FUND ACCOUNTING SERVICING AGREEMENT
This Agreement is made and entered into as of this 11th day of May, 2001,
by and between AssetMark Funds, a business trust organized under the laws of the
State of Delaware (hereinafter referred to as the "Trust"), and Firstar Mutual
Fund Services, LLC, a limited liability corporation organized under the laws of
the State of Wisconsin (hereinafter referred to as "FMFS").
WHEREAS, the Trust is an open-ended management investment company which is
registered under the Investment Company Act of 1940 (as amended "1940 Act"),
composed of one or more series as described in Exhibit A (each series
hereinafter referred to as a "Series" or a "Fund");
WHEREAS, FMFS is in the business of providing, among other things, mutual
fund accounting services to investment companies.
NOW, THERFORE, the Trust and FMFS do mutually promise and agree as follows:
1. Services. FMFS agrees to provide the following mutual fund accounting
services to the Trust on a per Series or per Class basis as
appropriate:
A. Portfolio Accounting Services:
(1) Maintain portfolio trading records (purchase and sale
journals for each Series or Class) on a trade date +1 basis
using security trade information communicated from the
Series' investment manager on a timely basis.
(2) Monitor corporate actions to identify and record interest
and dividend income on portfolio securities and maintain
accrual balances as of each valuation date and calculate
gross earnings on investments for the accounting period.
(3) Determine gain/loss on portfolio security sales and identify
them as to short-or long-term status; account for periodic
distributions of gains or losses to shareholders and
maintain undistributed gain or loss balances as of each
valuation date. Provide copies of a report showing potential
wash sales to the Advisor to the Trust and the person
responsible for monitoring wash sales within FMFS fund
administration department.
(4) Maintain appropriate records of brokerage activity for
transactions in portfolio securities to enable FMFS to
provide monthly brokerage reports showing brokers used and c
amounts of commissions paid.
(5) Maintain a daily listing of portfolio holdings by Series
showing cost, market value, and the percentage of portfolio
comprised of each security.
(6) Reconcile cash on a daily basis and accounting asset
listings against custodian's asset listings at least three
times each month and report any securities balance
discrepancies promptly to the Trust and Custodian.
B. Expense Accrual and Payment Service:
(1) For each valuation date, calculate the expense accrual
amounts as directed by the Trust as to methodology, rate or
dollar amount.
(2) Upon receipt of written authorization from the Trust, make
and record payments for Trust expenses.
(3) Account for Trust and Series expenditures and maintain
expense accrual balances at the level of accounting detail,
as agreed upon by FMFS and the Trust.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Calculate and maintain daily records of the daily net asset
value (and offering price if appropriate) of each Series (or
class of such Series if appropriate), at such times (each a
"valuation date") in accordance with: (i) relevant
regulatory requirements; (ii) the Trust's Declaration of
Trust and By-laws; (iii) the Trust's registration statement
of Form N-1A; and (iv) any procedures approved by the Board
of Trustees of the Trust and supplied to FMFS in writing.
(2) In connection with the calculation of daily net asset
values, FMFS shall obtain prices for portfolio securities
from securities exchanges or pricing services approved by
the Trust, and will apply those prices to the portfolio
securities. FMFS will immediately advise the Trust of any
securities for which market quotations are not readily
available. The Trust will cause any such securities to be
valued in accordance with procedures adopted by the Board of
Trustees of the Trust, and will advise FMFS of the price
determined pursuant to such procedures and the time period
for which such price is effective. If the Trust desires to
use a price for a security held in a portfolio which varies
from that provided by an accepted pricing source, the Trust
shall promptly notify and supply FMFS with the valuation of
any such security on each valuation date. All pricing
changes made by the Trust must be in writing and must
specifically identify the securities whose price is to be
changed by CUSIP, name of security, new price or rate to be
applied, and, if applicable, the time period for which the
new price(s) is/are effective.
(3) On trade date + 1, account for and record purchase, sales,
exchanges, transfers, dividend reinvestments, and other
transactions in shares of the Trust, its Series as reported
by the transfer agent on a timely basis.
(4) Apply equalization accounting as directed by the Trust.
(5) Determine net investment income (earnings) for each Series
of the Trust as of each valuation date. Account for periodic
distributions of earnings to shareholders and maintain
undistributed net investment income balances as of each
valuation date.
(6) Maintain a general ledger for the Trust and each of its
Series in the form as agreed upon.
(7) Communicate to the Trust and its investment. advisors, at an
agreed upon time each day that the Trust is open for
business, the per share price for each valuation date.
D. Tax Accounting Services:
(1) Maintain accounting records for each Series' investment
portfolio to support the tax reporting required for
IRS-defined regulated investment companies.
(2) Maintain tax lot detail for each Series' investment
portfolio.
(3) Calculate taxable gain/loss on security sales using the tax
lot [relief] method designated by the Trust.
(4) Maintain accounting records to enable the transfer agent to
prepare required tax reports to the Trust's shareholders
with respect to the taxable components of income and capital
gains distributions.
(5) Maintain schedules of dividends paid and payable.
E. Compliance Control Services:
(1) Make the Trust's accounting records available to the Trust
and its investment manager, the Securities and Exchange
Commission, and the outside auditors as necessary to
facilitate reports to regulatory entities and the
preparation of financial statements.
(2) Maintain the Trusts accounting records in accordance with
generally accepted accounting principal and in conformance
with the requirements of the 1940 Act and regulations
thereunder.
2. Changes in Accounting Procedures. Any resolution passed by the Board
of Trustees of the Trust that affects accounting practices and
procedures under this agreement shall be effective upon written
receipt and acceptance by FMFS. FMFS shall report to the Trust all
changes in accounting practices and procedures mandated by the
Financial Standards Accounting Board or by the SEC, which affect or
may affect the accounting records of the Trust, prior to their
implementation, and unless otherwise directed by the Trust, FMFS will
implement such mandated changes.
3. Changes in Equipment, Systems, Service, Etc. FMFS reserves the right
to make changes from time to time, as it deems advisable, relating to
its, systems, program, rules, operating schedules and equipment, so
long as such changes do not adversely affect the service provided to
the Trust under this Agreement.
4. Compensation. FMFS shall be compensated for providing the services set
forth in this Agreement in accordance with the Fee Schedule attached
hereto as Exhibit A and as mutually agreed upon and amended from time
to time.
5. Performance of Service.
A. In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FMFS shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond FMFS's
control. FMFS 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 FMFS. FMFS 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 Fund shall be
entitled to inspect FMFS's premises and operating capabilities at
any time during regular business hours of FMFS, upon reasonable
notice to FMFS.
Regardless of the above, FMFS reserves the right, upon
consultation with the Trust, and in such manner as agreed to by
the Trust, to reprocess and correct administrative errors at its
own expense.
B. Indemnification. For purposes of this section, the terms "FMFS"
and the "Trust", as indemnified parties, shall include their
respective officers, directors, agents, employees, assigns and
successors.
FMFS shall exercise reasonable care in the performance of its
duties under this Agreement. FMFS shall not be liable for any
loss suffered by the Fund in connection with matters to which
this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power
supplies beyond FMFS's control, except a loss resulting from
FMFS'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 Fund
shall indemnify and hold harmless FMFS 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 attorney's fees) which FMFS may sustain or
incur or which may be asserted against FMFS 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 FMFS by any duly authorized officer of
the Fund, such duly authorized officer to be included in a list
of authorized officers furnished to FMFS and as amended from time
to time in writing by resolution of the Board of Trustees of the
Fund.
In order that the indemnification provision contained in this
section shall apply, it is understood that if in any case the
Trust may be asked to indemnify or hold FMFS harmless, the Trust
shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that FMFS 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 FMFS against any claim which may be the subject
of this indemnification. In the event that the Fund so elects, it
will so notify FMFS and thereupon the Trust shall take over
complete defense of the claim, and FMFS shall in such situation
initiate no further legal or other expenses for which it shall
seek indemnification under this section. FMFS shall in no case
confess any claim or make any compromise in any case in which the
Trust will be asked to indemnify FMFS except with the Trust's
prior written consent.
C. FMFS 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 attorney's fees) which may be
asserted against the Trust by any person arising out of any
action taken or omitted to be taken by FMFS as a result of FMFS's
refusal or failure to comply with the terms of this Agreement,
its bad faith, negligence, or willful conduct. Without limiting
the generality of the foregoing, FMFS agrees to indemnify the
Trust with respect to any and all of the following: (1) failure
of FMFS to observe or perform any duty or obligation under any
third party software license agreement or third party service
contract; (2) any claim(s) of infringement of any patent,
copyright, trade secret, or other proprietary right of any third
party alleged to occurred because of systems, software or other
resources provided by FMFS (3) any claim by a third party of
violation of a duty of confidentiality or other similar duty in
respect of information in the possession of FMFS which
information was provided to Trust; (4) any claims arising out of
related to occurrences which FMFS 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
FMFS or its employees, agents or representatives; (6) any claim
or action arising out of or relating to any illness, other injury
or death of a person, or damage to property, attributable to the
negligence or misconduct of FMFS or its employees, agents or
representatives.
6. Records. FMFS 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 and as required by
the rules and regulations of appropriate government authorities, in
particular, Section 31 of the 1940 Act and the rules thereunder. FMFS
agrees that all such records prepared or maintained by FMFS relating
to the services to be performed by FMFS hereunder are the property of
the Trust and will be preserved, maintained, and made available with
such section and rules of the 1940 Act and will be promptly
surrendered to the Trust on and in accordance with its request.
7. Confidentiality. FMFS shall handle in confidence all information
relating to the Trust's or its investment manager's business, which is
received by FMFS during the course of rendering any service hereunder.
FMFS agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Trust
and its shareholders and shall not be disclosed to any other party,
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 FMFS may be exposed to civil or criminal contempt
proceedings for failure to comply after being requested to divulge
such information by duly constituted authorities. In accordance with
Section 248.11 of Regulation S-P (17 CFR 248.1-248.30), FMFS will not
directly, or indirectly through an affiliate, disclose any non-public
personal information, except as permitted or required by law, as
defined in Reg. S-P, received from the Trust regarding any
shareholder, to any person that is not affiliated with the Trust or
with FMFS, and, provided that, any such information disclosed to an
affiliate of FMFS shall be under the same limitations on
non-disclosure.
8. Data Necessary to Perform Service. The Trust or its agent, which may
be FMFS, shall furnish to FMFS the data necessary to perform the
services described herein at times and in such form as mutually agreed
upon.
9. Notification of Error. The Trust will notify FMFS of any balancing or
control error caused by FMFS within three (3) business days after
receipt of any reports rendered by FMFS to the Trust, or within three
(3) business days after discovery of any error or omission not covered
in the balancing or control procedure, or within three (3) business
days of receiving notice from any shareholder.
10. Additional Series. In the event that the Trust establishes one or more
Series or Classes of shares with respect to which it desires to have
FMFS render accounting services, under the terms hereof, it shall so
notify FMFS in writing, and if FMFS 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 the FMFS
on a discrete basis. The series and classes currently covered by this
Agreement are included in Exhibit A.
11. Term of Agreement. This Agreement shall become effective on April 1,
2001 and, unless sooner terminated as provided herein, shall continue
automatically in effect for successive annual periods, provided that
the continuance of the Agreement is approved by a majority of the
Trustees of the Trust. The Agreement may also 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
and will terminate automatically upon its assignment unless the
parties offer consent in writing. However, this Agreement may be
replaced or modified by a subsequent agreement between the parties.
12. Duties in the Event of Termination. In the event that in connection
with termination a successor to any of FMFS's duties or
responsibilities hereunder is designated by the Trust by written
notice to FMFS, FMFS 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
FMFS under this Agreement in a form reasonably acceptable to the Trust
(if such form differs from the form in which FMFS has maintained the
same, the Trust shall pay any expenses associated with transferring
the same to such form), and will cooperate in the transfer of such
duties and responsibilities, including provision for assistance from
FMFS's personnel in the establishment of books, records and other data
by such successor.
In the event that FMFS notifies the Trust of its intent to terminate
this Agreement, the Trust shall designate one or more successors to
perform the duties and responsibilities hereunder. Upon receipt of
written notice to FMFS, FMFS will promptly, upon such termination and
at the expense of the FMFS, transfer to such successor all relevant
books, records, correspondence and other data established or
maintained by FMFS under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which
FMFS has maintained the same, FMFS shall pay any expenses associated
with transferring the same to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for
assistance from FMFS's personnel in the establishment of books,
records and other data by such successor.
13. 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 FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
And notice to the Fund shall be sent to:
AssetMark Funds
ATTN: Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
14. Choice of Law. This Agreement shall be construed in accordance with
the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
AssetMark Funds Firstar Mutual Fund Services, LLC
Sign: /s/ Xxxxxx X. Xxxxxx Sign: /s/ Xxxxxx X. Xxxxxxxxx
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Title: President and CEO Title: Senior Vice President
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Print: Xxxxxx X. Xxxxxx Print: Xxxxxx X. Xxxxxxxxx
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Attest: /s/ Xxxxxx X. Xxxxxx Attest: /s/ Xxxxxx X. Xxxxxxxx
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