FUND ADMINISTRATION SERVICING AGREEMENT
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THIS AGREEMENT is made and entered into on this ____ day of January,
2000, by and between XXXXXXXX FUNDS, INC., on behalf of Xxxxxxxx Select
Industries Fund (hereinafter referred to as the "Fund") and FIRSTAR MUTUAL FUND
SERVICES, LLC, a limited liability company organized under the laws of the State
of Wisconsin (hereinafter referred to as "Firstar").
WHEREAS, the Fund is an open-end management investment company which
is registered under the Investment Company Act of 1940;
WHEREAS, Firstar is in the business of providing fund administration
services for the benefit of its customers;
NOW, THEREFORE, the Fund and Firstar do mutually promise and agree as
follows:
I. Duties and Responsibilities of Firstar
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A. General Fund Management
1. Act as liaison among all fund service providers
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, if requested
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 Fund
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 prospectus investment limitations
2. Blue Sky Compliance
a. File initial state application and all subsequent reports
b. Monitor status in each state
3. SEC Registration and Reporting
a. Assisting Fund's counsel in updating prospectus, statement
of additional information, proxy statements, and Rule 24f-2
notice
b. Annual and semiannual reports
4. IRS Compliance
a. Periodically monitor Fund'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. Calculate required distributions (including excise tax
distributions)
C. Financial Reporting
1. Provide financial data required by fund prospectus and statement
of additional information
2. Prepare financial reports for shareholders, the board, the SEC,
and independent auditors
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3. Monitor expense accruals and payments
D. Tax Reporting
1. Prepare 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
II. Compensation
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The Fund agrees to pay Firstar 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.
These fees may be changed from time to time, subject to mutual written
Agreement between the Fund and Firstar.
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
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Firstar shall exercise reasonable care in the performance of its
duties under the Agreement. The Fund agrees to reimburse and make Firstar 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 Firstar acts in good faith and is not negligent or guilty of any
willful misconduct.
Firstar 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, Firstar
shall take all reasonable steps to minimize service interruptions for any period
that such interruption continues beyond Firstar's control. Firstar 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 Firstar. Firstar 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
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Fund shall be entitled to inspect Firstar's premises and operating capabilities
at any time during regular business hours of Firstar, upon reasonable notice to
Firstar.
This indemnification includes any act, omission to act, or delay by
Firstar in reliance upon, or in accordance with, any written or oral instruction
it receives from any duly authorized officer of the Fund.
Regardless of the above, Firstar reserves the right to reprocess and
correct administrative errors at its own expense.
IV. Confidentiality
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Firstar shall handle, in confidence, all information relating to the
Fund's business which is received by Firstar during the course of rendering any
service hereunder.
V. Data Necessary to Perform Service
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The Fund or its agent, which may be Firstar, shall furnish to Firstar
the data necessary to perform the services described herein at times and in such
form as mutually agreed upon.
VI. Terms of Agreement
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This Agreement shall become effective as of the date hereof.
Thereafter, if not terminated, this Agreement shall continue automatically in
effect for successive annual periods unless otherwise 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.
VII. Duties in the Event of Termination
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In the event that, in connection with termination, a successor to any
of Firstar's duties or responsibilities hereunder is designated by the Fund by
written notice to Firstar, Firstar 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 Firstar under this
Agreement in a form reasonably acceptable to the Fund (if such form differs from
the form in which Firstar 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 Firstar's personnel in the establishment of books, records, and other data
by such successor.
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VII. Choice of Law
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This Agreement shall be construed in accordance with the laws of the
State of Wisconsin.
XXXXXXXX FUNDS, INC FIRSTAR MUTUAL FUND SERVICES, LLC
By:__________________________________ By: _____________________________
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