Exhibit B9.4
FULFILLMENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of October,
1998, by and between ▇▇▇▇ ▇▇▇▇▇▇ Investment Counsel, Texas limited partnership
(hereinafter referred to as the "Adviser"), Brazos Mutual Funds, a Delaware
business trust (hereinafter referred to as the "Trust"), ▇▇▇▇▇▇▇▇ Capital
Markets, Inc., a corporation organized under the laws of the state of New York
(hereinafter referred to as the "Distributor"), and Firstar Mutual Fund
Services, LLC, a corporation organized under the laws of the State of Wisconsin
(hereinafter referred to as "FMFS").
WHEREAS, the Adviser is a registered investment adviser under the
Investment Advisers Act of 1940, as amended;
WHEREAS, the Adviser serves as investment adviser to the Trust, a
registered investment company under the Investment Company Act of 1940, as
amended, which is authorized to create separate series of funds;
WHEREAS, the Distributor is a registered broker-dealer under the Securities
Exchange Act of 1934, as amended, and serves as principal distributor of Company
shares;
WHEREAS, FMFS provides fulfillment services to mutual funds;
WHEREAS, the Adviser desires to retain FMFS to provide fulfillment
services for the Small Cap Growth Portfolio (the "Fund") and each additional
series of the Trust listed on Exhibit A attached hereto, as may be amended from
time to time.
NOW, THEREFORE, the parties agree as follows:
1. Duties and Responsibilities 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 p.m. to 8 a.m. CT).
5. Maintain and store Fund fulfillment inventory.
6. Send periodic fulfillment reports to the Trust as agreed upon between
the parties.
2. Duties and Responsibilities of the Trust
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 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 sundry information about the Fund in order to
answer prospect questions.
3. Indemnification
The Trust 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
Trust 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.
4. Compensation
The Adviser or the Distributor (the Distributor only through the collection of
sufficient distribution expenses from the Fund, if applicable) 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.
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 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.
6. Termination
This Agreement may be terminated by either party upon 30 days written notice.
FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Trust Instrument of the Trust and agrees that
obligations assumed by the Trust pursuant to this Agreement shall be limited in
all cases to the Trust and its assets, and if the liability relates to one or
more series, the obligations hereunder shall be limited to the respective assets
of such series. FMFS further agrees that it shall not seek satisfaction of any
such obligation from the shareholder or any individual shareholder of a series
of the Trust, nor from the Trustees or any individual Trustee of the Trust.
7. 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.
8. 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.
9. Notification of Error
The Trust will notify FMFS of any balancing or control error caused by FMFS the
later of: within three (3) business days after receipt of any reports rendered
by FMFS to the Trust; 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.
BRAZOS MUTUAL FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: ________________________________
Attest:__________________________ Attest:_____________________________
▇▇▇▇▇▇▇▇ CAPITAL MARKETS, ▇▇▇▇ ▇▇▇▇▇▇ INVESTMENT COUNSEL
INC.
By:______________________________ By: ________________________________
Attest: _________________________ Attest:_____________________________
Literature Fulfillment Services
Annual Fee Schedule
Exhibit A
Separate Series of Brazos Mutual Funds
Name of Series Date Added
Small Cap Growth Portfolio October 1, 1998
Micro Cap Growth Portfolio October 1, 1998
Real Estate Securities Portfolio October 1, 1998
Customer Service
State registration compliance edits
Literature database
Record prospect request and profile
Prospect servicing 8:00 am to 7:00 pm CT
Recording and transcription of requests received off-hours
Periodic reporting of leads to client
Service Fee: $.99 / minute
$100 / month minimum
$780 one-time setup
Assembly and Distribution of Literature Requests
Generate customized prospect letters
Assembly and insertion of literature items
Inventory tracking
Inventory storage, reporting
Periodic reporting of leads by state, items requested, market source
Service Fee: $.45 / lead - insertion of up to 4 items/lead
$.15 / additional inserts
Fees and out-of-pocket expenses are billed to the fund monthly