FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 3rd day of November,
2000, by and between Everest Funds, a business trust organized under the laws of
the State of Delaware (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 investment management 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 in the business of providing, among other things,
mutual fund accounting services to investment companies; and
WHEREAS, the Trust desires to retain FMFS to provide accounting
services to each of the portfolios of the Trust and each additional series of
the Trust listed on Exhibit A attached hereto, as it may be amended from time to
time (individually a "Fund" and collectively the "Funds").
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 on a trade date+1 basis
using security trade information communicated from
the investment manager.
(2) For each date that the net asset value of the Fund is
calculated ("Valuation Date"), obtain prices from the
pricing source(s) approved by the Board of Trustees
of the Trust and apply those prices to the portfolio
positions. 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 as of
each Valuation Date 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.
B. Expense Accrual and Payment Services:
(1) For each valuation date, calculate the expense
accrual amounts as directed by Trust as to
methodology, rate or dollar amount.
(2) Record payments for Fund expenses upon receipt of written
authorization from 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 or its
auditors.
(3) Determine net investment income (earnings) for the
Fund as of each Valuation Date. Account for periodic
distributions of earnings to shareholders and
maintain undistributed net investment income balances
as of each Valuation Date.
(4) Maintain a general ledger and other accounts, books, and
financial records for the Fund in the form as agreed upon.
(5) Determine the net asset value of the 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 the 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, which 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 the 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 the Fund's
accounting records available to Trust, the Securities
and Exchange Commission, 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 Funds' custodian, and provide the Fund's
investment advisor with the beginning cash balance
available for investment purposes;
(2) Transmit or mail a copy of the portfolio valuation to the
Fund's investment advisor;
(3) Review the impact of current day's activity on a per share
basis, review changes in market value.
G. In addition, FMFS will:
(1) Prepare monthly security transactions listings;
(2) Supply various statistical data as requested on an
ongoing basis by Trust, Fund and/or class, as
applicable.
3. PRICING OF SECURITIES
For each valuation date, obtain prices from the pricing source(s) selected by
FMFS but approved by the Trust's Board of Trustees and apply those prices to the
portfolio positions of the Fund. For those securities where market quotations
are not readily available, the Trust's Board of Trustees shall approve, in good
faith, the method for determining the fair value for such securities.
If the Trust desires to provide a price, which 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 A and as mutually
agreed upon and amended from time to time. The Trust agrees to pay all fees and
reimbursable expenses within ten (10) business days following the receipt of the
billing notice.
7. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
A. 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 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 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 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 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 Trust may sustain or incur or which may be asserted
against the Trust 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. 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. 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, 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 unless the claim against the
indemnitee shall be adverse to the claim of the indemnitor.
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.
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.
9. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and, unless sooner
terminated as provided herein, shall continue automatically in effect for
successive annual periods. 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
replaced or modified by a subsequent agreement between the parties.
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 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 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 the
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 THE TRUST SHALL BE SENT TO: NOTICE TO FMFS SHALL BE SENT TO:
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Everest Funds Firstar Mutual Fund Services, LLC
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Attn: ▇▇▇▇▇ ▇▇▇▇▇
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.
EVEREST FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: _____________________________
Print: ___________________________ Print: __________________________
Title: ___________________________ Title: __________________________