FUND ADMINISTRATION SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into as of this19th day of July, 2005, by and
between Trust for Professional Managers, a Delaware business trust (the “Trust”)
on behalf of the Xxxxxxx Xxxxxx Core Equity 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 providing fund administration
services for the benefit of its customers; and
WHEREAS,
the Trust desires to retain USBFS to provide fund administration services for
each series of the Trust listed on Exhibit A hereto (as amended from time to
time) (the “Fund”).
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 Administrator |
The
Trust hereby appoints USBFS as administrator 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.
| 2. |
Services
and Duties of USBFS |
USBFS
shall provide the following fund administration services for the Fund, including
but not limited to:
| A. |
General
Fund Management: |
| (1) |
Act
as liaison among all Fund service providers.
|
| (2) |
Supply: |
| a. |
Corporate
secretarial services. |
| b. |
Office
facilities (which may be in USBFS’s or its affiliate’s own offices).
|
| c. |
Non-investment-related
statistical and research data as needed. |
| (3) |
Coordinate
the Trust’s Board of Trustees’ (the “Board of Trustees” or the “Trustees”)
communications, such as: |
| a. |
Establish
meeting agendas. |
| b. |
Prepare
reports for the Board of Trustees based on financial and administrative
data. |
| c. |
Assist
in Engaging Independent Auditor. |
1
| d. |
Secure
and monitor fidelity bond and director and officer liability coverage, and
make the necessary Securities and Exchange Commission (the “SEC”) filings
relating thereto. |
| e. |
Prepare
minutes of meetings of the Board of Trustees and Fund shareholders.
|
| f. |
Recommend
dividend declarations to the Board of Trustees, prepare and distribute to
appropriate parties notices announcing declaration of dividends and other
distributions to shareholders. |
| g. |
Provide
personnel to serve as officers of the Trust if so elected by the Board of
Trustees, attend Board of Trustees meetings and present materials for
Trustees’ review at such meetings. |
| (4) |
Audits:
|
| a. |
Prepare
appropriate schedules and assist independent auditors.
|
| b. |
Provide
information to the SEC and facilitate audit process.
|
| c. |
Provide
office facilities. |
| (5) |
Assist
in overall operations of the Fund. |
| (6) |
Pay
Fund expenses upon written authorization from the Trust.
|
| (7) |
Monitor
arrangements under shareholder services or similar plan.
|
| B. |
Compliance:
|
| (1) |
Regulatory
Compliance: |
| a. |
Monitor
compliance with the 1940 Act requirements, including:
|
| (i) |
Asset
diversification tests. |
| (ii) |
Total
return and SEC yield calculations. |
| (iii) |
Maintenance
of books and records under Rule 31a-3. |
| (iv) |
Code
of Ethics requirements for the disinterested Trustees of the Fund.
|
| b. |
Monitor
Fund's compliance with the policies and investment limitations of the
Trust as set forth in its current prospectus (the “Prospectus”) and
statement of additional information (the “SAI”).
|
| c. |
Maintain
awareness of applicable regulatory and operational service issues and
recommend dispositions. |
| (2) |
Blue
Sky Compliance: |
| a. |
Prepare
and file with the appropriate state securities authorities any and all
required compliance filings relating to the qualification of the
securities of the Trust, the Fund, or class of shares of the Fund, as
applicable, so as to enable the Trust to make a continuous offering of its
shares in all states. |
| b. |
Monitor
status and maintain registrations in each state.
|
| c. |
Provide
information regarding material developments in state securities
regulation. |
2
| (3) |
SEC
Registration and Reporting: |
| a. |
Assist
Fund counsel in updating the Prospectus and SAI and in preparing proxy
statements and Rule 24f-2 notices. |
| b. |
Prepare
and file annual and semiannual reports, Form N-SAR filings, Form N-Q
filings and Rule 24f-2 notices. |
| c. |
Coordinate
the printing, filing and mailing of publicly disseminated Prospectuses and
reports, and amendments and supplements thereto.
|
| d. |
File
fidelity bond under Rule 17g-1. |
| e. |
File
shareholder reports on Form N-CSR under Rule 30b2-1.
|
| f. |
Monitor
sales of the Fund’s shares and ensure that such shares are properly
registered or qualified, as applicable, with the SEC and the appropriate
state authorities. |
| g. |
File
proxy votes on Form N-PX. |
| (4) |
IRS
Compliance: |
| a. |
Monitor
the Trust’s status as a regulated investment company under Subchapter M,
including without limitation, review of the following:
|
| (i) |
Asset
diversification requirements. |
| (ii) |
Qualifying
income requirements. |
| (iii) |
Distribution
requirements. |
| b. |
Calculate
required distributions (including excise tax distributions).
|
| C. |
Financial
Reporting: |
| (1) |
Provide
financial data required by the Fund’s Prospectus and
SAI. |
| (2) |
Prepare
financial reports for officers, shareholders, tax authorities, performance
reporting companies, the Board of Trustees, the SEC, and independent
auditors. |
| (3) |
Supervise
the Trust’s custodian and fund accountants in the maintenance of the
Trust’s general ledger and in the preparation of the Fund’s financial
statements, including oversight of expense accruals and payments, of the
determination of net asset value of the Trust’s net assets and of the
Trust’s shares, and of the declaration and payment of dividends and other
distributions to shareholders. |
| (4) |
Compute
the yield, total return and expense ratio of each class of the Fund, and
the Fund’s portfolio turnover rate. |
| (5) |
Monitor
the expense accruals and notify the Trust’s management of any proposed
adjustments. |
| (6) |
Prepare
monthly financial statements, which include without limitation the
following items: |
| a. |
Schedule
of Investments. |
| b. |
Statement
of Assets and Liabilities. |
| c. |
Statement
of Operations. |
| d. |
Statement
of Changes in Net Assets. |
| e. |
Cash
Statement. |
| f. |
Schedule
of Capital Gains and Losses. |
| (7) |
Prepare
quarterly broker security transaction summaries.
|
3
| D. |
Tax
Reporting: |
| (1) |
Prepare
and file on a timely basis appropriate federal and state tax returns
including, without limitation, Forms 1120/8610 with any necessary
schedules. |
| (2) |
Prepare
state income breakdowns where relevant. |
| (3) |
File
Form 1099 Miscellaneous for payments to Trustees and other service
providers. |
| (4) |
Monitor
wash sale losses. |
| (5) |
Calculate
eligible dividend income for corporate shareholders.
|
| 3. |
Compensation
|
USBFS
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 amended from
time to time). 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 notify USBFS
in writing within thirty (30) calendar days following receipt of each invoice if
the Trust 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 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 one and one-half percent (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 the assets and property of the particular Fund
involved.
| 4. |
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 matters to
which this Agreement relates, 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 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 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) which USBFS may sustain or incur or which 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, 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 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 USBFS by any duly authorized officer of the Trust,
such duly authorized officer to be included in a list of authorized
officers furnished to USBFS and as amended from time to time in writing by
resolution of the Board of Trustees. |
4
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, its bad faith, negligence, or willful
misconduct.
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 beyond
USBFS’s control. 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.
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. |
| 5. |
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 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, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
5
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 (the
“Act”). Notwithstanding the foregoing, USBFS will not share any nonpublic
personal information 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.
| 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 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
|
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 on and in accordance with its request.
| 8. |
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 SEC thereunder.
| 9. |
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 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.
| 10. |
No
Agency Relationship |
Nothing
herein contained shall be deemed to authorize or empower USBFS 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.
6
| 11. |
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. If USBFS is also acting in another capacity for the Trust, nothing herein
shall be deemed to relieve USBFS of any of its obligations in such capacity.
| 12. |
Assignment
|
This
Agreement may not be assigned by either party without the prior written consent
of the other party.
| 13. |
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 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
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
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.
|
U.S.
BANCORP FUND SERVICES, LLC | |
|
By:
/s/
Xxxxxx X. Xxxxxxxxx |
By:
/s/
Xxxxxx X. Xxxxxxxxx |
|
Title:
Chairperson |
Title:
Senior
Vice President |
7
Exhibit
A
to
the
Fund
Accounting Servicing Agreement
Fund
Names
Separate
Series of Trust for Professional Managers
| Name of Series | Date Added |
| Xxxxxxx Xxxxxx Core Equity | August 3, 2005 |
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