FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this 1ST day of APRIL , 1996, by
and between The Xxx Xxxxxxx Trust, a Delaware Business Trust organized as a
series company currently consisting of one series, the Growth Fund
(hereinafter referred to as the "Trust") and Firstar Trust Company, a
corporation organized under the laws of the State of Wisconsin (hereinafter
referred to as "FTC").
WHEREAS, The Trust is an open-ended management investment company which is
registered under the Investment Company Act of 1940;
WHEREAS, FTC is a trust company and, among other things, is in the business of
providing fund administration services for the benefit of its customers;
NOW, THEREFORE, the Trust and FTC do mutually promise and agree as follows:
I. Appointment of Administrator
The Trust hereby appoints FTC as Administrator of the Trust on the
terms and conditions set forth in this Agreement, and FTC hereby
accepts such appointment and agrees to perform the services and
duties set forth in this Agreement in consideration of the
compensation provided for herein.
II. Duties and Responsibilities of FTC
A. General Trust Management
1. Act as liaison among all fund service
providers, subject to the general
supervision of Holland Capital Management
(the "Investment Manager").
2. Coordinate board communication by:
a. Assisting fund counsel in establishing
meeting agendas
b. Preparing board reports based on financial
and administrative data
c. Evaluating independent auditor
d. Securing and monitoring fidelity bond and
director and officers liability coverage,
and making the necessary SEC filings
relating thereto
3. Audits
a. Prepare appropriate schedules and assist
independent auditors
b. Provide information to SEC and facilitate
audit process
c. Provide office facilities
4. Assist in overall operations of the Trust
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with
Investment Company Act of 1940 requirements
1) Asset diversification tests
2) Total return and SEC yield
calculations
3) Maintenance of books and records
under Rule 31a-3
4) Code of ethics
b. Periodically monitor Trust's
compliance with the policies and
investment limitations of the Trust
as set forth in its prospectus and
statement of additional information
2. Blue Sky Compliance
a. 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
b. Monitor status and maintain registrations
in each state
3. SEC Registration and Reporting
a. Assisting Trust's counsel in updating
prospectus and statement of additional
information; and in preparing proxy
statements, and Rule 24f-2 notice,
b. Annual and semiannual reports
-2-
4. IRS Compliance
a. Periodically monitor Trust's status as a
regulated investment company under
Subchapter M through review of the
following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirements
b. Monitor short testing
c. Calculate required distributions (including
excise tax distributions)
5. Financial Reporting
6. Provide financial data required by fund prospectus
and statement of additional information
7. Prepare financial reports for shareholders, the
board, the SEC, and independent auditors
8. Supervise the Trust's Custodian and Fund
Accountants in the maintenance of the Trust's
general ledger and in the preparation of the
Trust's financial statements including oversight of
expense accruals and payments, of the determination
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
C. Tax Reporting
1. Prepare and file on a timely basis appropriate
federal and state tax returns including forms
1120/8610 with any necessary schedules
2. Prepare state income breakdowns where relevant
3. File 1099 Miscellaneous for payments to directors
and other service providers
4. Monitor wash losses
5. Calculate eligible dividend income for corporate
shareholders
D. Coordinate with the Investment Manager with regard to all
services provided hereunder.
-3-
III. Compensation
The Trust 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 A. If the Trust terminates this Agreement
prior to the second anniversary of this Agreement, the Trust agrees
to reimburse FTC for the difference between the standard fee schedule
and the discounted fee schedule agreed to between the parties.
These fees may be changed from time to time, subject to mutual
written Agreement between the Trust and FTC
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
IV. Additional Series
In the event that The Xxx Xxxxxxx Trust, a Delaware Business Trust
organized as a series company currently consisting of one series, the
Growth Fund establishes one or more series of shares with respect to
which it desires to have FTC render fund administration services,
under the terms hereof, it shall so notify FTC in writing, and if FTC
agrees in writing to provide such services, such series will be
subject to the terms and conditions of this Agreement, and shall be
maintained and accounted for by FTC on a discrete basis. The funds
currently covered by this Agreement are: The Growth Fund
V. Performance of Service; Limitation of Liability
A. FTC shall exercise its best efforts in the performance of
its duties under this Agreement. FTC 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 FTC's control, except a
loss resulting from FTC'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, the
Trust shall indemnify and hold harmless FTC 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 FTC may sustain or incur or which
may be asserted against FTC 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 FTC by any
duly authorized officer of the Trust, such duly authorized officer to
be included in a list of authorized officers furnished to FTC and as
amended from time to time in writing by resolution of the Board of
Trustees of the Trust.
-4-
In the event of a mechanical breakdown or failure of
communication or power supplies 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
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 FTC's premises and operating
capabilities at any time during regular business hours of FTC, upon
reasonable notice to FTC.
Regardless of the above, FTC 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 FTC harmless, the Trust 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 Trust promptly concerning any
situation which presents or appears likely to present the probability
of such a claim for indemnification against the Trust. The Trust
shall have the option to defend FTC against any claim which may be
the subject of this indemnification. In the event that the Trust so
elects, it will so notify FTC and thereupon the Trust 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 Trust will be
asked to indemnify FTC except with the Trust's prior written consent.
C. FTC shall indemnify and hold the Trust 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 Trust 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.
D. These indemnification provisions shall survive the
termination of this Agreement.
VI. Confidentiality
FTC shall handle, in confidence, all information relating to the
Trust's business which is received by FTC during the course of
rendering any service hereunder.
-5-
VII. Data Necessary to Perform Service
The Trust 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.
VIII. Terms of Agreement
This Agreement shall become effective as of the date hereof and,
unless sooner terminated as provided herein, shall continue
automatically in effect for successive annual periods. The 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.
IX. 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
Trust by written notice to FTC, FTC 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 FTC under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the
form in which FTC 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 FTC's personnel in the
establishment of books, records, and other data by such successor.
X. Choice of Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin.
XI. Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder of this
Agreement shall not be affected thereby.
XII. Notices
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as
follows: Notice to FTC shall be sent to Xxx Xxxxxxxxx, 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, and notice to Trust
shall be sent to The Xxx Xxxxxxx Trust, Suite 3260, 00 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
-6-
XIII. Records
FTC 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 Investment Company Act of 1940 as
amended (the "Investment Company Act"), and the rules thereunder. FTC
agrees that all such records prepared or maintained by FTC relating
to the services to be performed by FTC hereunder are the property of
the Trust and will be preserved, maintained, and made available with
such section and rules of the Investment Company Act and will be
promptly surrendered to the Trust on and in accordance with its
request.
The Xxx Xxxxxxx Trust FIRSTAR TRUST COMPANY
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXXX X. XXXX
Attest: /S/ XXXXXX X. XXXXXX Attest: /S/ XXXXXX XXXXX
-7-
