TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this 20th day
of December, 2001, by and between Fort Pitt Capital Funds, a Delaware business
trust (the "Trust") and Firstar Mutual Fund Services, LLC, a Wisconsin limited
liability company ("FMFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, FMFS is, among other things, 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 hereto
(as amended from time to time) (each a "Fund", collectively the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of FMFS as 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.
2. Services and Duties of FMFS
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent for the Funds, and as relevant, agent in
connection with accumulation, open account or similar plans (including
without limitation any periodic investment plan or periodic withdrawal
program), including but not limited to the following (and as illustrated on
a Sample Responsibility Chart attached hereto):
A. Receive orders for the purchase of shares.
B. Establish shareholder accounts with appropriate information regarding
participation in plans (e.g., systematic withdrawal, automatic
investment, dividend reinvestment) and information regarding tax I.D.
certification or non-resident alien records, including backup
withholding. Make changes to shareholder accounts to reflect changes
in demographic data or participation in plans upon receipt of
appropriate instructions from such shareholder or his/her/its agent.
C. Maintain valid and appropriate participation with the National
Securities Clearing Corporation ("NSCC") and provide access to FMFS's
system that uses NSCC for the Funds as agreed from time-to-time with
the Trust.
D. Process purchase orders for those purchases of shares of each Fund
received in good order 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.
E. Arrange for issuance of shares obtained through transfers of funds
from Fund shareholders' accounts at financial institutions and arrange
for the exchange of shares for shares of other eligible investment
companies, when permitted by each Fund's current prospectus
("Prospectus").
F. Process redemption requests received in good order upon receipt of
appropriate instructions from such shareholder or his/her/its agent;
and, where relevant, deliver appropriate documentation to the Trust's
custodian.
G. Pay monies upon receipt from the Trust's custodian, where relevant, in
accordance with the instructions of the redeeming shareholder or
his/her/its agent.
H. Process transfers of shares in accordance with the shareholder or
his/her/its agent's proper instructions.
I. Process exchanges upon receipt of a request in proper form by a
shareholder or his/her/its agent, between Funds and/or classes of
shares of Funds both within the same family of funds in accordance
with the terms of each Fund's prospectus and with the First American
Money Market Fund, if applicable.
J. Prepare and transmit payments for dividends and distributions declared
by the Trust with respect to each Fund, by providing automated
processing of dividend and capital gains payments with daily, monthly,
quarterly, or annual distributions. Payment options will include
reinvestment, directed payment to another Fund, or cash via mail, or
through Automated Clearing House processing. FMFS will deduct any
amount required to be withheld by any applicable laws, rules and
regulations and in accordance with shareholder or his/her/its agent's
instructions.
K. In respect to purchase and redemption transactions, calculate
front-end sales loads, contingent deferred sales charges and dealer
commissions and reallowances as set forth in the relevant Fund's
Prospectus, and provide periodic reports relating to the same to the
Fund or its designee.
L. In the event any check or other order for the transfer of money is
returned unpaid, cancel the purchase of shares of the relevant Fund
and take such other steps as the Fund may instruct to protect the Fund
and FMFS from financial loss.
M. Make reports to each Fund and its Board of Trustees concerning the
performance of its services hereunder as the parties may reasonably
agree upon.
N. Provide additional services on behalf of each Fund (i.e., escheatment
services) which may be agreed upon in writing between the parties.
O. 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 "1934 Act"), a record of the total number of shares of
the Fund which are authorized, issued and outstanding.
P. Prepare shareholder meeting lists and mailing labels for regular,
periodic or special mailings to shareholders or households and, if
applicable, mail, receive and tabulate proxies. Mailings of proxy
statements to shareholders shall be in conformity with the
then-current U.S. Securities and Exchange Commission ("SEC") rules
relating to "householding" of such mailings.
Q. Mail shareholder reports and Prospectuses, including any prospectus
stickers or supplements, and statements of additional information to
current shareholders. To the extent permitted by then-existing rules
of the SEC, such mailings shall be made using appropriate
"householding" criteria.
R. Provide appropriate transfer agency services to facilitated
Fund-sponsored XXX and SEP-XXX plans , as well as Fund-sponsored
qualified retirement plans (such as 401(k) and 403(b) plans).
S. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders.
T. 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 requested by
the Trust and as required by Section 10b-10 of the 1934 Act.
Shareholder account statements shall show all information required by
Rule 10b-10, as well as beginning and ending share price and account
value and daily activity including dividends and distributions, with
share price and transaction amounts.
U. Provide toll-free telephone lines and sufficient personnel to answer
shareholder calls and respond to requests for information regarding
transaction details including direct and wire purchases, redemptions,
exchanges, transfers, systematic withdrawals or purchases, wire order
trades; assist in problem solving, and process telephone transactions.
V. 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.
W. 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.
X. 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.
Y. 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 on Exhibit C hereto.
3. Compensation
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit B hereto
(as may be amended from time to time subject to mutual written agreement
between the parties). The Trust shall pay all fees and reimbursable
expenses within thirty (30) calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust shall, in good faith, notify FMFS in writing within thirty (30)
calendar days following receipt of each invoice if the Trust is disputing
any amounts set forth on such invoice. The Trust shall pay such disputed
amounts within ten (10) calendar days after the parties agree upon 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
expiration of said 30 days from the Trust's receipt of the invoice until
fully paid. . 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. Indemnification; 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 reasonable 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 acted in good faith, exercised
reasonable care and not engaged in willful misconduct on its part 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
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 (the "Board of
Trustees" or "Trustees").
FMFS shall indemnify and hold the Trust 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
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.
Without limiting the generality of the foregoing, FMFS agrees to
indemnify the Trust with respect to any and all of the following: (1)
failure of FMFS to observe or perform any duty or obligation under any
party software license agreement or third party service; (2) any
claim(s) of infringement of any patent, copyright, trade secret, or
other proprietary right of any third party alleged to occurred because
of systems, software or other resources provided by FMFS (3) any claim
by a third party or arising from a breach of a duty of confidentiality
or other similar duty in respect of information in the possession of
FMFS which information was provided to the Trust; (4) any claims
arising out of occurrences which FMFS is required to insure against to
this Agreement or applicable law; (5) any claim of unlawful harassment
or discrimination resulting from an action of FMFS or its employees,
agents or representatives; (6) any claim or action arising out of or
relating to any illness, other injury or death of a person, or damage
to property, attributable to the negligence or misconduct of FMFS or
its employees, agents or representatives.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case FMFS may be asked to
indemnify or hold the Trust harmless, the Trust shall be fully and
promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the Trust will use all
reasonable care to notify FMFS promptly concerning any situation which
presents or appears likely to present the probability of such a claim
for indemnification against FMFS. FMFS shall have the option to defend
the Trust against any claim which may be the subject of this
indemnification. In the event that FMFS so elects, it will so notify
the Trust and thereupon FMFS shall take over complete defense of the
claim, and the Trust shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under this
section. However, the Trust may, at its sole option, participate in,
but not control, the defense of the claim, which participation shall
be at its sole cost and expense. The Trust shall in no case confess
any claim or make any compromise in any case in which FMFS will be
asked to indemnify the Trust except with FMFS' prior written consent.
Additionally, FMFS shall in no case confess any claim or make any
compromise in any case in which FMFS will be asked to indemnify the
Trust if such compromise does not include a complete and unconditional
release of the Trust.
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 beyond FMFS's control. 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.
Notwithstanding 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 Trust may be
asked to indemnify or hold FMFS harmless, the Trust shall be fully and
promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that FMFS will use all
reasonable care to notify the Trust promptly concerning any situation
that presents or appears likely to present the probability of a claim
for indemnification. The Trust shall have the option to defend FMFS
against any claim that may be the subject of this indemnification. In
the event that the Trust so elects, it will so notify FMFS and
thereupon the Trust shall take over complete defense of the claim, and
FMFS shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this section.
However, FMFS may, at is sole option, participate in, but not control,
the defense of the claim, which participation shall be at its sole
costs and expense. FMFS shall in no case confess any claim or make any
compromise in any case in which the Trust will be asked to indemnify
FMFS except with the Trust's prior written consent. Additionally, the
Trust shall in no case confess any claim or make any compromise in any
case in which the Trust will be asked to indemnify FMFS if such
compromise does not include a complete and unconditional release of
FMFS.
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, including, 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, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, FMFS will not,
directly or indirectly through an affiliate, disclose any nonpublic
personal information received from the Trust concerning any of the Trust's
shareholders to any third party or person that is not affiliated with the
Trust or with FMFS unless specifically directed by the Trust or allowed
under one of the exceptions noted under the Act, and provided that any such
information disclosed to an affiliate of FMFS shall be under the same
limitations on non-disclosure.
6. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of three years. Subsequent to the
initial three-year term, this Agreement may be terminated, without the
payment of any penalty, 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.
7. 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
applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Trust on and in accordance with its request.
Additionally, FMFS shall make reasonably available to the Trust and its
authorized representatives records maintained by FMFS pursuant to this
Agreement for reasonable inspection, use and audit, and will take all
reasonable action to assist the Trust's independent accountants in
rendering their opinion.
8. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but all of which counterparts
shall together constitute but one and the same instrument.
9. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order thereunder.
10. 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 reasonable 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 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.
11. Data Necessary to Perform Services
The Trust or its agent, 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.
12. Assignment
This Agreement, and any right or obligation hereunder may not be assigned
by either party without the prior written consent of the other party.
13. Safekeeping
FMFS hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Trust for safekeeping of stock certificates,
check forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such certificates, forms
and devices.
14. Representations and Warranties of FMFS
FMFS represents and warrants to the Trust that:
A. It is a Wisconsin limited liability company duly organized and
existing and in good standing under the laws of the State of
Wisconsin.
B. It is duly qualified to carry on its business in the State of
Wisconsin.
C. It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
D. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
E. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
F. It is, and shall continue to be, duly registered as a transfer agent
pursuant to Section 17A of the 1934 Act, and such other provisions of
law as required and shall continue to be so for the term of this
Agreement; and shall comply with all applicable federal and state laws
in the performance of its services under this Agreement.
15. Notices
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three (3) days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other party's address set forth below: 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:
Fort Pitt Capital Funds
Xxxxxx Plaza Eleven
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxx, LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
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 date
first above written.
Fort Pitt Capital Funds FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxx
--------------------- -------------------
Xxxxxx X. Xxxxxx Xxx Xxxxxxx
Title: President Title: Senior Vice President
