TRANSFER AGENT 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 (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: ________________________________ Sign: ___________________________
Title: _______________________________ Title: __________________________
Print: _______________________________ Print: __________________________
Attest: ______________________________ Attest: _________________________
