FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into as of this __ day of _______, 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 "Fund"); and
WHEREAS, FMFS is in the business of providing, among other things, fund
administration services for the benefit of its customers.
NOW, THEREFORE, the Trust and FMFS do mutually promise and agree as
follows:
1. Appointment of Administrator. The Trust hereby appoints FMFS as
Administrator of the Funds on the terms and conditions set forth in this
Agreement, and FMFS 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.
2. Duties and Responsibilities of FMFS
A. General Fund Management
(1) Act as liaison among all fund service providers;
(2) Coordinate corporate formalities and Board communication by:
a. preparing and distributing meeting agendas and board
materials including board resolutions and various
financial, administrative and regulatory reports;
b. attending all regular or special board meetings,
preparing and distributing minutes of such meetings and
maintaining the corporate records and minute book for
the Trust;
c. updating trustees' and officers' biographical
information and questionnaires; and
d. evaluating independent auditor.
(3) Audits
a. Prepare appropriate schedules and assist independent
auditors;
b. Provide information to SEC and facilitate audit
process; and
c. Provide office facilities for auditors and SEC staff as
appropriate.
(4) Assist in overall administrative operations of the Trust,
including the provision of office facilities, executive and
administrative services and FMFS personnel to serve as
officers of the Trust to facilitate Trust operations, all at
FMFS's expense with the exception of the costs incurred when
attending Board of Trustee meetings; and to provide
stationery and office supplies at the Trust's expense.
(5) Create and maintain operations and compliance calendars
and/or a compliance manual for the Trust, detailing
schedules for the various responsibilities of FMFS and of
the Trust with respect to approval of agreements and
procedures as well as the filing of reports with
shareholders and regulatory agencies.
(6) Shareholder Communications. Coordinate printing and
distribution of prospectuses, statements of additional
information, stickers (supplements) to prospectuses or
statements of additional information, annual and semi-annual
shareholder reports and proxy statements.
B. Compliance
(1) Regulatory Compliance
a. Monitor compliance with 1940 Act requirements, including:
1) Asset diversification tests;
2) Total return and yield calculations;
3) Code of Ethics;
4) Compliance with fidelity bond coverage
requirements of Rule 17g-1 under the
1940 Act; and
5) Compliance with the NASD sales charge
rule, including the calculation and
monitoring of the sales charge cap and
remaining amount for asset-based sales
charges.
6) Timely renewal of contracts
7) Timely review of procedures
8) Interfund transactions pursuant to Rule
17a-7.
b. Monitor and report at Fund's quarterly board meeting or
more frequently as required, compliance with the
policies, investment limitations and reinvestment
restriction of each Fund 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 or notice
filings to the sales, qualifications or registration of
the securities of each Fund s o as to enable each Fund
to make a continuous offering of its shares in the 50
states, Puerto Rico, U.S. Virgin Islands, and Guam
("Blue Sky Jurisdictions").
b. Monitor sales and qualification status and make
appropriate renewal filings in each Blue Sky
Jurisdiction.
c. File prospectuses, statement of additional information
or proxy statements for the Trust in Blue Sky
Jurisdictions.
(3) SEC Registration and Reporting
a. Assist in the preparation and filing of post-effective
amendments to the Trust's Registration Statement of
Form N-1A to reflect the addition or deletion of Funds,
general amendments, or annual updates, including the
preparation of Financial Data Schedules; and prepare
and file supplements (`stickers") to any prospectus or
statement of additional information for a Fund;
b. Prepare and file annual and semi-annual reports to
shareholders as required under the 1940 Act, along with
annual and semiannual reports on Form N-SAR (which
shall be series and class-specific), as appropriate);
c. Assist in the preparation and filing of proxy
statements, as requested by the Trust (matters to be
voted on may be class-specific), prepare minutes of
shareholder meetings, and ballot results and interface
with proxy solicitation companies as required;
d. Prepare and file documents required to report and
calculate Federal securities registration fees (such as
notices on Form 24f-20);
e. File fidelity bond and any joint insurance agreements
as required by Rule 17g-1 under the 1940 Act; and
f. Provide for the XXXXX-ization or other appropriate
preparation of all documents described above which must
be filed electronically with the SEC.
(4) IRS Compliance
a. Periodically monitor the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended, through review of the
following:
1) Asset diversification requirements;
2) Qualifying income requirements; and
3) Distribution requirements.
b. Calculate required distributions as required (including
excise tax distributions).
C. Financial Reporting
(1) Prepare monthly expense reports (by series and class where
appropriate) including expense figures and accruals,
monitoring of expense caps or reimbursements and calculation
of advisory fees and 12b-1 accruals or payments; and
calculate expense ratios for quarterly, semiannual or annual
periods.
(2) Prepare unaudited financial statements (by series and class
where appropriate) for use in shareholder reports or
prospectuses and statement of additional information.
(3) Prepare other monthly operational reports as required
including:
a. Sales figures (including share sold, redeemed and
reinvested, changes in share price in net sales and
numbers of shareholders);
b. Performance information (including total return or
yield for the month, quarter, year-to-date, fiscal year
or average annual one, five or ten-year periods); and
c. Portfolio information (including turnover, top 10
holdings, book gains/losses per share; net income per
share; basis).
(4) Provide financial data required by Fund prospectus and
statements of additional information.
(5) Prepare financial reports for shareholders, the Board, the
SEC, and independent auditors.
(6) Supervise the Trust's Custodian and Fund Accountants in the
maintenance of each Fund's general ledger and in the
preparation of each Fund's financial statements including
oversight of expense accruals and payments, of the
determination of net asset value of each Fund and of the
Fund's shares, and of the declaration and payment of
dividends and other distribution and payment of dividends
and other distributions to shareholders.
D. Tax Reporting
(1) Prepare and file on a timely basis appropriate federal and
state tax returns including forms 1120/8613 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.
3. Compensation
The Trust agrees to pay FMFS 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 Trust and FMFS.
The Trust agrees to pay all fees and reimbursable expenses within 10
business days following the mailing of the billing notice.
4. Additional Funds
In the event that the Trust establishes one or more Funds with respect
to which it desires to have FMFS render fund administration services,
under the terms hereof, it shall so notify FMFS in writing, and if FMFS
agrees in writing to provide such services, such Funds will be subject
to the terms and conditions of this Agreement, and shall be maintained
and accounted for by FMFS on a discrete basis. The Funds currently
covered by this Agreement are included in Exhibit A.
5. Liabilities; Indemnification; Remedies Upon Breach
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 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. Confidentially
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 from as mutually agreed upon.
9. Terms 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 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
on its assignment unless the parties hereto consent in writing.
10. Duties in the Event of Termination
In the event that, in connection with termination, successor to any of
the 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, record, 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 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 FMFS's personnel in the establishment of books, records, and other
data by such successor.
In the event that, FMFS terminates this agreement by written notice to
the Trust FMFS will promptly, upon such termination and at the expense
of the FMFS, transfer to the successor(s) to the duties assigned to
FMFS herein, all relevant books, record, correspondence, and other data
established or maintained by FMFS under this Agreement in a form
reasonably acceptable to the Trust 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.
11. Choice of Law
This Agreement shall be constructed in accordance with laws of the
State of Wisconsin.
12. 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 Trust shall be sent to:
AssetMark Funds
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
AssetMark Funds Firstar Mutual Fund Services, LLC
Sign: ________________________________ Sign: ____________________________
Title: _______________________________ Title: ___________________________
Print: _______________________________ Print: ___________________________
Attest: ______________________________ Attest: __________________________
