SHAREHOLDER WEB SERVICES AGREEMENT
This Shareholder Web Services Agreement made this __ day of
______________, 2004 by and between Old Mutual Advisor Funds, a Delaware
statutory trust (the "Trust") on behalf of its series and Old Mutual Fund
Services, a Pennsylvania business trust ("Fund Services").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end management
investment company of the series type and registered under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, pursuant to an Administrative Services Agreement dated
_______, 2004, the Trust retained Fund Services to provide certain
administrative services to the Trust and its portfolios ("Administrative
Services Agreement");
WHEREAS, the Trust desires to retain Fund Services to perform
development and maintenance services on that certain web site that references
the Trust and its portfolios (the "OMAF Web Site"), none of which are currently
performed, and which the parties hereto do not intend to be performed, by Fund
Services pursuant to the Administrative Services Agreement;
WHEREAS, that portion of the costs incurred to perform the development
and maintenance services on the OMAF Web Site that directly relate to existing
shareholder education or service, account activity and account maintenance has
been determined by the Board to be a Trust expense;
WHEREAS, that portion of the costs incurred to perform the development
and maintenance services that directly relate to attracting and educating
prospective investors will be paid for by Old Mutual Investment Partners, the
Trust's distributor and an affiliate of Fund Services;
WHEREAS, development and maintenance services provide ongoing
enhancements to the OMAF Web Site which increase the quality of shareholder
services and educational benefits provided to shareholders of the Trust's
portfolios and the information available to prospective shareholders;
WHEREAS, the Trust and Fund Services reasonably believe that over time
it will be more cost efficient for the Trust if Fund Services performs some or
all of the development and maintenance services on the OMAF Web Site, while
retaining a service vendor to perform the balance of the services, when and if
necessary;
NOW THEREFORE, in consideration of the premises and mutual convenants
and agreements hereinafter set forth, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Services:
The Trust hereby retains Fund Services to perform and Fund Services
hereby undertakes to use its best efforts to perform development and
maintenance services on the OMAF Web Site that directly and solely
relate to current Trust shareholder education or service, account
activity and account maintenance ("Web Services"). An illustrative
example of Web Services is a web site enhancement that increases the
amount of account information and service features that a current Trust
shareholder could access on the OMAF Web Site.
2. Intention of Parties:
By entering into this Agreement, it is the intention of the parties
that the Web Services to be performed by Fund Services (except for
responding to e-mails sent to the Trust via the OMAF Web Site which is
intended to be a service performed by Fund Services) are not required
to be provided by Fund Services or any of its affiliates or agents
under any existing agreement between Fund Services and the Trust,
including but not limited to the Administrative Services Agreement.
3. Performing Web Services/Use of Third Party Service Providers:
Fund Services shall use its best efforts to perform Web Services. In
performing Web Services, Fund Services will, at all times, use
reasonable care, act in good faith and comply with all laws, rules and
regulations applicable to web sites and the content of information
posted thereon, including but not limited to any filings required to be
made with the SEC and NASD. In addition, Fund Services will, at its own
expense, (a) provide personnel competent to perform Web Services and
(b) furnish the office facilities, furnishings, equipment and other
property necessary to perform Web Services. Notwithstanding the
foregoing, Fund Services may, from time to time, in its sole discretion
and at its own expense, retain outside service vendors to perform some
or all of Web Services. However, in retaining these outside service
vendors, Fund Services may not, without the approval of the Trust's
Board of Trustees, impair or assign its obligation to use its best
efforts to perform Web Services and its obligation to use reasonable
care and act in good faith when performing Web Services.
4. Fees/Board Review of Fees:
In consideration of the Web Services to be performed by Fund Services,
the Trust will pay a fee, payable quarterly in arrears, to Fund
Services equal to $317,195 for the initial term of this Agreement. Fees
payable to Fund Services for subsequent terms will be determined on an
annual basis. In no event will the Trust pay or be billed for, through
this fee or otherwise, any web development or maintenance services that
are related to attracting or educating prospective shareholders.
Illustrative examples of web maintenance and development services
relating to attracting or educating prospective shareholders are
branding and banner advertising on the OMAF Web Site. At least once
every six months, Fund Services will provide a report to the Trust
enumerating, in such detail as the Trust may request, (i) the Web
Services that Fund Services or an outside service vendor has performed,
including the costs Fund Services has incurred in this performance,
(ii) the Web Services that Fund Services or an outside vendor
anticipates performing in the near future and the expected costs of
such performance and (iii) the percent of OMAF Web Site users who are
current Trust shareholders. To determine what percent of OMAF Web Site
users are current Trust shareholders, as opposed to prospective
shareholders, Fund Services will use random sampling techniques and
on-line surveys. Based on Fund Services' report and any other
information, report, evaluation, analysis or opinion provided by Fund
Services or reasonably requested by the Trust, the Trust will evaluate
the appropriateness of the fee, and determine whether the fee should be
adjusted.
5. Maintaining Books and Records:
In performing Web Services, Fund Services will maintain customary
records, in particular, all records required to be maintained pursuant
to subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940 (the "1940 Act"). Fund Services may send
periodically to the Trust, or to the person or location designated by
the Secretary or an Assistant Secretary of the Trust, all books,
documents and records no longer deemed needed for current purposes,
upon the understanding that these books, documents, and records will be
maintained by the Trust under and in accordance with the requirements
of Rule 17Ad-7 adopted under the Securities Exchange Act of 1934. These
books, documents and records will be safely stored by Trust for
possible future reference and will not be destroyed by the Trust
without the consent of Fund Services, which consent will not be
unreasonably withheld.
6. Obligations Under DST Financial Advisors Network Services Agreement:
To the extent that the provisions or requirements of the DST Financial
Advisors Network Services Agreement and any related agreement may
impose obligations on Fund Services to provide services, conform to a
standard of care, adhere to a stipulated process or procedure or
otherwise undertake to perform a defined duty or responsibility, or may
require the Trust to ensure that Fund Services fulfills those
obligations, Fund Services will perform those obligations and will not
be liable to any party for its performance of such obligations,
provided that Fund Services will not be protected against liability for
its willful misfeasance, bad faith or gross negligence in its
performance of such obligations.
7. Certain Representations and Warranties of Fund Services:
Fund Services represents and warrants to the Trust that:
a. Fund Services is a business trust duly formed and validly
subsisting under the laws of the Pennsylvania.
b. Fund Services is duly qualified to carry on its business in the
Commonwealth of Pennsylvania and will be duly qualified to carry
on its business in the State of Colorado.
c. Fund Services is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform the
services contemplated in this Agreement.
d. Fund Services is registered as a transfer agent to the extent
required under the Securities Exchange Act of 1934.
e. All requisite proceedings of the Trustees have been taken to
authorize it to enter into and perform this Agreement.
f. Fund Services has and will continue to have and maintain the
necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement.
g. In performing Web Services, Fund Services will ensure
compliance with all applicable laws, rules and regulations
applicable to web sites and the content of information posted
thereon, including but not limited to any filings required to be
made with the SEC and NASD.
8. Certain Representations and Warranties of the Trust:
The Trust represents and warrants to Fund Services that:
a. The Trust is a statutory trust duly organized and existing and
in good standing under the laws of the State of Delaware.
b. It is an open-end management investment company registered
under the 1940 Act.
c. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
the Trust being offered for sale.
d. All requisite steps have been and will continue to be taken to
register the Trust's shares for sale in all applicable states,
the District of Columbia and Puerto Rico, and such
registration will be effective at all times shares are offered
for sale in such jurisdictions.
e. The Trust is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform
this Agreement.
9. Certain Covenants of Fund Services and the Trust:
a. Records are Property of the Trust. To the extent required by
Section 31 of the 1940 Act, and the rules thereunder, Fund
Services agrees that all records maintained by Fund Services
relating to the services to be performed by Fund Services
under this Agreement are the property of the Trust and will be
preserved and will be surrendered promptly to the Trust on
request.
b. Financial Statements. Fund Services agrees to furnish to the
Trust annual reports of its financial condition, consisting of
a balance sheet, earnings statement and any other financial
information reasonably requested by the Trust. Such annual
financial statements shall be certified by the independent
auditors retained by the parent of Fund Services.
c. Information Concerning the Trust. The Trust agrees to furnish
or otherwise make available to Fund Services such information
relating to the business and affairs of the Trust as Fund
Services may reasonably require to discharge its duties and
obligations hereunder. The Trust further agrees to provide
Fund Services with information and updates relating to new
product and service introductions and sales and marketing
efforts that may reasonably be expected to impact shareholder
activity on the OMAF Web Site so that Fund Services can
properly allocate the resources necessary to fulfill its
obligations under this Agreement.
d. Cooperation in Shareholder Responses. The Trust agrees that
the Trust will, and shall cause the Trust's investment
adviser(s) to, cooperate with Fund Services to the extent
necessary to formulate appropriate responses to written
inquiries received from shareholders, via the OMAF Web Site,
concerning investment strategy and philosophy and market
commentary.
10. Quality Control:
a. Inspections. Fund Services shall permit the Trust and its
authorized representatives, including, but not limited to, the
Trust's independent auditors, to have reasonable access to the
personnel and records of Fund Services and to make periodic
inspections of the operations of Fund Services at reasonable
times during business hours for the purpose of monitoring the
quality of Web Services performed by Fund Services and the fee
to which Fund Services is entitled under this Agreement.
11. Liability and Indemnification:
a. Indemnification by the Trust. Fund Services shall not be
responsible for, and the Trust shall indemnify and hold Fund
Services harmless from and against, any and all losses,
liabilities, claims, demands, suits, costs and expenses
(including reasonable attorneys' fees), including claims by
third parties, which may be asserted against Fund Services or
for which Fund Services may be held to be liable, arising out
of, or are attributable to, the Trust's failure to comply with
the terms of this Agreement, or arising out of or attributable
to, the Trust's gross negligence or willful misconduct or
breach of any representation or warranty of the Trust
hereunder.
b. Indemnification by Fund Services. The Trust shall not be
responsible for, and Fund Services shall indemnify the Trust,
its officers and directors and hold them harmless from and
against, any and all losses, liabilities, claims, demands,
suits, costs and expenses (including reasonable attorneys'
fees), including claims by third parties, which may be
asserted against the Trust or for which the Trust may be held
to be liable, arising out of, or attributable to, Fund
Services' failure to comply with the terms of this Agreement,
or arising out of, or are attributable to, any gross
negligence or willful misconduct or breach of any
representation or warranty of Fund Services hereunder.
c. Notice of Potential Claims; Defense of Claims. Fund Services
and the Trust agree that each shall promptly notify
the other in writing of any situation which represents or
appears to involve a claim which may be the subject of
indemnification hereunder, although the failure to provide such
notification shall not relieve the indemnifying party of its
liability pursuant to this Section 11. The indemnifying party
shall have the option to defend against any such claim. In the
event the indemnifying party so elects, it will notify the
indemnified party and shall assume the defense of such claim,
and the indemnified party shall cooperate fully with the
indemnifying party, at the indemnifying party's expense, in the
defense of such claim. If the indemnifying party elects not to
defend against such claim, the indemnified party shall be
entitled to advance of reasonable expenses to defend such claim.
Notwithstanding the foregoing, the indemnified party shall not
enter into any settlement of such matter without the written
consent of the indemnifying party, which consent shall not be
withheld unreasonably. The indemnifying party shall not be
obligated to indemnify the indemnified party for any settlement
entered into without the written consent of the indemnifying
party. If the consent of the indemnified party is required to
effectuate any settlement and the indemnified party refuses to
consent to any settlement negotiated by the indemnifying party,
the liability of the indemnifying party for losses arising out
of or due to such matter shall be limited to the amount to the
rejected proposed settlement.
d. Except for violations of Section 17(c), hereunder, in no event
and under no circumstances shall either party to this
Agreement be liable to anyone, including, without limitation,
to the other party, for consequential damages for any act or
failure to act under any provision of this Agreement even if
advised of the possibility thereof.
e. Survival of Provisions. The obligations of Fund Services and
the Trust pursuant to this Section 11 survive the termination of
this Agreement.
12. Limitations on Subcontractor Liability:
Nothing herein shall impose any duty upon Fund Services in connection
with or make Fund Services liable for the actions or omissions to act
of unaffiliated third parties such as, by way of example and not
limitation, overnight delivery service and the U.S. mails, provided, if
Fund Services selected such third party, Fund Services will not be
liable to any party for its selection, unless Fund Services acted with
willful misfeasance, bad faith or gross negligence in its selection of
such party. The foregoing limitation of liability shall not be
construed to relieve Fund Services of any obligations under Section 3
of this Agreement with respect to Web Services that are ultimately
performed by an outside service vendor.
13. Limitation of Liability of Shareholders, Trustees and Series of the
Trust:
The Trust's obligations set forth in this Agreement are limited to the
Trust, its portfolios and their assets, and shall not operate to bind
any Trust shareholder or Trustee or otherwise limit any benefits set
forth in the Delaware General Corporation Law that may be applicable to
such persons.
14. Term of Agreement:
This Agreement shall become effective on the day and year first written
above and, unless sooner terminated as hereinafter provided, shall
continue in effect for an initial period that will expire on December
31, 2005, and thereafter shall continue in effect from year to year
provided such continuance is approved at least annually by the vote of
a majority of the trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined by the 0000 Xxx) of any
such party, which vote shall be cast in person at a meeting called for
the purpose of voting on such approval.
15. Termination/Assignment:
Either party may terminate this Agreement on thirty (30) days' prior
written notice to the other party. Neither party may assign this
Agreement without the prior written consent of the other party. In the
case of the Trust, the prior written consent includes the approval by
the Board of Trustees of the Trust as described in Section 14.
16. Notices:
All notices to be given hereunder shall be deemed properly given if
given in writing, delivered in person, or if sent by overnight delivery
service, U.S. mail, first class, postage prepaid, or if sent by
facsimile and thereafter confirmed by mail, (i) if to Fund Services, to
Old Mutual Fund Services, [Address], Attn: President, and (ii) if to
the Trust, to Old Mutual Advisor Funds, [Address], Attn: President, or
to such other address as shall have been specified in writing by the
party to whom such notice is to be given.
17. Force Majeure:
In the event Fund Services is unable to perform its obligations or
duties under the terms of this Agreement because of any act of God,
strike, riot, act of war, equipment failure, power failure or damage or
other causes reasonably beyond its control, Fund Services shall not be
liable for any losses, damages, costs, charges, counsel fees, payments,
expenses or liability to any other party (whether or not a party to
this Agreement) resulting from such failure to perform its obligations
or duties under this Agreement or otherwise from such causes. This
provision, however, shall in no way excuse Fund Services from being
liable to the Trust for any and all losses, damages, costs, charges,
counsel fees, payments and expenses incurred by the Trust due to the
non-performance or delay in performance by Fund Services of its duties
and obligation under this Agreement if such non-performance or delay in
performance could have been reasonably prevented by Fund Services
through back-up systems and other procedures commonly employed by other
persons in the mutual fund industry who provide services similar to
those to be provided by Fund Services under this Agreement, provided
that Fund Services shall have the right, at all times, to mitigate or
cure any losses, including by making adjustments or corrections to any
current or former shareholder accounts.
18. Miscellaneous:
a. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Delaware, except as such laws may conflict with the 1940 Act
and the rules thereunder or other applicable federal laws or
regulations.
b. Severability. If any provision of this Agreement shall be held
or made invalid in whole or in part by a court decision,
statute, rule, or otherwise, the remaining provisions of the
Agreement shall not be affected thereby. Invalid provisions
shall, in accordance with the intent and purpose of this
Agreement, be replaced by mutual consent of the parties with
such valid provisions which in their economic effect come as
closely as legally possible to such invalid provisions.
c. Confidentiality. Fund Services agrees on behalf of itself and
its employees to treat confidentially all records and other
information relative to the Trust and its prior, present, or
prospective shareholders, except, after prior notification to
and approval in writing by the Trust, which approval shall not
be withheld unreasonably and may not be withheld where Fund
Services 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.
d. Amendments in Writing. Any part of this Agreement may be amended
or waived in writing signed by both parties. e. Headings and
Captions. The headings and captions contained in this Agreement
are included for convenience of reference only and in no way
define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
f. Interpretation. Nothing herein contained shall be deemed to
require the Trust to take any action contrary to its Declaration
of Trust or By-Laws, or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or
to relieve or deprive the Board of Trustees of its
responsibility for and control of the conduct of the affairs of
the Trust.
g. Enforceability by Successors and Assigns. All terms and
provisions of this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
h. Survival of Representations, Warranties and Indemnification.
The representations and warranties, and the indemnification
extended hereunder, if any, are intended to and shall continue
after and survive the expiration, termination or cancellation of
this Agreement.
i. No Joint Venture. Neither the execution nor performance of
this Agreement shall be deemed to create a partnership or joint
venture by and between the Trust and Fund Services. It is
understood and agreed that all services performed hereunder by
Fund Services shall be as an independent contractor. This
Agreement is between Fund Services and the Trust and neither
this Agreement nor the performance of the services provided for
herein shall create any rights in any third parties. There are
no third party beneficiaries hereto.
19. Waiver:
The failure of either party to insist upon the performance of any terms
or conditions of this Agreement or to enforce any rights resulting from
any breach of any of the terms or conditions of this Agreement,
including the payment of damages, shall not be construed as a
continuing or permanent waiver of any such terms, conditions, rights or
privileges, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate as of the date set forth above.
OLD MUTUAL ADVISOR FUNDS
By: ___________________________________
Name:
Title:
OLD MUTUAL FUND SERVICES
By: ___________________________________
Name:
Title:
