Exhibit (h)(2)
THIS
AGREEMENT is made and entered into as of this ___ day of ________, 2006, by and between
Skyhawk Capital Management Funds Trust, a Delaware statutory trust (the
“Trust”) 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”, 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. |
| 2. |
Services
and Duties of USBFS |
| |
USBFS
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: |
| |
A. |
Receive
and process all orders for the purchase, exchange, and/or redemption of
shares in accordance with Rule 22c-1 of the Investment Company Act of 1940
(“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 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 current prospectus (“Prospectus”). |
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D. |
Process
redemption requests received in good order and, where relevant, deliver
appropriate documentation to the Trust’s custodian. |
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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 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. |
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I. |
Make
changes to shareholder records, including, but not limited to, address
changes in plans (e.g., systematic withdrawal, automatic investment,
dividend reinvestment). |
| |
J. |
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. |
| |
K. |
Prepare
shareholder meeting lists and, if applicable, mail, receive and tabulate
proxies. |
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L. |
Mail
shareholder reports and Prospectuses to current shareholders. |
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M. |
Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders. |
| |
N. |
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. |
| |
O. |
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. |
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P. |
Provide
a Blue Sky system that will enable the Trust to monitor the total number
of shares of the Fund sold in each state. In addition, the Trust or its
agent, including USBFS, shall identify to USBFS in writing those
transactions and assets to be treated as exempt from the Blue Sky
reporting for each state. The responsibility of USBFS 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. |
| |
Q. |
Answer
correspondence from shareholders, securities brokers and others relating
to USBFS’s duties hereunder and such other correspondence as may from
time to time be mutually agreed upon between USBFS and the Trust. |
| |
R. |
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 C hereto. |
| 3. |
Representations
of USBFS |
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USBFS
represents and warrants to the Trust that: |
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A. |
It
is a limited liability corporation duly organized, existing and in good
standing under the laws of Wisconsin; |
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B. |
It
is a registered transfer agent under the Exchange Act. |
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C. |
It
is duly qualified to carry on its business in the State of Wisconsin; |
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D. |
It
is empowered under applicable laws and by its charter and bylaws to enter
into and perform this Agreement; |
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E. |
All
requisite corporate proceedings have been taken to authorize it to enter and
perform this Agreement; |
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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 with all applicable requirements of the Securities Act of 1933,
as amended, and the Exchange Act, the 1940 Act, and any laws, rules, and
regulations of governmental authorities having jurisdiction. |
| 4. |
Representations
of the Trust |
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The
Trust represents and warrants to USBFS that: |
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A. |
The
Trust is an open-end investment company under the 1940 Act; |
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B. |
The
Trust is a business trust organized, existing, and in good standing under
the laws of Delaware; |
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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; |
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E. |
The
Trust will comply 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 |
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F. |
A
registration statement under the Securities Act will be made 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. |
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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 assets and property of the particular Fund involved. |
| 6. |
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 of the Trust (the
“Board of Trustees” or “Trustees”). |
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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. |
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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. |
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Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative errors at its
own expense. |
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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. |
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C. |
It
is expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents
or employees of the Trust personally, but shall bind only the property of
the Trust as provided in the Trust’s Declaration of Trust, as from
time to time amended. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such, and
neither such authorization by the Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in the
above-mentioned Declaration of Trust. |
| 7. |
Proprietary
and Confidential Information |
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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 (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 after being requested to divulge such
information by duly constituted authorities, or when so requested by the Trust. |
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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 with any third party unless specifically
directed by the Trust or allowed under one of the exceptions noted under the Act. |
| 8. |
Anti-Money
Laundering Program |
| |
The
Trust acknowledges that it has had an opportunity to review, consider and comment upon the
procedures provided by USBFS describing various tools designed to promote the detection
and reporting of potential money laundering activity by monitoring certain aspects of
shareholder activity (the “Monitoring Procedures”) as well as written procedures
for verifying a customer’s identity (the “Customer Identification
Procedures”), together referred to as the “Procedures,” and 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
provision of the Bank Secrecy Act and the implementing regulations thereunder. |
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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. |
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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. |
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USBFS
agrees to provide to the Trust: |
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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; |
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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; |
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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; |
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D. |
Prompt
written notification of any action taken in response to anti-money
laundering violations as described in (a), (b) or (c); and |
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E. |
A
certified annual report of its monitoring and customer identification
activities on behalf of the Trust. USBFS shall provide such other reports
on the monitoring and customer identification activities conducted at the
direction of the Trust as may be agreed to from time to time by USBFS and
the Trust. |
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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. |
| 9. |
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. |
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| 10. |
Duties
in the Event of Termination |
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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. |
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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. Further,
federal examiners shall have access to information and records relating to anti-money
laundering activities performed by USBFS hereunder and USBFS consents to any inspection
authorized by law or regulation in connection thereof. |
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This
Agreement shall be construed in accordance with the laws of the State of Delaware, without
regard to conflicts of law principles. To the extent that the applicable laws of the State
of Delaware, 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. |
| 13. |
Data
Necessary to Perform Services |
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The
Trust or its agent, which may be USBFS, 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. |
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This
Agreement may not be assigned by either party without the prior written consent of the
other party. |
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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: |
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Notice
to USBFS shall be sent to: |
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U.S.
Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 |
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and
notice to the Trust shall be sent to: |
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.
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