Section
817(h) of the Code or the regulations thereunder. The Portfolio
Manager further agrees to notify the Manager and the Trust promptly
of any material fact known to the Portfolio Manager respecting or
relating to the Portfolio Manager that is not contained in the
Registration Statement as then in effect, and is required to be
stated therein or necessary to make the statements therein not
misleading, or of any statement contained therein that becomes
untrue in any material respect.
(B) The Manager agrees that it shall immediately notify the Portfolio
Manager (1) in the event that the SEC has censured the Manager or
the Trust; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Manager's
registration as an investment adviser; or has commenced proceedings
or an investigation that may result in any of these actions, (2)
upon having a reasonable basis for believing that the Series has
ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Code, or (3) upon having a
reasonable basis for believing that the Series has ceased to comply
with the diversification provisions of Section 817(h) of the Code or
the regulations thereunder. The Trust on behalf of the Series has
executed and delivered to the Portfolio Manager a QEP Qualification
and a Certification for Rule 144A Qualified Institutional Buyer. The
Manager will immediately advise the Portfolio Manager in writing of
any change in the Series' status.
(C) The Trust on behalf of the Series confirms that where it is acting
as principal or where it is acting on behalf of another person
(notwithstanding that it enters into this Agreement and any
transactions as principal), it is in compliance with Regulation
5(1), of the United Kingdom Money Laundering Regulations 1993 or the
EC Money Laundering Directive.
9. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Portfolio Manager hereby agrees that all records which
it maintains for the Series are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the
Trust's or the Manager's reasonable request, although the Portfolio
Manager may, at its own expense, make and retain a copy of such records.
The Portfolio Manager further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 00x-0
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xxxxx xxx 0000 Xxx and to preserve the records required by Rule 204-2
under the Advisers Act for the period specified in such rules.
10. COOPERATION; CONFIDENTIALITY. Each party to this Agreement agrees to
cooperate with each other party and with all appropriate governmental
authorities having the requisite jurisdiction (including, but not limited
to, the SEC and state insurance regulators) in connection with any
investigation or inquiry relating to this Agreement or the Trust.
Subject to the foregoing, the Portfolio Manager shall treat as
confidential all information pertaining to the Trust and actions of the
Trust, the Manager and the Portfolio Manager, and the Manager shall treat
as confidential and use only in connection with the Series all information
furnished to the Trust or the Manager by the Portfolio Manager, in
connection with its duties under the Agreement except that the aforesaid
information need not be treated as confidential if required to be
disclosed under applicable law, if generally available to the public
through means other than by disclosure by the Portfolio Manager or the
Manager, or if available from a source other than the Manager, Portfolio
Manager of the Trust.
The Portfolio Manager will act as data controller (and in certain
circumstances, data processor) within the meaning of the United Kingdom's
Data Protection Act 1998 (the "Data Protection Act"). Manager consents to
the processing and use by the Portfolio Manager and its agents and
affiliates of personal data (as defined in the data Protection Act) given
by the Manager under this Agreement for the provision of services to the
Series, which may include the transfer of such data outside the European
Economic Area (as defined in the Data Protection Act). Such data may also
be used by the Portfolio Manager and its agents and affiliates to update
customer records. The Manager confirms that any personal data supplied to
the Portfolio Manager is accurate and correct and complies with the
provisions of the Data Protection Act and will ensure that its employees,
officers or representatives who become the Manager's data subjects as a
result of this Agreement are aware of the provisions of this paragraph.
The Portfolio Manager may record telephone conversations between it and
the Manager upon the prior notification and consent of the Manager and the
Portfolio Manager may produce such recordings in evidence if the Portfolio
Manager sees fit to do so.
11. COMPLAINTS. Any complaint that the Trust may have relating to any services
provided to it by the Portfolio Manager under this Agreement should in the
first instance be made in writing to the compliance officer of the
Portfolio Manager at the address appearing in Section 17 of this
Agreement. Subsequently, the Trust may have the right to complain directly
to the United Kingdom's Financial Ombudsman Service.
12. REPRESENTATIONS RESPECTING PORTFOLIO MANAGER.
(A) During the term of this Agreement, the Trust and the Manager agree
to furnish to the Portfolio Manager at its principal offices prior
to use thereof copies of all Registration Statements and
- 12 -
amendments thereto, prospectuses, proxy statements, reports to
shareholders, sales literature or other material prepared for
distribution to shareholders of the Trust or any Series or to the
public that refer or relate in any way to the Portfolio Manager or
any of its affiliates (other than the Manager), or that use any
derivative of the names "JPMorgan Xxxxxxx Asset Management"
"JPMorgan Chase & Co.," or "Xxxxxx Xxxxxxx Inc." or any logos
associated therewith. The Trust and the Manager agree that they will
not use any such material without the prior consent of the Portfolio
Manager, which consent shall not be unreasonably withheld. In the
event of the termination of this Agreement, the Trust and the
Manager will furnish to the Portfolio Manager copies of any of the
above-mentioned materials that refer or relate in any way to the
Portfolio Manager;
(B) The Trust and the Manager will furnish to the Portfolio Manager such
information relating to either of them or the business affairs of
the Trust as the Portfolio Manager shall from time to time
reasonably request in order to discharge its obligations hereunder;
(C) The Manager and the Trust agree that neither the Trust, the Manager,
nor affiliated persons of the Trust or the Manager shall give any
information or make any representations or statements in connection
with the sale of shares of the Series concerning the Portfolio
Manager or the Series other than the information or representations
contained in the Registration Statement, prospectus, or statement of
additional information for the Trust, as they may be amended or
supplemented from time to time, or in reports or proxy statements
for the Trust, or in sales literature or other promotional material
approved in advance by the Portfolio Manager, except with the prior
permission of the Portfolio Manager.
13. SERVICES NOT EXCLUSIVE. It is understood that the services of the Portfolio
Manager are not exclusive, and nothing in this Agreement shall prevent the
Portfolio Manager (or its affiliates) from providing similar services to other
clients, including investment companies (whether or not their investment
objectives and policies are similar to those of the Series) or from engaging in
other activities.
14. LIABILITY. Except as may otherwise be required by the 1940 Act or the rules
thereunder or other applicable law, the Trust and the Manager agree that the
Portfolio Manager, any affiliated person of the Portfolio Manager, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Portfolio Manager (1) shall bear no responsibility and shall not be subject
to any liability for any act or omission respecting any series of the Trust that
is not a Series hereunder; and (2) shall not be liable for any error of
judgment, mistake of law, any diminution in value of the investment portfolio of
the Series, or subject to any damages, expenses, or losses in connection with,
any act or omission connected with or arising out of any services rendered under
this Agreement, except by reason of willful misfeasance, bad faith, or gross
negligence in the performance by the Portfolio Manager of its duties, or by
reason of reckless disregard by the Portfolio Manager of its obligations and
duties under this Agreement.
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15. INDEMNIFICATION.
(A) Notwithstanding Section 14 of this Agreement, the Manager agrees to
indemnify and hold harmless the Portfolio Manager, any affiliated
person of the Portfolio Manager (other than the Manager), and each
person, if any, who, within the meaning of Section 15 of the 1933
Act controls ("controlling person") the Portfolio Manager (all of
such persons being referred to as "Portfolio Manager Indemnified
Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a
Portfolio Manager Indemnified Person may become subject under the
1933 Act, the 1940 Act, the Advisers Act, the Code, under any other
statute, at common law or otherwise, howsoever arising from or in
connection with this Agreement or the performance by the Portfolio
Manager of its duties under this Agreement, provided, however, the
Portfolio Indemnified Persons shall not be indemnified against
losses, damages, liabilities or litigation (including legal and
other expenses) arising out of (1) Portfolio Manager's, including
without limitation any of its employees or representatives or any
affiliate of or any person acting on behalf of the Portfolio
Manager, willful misfeasance, bad faith, or gross negligence in the
performance of the Portfolio Manager's duties, or by reason of
reckless disregard of the Portfolio Manager's obligations and duties
under this Agreement, or (2) which are based upon any untrue
statement or alleged untrue statement of a material fact supplied
by, or which is the responsibility of, the Portfolio Manager and
contained in the Registration Statement or prospectus covering
shares of the Trust or any Series, or any amendment thereof or any
supplement thereto, or the omission or alleged omission to state
therein a material fact known or which should have been known to the
Portfolio Manager and was required to be stated therein or necessary
to make the statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to the
Portfolio Manager or the Trust or to any affiliated person of the
Portfolio Manager by the Manager The Portfolio Manager does not
provide any express or implied warranty as to the performance or
profitability of the Series or any part thereof or that the
investment objectives will be successfully met.
(B) Notwithstanding Section 14 of this Agreement, the Portfolio Manager
agrees to indemnify and hold harmless the Manager, any affiliated
person of the Manager (other than the Portfolio Manager), and each
person, if any, who, is a controlling person of the Manager (all of
such persons being referred to as "Manager Indemnified Persons")
against any and all losses, claims, damages, liabilities, or
litigation (including legal and other expenses) to which a Manager
Indemnified Person may become subject under the 1933 Act, 1940 Act,
the Advisers Act, the Code, under any other statute, at common law
or otherwise, arising out of the Portfolio Manager's
responsibilities as Portfolio Manager of the Series which (1) may be
based upon any violations of willful misconduct, malfeasance, bad
faith or gross negligence by the Portfolio Manager, any of its
employees or representatives, or any affiliate of or any person
acting on behalf of the Portfolio Manager, including but not limited
to its responsibilities under Xxxxxxx 0,
- 00 -
Xxxxxxxxx (x) of this Agreement, or (2) any breach of any
representations or warranties contained in Section 4; provided,
however, that in no case shall the indemnity in favor of a Manager
Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence in the
performance of its duties, or by reason of its reckless disregard of
its obligations and duties under this Agreement.
(C) The Manager shall not be liable under Paragraph (a) of this Section
14 with respect to any claim made against a Portfolio Manager
Indemnified Person unless such Portfolio Manager Indemnified Person
shall have notified the Manager in writing within a reasonable time
after the summons, notice, or other first legal process or notice
giving information of the nature of the claim shall have been served
upon such Portfolio Manager Indemnified Person (or after such
Portfolio Manager Indemnified Person shall have received notice of
such service on any designated agent), but failure to notify the
Manager of any such claim shall not relieve the Manager from any
liability which it may have to the Portfolio Manager Indemnified
Person against whom such action is brought except to the extent the
Manager is prejudiced by the failure or delay in giving such notice.
In case any such action is brought against the Portfolio Manager
Indemnified Person, the Manager will be entitled to participate, at
its own expense, in the defense thereof or, after notice to the
Portfolio Manager Indemnified Person, to assume the defense thereof,
with counsel satisfactory to the Portfolio Manager Indemnified
Person. If the Manager assumes the defense of any such action and
the selection of counsel by the Manager to represent both the
Manager and the Portfolio Manager Indemnified Person would result in
a conflict of interests and therefore, would not, in the reasonable
judgment of the Portfolio Manager Indemnified Person, adequately
represent the interests of the Portfolio Manager Indemnified Person,
the Manager will, at its own expense, assume the defense with
counsel to the Manager and, also at its own expense, with separate
counsel to the Portfolio Manager Indemnified Person, which counsel
shall be satisfactory to the Manager and to the Portfolio Manager
Indemnified Person. The Portfolio Manager Indemnified Person shall
bear the fees and expenses of any additional counsel retained by it,
and the Manager shall not be liable to the Portfolio Manager
Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Portfolio Manager Indemnified
Person independently in connection with the defense thereof other
than reasonable costs of investigation. The Manager shall not,
without the prior written consent of each Portfolio Manager
Indemnified Person, settle or compromise the liability of any
Portfolio Manager Indemnified Person in any such action, or permit a
default or consent to the entry of any judgment in respect thereof,
unless in connection with such settlement, compromise or consent
each Portfolio Manager Indemnified Person receives from such
claimant an unconditional release from all liability in respect of
such claim.
(D) The Portfolio Manager shall not be liable under Paragraph (b) of
this Section 14 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have
notified the Portfolio Manager in writing within a reasonable time
after the summons, notice, or other first legal process or notice
giving information of the nature of the claim shall have been served
upon such Manager Indemnified Person (or after such Manager
Indemnified Person shall have received notice of such service on any
designated agent), but failure to notify the Portfolio Manager of
any such claim shall not relieve the Portfolio Manager
- 15 -
from any liability which it may have to the Manager Indemnified
Person against whom such action is brought except to the extent the
Portfolio Manager is prejudiced by the failure or delay in giving
such notice. In case any such action is brought against the Manager
Indemnified Person, the Portfolio Manager will be entitled to
participate, at its own expense, in the defense thereof or, after
notice to the Manager Indemnified Person, to assume the defense
thereof, with counsel satisfactory to the Manager Indemnified
Person. If the Portfolio Manager assumes the defense of any such
action and the selection of counsel by the Portfolio Manager to
represent both the Portfolio Manager and the Manager Indemnified
Person would result in a conflict of interests and therefore, would
not, in the reasonable judgment of the Manager Indemnified Person,
adequately represent the interests of the Manager Indemnified
Person, the Portfolio Manager will, at its own expense, assume the
defense with counsel to the Portfolio Manager and, also at its own
expense, with separate counsel to the Manager Indemnified Person,
which counsel shall be satisfactory to the Portfolio Manager and to
the Manager Indemnified Person. The Manager Indemnified Person shall
bear the fees and expenses of any additional counsel retained by it,
and the Portfolio Manager shall not be liable to the Manager
Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Manager Indemnified Person
independently in connection with the defense thereof other than
reasonable costs of investigation. The Portfolio Manager shall not,
without the prior written consent of each Manager Indemnified
Person, settle or compromise the liability of any Manager
Indemnified Person in any such action, or permit a default or
consent to the entry of any judgment in respect thereof, unless in
connection with such settlement, compromise or consent each Manager
Indemnified Person receives from such claimant an unconditional
release from all liability in respect of such claim.
(E) The Manager shall not be liable under this Section 15 to indemnify
and hold harmless the Portfolio Manager and the Portfolio Manager
shall not be liable under this Section 14 to indemnify and hold
harmless the Manager with respect to any losses, claims, damages,
liabilities, or litigation that first become known to the party
seeking indemnification during any period that the Portfolio Manager
is, within the meaning of Section 15 of the 1933 Act, a controlling
person of the Manager.
(F) Force Majeure. Neither party to this Agreement shall be deemed to be
in breach of this Agreement or otherwise liable to the other as a
result of any delay, failure or defective performance of its
obligations under this Agreement if and to the extent that such
delay or failure arises out of causes beyond the control and without
the fault or negligence of the party in question. Such causes may
include, without limitation, acts of God, any civil commotion or
disorder, riot, invasion or war; fire, explosion, storm, flood,
earthquake, subsidence, epidemic or other natural physical disaster,
power failures, destruction or breakdown of any premises, plant or
equipment (including computer systems) not within the Manager's or
the Portfolio Manager's control; strike, lockout or other industrial
action; or any action taken by a governmental or public authority of
any kind.
- 16 -
16. DURATION AND TERMINATION. This Agreement shall become effective with
respect to each Series on the later of the date first indicated above or
the date of the commencement of operations of each Series. Unless
terminated as provided herein, the Agreement shall remain in full force
and effect for two (2) years from the date indicated above and continue on
an annual basis thereafter with respect to each Series; provided that such
annual continuance is specifically approved each year by (a) the vote of a
majority of the entire Board of Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities (as defined in the 0000 Xxx)
of each Series, and (b) the vote of a majority of those Trustees who are
not parties to this Agreement or interested persons (as such term is
defined in the 0000 Xxx) of any such party to this Agreement cast in
person at a meeting called for the purpose of voting on such approval. The
Portfolio Manager shall not provide any services for such Series or
receive any fees on account of such Series with respect to which this
Agreement is not approved as described in the preceding sentence. However,
any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 0000 Xxx) of a Series shall be
effective to continue this Agreement with respect to such Series
notwithstanding (i) that this Agreement has not been approved by the
holders of a majority of the outstanding shares of any other Series or
(ii) that this agreement has not been approved by the vote of a majority
of the outstanding shares of the Trust, unless such approval shall be
required by any other applicable law or otherwise. Notwithstanding the
foregoing, this Agreement may be terminated for each or any Series
hereunder (a) by the Manager at any time without penalty, upon sixty
(60) days' written notice to the Portfolio Manager and the Trust, (b) at
any time without payment of any penalty by the Trust, upon the vote of a
majority of the Trust's Board of Trustees or a majority of the outstanding
voting securities of each Series, upon sixty (60) days' written notice to
the Manager and the Portfolio Manager, or (c) by the Portfolio Manager at
any time without penalty, upon three (3) months' written notice to the
Manager and the Trust, unless the Manager or the Trust requests additional
time to find a replacement for the Portfolio Manager, in which case the
Portfolio Manager shall allow the additional time requested by the Trust
or the Manager not to exceed three (3) months beyond the initial
three-month notice period; provided however, that the Portfolio Manager
may terminate this Agreement at any time without penalty effective upon
written notice to the Manager and the Trust, in the event either the
Portfolio Manager (acting in good faith) or the Manager ceases to be
registered as an investment adviser under the Advisers Act or otherwise
becomes legally incapable of providing investment management services
pursuant to its respective contract with the Trust, or in the event the
Manager becomes bankrupt or otherwise incapable of carrying out its
obligations under this Agreement, or in the event that the Portfolio
Manager does not receive compensation for its services from the Manager or
the Trust as required by the terms of this Agreement. In addition, this
Agreement shall terminate with respect to a Series in the event that it is
not approved by the vote of a majority of the outstanding voting
securities of that Series at a meeting of shareholders at which approval
of the Agreement shall be considered by shareholders of the Series. In the
event of termination for any reason, all records of each Series for which
the Agreement is terminated shall promptly be returned to the Manager or
the Trust, free from any claim or retention of rights in such records by
the Portfolio Manager, although the Portfolio Manager may,
- 17 -
at its own expense, make and retain a copy of such records. Termination
will be without prejudice to the completion of any transaction already
initiated and the Portfolio Manager shall be entitled if necessary after
the date of effective termination to direct the Trust's custodian to
settle such transactions. The Manager shall ensure that the Trust's
custodian is in possession of sufficient monies of the Series in order for
the Portfolio Manager to settle or arrange for the settlement of all
transactions on behalf of the Series. The Agreement shall automatically
terminate in the event of its assignment (as such term is described in the
1940 Act). In the event this Agreement is terminated or is not approved in
the manner described above, the Sections or Paragraphs numbered 2(e), 9,
10, 11, 14, 15, and 19 of this Agreement shall remain in effect, as well
as any applicable provision of this Paragraph numbered 16.
17. NOTICES. Any notice must be in writing and shall be sufficiently given (1)
when delivered in person, (2) when dispatched by telegram or electric facsimile
transfer (confirmed in writing by postage prepaid first class mail
simultaneously dispatched), (3) when sent by internationally recognized
overnight courier service (with receipt confirmed by such overnight courier
service), or (4) when sent by registered or certified mail, to the other party
at the address of such party set forth below or at such other address as such
party may from time to time specify in writing to the other party.
If to the Trust:
The GCG Trust
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
If to the Manager:
Directed Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Counsel
If to the Portfolio Manager:
X.X. Xxxxxx Xxxxxxx Asset Management (London) Limited
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Attention: Legal
And
X.X. Xxxxxx Xxxxxxx Asset Management (London) Limited
C/o X.X. Xxxxxx Investment Management Inc.
- 18 -
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal
18. AMENDMENTS. 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, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i) the Trustees of the Trust,
including a majority of the Trustees of the Trust who are not interested persons
of any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval, if such approval is required by applicable
law; and (ii) the holders of a majority of the outstanding voting securities of
the Series.
19 USE OF NAME.
(A) It is understood that the name "Directed Services, Inc." or any
derivative thereof or logo associated with that name is the valuable
property of the Manager and/or its affiliates, and that the
Portfolio Manager has the right to use such name (or derivative or
logo) only with the approval of the Manager and only so long as the
Manager is Manager to the Trust and/or the Series. Upon termination
of the Management Agreement between the Trust and the Manager, the
Portfolio Manager shall as soon as is reasonably possible cease to
use such name (or derivative or logo).
(B) It is understood that the names "JPMorgan Xxxxxxx Asset Management",
"JPMorgan Chase & Co.," or "Xxxxxx Xxxxxxx Inc." or any derivative
thereof or logos associated with those names are the valuable
property of the Portfolio Manager and its affiliates and that the
Trust and/or the Series have the right to use such names (or
derivatives or logos) in offering materials of the Trust with the
approval of the Portfolio Manager and for so long as the Portfolio
Manager is a portfolio manager to the Trust and/or the Series. Upon
termination of this Agreement between the Trust, the Manager, and
the Portfolio Manager, the Trust shall as soon as is reasonably
possible cease to use such names (or derivatives or logos).
20. AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST. A copy of the
Amended and Restated Agreement and Declaration of Trust for the Trust is on file
with the Secretary of the Commonwealth of Massachusetts. The Amended and
Restated Agreement and Declaration of Trust has been executed on behalf of the
Trust by Trustees of the Trust in their capacity as Trustees of the Trust and
not individually. The obligations of this Agreement shall be binding upon the
assets and property of the Trust and shall not be binding upon any Trustee,
officer, or shareholder of the Trust individually.
21. MISCELLANEOUS.
- 19 -
(A) This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania, without giving effect to the provisions, policies or
principals thereof relating to choice or conflict of laws, provided
that nothing herein shall be construed in a manner inconsistent with
the 1940 Act, the Advisers Act or rules or orders of the SEC
thereunder. The term "affiliate" or "affiliated person" as used in
this Agreement shall mean "affiliated person" as defined in Section
2(a)(3) of the 0000 Xxx.
(B) The captions of this Agreement are included for convenience only and
in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(C) To the extent permitted under Section 15 of this Agreement, this
Agreement may only be assigned by any party with the prior written
consent of the other parties.
(D) 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, and to this extent, the
provisions of this Agreement shall be deemed to be severable.
(E) Nothing herein shall be construed as constituting the Portfolio
Manager as an agent of the Manager, or constituting the Manager as
an agent of the Portfolio Manager.
(F) The agreement constitutes the entire understanding between the
parties relating to this Agreement and supercedes all prior
understandings, arrangements, representations, proposals or
communications between the parties, whether written or oral. The
provisions of this Agreement shall not be enforceable by any person
who is not a party to it and the Contracts (Rights of Third Parties)
Act 1999 does not apply to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
THE GCG TRUST
Attest By: /s/ Xxxxxxxx X. Xxxxx
------------------------- ----------------------------
Title:
------------------------- Title: Secretary
-------------------------
DIRECTED SERVICES, INC.
Attest By: /s/ (ILLEGIBLE)
------------------------- ----------------------------
- 20 -
Title:
------------------------- Title: SVP
-------------------------
X.X. XXXXXX XXXXXXX ASSET
MANAGEMENT (LONDON) LIMITED
Attest /s/ (ILLEGIBLE) By: /s/ (ILLEGIBLE)
------------------------- ----------------------------
Title: Vice President Title: Vice President
------------------------- -------------------------
- 21 -
SCHEDULE A
The Series of The GCG Trust, as described in Section 1 of the attached
Portfolio Management Agreement, to which JPMorgan Xxxxxxx Asset Management
(London) Limited shall act as Portfolio Manager is as follows:
International Enhanced EAFE Series
- 22 -
SCHEDULE B
COMPENSATION FOR SERVICES TO SERIES
For the services provided by X.X. Xxxxxx Xxxxxxx Asset Management (London)
Limited ("Portfolio Manager") to the following Series of The GCG Trust, pursuant
to the attached Portfolio Management Agreement, the Manager will pay the
Portfolio Manager a fee, computed daily and payable monthly, based on the
average daily net assets of the Series at the following annual rates of the
average daily net assets of the Series:
SERIES RATE
INTERNATIONAL ENHANCED 0.60% on the first
EAFE SERIES $50,000,000 of average daily net assets
0.55% on the balance
If the Manager or any of its affiliates appoints the Portfolio Manager or any of
its affiliates to manage another portfolio(s) following the Portfolio Manager's
"EAFE Plus" investment strategy ("New Portfolio"), the assets of the New
Portfolio will be aggregated with the assets of the Series in calculating the
Portfolio Manager's fee at the above stated rate.
The Portfolio Manager has agreed to the above fee schedule and to aggregate the
assets of any New Portfolio in calculating its fees based upon the Portfolio
Manager and its affiliates receiving a total of at least $100 million in the
portfolios it and its affiliates manage for the Manager and its affiliates by
the end of the twelfth month after the commencement of operation of the
portfolios; provided, in addition, that at least $50 million of such assets will
be in portfolios following the Portfolio Manager's "EAFE Plus" strategy.
- 23 -
