TRANSFER AGENT 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 (herein after 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, transfer
and dividend disbursing agent functions for the benefit of its customers.
NOW, THEREFORE, the Trust and FMFS do mutually promise and agree as
follows:
1. Terms of Appointment; Duties of FMFS
Subject to the terms and conditions set forth in this Agreement, the Trust
hereby employs and appoints FMFS to act as transfer agent and dividend
disbursing agent.
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation
any periodic investment plan or periodic withdrawals program), including
but not limited to the following:
A. Receive and process orders for the purchase of shares of the Funds
received in good order and issue and credit shareholder accounts with
the appropriate number of certificated or uncertificated] shares.
Receive payments by check, Fed wire, or through Automated Clearing
House ("ACH") processing. Prepare and process daily deposit or
delivery of payment and payment and proper supporting documentation to
the Trust's custodian;
B. Establish shareholder accounts with appropriate demographic data,
information regarding participation in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment, etc.) and
information regarding tax I.D. certification or non-resident alien
records, including backup withholding. Make changes to shareholder
accounts to reflect changes in demographic data or participation in
plans upon receipt of appropriate instructions from such shareholder
or his/her/its agent;
C. Maintain valid and appropriate participation with the National
Securities Clearing Corporation ("NSCC") and provide access to NSCC's
Fund/Serv System for the Funds as agreed from time-to-time with the
Trust;
D. Produce shareholder lists and ad hoc reports for proxy solicitations
or as requested by Trust management, including lists of linked
accounts within Funds or across multiple funds to facilitate combined
statements, or list of accounts linked by social security number, last
name and/or address to facilitate household mailings;
E. Create and produce mailing labels for regular, periodic or special
mailings to shareholders or households;
F. Receive and process redemption requests received in good order by
mail, telephone or other proper method, including automated processing
of systematic withdrawal transactions on a monthly basis.
G. Administer distribution of redemption proceeds, in coordination with
Trust's custodian, by check, Fed Wire or ACH processing;
H. Process transfers of shares in accordance with the shareowner's proper
instructions;
I. Process exchanges between Funds within the same family of Funds in
accordance with the terms of the Funds' prospectus(es), upon request
by mail, telephone, or other proper method;
J. Issue and/or cancel certificates as instructed; replace lost, stolen,
or destroyed certificates upon receipt of satisfactory indemnification
or surety bond;
K. Prepare and transmit payments for dividends and distributions declared
by the Trust by providing automated processing of dividend and capital
gains payments with daily, monthly, quarterly, or annual
distributions. Payment options will include reinvestment, directed
payment to another Fund, or cash via mail, Fed Wire or ACH;
L. Record the issuance of shares of the Trust and maintain, pursuant to
Securities Exchange Act of 1934 (the "1934 Act") Rule 17ad-10(e), a
record of the total number of shares of the Trust which are
authorized, issued, and outstanding;
M. Prepare shareholder meeting lists and, if applicable, mail, receive,
and tabulate proxies; mailings of proxy statements to shareholders
shall be in conformity with then-current SEC rules relating to
"householding" of such mailings;
N. Provide toll-free telephone lines and sufficient personnel to answer
shareholder calls. Telephone representatives will be trained to be
able to provide routine account information; respond to requests for
information regarding transaction details including direct and wire
purchases, redemptions, exchanges, transfers, systematic withdrawals
or purchases, Fund SERV, or wire order trades; assist in problem
solving; and process telephone transactions;
O. Provide silent monitoring of telephone representatives to ensure
quality of customer service and record and maintain tape recording of
all shareholder calls for a six-month period;
P. Research customer inquiries or problems communicated by mail,
telephone, or other proper method, in a reasonably prompt manner as
provided in the Securities Act of 1934 (the "1934 Act"). Report any
inquiries or problems which (1) cannot be rectified to the
shareholder's satisfaction, (2) are of a recurring nature, to the
Trust. Such inquiries/problems may include shareholder account
information, historical account information, stop payments on checks,
transaction details or lost certificates;
Q. Prepare and mail laser printed confirmation and/or account statements
for all purchases, redemptions and other confirmable transactions on a
monthly basis, or as requested by the Trust and as required by Rule
10b-10 of the 1934 Act. Shareholder account statement should show all
information required by Rule 10b-10, as well as, beginning and ending
share price and account value and daily activity including dividends
and distributions, with share price and transaction amounts;
R. Mail prospectuses (with statements or confirmation if requested),
prospectus stickers or supplements, statements of additional
information and shareholder reports to current shareholders, as
requested by the Trust. To the extent permitted by then-existing Rules
of the SEC, such mailings shall be made using appropriate
"householding" criteria;
S. Provide appropriate transfer agency services to facilitate
Fund-sponsored XXX and SEP-XXX plans using Firstar Bank as custodian,
as well as Fund-sponsored qualified retirement plans (such as 401(k)
and 403(b) plans);
T. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders; and
U. Provide a Blue Sky System, which will enable the Trust to monitor the
total number of Fund shares sold in each state. In addition, the Trust
shall identify to FMFS in writing those transactions and assets to be
treated as exempt from the Blue Sky reporting to the Trust for each
state. The responsibility of FMFS for the Trust's Blue-Sky state
registration status is solely limited to the initial compliance by the
Trust and the reporting of such transactions to the Trust.
2. Compensation
The Trust agrees to pay FMFS for performance of the duties listed in this
Agreement; the fees and out-of-pocket expenses include, but are not limited
to the following; printing, postage, forms, stationery, record retention,
mailing, insertion, programming labels, shareholder lists and proxy
expenses.
The fees and reimbursable expenses set forth in Exhibit A 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 reimbursement expenses within ten (10)
business days following the receipt of the billing notice.
3. Representations of FMFS
FMFS represents and warrants to the Trust that:
A. It is a limited liability company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the 1934 Act as is empowered
under applicable laws and by its charter and bylaws to enter into
amended;
C. It is duly qualified to carry on its business in the state of
Wisconsin;
D. It and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement; and
G. It will comply with al applicable requirements of the Securities Act
of 1933 (the "1933 Act") and the 1934 Act, as amended, the Investment
Company Act of 1940, as amended, and any laws, rules, and regulations
of governmental authorities having jurisdiction.
4. Representations of the Trust
The Trust represents and warrants to FMFS that:
A. The Trust is an open-ended diversified investment company registered
under the 1940 Act;
B. The Trust is a business Trust organized, existing, and in good
standing under the laws of the State of Delaware;
C. The Trust is empowered under applicable laws and by its Agreement and
Declaration of Trust and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Agreement and Declaration of
Trust have been taken to authorize it to enter into and perform this
Agreement;
E. The Trust will comply with all applicable requirements of the 1933 Act
and the 1934 Act, as amended, the 1940 Act, and any laws, rules, and
regulations of governmental authorities having jurisdiction; and
F. A registration statement under the 1933 Act is currently effective and
will remain effective, and appropriate state securities law filings
have been made and will continue to be made, with respect to all
shares of the Trust being offered for sale.
G. The Trust shall furnish to FMFS a certified copy of the resolution of
the Board of Trustees of the Trust authorizing the appointment of the
execution of this Agreement. The Trust shall provide to FMFS a copy of
the Agreement and Declaration of Trust, bylaws of the Trust and all
amendments.
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. Confidentiality
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. Wisconsin Law to Apply
This Agreement shall be constructed and the provisions thereof interpreted
under and in accordance with the laws of the state of Wisconsin.
9. Term, Amendment, Termination, Assignment, and Notice
A. This Agreement shall be effective on the date above first written and,
unless sooner terminated as provided herein, shall continue
automatically to reflect for successive annual periods that the
continuance of the Agreement is approved by a majority of the Trustees
of the Trust.
B. This Agreement may be amended by the mutual written consent of the
parties.
C. This Agreement may be terminated upon 90 day's written notice given by
one party to the other.
D. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of the
other party.
E. Any notice required to be given by the parties to each other under the
terms of this Agreement shall be in writing, addressed and delivered,
or mailed to the principal place of business of the other party. If to
FMFS, such notice should to be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Trust, such notice should be sent to:
AssetMark Funds
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
F. In the event that the Trust gives to FMFS its written intention to
terminate and appoint a successor transfer agent, FMFS agrees to
cooperate in the transfer of its duties and responsibilities to the
successor, including any and all relevant books, records and other
data established or maintained by FMFS under this Agreement.
G. Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
paid by the Trust.
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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