Exhibit item (h)(2)
BLUE SKY COMPLIANCE SERVICING AGREEMENT
This contract between Xxxxx and Power Growth Fund, Inc., a Minnesota
corporation, hereinafter referred to as the "Fund," and Firstar Trust Company, a
Wisconsin corporation, hereinafter called "FTC," is entered into on this 15th
day of April, 1996.
Witnesseth:
Whereas, the Fund is an open-ended, diversified management company; and
Whereas, the Fund desires FTC to provide state registration compliance services
for its funds; and
Whereas, FTC is in the business of providing, among other things, state
registration services to investment companies;
Now, therefore, the parties do mutually promise and agree as follows:
I. Duties and responsibilities of FTC
A. Prepare and file all initial state registrations and renewals,
including all necessary post-effective amendments, sales reports,
and other required state filings
1. All renewals subject to written approval signed by an
authorized official of the Fund
B. Monitor status in each state
C. Develop Blue Sky sales interface with all relevant discount
brokerage and other financial institutions as directed by the Fund
D. Send periodic reports to the Fund reflecting status of each state
permit
II. Compensation
The Fund agrees to pay FTC for performance of the duties listed in this
Agreement and the fees and out-of-pocket expenses as set forth in the
attached Schedule B.
Notwithstanding the foregoing, if the Fund should terminate this Agreement
prior to the first anniversary of this Agreement, the Fund agrees to
reimburse FTC for the difference between the standard fee schedule and the
discounted fee schedule agreed to between the parties.
The Fund agrees to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
III. Performance of Service; Limitation of Liability
FTC shall exercise reasonable care in the performance of its duties under
the Agreement. The Fund agrees to reimburse and make FTC whole for any
loss or damages (including reasonable fees and expenses of legal counsel)
arising out of or in connection with its actions under this Agreement so
long as FTC acts in good faith and is not negligent or guilty of any
willful misconduct. The Fund accepts all responsibility, including, but
not limited to, liability for any recision action for filing state
securities registrations, or failing to file securities registrations, for
all of its funds listed in Schedule A, prior to May 1, 1995.
FTC shall not be liable or responsible for delays or errors occurring by
reason of circumstances beyond its control, including acts of civil or
military authority, natural or state emergencies, fire, mechanical
breakdown, flood or catastrophe, act of God, insurrection, war, riots, or
failure of transportation, communication, or power supply.
In the event of a mechanical breakdown beyond its control, FTC shall take
all reasonable steps to minimize service interruptions for any period that
such interruption continues beyond FTC's control. FTC 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 FTC. FTC agrees
that it shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provisions for emergency use of
electrical data processing equipment to the extent appropriate equipment
is available. Representatives of the Fund shall be entitled to inspect
FTC's premises and operating capabilities at any time during regular
business hours of FTC, upon reasonable notice to FTC.
This indemnification includes any act, omission to act, or delay by FTC in
reliance upon, or in accordance with, any written or oral instruction it
receives from any duly authorized officer of the Fund.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Fund may be asked to
indemnify or hold FTC harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and
it is further understood that FTC will use all reasonable care to notify
the Fund promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification
against the Fund. The Fund shall have the option to defend FTC against any
claim which may be the subject of this indemnification. In the event that
the Fund so elects, it will so notify FTC and thereupon the Fund shall
take over complete defense of the claim, and FTC shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. FTC shall in no case confess any claim
or make any compromise in any case in which the Fund will be asked to
indemnify FTC except with the Fund's prior written consent.
FTC shall indemnify and hold the Fund harmless from and against any and
all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including
reasonable attorneys' fees) which may be asserted against the Fund by any
person arising out of any action taken or omitted to be taken by FTC as a
result of FTC's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
Regardless of the above, FTC reserves the right to reprocess and correct
administrative errors at its own expense.
IV. Confidentiality
FTC shall handle, in confidence, all information relating to The Fund's
business which is received by FTC during the course of rendering any
service hereunder.
V. Data Necessary to Perform Service
The Fund or its agent, which may be FTC, shall furnish to FTC the data
necessary to perform the services described herein at times and in such
form as mutually agreed upon.
VI. Terms of Agreement
This Agreement may be terminated upon sixty (60) days' written notice
given by one party to the other.
VII. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
FTC's duties or responsibilities hereunder is designated by the Fund by
written notice to FTC, FTC will promptly, upon such termination and at the
expense of the Fund, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by FTC
under this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which FTC has maintained, the Fund 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 FTC's personnel in the establishment of
books, records, and other data by such successor.
VIII. Choice of Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin.
Xxxxx and Power Growth Fund, Inc. FIRSTAR TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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Attest: /s/ Xxxx X. Xxxxxxxx Attest: /s/ Xxxxxx XxXxx
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