FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this 20th day
of December, 2001, by and between Fort Pitt Capital Funds, a Delaware business
trust (the "Trust") and 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) (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 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 fund administration services for the Funds when
necessary or customarily provided, including but not limited to:
A. General Fund Management:
(1) Monitor and act as liaison among all of the Funds and each of
their service providers.
(2) Supply:
a. Corporate secretarial services.
b. Office facilities (which may be in USBFS's offices or those
of one of its affiliates).
c. Non-investment-related statistical and research data as
needed. (i.e., from Lipper, Mornningstar, etc.)
d. Any reports or information that the Fund or Fund management
shall reasonably request.
(3) Coordinate the Trust's Board of Trustees' (the "Board of
Trustees" or the "Trustees") communications on a timely basis:
a. Prepare, compile and distribute meeting agendas and board
materials including board resolutions and various financial,
administrative and regulatory reports for Trustees' review
at Board meetings.
b. Evaluate and monitor the Funds' independent auditor.
c. Secure and monitor fidelity bond and director and officer
liability coverage, and make the necessary Securities and
Exchange Commission (the "SEC") filings relating thereto.
d. Prepare minutes of meetings of the Board of Trustees and
Fund Shareholders.
e. Recommend the amount of dividends to be declared at least
one month in advance of such declaration to the Board of
Trustees, prepare and distribute to appropriate parties
notices announcing declaration of dividends and other
distributions to shareholders. f. Provide personnel to serve
as officers of the Trust to provide ministerial services if
so elected by the Board of Trustees, and attend Board of
Trustees meetings. g. Provide tax planning and dividend
guidance at least one month in advance of dividend
declarations.
(4) Audits:
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to the SEC and facilitate the audit
process.
c. Provide office facilities for use by the Fund's auditors and
others in connection with the audit.
(5) Assist in the overall operations of each Fund.
(6) Pay each Fund's expenses upon written authorization from the
Trust.
(7) Monitor arrangements under shareholder services or similar plans.
B. Compliance:
(1) Regulatory Compliance:
a. Monitor each Fund's compliance with the 1940 Act
requirements by performing certain compliance tasks,
including, without limitation:
(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 for the disinterested Trustees of the
Funds.
b. Monitor each Fund's compliance with its investment
objectives, policies and limitations as set forth in its
current prospectus (the "Prospectus") and statement of
additional information (the "SAI"). c. Maintain awareness
and provide prompt notice to the Fund of applicable
regulatory and operational service issues and developments
and recommend how Fund, Trust and/or the Board of Trustees
can resolve such issues.
(2) Blue Sky Compliance:
Monitor compliance with all applicable state securities acts,
including:
a. On a timely basis, prepare and file with the appropriate
state securities authorities any and all required compliance
filings relating to the registration of the securities of
the Trust so as to enable the Trust to make a continuous
offering of its shares in all 50 states in the United States
of America, Puerto Rico, U.S. Virgin Islands, and Guam. b.
Monitor status and maintain registrations in each
state/territory. c. Promptly provide information to Board of
Trustees regarding material developments in state securities
regulation.
(3) SEC Registration and Reporting:
a. Provide requested assistance to the Trust's and Funds'
counsel in updating and filing (including EDGARizing) the
Trust's Registration Statement on Form N-1A and in preparing
proxy statements.
b. Timely prepare annual and semiannual shareholder reports,
and Form N-SAR filings.
c. Coordinate the timely printing, filing and mailing of
publicly disseminated Prospectuses and annual and semiannual
shareholder reports, filings and notices.
d. Timely file fidelity bond under Rule 17g-1 of the 1940 Act.
e. Timely file shareholder reports under Rule 30b2-1 of the
1940 Act.
f. Monitor sales of each Fund's shares and ensure that such
shares are properly registered with the SEC and the
appropriate state authorities.
g. Timely prepare and file Rule 24f-2 notices.
h. Provide for the EDGARization or other appropriate
preparation of all Fund or Trust documents required to be
filed electronically with the SEC.
(4) IRS Compliance:
Monitor compliance with all federal, state and local tax laws,
including:
a. Monitor the Trust's compliance with Subchapter M of the
Internal Revenue Code of 1986, as amended, to maintain its
status as a registered investment company, including without
limitation, reviewing the following:
(i) Asset diversification requirements.
(ii) Qualifying income requirements.
(iii) Distribution requirements.
b. Calculate required distributions as needed (including excise
tax distributions).
C. Financial Reporting:
(1) Timely provide financial data required by each Fund's Prospectus,
SAI and shareholder reports.
(2) Timely 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 each Fund's financial statements, including oversight of
expense accruals and payments, of the calculation 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 each Fund, and each 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.
D. Tax Reporting:
(1) Prepare and file on a timely basis appropriate federal, state and
local tax returns including, without limitation, Forms 1120/8610
with any necessary schedules.
(2) Prepare state income breakdowns where relevant.
(3) Timely 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 applicable fees (as
set forth on Exhibit B) and reimbursable expenses within thirty (30)
calendar days following receipt of the billing notice, except for any fee
or expense subject to a good faith dispute. The Trust shall, in good faith,
notify USBFS in writing within thirty (30) calendar days following receipt
of each invoice if the Trust is disputing any amounts set forth on such
invoice. The Trust shall pay such disputed amounts within ten (10) calendar
days 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 (1 1/2%) per month, after the expiration of said 30 days
from the Trust's receipt of the invoice until fully paid. Notwithstanding
anything herein 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 acted in good faith, exercised reasonable care and not
engaged in willful misconduct on its part in the performance of its
duties under this Agreement, the Trust shall indemnify and hold
harmless 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 USBFS 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, other
than an officer provided by USBFS pursuant to Section 2.A.(3)(f)
hereof, 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.
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) which the Trust
may sustain or incur or which may be asserted against the Trust by any
person arising out of any action taken or omitted to be taken by USBFS
as a result of USBFS's refusal or failure to comply with the terms of
this Agreement, USBFS's bad faith, negligence, or willful misconduct.
Without limiting the generality of the foregoing, USBFS agrees to
indemnify the Trust with respect to any and all of the following: (1)
failure of USBFS to observe or perform any duty; (2) any claim(s) of
infringement of any patent, copyright, trade secret, or other
proprietary right of any third party alleged to have occurred because
of systems, software or other resources provided by USBFS (3) any
claim by a third party, or arising from a breach of a duty of
confidentiality, or other similar duty in respect of information in
the possession of USBFS which information was provided to the Trust;
(4) any claims arising out of or occurrences which USBFS is required
to insure against pursuant to this Agreement or applicable law; (5)
any claim of unlawful harassment or discrimination resulting from an
action of USBFS or its employees, agents or representatives, including
the officers provided pursuant to Section 2.A.(3)(f) hereof; (6) any
claim or action arising out of or relating to any illness, injury or
death of a person, or damage to property, attributable to the
negligence or willful misconduct of USBFS or its employees, agents or
representatives.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case USBFS may be asked
to indemnify or hold the Trust harmless, USBFS shall be fully and
promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the Trust will use all
reasonable care to notify USBFS promptly concerning any situation
which presents or appears likely to present the probability of such a
claim for indemnification against USBFS. USBFS shall have the option
to defend the Trust against any claim which may be the subject of this
indemnification. In the event that USBFS so elects, it will so notify
the Trust and thereupon USBFS shall take over complete defense of the
claim, and the Trust shall in such situation initiate no further legal
action or incur other expenses for which it shall seek indemnification
under this section. However, the Trust may, at its sole option,
participate in, but not control, the defense of the claim, which
participation shall be at the Trust's sole cost and expense. The Trust
shall in no case confess any claim or make any compromise in any case
in which USBFS will be asked to indemnify the Trust except with
USBFS's prior written consent. Additionally, USBFS shall in no case
confess any claim or make any compromise in any case in which USBFS
will be asked to indemnify the Trust if such compromise does not
include a complete and unconditional release of the Trust.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond USBFS's 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 Trust may be
asked to indemnify or hold USBFS harmless, the Trust shall be fully
and promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that USBFS will use all
reasonable care to notify the Trust promptly concerning any situation
that presents or appears likely to present the probability of a claim
for indemnification. The Trust shall have the option to defend USBFS
against any claim that may be the subject of this indemnification. In
the event that the Trust so elects, it will so notify USBFS and
thereupon the Trust shall take over complete defense of the claim, and
USBFS shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this section.
However, USBFS may, at is sole option, participate in, but not
control, the defense of the claim, which participation shall be at
USBFS's sole cost and expense. USBFS shall in no case confess any
claim or make any compromise in any case in which the Trust will be
asked to indemnify USBFS except with the Trust's prior written
consent. Additionally, the Trust shall in no case confess any claim or
make any compromise in any case in which the Trust will be asked to
indemnify USBFS if such compromise does not include a complete and
unconditional release of USBFS.
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
shall reasonably conclude that it is 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.
Further, USBFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, USBFS will not
directly or indirectly through an affiliate, disclose any nonpublic
personal information received from the Trust concerning any of the Trust's
shareholders to any third party person that is not affiliated with the
Trust or with USBFS unless specifically directed by the Trust or allowed
under one of the exceptions noted under the Act, and provided that any such
information disclosed to an affiliate of USBFS shall be under the same
limitations on non-disclosure.
6. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of three years. Subsequent to the
initial three-year term, this Agreement may be terminated 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. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but all of which counterparts
shall together constitute but one and the same instrument.
9. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order thereunder.
10. Duties in the Event of Termination
In the event that, in connection with termination of this Agreement, 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.
11. 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.
12. 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.
13. Assignment
This Agreement, and any right or obliation hereunder may not be assigned by
either party without the prior written consent of the other party.
14. 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 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:
Fort Pitt Capital Funds
c/o Fort Pitt Capital Group, Inc.
Attention: Xxxx Xxxxx
Xxxxxx Plaza Eleven
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxx, LLC
Attention: Xxxxx Xxxxx
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
Fort pitt capital funds U.S. BANCORP FUND SERVICES, LLC
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxx
-------------------- --------------------
Xxxxxx X. Xxxxxx Xxx Xxxxxxx
Title: President Title: President
