Exhibit (h)(4)
FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of November
2001, by and between CCM Advisors Funds, a Delaware business trust (the "Trust")
and Firstar Mutual Fund Services, LLC, a limited liability company organized
under the laws of the State of Wisconsin ("FMFS").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is authorized to create separate series, each with its
own separate investment portfolio;
WHEREAS, FMFS is a limited liability company and, among other things, is in
the business of providing mutual fund accounting services to investment
companies; and
WHEREAS, the Trust desires to retain FMFS to provide accounting services to
each series of the Trust listed on Exhibit A attached hereto, (each hereinafter
referred to as a "Fund"), as it may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and FMFS agree as follows:
1. Appointment of Fund Accountant
The Trust hereby appoints FMFS as Fund Accountant of 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 in consideration of the compensation provided for herein.
2. Duties and Responsibilities of FMFS
A. Portfolio Accounting Services:
(1) Maintain portfolio records for each Fund on a trade date+1
basis using security trade information communicated from the
investment adviser(s).
(2) For each valuation date as stated in each Fund prospectus
and statement of additional information relating to shares
of such Fund as in effect from time to time (together with
the statement of additional information, the "Prospectus"),
or as otherwise directed by the Trust, (i) obtain prices
from a pricing source approved by the Board of Trustees of
the Trust and apply those prices to the portfolio positions
or, in the case of a money market fund, (ii) confirm that
the market value of a Fund's assets does not deviate from
the amortized cost value of those assets by more than 0.5%.
For those securities where market quotations are not readily
available, the Board of Trustees of the Trust shall approve,
in good faith, the method for determining the fair value for
such securities.
(3) Identify interest and dividend accrual balances on a per
share basis as of each valuation date, or as otherwise
directed by the Trust, and calculate gross earnings on
investments for the accounting period.
(4) Determine gain/loss on security sales and identify them as,
short-term or long-term; account for periodic distributions
of gains or losses to shareholders and maintain
undistributed gain or loss balances as of each valuation
date, or as otherwise directed by the Trust.
B. Expense Accrual and Payment Services:
(1) For each valuation date, or as otherwise directed by the
Trust, calculate the expense accrual amounts for each class
of shares of each Fund as directed by the Trust as to
methodology, rate or dollar amount.
(2) Record payments for Fund expenses upon receipt of written
authorization from the Trust.
(3) Account for Fund expenditures and maintain expense accrual
balances at the level of accounting detail, as agreed upon
by FMFS and the Trust.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Account for Fund share purchases, sales, exchanges,
transfers, dividend reinvestments, and other Fund share
activity as reported by the transfer agent on a timely
basis.
(2) Apply equalization accounting as directed by the Trust.
(3) Determine net investment income (earnings) for each Fund as
of each valuation date, or as otherwise directed by the
Trust. Account for periodic distributions of earnings to
shareholders and maintain undistributed net investment
income balances as of each valuation date, or as otherwise
directed by the Trust.
(4) Maintain a general ledger and other accounts, books, and
financial records for each Fund in the form as agreed upon.
(5) Determine the net asset value of each Fund according to the
accounting policies and procedures set forth in the Fund's
Prospectus.
(6) Calculate per share net asset value, per share net earnings,
and other per share amounts reflective of Fund operations at
such time as required by the nature and characteristics of
each Fund.
(7) Communicate, at an agreed upon time, the per share price for
each valuation date to parties as agreed upon from time to
time.
(8) Prepare monthly reports that document the adequacy of
accounting detail to support month-end ledger balances.
D. Tax Accounting Services:
(1) Maintain accounting records for the investment portfolio of
each Fund to support the tax reporting required for
IRS-defined regulated investment companies.
(2) Maintain tax lot detail for the investment portfolio.
(3) Calculate taxable gain/loss on security sales using the tax
lot relief method designated by the Trust.
(4) Provide the necessary financial information to support the
taxable components of income and capital gains distributions
to the transfer agent to support tax reporting to the
shareholders.
E. Compliance Control Services:
(1) Support reporting to regulatory bodies and support financial
statement preparation by making each Fund's accounting
records available to the Trust, the Securities and Exchange
Commission (the "SEC"), and the outside auditors.
(2) Maintain accounting records according to the 1940 Act and
regulations provided thereunder
F. FMFS will perform the following accounting functions on a daily
basis:
(1) Reconcile cash and investment balances of each Fund with the
Fund's custodian, and provide the Fund's investment
adviser(s) with the beginning cash balance available for
investment purposes;
(2) Transmit or mail a copy of the portfolio valuation to the
Fund's investment adviser(s);
(3) Review the impact of current day's activity on a per share
basis, review changes in market value.
(4) In addition, FMFS will:
(5) Prepare monthly security transactions listings and reconcile
security identifier, units, maturities and rates at least
monthly with the Trust's custodian;
(6) Supply various Trust, Fund and class statistical data as
requested by the Trust on an ongoing basis.
3. Pricing of Securities
For each valuation date, obtain prices from a pricing source selected by
FMFS but approved by the Board of Trustees and apply those prices to the
portfolio positions of each Fund. For those securities where market
quotations are not readily available, the Board of Trustees of the Trust
shall approve, in good faith, the method for determining the fair value for
such securities.
If the Trust desires to provide a price that varies from the pricing
source, the Trust shall promptly notify and supply FMFS with the valuation
of any such security on each valuation date. All pricing changes made by
the Trust will be in writing and must specifically identify the securities
to be changed by CUSIP, name of security, new price or rate to be applied,
and, if applicable, the time period for which the new price(s) is/are
effective.
4. Changes in Accounting Procedures
Any resolution passed by the Board of Trustees of the Trust that affects
accounting practices and procedures under this Agreement shall be effective
upon written receipt and acceptance by the FMFS.
5. Changes in Equipment, Systems, Service, Etc.
FMFS reserves the right to make changes from time to time, as it deems
advisable, relating to its services, systems, programs, rules, operating
schedules and equipment, so long as such changes do not adversely affect
the service provided to the Trust under this Agreement.
6. Compensation
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit B
and as mutually agreed upon and amended from time to time. The Trust agrees
to pay all fees and reimbursable expenses within thirty (30) calendar days
following the 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. Notwithstanding anything to the contrary,
amounts owed by the Trust to FMFS shall only be paid out of the assets and
property of the particular Fund involved.
7. Performance of Service; Limitation of Liability
A. FMFS shall exercise reasonable care and good faith 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
Trust 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 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 and acted in good faith in the
performance of its duties under this Agreement, the Trust 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
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 authorized by the Trust
and provided to FMFS by any duly authorized officer of the Trust, 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 Trust.
FMFS shall indemnify and hold the Trust, its officers, trustees and
agents harmless from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) which the Trust, its officers, trustees
and agents may sustain or incur or which may be asserted against the
Trust, its officers, trustees and agents 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 promptly take all
reasonable steps to minimize service interruptions for any period that
such interruption continues beyond FMFS's control. FMFS will promptly
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 contingency plans
that are consistent with industry standards with appropriate parties,
making reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is available.
Representatives of the Trust 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.
B. 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 that
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.
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.
C. FMFS 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, or from the Trustees or any individual Trustee of
the Trust or from any agent of the Trust.
8. 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 (the "Act") and
Regulation S-P, as may be modified from time to time. Notwithstanding the
foregoing, FMFS will not share any nonpublic personal information as
defined under Regulation S-P 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 and Regulation S-P.
9. Term of Agreement; Amendment; Assignment
This Agreement shall become effective as of the date hereof and will
continue in effect for a period of one year. Subsequent to the initial
one-year term, this Agreement may be terminated by either party upon giving
ninety (90) days prior written notice to the other party 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. All
representations in Section 8 of this Agreement shall survive the
termination of this Agreement.
This Agreement and any right or obligation hereunder may not be assigned by
either party without the prior written consent of the other party. This
Agreement constitutes the entire agreement between the parties hereto and
supercedes any prior agreement with respect to the subject matter hereof,
whether oral or written.
10. Records
FMFS shall keep records relating to the services to be performed hereunder,
in the form and manner, and for such period as it may deem advisable and is
agreeable to the Trust but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of the
1940 Act, and the rules thereunder. FMFS agrees that all such records
prepared or maintained by FMFS relating to the services to be performed by
FMFS hereunder are the property of the Trust and will be preserved,
maintained, and made available in accordance with such section and rules of
the 1940 Act and will be promptly surrendered to the Trust on and in
accordance with its request.
11. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin. However, nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by the
SEC thereunder.
12. 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 (collectively, the "Records") 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 reasonable 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.
13. 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.
14. 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.
15. Notification of Error
The Trust will notify FMFS of any discrepancy between FMFS and the Trust,
including, but not limited to, failing to account for a security position
in a Fund's portfolio, by 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.
16. Notices
Notices of any kind to be given by either party to the other party shall be
in writing and shall be duly given if mailed or delivered as follows:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
CCM Advisors Funds
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
17. Additional Funds
In the event the Trust establishes additional series or classes of shares
than those listed on the attached Exhibit A, and the Trust desires to have
FMFS act as Fund Accountant to such series or class under the terms hereof,
the Trust shall so notify FMFS in writing and, if FMFS agrees in writing to
provide such services, such series or class shall be covered by this
Agreement.
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 day
and year first written above.
CCM ADVISORS FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx Xxxxxxx
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Title: President Title: President
