Exhibit (h)(4)
INBOUND CALL MANAGEMENT AND
FULFILLMENT SERVICES AGREEMENT
THIS AGREEMENT is made as of this __ day of _____, 2006, by and between
Xxxxxxx Capital Mutual Funds, a Delaware statutory trust (the "Trust") and UMB
Distribution Services, LLC ("UMBDS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Act"), as an open-end management investment company which is
authorized to issue shares of beneficial interests in separate series with each
such series representing the interests in a separate portfolio of securities and
other assets;
WHEREAS, UMBDS offers various inbound call management and fulfillment
services to investment companies and others; and
WHEREAS, the Trust and UMBDS desire to enter into an agreement pursuant to
which UMBDS shall provide on behalf of the Trust certain inbound call management
and fulfillment services to such investment portfolios of the Trust as are
listed on Schedule A hereto and any additional investment portfolios the Trust
and UMBDS may agree upon and include on Schedule A as such Schedule may be
amended from time to time (such investment portfolios and any additional
investment portfolios are individually referred to as a "Fund" and collectively
the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
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 AND SERVICES
(a) The Trust hereby retains and does hereby authorize UMBDS to provide
the inbound call management and fulfillment services described in
Schedule B hereto to the Trust, and UMBDS agrees to provide such
services, for the period and compensation and upon the terms set forth
in this Agreement.
(b) The Trust, at its cost, shall provide UMBDS with the necessary scripts,
instructions and all materials (including prospectuses, reports, article
reprints, stationery and envelopes) so that UMBDS may provide the services
described herein. Notwithstanding anything herein to the contrary, UMBDS shall
not be required to provide any services or information that it believes, in its
sole discretion, to represent dishonest, unethical or illegal activity. In no
event shall UMBDS provide any investment advice or recommendations to any party
in connection with its services hereunder. All risk of loss for the materials
being inventoried by UMBDS on the Trust's behalf shall be the responsibility of
the Trust, and UMBDS shall not be responsible for any loss to this
material except as such loss may be caused by UMBDS' gross negligence. UMBDS
agrees to use due care in the storage of such materials prior to their
distribution. The Trust shall provide UMBDS from time to time at the earliest
practicable date with such details as may reasonably be required concerning
media schedules, anticipated call volume and other related information so as to
facilitate preparation by UMBDS to provide the services hereunder.
(c) The Trust shall cause its officers, trustees, legal counsel,
independent accountants, custodian and other service providers and agents, past
or present, for the Trust to cooperate with UMBDS and to provide UMBDS with such
information, documents and advice as necessary and/or appropriate or as
requested by UMBDS, in order to enable UMBDS to perform its duties hereunder. In
connection with its duties hereunder, UMBDS shall (without investigation or
verification) be entitled, and is hereby instructed to, rely upon any and all
instructions, advice, information or documents provided to UMBDS by an officer
or representative of the Trust or by any of the aforementioned persons. UMBDS
shall be entitled to rely on any document that it reasonably believes to be
genuine and to have been signed or presented by the proper party. Fees charged
by such persons shall be an expense of the Trust. UMBDS shall not be held to
have notice of any change of authority of any officer, agent, representative or
employee of the Trust, or service provider until receipt of written notice
thereof from the Trust. As used in this Agreement, the term "investment adviser"
includes all sub-advisers or persons performing similar services.
2. FEES AND EXPENSES
In consideration of the services rendered pursuant to this Agreement, the Trust
shall pay UMBDS such fees, charges and expenses as are set forth in Schedule C
hereto. Fees shall be adjusted in accordance with Schedule C or as otherwise
agreed to by the parties from time to time. UMBDS may, at its option, arrange to
have various service providers submit invoices directly to the Trust for payment
of out of pocket expenses reimbursable hereunder. All invoices rendered by UMBDS
shall be paid within fifteen (15) days of the date of invoice. At the option of
UMBDS, unpaid invoices accrue a finance charge of one and one-half percent (1
1/2%) per month, after the due date. In the event UMBDS requests advance
payment, UMBDS shall not be obligated to incur such expenses or perform the
related service(s) until payment is received.
3. TERM; AMENDMENTS; ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund listed
on Schedule A as of the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to Schedule A to this Agreement
relating to that Fund is executed. This Agreement shall continue in effect with
respect to each Fund until terminated as provided herein.
(b) This Agreement may be terminated by either party with respect to any
one or more particular Funds without penalty upon not less than sixty (60) days'
written notice to the other party, which notice may be waived by the party
entitled to such notice. Upon termination
of this Agreement, UMBDS shall promptly return to the Trust all applicable
materials that are the property of the Trust. All amounts due and owing to UMBDS
as of such termination shall become immediately due and payable and the Trust
shall pay such amounts at the termination date. The Trust shall be responsible
for all expenses associated with the movement (or duplication) of records and
materials and conversion thereof to a successor services agent, including all
reasonable trailing expenses incurred by UMBDS.
(c) Except as expressly provided in this Agreement, the terms of this
Agreement shall not be waived, altered, modified, amended or supplemented in any
manner whatsoever except by a written instrument signed by UMBDS and the Trust.
UMBDS may from time to time, in its discretion, appoint one or more other
parties to carry out some or all of its responsibilities under this Agreement.
(d) Notwithstanding any other provision of this Agreement, in the event of
an agreement to enter into a transaction that would result in a Change of
Control, as hereinafter defined, of the Trust's investment adviser, the Trust's
ability to terminate this Agreement pursuant to this Section 3 shall be
suspended from the time of such agreement until six months after the Change of
Control. For purposes of this Agreement, a "Change of Control" of the investment
adviser means a change in ownership or control of more than fifty percent (50%)
of the common stock or shares of beneficial interest of the investment adviser
or its parent company.
4. NON-EXCLUSIVITY; CONFIDENTIALITY
(a) The services of UMBDS hereunder are not deemed to be exclusive. UMBDS
may render inbound call management and fulfillment services and any other
services to others, including other investment companies.
(b) UMBDS agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records relative
to the Funds' shareholders, not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder, and
not to disclose such information except where UMBDS may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities or court process, when subject to
governmental or regulatory audit or investigation, or when so requested by the
Trust. In case of any requests or demands for inspection of the records of the
Funds, UMBDS will endeavor to notify the Trust promptly and to secure
instructions from a representative of the Adviser as to such inspection. Records
and information which have become known to the public through no wrongful act of
UMBDS or any of its employees, agents or representatives, and information which
was already in the possession of UMBDS prior to receipt thereof, shall not be
subject to this paragraph.
5. LIMITATION OF LIABILITY
(a) UMBDS shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Trust in connection with the matters to which
this Agreement relates, except for a loss resulting from the UMBDS' willful
misfeasance, bad faith or negligence in the performance of its duties or from
reckless disregard by it of its obligations and duties under this Agreement.
Furthermore, UMBDS shall not be liable for (i) any action taken or omitted to be
taken in accordance with or in reliance upon written or oral instructions,
advice, data, documents or information (without investigation or verification)
received by the UMBDS from an officer or representative of the Trust or from a
representative of any of the parties referenced in Section 1 or (ii) any action
taken or omission by a Fund, the Trust, or any past or current service provider.
(b) The Trust agrees to indemnify and hold harmless the UMBDS, its
employees, agents, officers, directors, members, affiliates and nominees
("Indemnified Parties") from and against any and all claims, demands, actions
and suits, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character which may be asserted against or incurred by any
Indemnified Party or for which any Indemnified Party may be held liable (a
"Claim") arising out of or in any way relating to (i) UMBDS' actions or
omissions except to the extent a Claim resulted from UMBDS' willful misfeasance,
bad faith, or gross negligence in the performance of its duties hereunder or
from reckless disregard by it of its obligations and duties hereunder; (ii)
UMBDS' reliance on, implementation of, or use of (without investigation or
verification) advice, instructions, requests, directions, information, data,
security valuations, records and documents received by UMBDS from any party
referenced in Section 2 hereof or other representative of the Trust, (iii) any
breach of any of the Trust's obligations, representations or warranties
hereunder; or (iv) any action taken by or omission of the Trust, or any other
past or current service provider.
(c) Notwithstanding anything herein to the contrary, UMBDS will be excused
from its obligation to perform any act, service or obligation required of it
hereunder for the duration that such performance is prevented by events beyond
its reasonable control and it shall not be responsible for any damage, loss of
data or documents, errors, delay or any other loss whatsoever caused thereby.
UMBDS will, however, take all reasonable steps to minimize service interruptions
for any period that such interruption continues beyond its control. The
indemnity and defense provisions set forth in this Section 5 shall indefinitely
survive the termination and/or assignment of this Agreement.
(d) In no event and under no circumstances shall UMBDS, its affiliates or
any of its or their officers, directors, agents or employees be liable to
anyone, including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory for lost
profits, exemplary, punitive, special, indirect or consequential damages for any
act or failure to act under any provision of this Agreement regardless of
whether such damages were foreseeable and even if advised of the possibility
thereof.
6. GOVERNING LAW; INVALIDITY
This Agreement shall be governed by Wisconsin law, excluding the laws on
conflicts of laws. 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 Act, the latter shall control,
and nothing herein shall be construed in a manner inconsistent with the Act or
any rule or order of the Securities and Exchange Commission thereunder. Any
provision of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent with
the original intent of the parties.
7. MISCELLANEOUS
(a) The 800-telephone number that is transferred to UMBDS, in order for
UMBDS to provide the services hereunder, shall remain the property of the Trust.
In the event that this Agreement is terminated, UMBDS shall assert no claim in
or to this telephone number.
(b) This Agreement and the Schedules incorporated hereto constitute the
full and complete understanding and agreement of UMBDS and the Adviser and
supersedes all prior negotiations, understandings and agreements.
8. NOTICES
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to be effective upon the date specified
on the return receipt when sent by registered or certified mail, postage
prepaid, return receipt requested, as follows: Notice to UMBDS shall be sent to
UMB Distribution Services, LLC, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx,
XX, 00000, Attention: Xxxxx X. Xxxxxxx, and notice to the Adviser shall be sent
to Xxxxxxx Capital Mutual Funds, 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx,
00000, Attention: Xxxxxxx Xxxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer as of the day and year first above
written.
XXXXXXX CAPITAL MUTUAL FUNDS
(the "Adviser")
BY:
------------------------------------
PRESIDENT
UMB DISTRIBUTION SERVICES, LLC
("UMBDS")
BY:
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SCHEDULE A
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB DISTRIBUTION SERVICES, LLC
NAME OF FUNDS
Xxxxxxx Capital Mid Cap Fund
SCHEDULE B
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB DISTRIBUTION SERVICES, LLC
SERVICES
Inbound Call Management
- Standard business hours: 7 a.m. - 7 p.m. CST, Monday through Friday (except
major holidays)
- Qualify callers
- Provide detailed responses to fund inquiries (not scripted)
- Automated voice response system
- Custom database maintenance
- Periodic activity reporting:
- Names, addresses, telephone numbers and types of inquiries
- Call tracking, by:
- Fund
- Zip code or geographic region
- Source code
- Call switching
- Complex calls can be forwarded to fund, if desired
- Transfer calls to transfer agent
FULFILLMENT
- Standard business hours: Monday through Friday 8:00 - 5:00 CST (except
major holidays)
- Literature requests fulfilled and mailed typically within 24 hours (but at
most within 3 business days with respect to all documents required by the
SEC to be sent within such timeframes).
- On-site inventory control
- Customized investor kit assembly and literature fulfillment
- Personalized letters developed by Distributor or by UMBDS (with prior
approval by Distributor)
- Fulfill literature requests downloaded from the Trust's Internet site
- Conduct follow-up mail campaign
- Fulfill literature requests received via Reader Service campaign
- Ability to supply 3rd party channels with fund literature
- Periodic reporting
- Advanced notice of need to order additional materials
- Mailing of premium items
MISCELLANEOUS
- Fulfillment Reference Manual maintenance
- Fulfillment representative training
The duties of the UMBDS shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted against the UMBDS
hereunder. These services do not include correcting, verifying or addressing any
prior actions or inactions by any Fund or by any prior service provider. To the
extent the UMBDS agrees to take such actions, those actions taken shall be
deemed part of this service schedule.
SCHEDULE C
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB DISTRIBUTION SERVICES, LLC
FEE SCHEDULE
INBOUND CALL MANAGEMENT
Telephone calls $2.75/call
FULFILLMENT SERVICING FEES
ADDITIONAL BASE FEE (per month, per fund) $ 350
STANDARD PACKAGE FOR MAILING
[ ] Up to four pieces $1.50
[ ] Each additional item $0.25
SPECIAL PROCESSING/MANUAL ENTRY
E-mail/fax request $2.75
PROGRAMMING FEES
Additional fees at $175 per hour, or as quoted by project, may apply for special
programming to meet your servicing requirements or to create custom reports. You
will be notified in advance if such additional fees will be charged.
