FUND ACCOUNTING 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 "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
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And notice to the Fund shall be sent to:
AssetMark Funds
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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: ________________________________ Sign: _____________________________
Title: _______________________________ Title: _____________________________
Print: _______________________________ Print: _____________________________
Attest: ______________________________ Attest: ____________________________