Exhibit (h)(1)
TRANSFER AGENT 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 (the "FMFS").
WHEREAS, the Trust is an open-end management investment company which is
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 administering transfer and dividend disbursing agent functions
for the benefit of its customers; and
WHEREAS, the Trust desires to retain FMFS to provide transfer and dividend
disbursing agent services to each series of the Trust listed on Exhibit A
attached hereto, (each hereinafter referred to as a "Fund") as 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 Transfer Agent
The Trust hereby appoints FMFS as Transfer Agent 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
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent, to the extent applicable and as relevant, agent
in connection with accumulation, open account or similar plans (including
without limitation any periodic investment plan or periodic withdrawal
program) in accordance with the procedures set forth in each Fund's
prospectus and statement of additional information relating to shares of
such Fund as in effect from time to time (together the "Prospectus"),
including but not limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders with prompt delivery, where appropriate, of
payment and supporting documentation to the Trust's custodian, and
issue the appropriate number of uncertificated shares with such
uncertificated shares being held in the appropriate shareholder
account;
C. Arrange for issuance of shares obtained through transfers of funds
from shareholders' accounts at financial institutions and arrange for
the exchange of shares for shares of other eligible investment
companies, when permitted by Prospectus;
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's custodian;
E. Pay monies upon receipt from the Trust's custodian, where relevant, in
accordance with the instructions of redeeming shareholders;
F. Process transfers of shares in accordance with the shareholder's
instructions;
G. Process exchanges between Funds and/or classes of shares of Funds both
within the same family of Funds and with a Firstar Money Market Fund,
if applicable, as described from time to time in a Fund's prospectus;
H. Cancel certificates as instructed; replace lost, stolen or destroyed
certificates upon receipt of satisfactory indemnification or surety
bond;
I. Prepare and transmit payments for dividends and distributions declared
by the Trust with respect to each Fund, after deducting any amount
required to be withheld by any applicable laws, rules and regulations
and in accordance with shareholder instructions;
J. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
K. Record the issuance of shares of each Fund and maintain, pursuant to
Rule 17Ad-10(e) promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), a record of the total number of
shares of each Fund which are authorized, issued and outstanding; and
perform such services as required under Rule 17Ad-17 under the
Exchange Act;
L. Prepare shareholder meeting lists and, if applicable, mail, receive
and tabulate proxies;
M. Mail shareholder reports and prospectuses to current shareholders;
N. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders;
O. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all
purchases, redemptions and other confirmable transactions as agreed
upon with the Trust;
P. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate Federal
authorities any taxes to be withheld on dividends and distributions
paid by the Trust, all as required by applicable Federal tax laws and
regulations;
Q. Provide a Blue Sky System that will enable the Trust to monitor the
total number of shares of each Fund sold in each state. In addition,
the Trust or its agent, including FMFS, shall identify to FMFS in
writing those transactions and assets to be treated as exempt from the
Blue Sky reporting for each state. The responsibility of FMFS for the
Trust's Blue Sky state registration status is solely limited to the
initial compliance by the Trust and the reporting of such transactions
to the Trust or its agent;
R. Answer correspondence from shareholders, securities brokers and others
relating to FMFS's duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between FMFS and the
Trust.
S. Reimburse each Fund each month for all material losses resulting from
"as of" processing errors for which FMFS is responsible in accordance
with the "as of" processing guidelines set forth in the attached
Exhibit B.
3. Compensation
The Trust agrees to pay FMFS for the performance of the duties listed in
this agreement as set forth on Exhibit C attached hereto; the fees and
out-of-pocket expenses include, but are not limited to the following:
printing, postage, forms, stationery, record retention (if requested by the
Trust), mailing, insertion, programming (if requested by the Trust),
labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Trust and FMFS.
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 with thirty (30) calendar days following receipt of each
invoice if the Corporation 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 on 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 assets and property of the particular Fund
involved.
4. Representations of FMFS
FMFS represents and warrants to the Trust that:
A. It is a limited liability corporation duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement; and
G. It will comply in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act, the 1940 Act, and any laws,
rules, and regulations of governmental authorities having
jurisdiction.
5. Representations of the Trust
The Trust represents and warrants to FMFS that:
A. The Trust is an open-ended diversified investment company under the
1940 Act;
B. The Trust is a business trust organized, existing, and in good
standing under the laws of Delaware;
C. The Trust is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Declaration of Trust have
been taken to authorize it to enter into and perform this Agreement;
E. The Trust will comply in all material respects with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act,
and any laws, rules and regulations of governmental authorities having
jurisdiction; and
F. A registration statement under the 1940 Act is effective and will
remain effective, and appropriate state securities law filings have
been made and will continue to be made, with respect to all shares of
the Trust being offered for sale.
6. Performance of Service; Limitation of Liability
A. FMFS shall exercise reasonable care and act in 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'
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 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.
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.
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.
7. 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 (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 after being
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.
8. 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 7 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.
9. 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 with such section and rules of the 1940 Act
and will be promptly surrendered to the Trust on and in accordance with its
request.
10. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and 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 Securities and Exchange
Commission thereunder.
11. 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 Trust shall pay any reasonable expenses associated with
transferring the data 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.
12. 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
13. 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 Transfer Agent 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 or 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
