FUND ADMINISTRATION 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 "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: /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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