FULFILLMENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this day of 17th day of
April, 2000, by and between Gintel Fund, a business trust organized under the
laws of the Commonwealth of Massachusetts (hereinafter referred to as the
"Fund") and Firstar Mutual Fund Services, LLC, a limited liability company
organized under the laws of the State of Wisconsin (hereinafter referred to as
"FMFS").
WHEREAS, the Fund is a registered investment company under the Investment
Company Act of 1940, as amended;
WHEREAS, FMFS provides fulfillment services to registered investment
companies;
WHEREAS, the Fund desires to retain FMFS to provide fulfillment services.
NOW, THEREFORE, the parties agree as follows:
1. Duties and responsibilites of FMFS
1. Answer all prospective shareholder calls concerning the Fund.
2. Send all available Fund material requested by the prospect within 24
hours from time of call.
3. Receive and update all Fund fulfillment literature so that the most
current information is sent and quoted.
4. Provide 24 hour answering service to record prospect calls made after
hours (7 a.m. to 8 p. m. CT).
5. Maintain and store Fund fulfillment inventory.
6. Send periodic fulfillment reports to the Fund as agreed upon between
the parties.
2. Duties and responsibilities of the Fund
1. Provide Fund fulfillment literature updates to FMFS as necessary.
2. File with the NASD, SEC and State Regulatory Agencies, as appropriate,
all fulfillment literature required to be so filed that the Fund
requests FMFS send to prospective shareholders.
3. Supply FMFS with sufficient inventory of fulfillment materials as
requested from time to time by FMFS. 4. Provide FMFS with any
necessary information about the Fund in order to answer prospect
questions.
3. Compensation
The Fund agrees to compensate FMFS for the services performed under
this Agreement in accordance with the attached Exhibit A. All invoices
shall be paid within ten days of receipt.
4. Performance of Service; Limitation of Liability
FMFS shall exercise reasonable care in the performance of its duties
under this Agreement. FMFS shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund in
connection with matters to which this Agreement relates, including
losses resulting from mechanical breakdowns or the failure of
communication or power supplies beyond FMFS's control, except a loss
arising out of or relating to the FMFS's refusal or failure to comply
with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under
this Agreement. Notwithstanding any other provision of this Agreement,
if FMFS has exercised reasonable care in the performance of its duties
under this Agreement, the Fund shall indemnify and hold harmless FMFS
from and against any and all claims, demands, losses, expenses, and
liabilities (whether with or without basis in fact or law) of any and
every nature (including reasonable attorneys' fees) which FMFS may
sustain or incur or which may be asserted against FMFS by any person
arising out of any action taken or omitted to be taken by it in
performing the services hereunder, except for any and all claims,
demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorney's fees) arising out of or relating to
FMFS's refusal or failure to comply with the terms of this Agreement
or from bad faith, negligence or from willful misconduct on its part
in performance of its duties under this Agreement, (i) in accordance
with the foregoing standards, or (ii) in reliance upon any written or
oral instruction provided to FMFS by any duly authorized officer of
the Fund, such duly authorized officer to be included in a list of
authorized officers furnished to FMFS and as amended from time to time
in writing by resolution of the Board of Trustees of the Fund.
The Fund will indemnify and hold FMFS harmless against any and all
losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action,
or suit as a result of the negligence of the Fund or the principal
underwriter (unless contributed to by FMFS breach of this Agreement or
other Agreements between the Fund and FMFS, or FMFS's own negligence
or bad faith); or as a result of FMFS acting upon telephone
instructions relating to the exchange or redemption of shares received
by FMFS and reasonably believed by FMFS under a standard of care
customarily used in the industry to have originated from the record
owner of the subject shares; or as a result of acting in reliance upon
any genuine instrument or stock certificate signed, countersigned, or
executed by any person or persons authorized to sign, countersign, or
execute the same.
FMFS shall indemnify and hold the Fund harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether
with or without basis in fact or law) of any and every nature
(including reasonable attorneys' fees) which the Fund may sustain or
incur or which may be asserted against the Fund by any person arising
out of any action taken or omitted to be taken by FMFS as a result of
FMFS's refusal or failure to comply with the terms of this Agreement,
its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, FMFS shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond FMFS's control. FMFS will make every
reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of FMFS. FMFS
agrees that it shall, at all times, have reasonable contingency plans
with appropriate parties, making reasonable provision for emergency
use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Fund shall be entitled
to inspect FMFS's premises and operating capabilities at any time
during regular business hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may
be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning
the situation in question, and it is further understood that the
indemnitee will use all reasonable care to notify the indemnitor
promptly concerning any situation which presents or appears likely to
present the probability of a claim for indemnification. The indemnitor
shall have the option to defend the indemnitee against any claim,
which may be the subject of this indemnification. In the event that
the indemnitor so elects, it will so notify the indemnitee and
thereupon the indemnitor shall take over complete defense of the
claim, and the indemnitee shall in such situation initiate no further
legal or other expenses for which it shall seek indemnification under
this section. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be asked
to indemnify the indemnitee except with the indemnitor's prior written
consent.
5. 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 Fund all records and other information relative to the Fund and
prior, present, or potential shareholders of the Fund (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 and approval in
writing by the Fund 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 buy duly constituted authorities, or when so
requested by the Fund.
6. Indemnification
The Fund agrees to indemnify FMFS from any liability arising out of
the distribution of fulfillment literature, which has not been
approved by the appropriate Federal and State Regulatory Agencies.
FMFS agrees to indemnify the Fund from any liability arising from the
improper use of fulfillment literature during the performance of
duties and responsibilities identified in this agreement. FMFS will be
liable for bad faith, negligence, or willful misconduct on its part in
its duties under this Agreement.
7. Termination
This Agreement may be terminated by either party upon 90 days written
notice.
8. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for the other party to this Agreement, or to conduct
business in the name of, or for the account of the other party to this
Agreement.
9. Data Necessary to Perform Services
The Fund or its agent, which may be FMFS, shall furnish to FMFS the
data necessary to perform the serves described herein at such times
and in such form as mutually agreed upon. If FMFS is also acting in
another capacity for the Fund, nothing herein shall be deemed to
relieve FMFS of any of its obligations in such capacity.
10. Notification of Error
The Fund will notify FMFS of any errors caused by FMFS the later of:
within three (3) business days after receipt of any reports rendered
by FMFS to the Fund; within three (3) business days after discovery of
any error or omission not covered in the balancing or control
procedure; or within three (3) business days of receiving notice from
any shareholder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer or one or more counterparts
as of the day and year first written above.
GINTEL FUND FIRSTAR MUTUAL FUND SERVICES, LLC
Sign:____________________________ Sign:_____________________________
Print:____________________________ Print:_____________________________
Title:____________________________ Title:_____________________________
Date:____________________________ Date:______________________________
Attest: ___________________________ Attest: ___________________________
