TRANSFER AGENT SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into as of this 25th
day of
August, 2005, by and between Trust
for Professional Managers,
a
Delaware business trust (the "Trust") on behalf
of
its series, the Ascentia Long/Short Fund (the “Fund”) and
U.S.
BANCORP FUND SERVICES, LLC,
a
Wisconsin limited liability company ("USBFS").
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,
USBFS 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 USBFS 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” and 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 USBFS as Transfer Agent
|
The
Trust
hereby appoints USBFS as transfer agent of the Trust on the terms and conditions
set forth in this Agreement, and USBFS hereby accepts such appointment and
agrees to perform the services and duties set forth in this Agreement. The
services and duties of USBFS shall be confined to those matters expressly
set
forth herein, and no implied duties are assumed by or may be asserted against
USBFS hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following transfer agent and dividend disbursing agent
services to the Fund:
| A. |
Receive
and process all orders for the purchase, exchange, and/or redemption
of
shares in accordance with Rule 22c-1 under the 1940
Act.
|
| 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 the 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 the Fund’s prospectus (the
“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,
after receipt of appropriate documentation from the shareholder
as
specified in the Prospectus.
|
| G. |
Process
exchanges between Funds and/or classes of shares of Funds both
within the
same family of funds and with a First American Money Market Fund,
if
applicable.
|
| H. |
Prepare
and transmit payments for dividends and distributions declared
by the
Trust with respect to the Fund, after deducting any amount required
to be
withheld by any applicable laws, rules and regulations and in accordance
with shareholder instructions.
|
| I. |
Serve
as the Fund’s agent in connection with accumulation, open account or
similar plans (e.g., periodic investment plans and periodic withdrawal
plans).
|
| J. |
Make
changes to shareholder records, including, but not limited to,
address
changes in plans (e.g., systematic withdrawal, automatic investment,
dividend reinvestment).
|
| K. |
Handle
load and multi-class processing, including rights of accumulation
and
purchases by letters of intent.
|
| L. |
Record
the issuance of shares of the 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
the Fund which are authorized, issued and
outstanding.
|
| M. |
Prepare
shareholder meeting lists and, as necessary, mail, receive and
tabulate
proxies.
|
| N. |
Mail
shareholder reports and Prospectuses to current
shareholders.
|
| O. |
Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders.
|
2
| P. |
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.
|
| Q. |
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.
|
| R. |
Provide
a Blue Sky system that will enable the Trust to monitor the total
number
of shares of the Fund sold in each state; provided that the Trust,
not
USBFS, is responsible for ensuring that shares are not sold in
violation
of any requirement under the securities laws or regulations of
any
state.
|
| S. |
Answer
correspondence from shareholders, securities brokers and others
relating
to USBFS’s duties hereunder.
|
| T. |
Reimburse
the Fund each month for all material losses resulting from “as of”
processing errors for which USBFS is responsible in accordance
with the
“as of” processing guidelines set forth on Exhibit
B
hereto.
|
| 3. |
Lost
Shareholder Due Diligence Searches and
Servicing
|
The
Trust
hereby acknowledges that USBFS has an arrangement with an outside vendor
to
conduct lost shareholder searches required by Rule 17Ad-17 under the Securities
Exchange Act of 1934, as amended. Costs associated with such searches will
be
passed through to the Trust as an out-of-pocket expense in accordance with
the
fee schedule set forth in Exhibit
C
hereto.
If a shareholder remains lost and the shareholder’s account unresolved after
completion of the mandatory Rule 17Ad-17 search, the Trust hereby authorizes
vendor to enter, at its discretion, into fee sharing arrangements with the
lost
shareholder (or such lost shareholder’s representative or executor) to conduct a
more in-depth search in order to locate the lost shareholder before the
shareholder’s assets escheat to the applicable state. The Trust hereby
acknowledges that USBFS is not a party to these arrangements and does not
receive any revenue sharing or other fees relating to these arrangements.
Furthermore, the Trust hereby acknowledges that vendor may receive up to
35% of
the lost shareholder’s assets as compensation for its efforts in locating the
lost shareholder.
| 4. |
Anti-Money
Laundering Program
|
The
Trust
acknowledges that it has had an opportunity to review, consider and comment
upon
the written procedures provided by USBFS describing various tools used by
USBFS
which are designed to promote the detection and reporting of potential money
laundering activity by monitoring certain aspects of shareholder activity
as
well as written procedures for verifying a customer’s identity (collectively,
the “Procedures”). Further, the Trust has determined that the Procedures, as
part of the Trust’s overall anti-money laundering program, are reasonably
designed to prevent the Fund from being used for money laundering or the
financing of terrorist activities and to achieve compliance with the applicable
provisions of the USA Patriot Act of 2002 and the implementing regulations
thereunder.
3
Based
on
this determination, the Trust hereby instructs and directs USBFS to implement
the Procedures on the Trust’s behalf, as such may be amended or revised from
time to time. It is contemplated that these Procedures will be amended from
time
to time by the parties as additional regulations are adopted and/or regulatory
guidance is provided relating to the Trust’s anti-money laundering
responsibilities.
USBFS
agrees to provide to the Trust:
| (a) |
Prompt
written notification of any transaction or combination of transactions
that USBFS believes, based on the Procedures, evidence money laundering
activity in connection with the Trust or any shareholder of the
Fund;
|
| (b) |
Prompt
written notification of any customer(s) that USBFS reasonably believes,
based upon the Procedures, to be engaged in money laundering activity,
provided that the Trust agrees not to communicate this information
to the
customer;
|
| (c) |
Any
reports received by USBFS from any government agency or applicable
industry self-regulatory organization pertaining to USBFS’s anti-money
laundering monitoring on behalf of the
Trust;
|
| (d) |
Prompt
written notification of any action taken in response to anti-money
laundering violations as described in (a), (b) or (c);
and
|
| (e) |
Certified
annual and quarterly reports of its monitoring and customer identification
activities on behalf of the Trust.
|
The
Trust
hereby directs, and USBFS acknowledges, that USBFS shall (i) permit federal
regulators access to such information and records maintained by USBFS and
relating to USBFS’s implementation of the Procedures, on behalf of the Trust, as
they may request, and (ii) permit such federal regulators to inspect USBFS’s
implementation of the Procedures on behalf of the Trust.
| 5. |
Compensation
|
USBFS
shall be compensated for providing the services set forth in this Agreement
in
accordance with the fee schedule set forth on Exhibit
C
hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by USBFS in
performing its duties hereunder. The Trust shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust
shall notify USBFS in writing within 30 calendar days following receipt of
each
invoice if the Trust is disputing any amounts in good faith. The Trust shall
pay
such disputed amounts within 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 1½% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to USBFS shall only be
paid
out of assets and property of the particular Fund involved.
4
| 6. |
Representations
and Warranties
|
| A. |
The
Trust hereby represents and warrants to USBFS, which representations
and
warranties shall be deemed to be continuing throughout the term
of this
Agreement, that:
|
|
(1)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable in accordance with
its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties;
|
|
(3)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement; and
|
|
(4)
|
A
registration statement under the 1940 Act and the Securities Act
of 1933,
as amended, will be made effective prior to the effective date
of this
Agreement and will remain effective during the term of this Agreement,
and
appropriate state securities law filings will be made prior to
the
effective date of this Agreement and will continue to be made during
the
term of this Agreement as necessary to enable the Trust to make
a
continuous public offering of its
shares.
|
| B. |
USBFS
hereby represents and warrants to the Trust, which representations
and
warranties shall be deemed to be continuing throughout the term
of this
Agreement, that:
|
5
|
(1)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of USBFS, enforceable in accordance with its
terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties;
|
|
(3)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement; and
|
|
(4)
|
It
is a registered transfer agent under the Exchange
Act.
|
| 7. |
Standard
of Care; Indemnification; Limitation of
Liability
|
| A. |
USBFS
shall exercise reasonable care in the performance of its duties
under this
Agreement. USBFS shall not be liable for any error of judgment
or mistake
of law or for any loss suffered by the Trust in connection with
its duties
under this Agreement, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond
USBFS’s control, except a loss arising out of or relating to USBFS’s
refusal or failure to comply with the terms of this Agreement or
from its
bad faith, negligence, or willful misconduct in the performance
of its
duties under this Agreement. Notwithstanding any other provision
of this
Agreement, if USBFS has exercised reasonable care in the performance
of
its duties under this Agreement, the Trust shall indemnify and
hold
harmless USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys' fees) that USBFS may sustain or incur or that may be
asserted
against USBFS by any person arising out of any action taken or
omitted to
be taken by it in performing the services hereunder (i) in accordance
with
the foregoing standards, or (ii) in reliance upon any written or
oral
instruction provided to USBFS by any duly authorized officer of
the Trust,
as approved by the Board of Trustees of the Trust (the “Board of
Trustees”), except for any and all claims, demands, losses, expenses, and
liabilities arising out of or relating to USBFS’s refusal or failure to
comply with the terms of this Agreement or from its bad faith,
negligence
or willful misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of the
Trust,
its successors and assigns, notwithstanding the termination of
this
Agreement. As used in this paragraph, the term “USBFS” shall include
USBFS’s directors, officers and
employees.
|
6
USBFS
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) that the Trust may sustain or incur or that may
be
asserted against the Trust by any person arising out of any action taken
or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. This indemnity
shall be a continuing obligation of USBFS, its successors and assigns,
notwithstanding the termination of this Agreement. As used in this paragraph,
the term “Trust” shall include the Trust’s directors, officers and
employees.
Neither
party to this Agreement shall be liable to the other party for consequential,
special or punitive damages under any provision of this Agreement.
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its control, USBFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. USBFS 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 USBFS. USBFS 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 to the extent appropriate equipment is available.
Representatives of the Trust shall be entitled to inspect USBFS’s premises and
operating capabilities at any time during regular business hours of USBFS,
upon
reasonable notice to USBFS. Moreover, USBFS shall provide the Trust, at such
times as the Trust may reasonably require, copies of reports rendered by
independent accountants on the internal controls and procedures of USBFS
relating to the services provided by USBFS under this Agreement.
Notwithstanding
the above, USBFS 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
that 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.
|
7
| C. |
The
indemnity and defense provisions set forth in this Section 6 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
| D. |
If
USBFS is acting in another capacity for the Trust pursuant to a
separate
agreement, nothing herein shall be deemed to relieve USBFS of any
of its
obligations in such other capacity.
|
| 8. |
Data
Necessary to Perform Services
|
The
Trust
or its agent shall furnish to USBFS the data necessary to perform the services
described herein at such times and in such form as mutually agreed upon.
| 9. |
Proprietary
and Confidential
Information
|
USBFS
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 (i) after prior notification
to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where USBFS may be exposed to civil or criminal
contempt proceedings for failure to comply, (ii) when requested to divulge
such
information by duly constituted authorities, or (iii) when so requested by
the
Trust. Records and other information which have become known to the public
through no wrongful act of USBFS or any of its employees, agents or
representatives, and information that was already in the possession of USBFS
prior to receipt thereof from the Trust or its agent, shall not be subject
to
this paragraph.
Further,
USBFS will adhere to the privacy policies adopted by the Trust pursuant to
Title
V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In
this
regard, USBFS shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or
use
of, records and information relating to the Trust and its
shareholders.
| 10. |
Records
|
USBFS
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. USBFS agrees that all
such
records prepared or maintained by USBFS relating to the services to be performed
by USBFS 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 or its
designee on and in accordance with its request.
8
| 11. |
Compliance
with Laws
|
The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Fund, including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot
Act of 2002 and the policies and limitations of the Fund relating to its
portfolio investments as set forth in its Prospectus and statement of additional
information. USBFS’s services hereunder shall not relieve the Trust of its
responsibilities for assuring such compliance or the Board of Trustee’s
oversight responsibility with respect thereto.
| 12. |
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 one year. Subsequent to the initial one-year
term, this Agreement may be terminated by either party upon giving 90 days
prior
written notice to the other party or such shorter period as is mutually agreed
upon by the parties. Notwithstanding the foregoing, this Agreement may be
terminated by any party upon the breach of the other party of any material
term
of this Agreement if such breach is not cured within 15 days of notice of
such
breach to the breaching party. This Agreement may not be amended or modified
in
any manner except by written agreement executed by USBFS and the Trust, and
authorized or approved by the Board of Trustees.
| 13. |
Duties
in the Event of
Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Trust by written notice
to
USBFS, USBFS 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 USBFS under this Agreement in
a form
reasonably acceptable to the Trust (if such form differs from the form in
which
USBFS has maintained the same, the Trust shall pay any 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 USBFS’s
personnel in the establishment of books, records, and other data by such
successor. If no such successor is designated, then such books, records and
other data shall be returned to the Trust.
9
| 14. |
Assignment
|
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement
shall
not be assignable by the Trust without the written consent of USBFS, or by
USBFS
without the written consent of the Trust accompanied by the authorization
or
approval of the Trust’s Board of Trustees.
| 15. |
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 of the Securities and Exchange Commission
thereunder.
| 16. |
No
Agency Relationship
|
Nothing
herein contained shall be deemed to authorize or empower either party to
act as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
| 17. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 18. |
Invalidity
|
Any
provision of this Agreement which may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
| 19. |
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
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:
10
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
and
notice to the Trust shall be sent to:
Xxxx
X.
Xxxxxxx, Secretary
000
X.
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
| 20. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when
so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
11
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.
TRUST
FOR PROFESSIONAL MANAGERS U.S.
BANCORP FUND SERVICES, LLC
By:
/s/
Xxxxxx
Xxxxxxxxx By:
/s/
Xxx X. Xxxxxxx
Title:
President Title:
President
12
Exhibit
A
to
the
Fund
Names
Separate
Series of Trust for Professional Managers
Name
of Series Date
Added
Ascentia
Long/Short Fund ______,
2005
A-1
Exhibit
B
to
the
As
Of Processing Policy
USBFS
will reimburse each Fund for any Net Material Loss that may exist on the
Fund’s
books and for which USBFS is responsible, at the end of each calendar month.
“Net Material Loss” shall be defined as any remaining loss, after netting losses
against any gains, which impacts a Fund’s net asset value per share by more than
½ cent. Gains and losses will be reflected on the Fund’s daily share sheet, and
the Fund will be reimbursed for any net material loss on a monthly basis.
USBFS
will reset the as of ledger each calendar month so that any losses which
do not
exceed the materiality threshold of ½ cent will not be carried forward to the
next succeeding month. USBFS will notify the advisor to the Fund on the daily
share sheet of any losses for which the advisor may be held
accountable.
B-1
