EX-99.23.d(v)
CCMI Funds
Interim INVESTMENT ADVISORY CONTRACT
This Contract is made as of the 1st day of October, 2004, between
Commerce Capital Management, Inc., an investment adviser having its principal
place of business in Memphis, Tennessee (the "Adviser"), and CCMI Funds, a
Massachusetts business trust having its principal place of business in
Indianapolis, Indiana (the "Trust").
WHEREAS, the Trust is an open-end management investment company as that
term is defined in the Investment Company Act of 1940 and is registered as such
with the Securities and Exchange Commission; and
WHEREAS, the Adviser is engaged in the business of rendering investment
advisory and management services.
WHEREAS, on or about October 1, 2004, SunTrust Banks, Inc. will acquire
a 100% interest in National Commerce Financial Corporation (the "Acquisition"),
resulting in a change in control of the Adviser.
WHEREAS, pursuant to the Investment Company Act of 1940, as amended, a
transaction that results in a change of control of an investment adviser may be
deemed an "assignment." The Investment Company Act further provides that an
investment advisory contract automatically terminates in the event of its
assignment.
NOW, THEREFORE, pending approval of a final investment advisory
contract, the parties hereto agree as follows:
1. The Trust hereby appoints Adviser as Investment Adviser for each of the
portfolios ("Funds") of the Trust, which executes an exhibit to this Contract,
and Adviser accepts the appointments. Subject to the direction of the Trustees
of the Trust, Adviser shall provide investment research and supervision of the
investments of each of the Funds and conduct a continuous program of investment
evaluation and of appropriate sale or other disposition and reinvestment of each
Fund's assets.
2. Adviser, in its supervision of the investments of each of the Funds will be
guided by each of the Fund's investment objective and policies and the
provisions and restrictions contained in the Declaration of Trust and By-Laws of
the Trust and as set forth in the Registration Statement and exhibits as may be
on file with the Securities and Exchange Commission.
3. Each Fund shall pay or cause to be paid all of its own expenses and its
allocable share of Trust expenses, including without limitation, the expenses of
organizing the Trust and continuing its existence; fees and expenses of Trustees
and officers of the Trust; fees for investment advisory services and
administrative personnel and services; fees and expenses of preparing and filing
its Registration Statements under the Securities Act of 1933 and the Investment
Company Act of 1940 and any amendments thereto; expenses of registering and
qualifying the Trust, the Funds and shares ("Shares") of the Funds under Federal
and state laws and regulations; expenses of preparing, printing and distributing
prospectuses (and any amendments thereto) to current shareholders; interest
expense, taxes, fees and commissions of every kind; expenses of issue (including
cost of Share certificates), purchase, repurchase and redemption of Shares,
including expenses attributable to a program of periodic issue; charges and
expenses of custodians, transfer agents, dividend disbursing agents, shareholder
servicing agents, and registrars; printing and mailing costs, auditing,
accounting and legal expenses; reports to shareholders and governmental officers
and commissions; expenses of meetings of Trustees and shareholders and proxy
solicitations therefor; insurance expenses; association membership dues; and
such nonrecurring items as may arise, including all losses and liabilities
incurred in administering the Trust and the Funds. Each Fund will also pay its
allocable share of such extraordinary expenses as may arise including expenses
incurred in connection with litigation, proceedings, and claims and the legal
obligations of the Trust to indemnify its officers and Trustees and agents with
respect thereto.
4. Each of the Funds shall pay to Adviser, for all services rendered to such
Fund by Adviser hereunder, the fees set forth in the exhibits attached hereto.
The compensation earned under this Contract will be held in an interest bearing
escrow account with the Trust's custodian or a bank mutually agreed upon by the
Trust and Adviser. If a majority of a Fund's outstanding voting securities
approve a final investment advisory contract with Adviser by the end of the
150-day period following the closing of the Acquisition, the amount in the
escrow account for the Fund (including interest earned) will be paid to Adviser.
If a majority of a Fund's outstanding voting securities do not approve
an investment advisory contract with Adviser, Adviser will be paid, out of the
escrow account for the Fund, the lesser of (i) any costs incurred by Adviser in
performing services under this Agreement (plus interest earned on that amount
while in escrow) for the Fund, or (ii) the total amount in the escrow account
(plus interest earned) attributable to the Fund.
5. The net asset value of each Fund's Shares as used herein will be calculated
to the nearest 1/10th of one cent.
6. The Adviser may from time to time and for such periods as it deems
appropriate reduce its compensation (and, if appropriate, assume expenses of one
or more of the Funds or classes thereof) to the extent the expenses of any Fund
or a class thereof exceed such lower expense limitation as the Adviser may, by
notice to the Fund, voluntarily declare to be effective.
7. The term of this Contract shall begin on the date of the closing of the
Acquisition and shall continue in effect as to each Fund until the earlier of
(i) 150 days from the date of this Contract, or (i) until a new investment
advisory contract is approved by the shareholders of the Fund. If the
shareholders of any of the Funds fail to approve a final investment advisory
contract, upon request of the Board, Adviser will continue to serve or act in
such capacity for the Funds for the period of time pending required approval of
a new contract with Adviser or a different adviser or other definitive action;
provided that the compensation to be paid by the Funds to Adviser for services
to and payments on behalf of the Funds will be equal to the lesser of Adviser's
actual costs incurred in furnishing such services and payments or the amount
Adviser received under this Contract for furnishing such services and payments.
8. This Contract may be terminated by the Trust with respect to any Fund at any
time, without the payment of any penalty, by the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Funds, in any
such case on ten (10) calendar days' written notice to you, or by you at any
time, without the payment of any penalty, on 90 days' written notice to the
Trust.
9. This Contract may not be assigned by Adviser and shall automatically
terminate in the event of any assignment. Adviser may employ or contract with
such other person, persons, corporation, or corporations at its own cost and
expense as it shall determine in order to assist it in carrying out this
Contract.
10. In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties under this Contract on the part of
Adviser, Adviser shall not be liable to the Trust or to any of the Funds or to
any shareholder for any act or omission in the course of or connected in any way
with rendering services or for any losses that may be sustained in the purchase,
holding, or sale of any security.
11. This Contract may be amended at any time by agreement of the parties
provided that the amendment shall be approved both by the vote of a majority of
the Trustees of the Trust, including a majority of Trustees who are not parties
to this Contract or interested persons of any such party to this Contract (other
than as Trustees of the Trust), cast in person at a meeting called for that
purpose, and on behalf of a Fund by a majority of the outstanding voting
securities of such Fund.
12. The Trust and CCMI hereby acknowledge that the Trust may disclose
shareholder nonpublic personal information ("NPI") to CCMI as agent of the Trust
and solely in furtherance of fulfilling CCMI's contractual obligations under the
Agreement in the ordinary course of business to support the Trust and its
shareholders.
CCMI hereby agrees to be bound to use and redisclose such NPI only for
the limited purpose of fulfilling its duties and obligations under the
Agreement, for law enforcement and miscellaneous purposes as permitted in 17 CFR
ss.248.15, or in connection with joint marketing arrangements that the Trusts
may establish with CCMI in accordance with the limited exception set forth in 17
CFR ss.248.13.
CCMI further represents and warrants that, in accordance with 17 CFR
ss.248.30, it has implemented, and will continue to carry out for the term of
the Agreement, policies and procedures reasonably designed to:
1. insure the security and confidentiality of records and NPI of Trust
customers,
2. protect against any anticipated threats or hazards to the security or
integrity of Trust customer records and NPI, and
3. protect against unauthorized access to or use of such Trust customer
records or NPI that could result in substantial harm or inconvenience
to any Trust customer.
CCMI may redisclose ss.248.13 NPI only to: (a) the Trust and affiliated
persons of the Trust ("Trust Affiliates"); (b) affiliated persons of CCMI ("CCMI
Affiliates") (which in turn may disclose or use the information only to the
extent permitted under the original receipt); (c) a third party not affiliated
with CCMI or the Trust ("Nonaffiliated Third Party") under the service and
processing (ss.248.14) or miscellaneous (ss.248.15) exceptions, but only in the
ordinary course of business to carry out the activity covered by the exception
under which CCMI received the information in the first instance; and (d) a
Nonaffiliated Third Party under CCMI and joint marketing exception (ss.248.13),
provided CCMI enters into a written contract with the Nonaffiliated Third Party
that prohibits the Nonaffiliated Third Party from disclosing or using the
information other than to carry out the purposes for which the Trust disclosed
the information in the first instance.
CCMI may redisclose ss.248.14 NPI and ss. 248.15 NPI to: (a) the Trust
and Trust Affiliates; (b) CCMI Affiliates (which in turn may disclose the
information to the same extent permitted under the original receipt); and (c) a
Nonaffiliated Third Party to whom the Trust might lawfully have disclosed NPI
directly.
CCMI is obligated to maintain beyond the termination date of the
Agreement the confidentiality of any NPI it receives from the Fund in connection
with the Agreement or any joint marketing arrangement, and hereby agrees that
this Amendment shall survive such termination.
13. Adviser is hereby expressly put on notice of the limitation of liability as
set forth in Article XI of the Declaration of Trust and agrees that the
obligations pursuant to this Contract of a particular Fund and of the Trust with
respect to that particular Fund be limited solely to the assets of that
particular Fund, and Adviser shall not seek satisfaction of any such obligation
from any other Fund, the shareholders of any Fund, the Trustees, officers,
employees or agents of the Trust, or any of them.
14. For the purpose of this Contract, the terms "assignment," "majority of the
outstanding voting securities," "control" and "interested person" shall have
their respective meanings as defined in the Investment Company Act of 1940, as
amended, and rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under the
Investment Company Act of 1940, as amended.
15. This Contract shall be construed in accordance with and governed by the laws
of the State of Indiana.
16. This Contract will become binding on the parties hereto upon their execution
of the attached exhibits to this Contract.
COMMERCE CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx XX
-----------------------------
Title: Chairman, President and CEO
CCMI FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: President
----------------------------
EXHIBIT A
CCMI Equity Fund
For all services rendered by Adviser hereunder, the above-named Fund of
the Trust shall pay to Adviser and Adviser agrees to accept as full compensation
for all services rendered hereunder, an annual investment advisory fee equal to
..85 of 1% of the average daily net assets of the Fund.
The portion of the fee based upon average daily net assets of the Fund
shall be accrued daily at the rate of 1/365th of .85 of 1% applied to the daily
net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 20th day of October, 2004.
COMMERCE CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx XX
-----------------------------
Title: Chairman, President and CEO
CCMI FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: President
----------------------------
EXHIBIT B
CCMI Bond Fund
For all services rendered by Adviser hereunder, the above-named Fund of
the Trust shall pay to Adviser and Adviser agrees to accept as full compensation
for all services rendered hereunder, an annual investment advisory fee equal to
..60 of 1% of the average daily net assets of the Fund.
The portion of the fee based upon average daily net assets of the Fund
shall be accrued daily at the rate of 1/365th of .60 of 1% applied to the daily
net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 20th day of October, 2004.
COMMERCE CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx XX
-----------------------------
Title: Chairman, President and CEO
CCMI FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: President
----------------------------
EXHIBIT C
CCMI Tax-Exempt North Carolina Bond Fund
For all services rendered by Adviser hereunder, the above-named Fund of
the Trust shall pay to Adviser and Adviser agrees to accept as full compensation
for all services rendered hereunder, an annual investment advisory fee equal to
..40 of 1% of the average daily net assets of the Fund.
The portion of the fee based upon average daily net assets of the Fund
shall be accrued daily at the rate of 1/365th of .40 of 1% applied to the daily
net assets of the Fund. The advisory fee so accrued shall be paid to Adviser
monthly.
Witness the due execution hereof this 20th day of October, 2004.
COMMERCE CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx XX
-----------------------------
Title: Chairman, President and CEO
CCMI FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: President
----------------------------
