PROSPECT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 15th day of December,
2001, by and among MW Capital Management Funds, a Delaware business trust (the
"Trust"), Metropolitan West Capital Management, LLC, a California corporation
(the "Adviser"), and Firstar Mutual Fund Services, LLC, a Wisconsin limited
liability company ("FMFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers Act
of 1940, as amended, and any applicable state securities laws, as an investment
adviser;
WHEREAS, the Adviser serves as investment adviser to each series of the
Trust;
WHEREAS, FMFS is, among other things, in the business of providing
fulfillment services to mutual funds; and
WHEREAS, the Trust and the Adviser desire to retain FMFS to provide
fulfillment services for each series of the Trust listed on Exhibit A hereto (as
amended from time to time) (each a "Fund", collectively the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of FMFS to Provide Fulfillment Services
The Trust and the Adviser hereby appoint FMFS to provide fulfillment
services to the Trust on the terms and conditions set forth in this
Agreement, and FMFS hereby accepts such appointment and agrees to perform
the services and duties set forth in this Agreement.
2. Duties and Responsibilities of FMFS
FMFS shall provide the following fulfillment services for the Funds,
including but not limited to:
A. Answer all prospective shareholder calls concerning the Fund.
B. Send all available Fund material requested by a prospect within 24
hours from time of call.
C. Receive and update all Fund fulfillment literature so that the most
current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls made after
hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Trust as agreed upon between
the parties.
3. Duties and Responsibilities of the Trust
The Trust shall:
A. Provide Fund fulfillment literature updates to FMFS as necessary.
B. File with the National Association of Securities Dealers, Inc., the
Securities and Exchange Commission (the "SEC") and state regulatory
agencies, as appropriate, all fulfillment literature that the Fund
requests FMFS send to prospective shareholders.
C. Supply FMFS with sufficient inventory of fulfillment materials as
requested from time to time by FMFS.
D. Provide FMFS with any sundry information about the Fund in order to
answer prospect questions.
4. Compensation
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit B hereto
(as amended from time to time). The Trust shall pay all fees and
reimbursable expenses within thirty (30) calendar days following receipt of
the billing notice, except for any fee or expense subject to a good faith
dispute. The Trust shall notify FMFS in writing within thirty (30) calendar
days following receipt of each invoice if the Trust is disputing any
amounts in good faith. The Trust shall settle such disputed amounts within
ten (10) calendar days of the day on which the parties agree to the amount
to be paid. With the exception of any fee or expense the Trust is disputing
in good faith as set forth above, unpaid invoices shall accrue a finance
charge of one and one-half percent (1 1/2%) per month, after the due date.
To the extent such fees are not payable by the Trust, the Adviser shall be
responsible for paying the remaining amount of fees to FMFS.
5. Indemnification; Limitation of Liability
The Trust agrees to indemnify FMFS from any liability arising out of the
distribution of fulfillment literature that has not been filed with the
appropriate federal and state regulatory agencies. FMFS agrees to indemnify
the Trust from any liability arising from the improper use of fulfillment
literature during the performance of its duties and responsibilities
identified in this Agreement. FMFS will be liable for bad faith, gross
negligence or willful misconduct on its part in its duties under this
Agreement.
6. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Trust all
records and other information relative to the Trust and prior, present, or
potential shareholders of the Trust (and clients of said shareholders), and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where FMFS may
be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities,
or when so requested by the Trust.
Further, FMFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, FMFS will not
share any nonpublic personal information concerning any of the Trust's
shareholders to any third party unless specifically directed by the Trust
or allowed under one of the exceptions noted under the Act.
7. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of one year. Subsequent to the
initial one-year term, this Agreement may be terminated by any party upon
giving ninety (90) days prior written notice to the other parties or such
shorter period as is mutually agreed upon by the parties. However, this
Agreement may be amended by mutual written consent of the parties.
Notwithstanding the terms of this termination provision, the Trust will not
be penalized in the event an individual series of the Trust liquidates or
merges out of existence prior to the end of the initial one-year term.
8. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder.
9. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
FMFS's duties or responsibilities hereunder is designated by the Trust by
written notice to FMFS, FMFS will promptly, upon such termination and at
the expense of the Trust, transfer to such successor all relevant books,
records, correspondence and other data established or maintained by FMFS
under this Agreement in a form reasonably acceptable to the Trust (if such
form differs from the form in which FMFS has maintained the same, the Trust
shall pay any expenses associated with transferring the same to such form),
and will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from FMFS's personnel in the
establishment of books, records and other data by such successor.
10. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower FMFS to
act as agent for any other party to this Agreement, or to conduct business
in the name, or for the account, of any other party to this Agreement.
11. Data Necessary to Perform Services
The Trust or its agent, which may be FMFS, shall furnish to FMFS the data
necessary to perform the services described herein at such times and in
such form as mutually agreed upon. If FMFS is also acting in another
capacity for the Trust, nothing herein shall be deemed to relieve FMFS of
any of its obligations in such capacity.
12. Assignment
This Agreement may not be assigned by any party without the prior written
consent of the other parties.
13. Notices
Any notice required or permitted to be given by any party to the others
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three (3) days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other parties' addresses set forth below:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
notice to the Trust shall be sent to:
MW Capital Management Funds
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
and notice to the Adviser shall be sent to:
Metropolitan West Capital Management, LLC
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
MW capital Management Funds
By:
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Xxxx X. Xxxxxxxx
Title: President
Metropolitan West capital Management, LLC
By:
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Xxxxxx X. Xxxxxxxx
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Title: Managing Director
FIRSTAR MUTUAL FUND SERVICES, LLC
By:
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Xxx Xxxxxxx
Title: President
