EXHIBIT
SERVICE AGREEMENT
AGREEMENT dated as of_________ , , between Holland Capital Management (the
"Adviser"), a Delaware limited partnership with its principal offices at Suite
000, Xxx Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, as investment adviser of
the Xxx Xxxxxxx Growth Fund (the Fund") of the Xxx Xxxxxxx Trust, and _________
(the "Servicer"), __________ a with its principal offices at __________ ,
_________ , __________.
In consideration of the promises and mutual covenants set forth in this
Service Agreement, the Adviser and the Servicer agree as follows:
1. Administrative Services. From time to time, the Servicer, or its agent,
shall provide the following administrative services for the Adviser with respect
to the assets invested in the Fund:
(a) responding to inquiries from [Fund shareholders who are
[customers/clients] of the Servicer] ("Shareholders");
(b) communicating directly with Shareholders concerning the Fund
operations, portfolio composition and performance;
(c) providing advice with respect to inquiries related to the assets of
the Fund (not including information about performance or related to sales of
assets); and
(d) providing such other similar services as the Adviser may reasonably
request to the extent permitted or required under applicable statutes, rules,
and regulations, or as mutually agreed to by the Servicer and the Adviser, and
relieving the Adviser of other usual or incidental administrative services
usually provided to individual investors.
2. Use of Affiliates. Unless the Adviser objects, an affiliate or agent of
the Servicer may provide any of the services set forth in Section 1, subject to
the Servicer's reasonable and good faith determination that its affiliate or
agent will provide such services in a manner consistent with this Agreement.
3. Representations with respect to the Fund. Unless the Adviser provides
prior written consent, the Servicer and its agents shall not make
representations concerning the Fund except those contained in: (i) the then
current Prospectus or SAI of the Fund; or (ii) current sales literature for the
Fund. The Adviser shall supply the Servicer, upon request, with a reasonably
sufficient quantity of current Prospectuses, and/or profile or summary
prospectuses (as permitted by interpretations or no-action letters issued by the
SEC staff), shareholder reports, and proxy
statements and related materials for the Fund, as may be reasonably necessary
for the Servicer to provide the services described in Section 1.
4. Nature of Services. The parties agree that the Adviser's payments to the
Servicer hereunder are for administrative services only and do not constitute
payment in any manner for investment advisory services or for costs of
distribution. In this connection, the Adviser recognizes that substantial
savings in administrative and shareholder services support expenses will be
derived by virtue of the Servicer's assumption of the duties described herein.
5. Account Information. The Adviser shall cause the Fund's Transfer Agent to
mail to the Servicer: (i) daily confirmations of Shareholder account activity
within five (5) Business Days after each day on which a purchase or redemption
of Fund shares for a Shareholder; and (ii) monthly statements detailing activity
in each Shareholder account within fifteen (15) business Days after the end of
each month.
6. Other Information. The Adviser shall supply the Servicer with the
following materials and information with respect to the Fund, which the Servicer
may furnish or make available to Shareholders in connection with providing the
services described in Section 1:
(a) Fund Performance Information. By the fifth (5th) business day of
each calendar month, the Adviser shall provide to the Servicer performance
information for the Fund as of the end of the preceding calendar month,
including the Fund's total return for the preceding calendar month and calendar
quarter, the calendar year-to-date, and the prior one-year, three-year,
five-year, and ten-year periods, if applicable.
(b) Other Fund Information. The Adviser agrees to supply the Service
with any material information which it may have that could have a materially
adverse impact on the performance of the Fund in the same manner and time frame
in which such information is made available to the Fund's shareholders.
7. Fee. In consideration of the savings resulting from this arrangement, and
to compensate the Servicer for its costs, the Adviser shall pay to the Servicer
a quarterly fee at an annual rate of -____% (the "Servicing Fee"), calculated as
a percentage of the average daily net asset value of all Fund shares owned by
the Shareholders, including such shares purchased through reinvestment of
dividends and distributions. The Servicing Fee is payable ten (10) business days
after the end of a calendar quarter. Fees described in this Section 7 shall
cease to accrue with respect to shares that are redeemed. Any overpayment of
compensation and fees pursuant to this Section 7 shall reduce amounts payable to
the Servicer in subsequent months.
8. Representations and Warranties.
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(a) The Servicer represents and warrants that:
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(i) it is free to enter into this Agreement and that by doing so it will not
breach or otherwise impair any other agreement or understanding with any other
person, corporation or other entity;
(ii) it has full power and authority under applicable law and has taken all
action necessary to enter into and perform this Agreement and when executed and
delivered, this Agreement shall constitute a valid, legal and binding obligation
of the Servicer, enforceable in accordance with its terms;
(iii) it is registered as a broker-dealer under the Securities Exchange Act of
1934, is qualified to act as a broker-dealer in the states or other
jurisdictions where it transacts business, and is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and agrees that it
will maintain such registrations, qualifications and membership in good standing
and in full force and effect throughout the term of this agreement;
(iv) it further agrees to comply with all applicable federal laws, the laws of
the states of other jurisdictions concerned, the rules and regulations
promulgated thereunder and the Constitution, By-Laws and Rules of Fair Practice
of the NASD;
(v) if it is providing services to customers in jurisdictions outside of the
several states, territories and possessions of the United States, or is not
otherwise required to be registered or qualified with, or a member of, the NASD,
it nevertheless agrees to observe the applicable laws of each jurisdiction in
which services are provided, to conduct its business in accordance with the
spirit of the Rules of Fair Practice of the NASD and to obey all appropriate
laws and regulations;
(vi) the arrangements provided for in this Agreement will be disclosed to the
Shareholders; and
(vii) it shall promptly notify the Adviser if for any reason it is unable to
perform any of its obligations under this Agreement.
(b) The Adviser represents and warrants that:
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(i) it has full power and authority to enter into and perform this Agreement
and, when executed and delivered, this Agreement shall constitute a valid, legal
and binding obligation of the Adviser, enforceable in accordance with its terms;
(ii) it is duly qualified and duly authorized to act on behalf of the Fund as
contemplated by this Agreement; and
(iii) it shall promptly notify the Servicer in the event that it is, for any
reason, unable to perform any of its obligations under this Agreement.
9. Indemnification.
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(a) The Fund and the Adviser shall not be held responsible and the Servicer
shall indemnify and hold the Fund and the Adviser and their respective officers,
directors, employees, agents, and person, if any, who controls them within the
meaning of the 1940 Act and Securities Act of 1933, as amended ("Securities
Act"), harmless from and against any and all reasonable losses, damages
(excluding consequential, punitive or other indirect damages), costs, charges,
counsel fees, payments, expenses, and liability arising out of or attributable
to: (i) the Servicer's lack of good faith, negligence, reckless disregard or
willful misconduct in carrying out its duties and responsibilities under this
Agreement; (ii) any breach by the Servicer of any material provision of this
Agreement; or (iii) any breach by the Servicer of any representation, warranty,
or covenant made in this Agreement.
(b) Neither the Servicer nor its affiliates shall be held responsible and the
Adviser shall indemnify and hold the Servicer and its affiliates and their
officers, directors, employees, agents, and person, if any, who controls them
within the meaning of the 1940 Act and the Securities Act, harmless from and
against any and all reasonable losses, damages (excluding consequential,
punitive or other indirect damages), costs, charges, counsel fees, payments,
expenses, and liability arising out of or attributable to: (i) the Adviser's
lack of good faith, negligence, reckless disregard or willful misconduct in
carrying out its respective duties and responsibilities under this Agreement;
(ii) the Adviser's breach of any material provision of this Agreement; (iii) the
Servicer's breach of any representation, warranty, or covenant made in this
Agreement; or (iv) any untrue statement of any material fact contained in the
Fund's Registration Statement, Prospectus, or SAI, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(c) Promptly after receipt by any indemnitee under this Section 9 of notice
of the commencement of any action, the indemnitee will, if a claim in respect
thereof is to be made against the indemnitor, notify the indemnitor of the
commencement thereof in accordance with the provisions of Section 12 hereof
within seven (7) days after the summons or other first legal process shall have
been served, unless within such seven (7) days the indemnitor shall have been
served in the same action, in which case such notification may be given within
sixty (60) days, provided that the omission so to notify the indemnitor will not
relieve it from any liability that it may have to any indemnitee under this
Section 9 except to the extent that the indemnitor has been prejudiced in any
material respect by such failure. The omission so to notify the indemnitor will
not relieve it from any liability that it may have to any indemnitee otherwise
than under this Section 9. If any such action is brought against any indemnitee
and it notifies the indemnitor of the commencement thereof, the indemnitor will
be entitled to assume the defense thereof with counsel reasonably satisfactory
to the indemnitee, and the defendant or defendants in such action entitled to
indemnification hereunder shall have the right to participate in the defense or
preparation of the defense of any such action. In the event the indemnitor does
elect to assume the defense of any such action, and to retain counsel of good
standing, the defendant or defendants in such action shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
indemnitor does not elect to assume the defense of any such action, the
indemnitor will reimburse the indemnitee(s) named a defendant or defendants in
such action for the fees and expenses of one single additional counsel agreed
upon by them. If the indemnitor assumes the defense of any such action, the
indemnitor shall not, without the prior written consent of the indemnitee(s),
settle or compromise the liability of the indemnitee(s) in such action, or
permit a default or consent to the entry of any judgment in respect thereof,
unless in connection with such settlement, compromise or consent each indemnitee
receives from such claimant an unconditional release from all liability in
respect of such claim.
10. Force Majeure. In the event any party is unable to perform its
obligations or duties under the terms of this Agreement because of acts of God,
strikes, riots, acts of war, equipment failures, or power failures or damage or
other cause reasonably beyond its control, such party shall not be liable for
any and all losses, damages, costs, charges, counsel fees, payments, expenses or
liability to any other party (whether or not a party to this Agreement)
resulting from such failure to perform its obligations or duties under this
Agreement or otherwise from such causes. This provision shall in no way excuse
any party from any liability that results from that party's failure to have in
place appropriate and reasonable disaster recovery plans designed to enable that
party to perform its obligations and duties under this Agreement.
11. Termination.
(a) Either party may terminate this Service Agreement on six
(6) months' written notice to the other party.
(b) If the Adviser ceases to act as Investment Advisor for
the Fund, this Service Agreement will terminate on the effective date of such
termination.
(c) This Service Agreement is terminable immediately upon
notice by one party to another upon (i) dissolution or bankruptcy of either
party or (ii) a material breach of this Service Agreement by either party.
12. Notice. Any notice shall be sufficiently given when sent by
registered or certified mail to the Adviser at:
Holland Capital Management
Xxxxx 000
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
or to the Servicer at:
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Attention:
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or to such other address furnished to the other party pursuant hereto.
13. Assignment. No party shall assign any of its rights, powers or duties
under this Agreement without the other party's prior written consent. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
14. Governing Law.This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois applicable to
agreements fully executed and to be performed therein, without reference to
choice of law principles.
15. Complete Agreement. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations, promises,
statements, arrangements, warranties and understandings between the parties with
respect to the subject matter hereof, whether oral or written, express or
implied.
16. Modification. This Agreement may be modified or amended, and the terms of
this Agreement may be waived, only by a writing signed by each of the parties.
17. Survival. The provisions of Section 9 shall survive termination of this
Agreement.
18. Severability. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
