TRANSFER AGENT SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into as of this 24th day of
October,
2007, by and between the TRUST FOR PROFESSIONAL MANAGERS, a
Delaware statutory trust, on behalf of its series named in Exhibit A
hereto, (each a “Fund”, and collectively the “Funds”) 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:
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1.
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Appointment
of USBFS as Transfer Agent
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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.
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2.
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Services
and Duties of USBFS
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USBFS
shall provide the following transfer agent and dividend disbursing agent
services to the Fund:
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A.
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Receive
and process all orders for the purchase, exchange, and/or redemption
of
shares in accordance with Rule 22c-1 under the 1940
Act.
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B.
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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.
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C.
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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”).
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1
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D.
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Process
redemption requests received in good order and, where relevant, deliver
appropriate documentation to the Trust's
custodian.
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E.
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Pay
monies upon receipt from the Trust's custodian, where relevant, in
accordance with the instructions of redeeming
shareholders.
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F.
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Process
transfers of shares in accordance with the shareholder's instructions,
after receipt of appropriate documentation from the shareholder as
specified in the Prospectus.
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G.
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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.
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H.
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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.
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Serve
as the Fund’s agent in connection with accumulation, open account or
similar plans (e.g., periodic investment plans and periodic withdrawal
plans).
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J.
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Make
changes to shareholder records, including, but not limited to, address
changes in plans (e.g., systematic withdrawal, automatic investment,
dividend reinvestment).
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K.
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Handle
load and multi-class processing, including rights of accumulation
and
purchases by letters of intent.
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L.
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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.
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M.
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Prepare
shareholder meeting lists and, as necessary, mail, receive and tabulate
proxies.
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N.
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Mail
shareholder reports and Prospectuses to current
shareholders.
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O.
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Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders.
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2
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P.
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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.
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Q.
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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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R.
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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.
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S.
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Answer
correspondence from shareholders, securities brokers and others relating
to USBFS’s duties hereunder.
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T.
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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.
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3.
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Lost
Shareholder Due Diligence Searches and
Servicing
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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.
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4.
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Anti-Money
Laundering Program
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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:
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(a)
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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)
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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)
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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)
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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)
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Certified
annual and quarterly reports of its monitoring and customer identification
activities on behalf of 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.
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5.
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Compensation
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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 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.
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6.
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Representations
and Warranties
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A.
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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:
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(1)
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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;
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(2)
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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;
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(3)
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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
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(4)
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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.
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B.
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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:
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(1)
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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;
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5
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(2)
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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;
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(3)
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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
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(4)
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It
is a registered transfer agent under the Exchange
Act.
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7.
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Standard
of Care; Indemnification; Limitation of
Liability
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A.
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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.
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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.
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B.
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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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7
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C.
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The
indemnity and defense provisions set forth in this Section 6 shall
indefinitely survive the termination and/or assignment of this
Agreement.
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D.
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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.
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8.
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Data
Necessary to Perform
Services
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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.
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9.
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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 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.
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10.
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Records
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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 or its designee on and in accordance with
its
request.
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11.
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Compliance
with Laws
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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.
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12.
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Term
of Agreement; Amendment
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This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of three (3) years. Subsequent to the
initial three-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.
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13.
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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 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. Early
Termination
In
the
absence of any material breach of this Agreement, should the Trust elect to
terminate this Agreement prior to the end of the term, the Trust agrees to
pay
the following fees:
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a.
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all
monthly fees through the life of the contract, including the rebate
of any
negotiated discounts;
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b.
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all
fees associated with converting services to successor service
provider;
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c.
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all
fees associated with any record retention and/or tax reporting obligations
that may not be eliminated due to the conversion to a successor service
provider;
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d.
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all
out-of-pocket costs associated with a-c
above.
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15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
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20. 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:
Notice
to
USBFS and the Trust shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
21. 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.
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/ Xxxxxxx X. XxXxx |
| Name: Xxxxxx Xxxxxxxxx | Name: Xxxxxxx X. XxXxx |
| Title: Chairman | Title: Executive Vice President |
11
Exhibit
A
to
the
Fund
Names
| Name of Series | Date Added |
| Bristlecone Fund | on or after October 24, 2007 |
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
