Exhibit 99.B.8.c
CUSTODY ADMINISTRATION AND AGENCY AGREEMENT
This AGREEMENT, dated as of the day of , 1996 made by and
between McM Funds, a Delaware Business Trust (the "Trust") operating as an open
end management investment company registered under the Investment Company Act of
1940, as amended, duly organized and existing under the laws of the State of
Delaware and Fund/Plan Services, Inc. ("Fund/Plan"), a corporation duly
organized and existing under the laws of the State of Delaware (collectively,
the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Trust Instrument to issue
separate series of shares representing interests in separate investment
portfolios (the "Series"), which Series are identified on Schedule "B" attached
hereto and which Schedule "B" may be amended from time to time by mutual
agreement of the Trust and Fund/Plan; and
WHEREAS, the Trust desires to retain Fund/Plan to perform certain
custody administration services; and
WHEREAS, the Trust desires that Fund/Plan act as its agent for the
specific purpose of taking receipt of, and making payment for, custody services
performed on the Trust's behalf by The Bank of New York pursuant to an agreement
between The Bank of New York and the Trust; and
WHEREAS, Fund/Plan is willing to serve in such capacity and perform
such functions upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Parties hereto, intending to be legally bound, do hereby
agree as follows:
APPOINTMENT OF FUND/PLAN AS AGENT
Section 1. The Trust hereby grants to Fund/Plan, and Fund/Plan hereby
accepts such grant, as an agent of the Trust for the limited purpose of: (i)
accepting invoices for custody services from The Bank of New York which invoices
reflect charges to the Trust for custody services performed by The Bank of New
York on the Trust's behalf, and (ii) remitting payment to The Bank of New York
for such services performed in amounts as set forth in Schedule "A" attached
hereto.
CUSTODY ADMINISTRATION SERVICES
Section 2. As Custody Administrator, Fund/Plan shall:
a) coordinate and process portfolio trades through client terminal
links with The Bank of New York
b) input and verify portfolio trades
c) monitor pending and failed security trades
d) coordinate communications between brokers and banks to resolve any
operational problems
e) advise the Trust of any corporate action information, address and
follow up on any dividend or interest discrepancies
f) process the Trusts' expenses
g) interface with the accounting services provider and the transfer
agent to research and resolve Custody cash problems
h) provide daily and monthly reports
FEES
Section 3.
(a) Except to the extent there is material negligent
non-performance by Fund/Plan of its duties under this Agreement, the term of
this Agreement shall be for a period of two (2) years, commencing on the
effective date of the Trust's registration statement ("Effective Date") with the
U.S. Securities and Exchange Commission.
(b) The fee schedule set forth in Schedule "A" attached shall
be fixed for (2) years commencing on the Effective Date of this Agreement.
Thereafter, the fee schedule will be subject to annual review and adjustment.
(c) After the initial term of this Agreement, the Trust or
Fund/Plan may give written notice to the other of the termination of this
Agreement, such termination to take effect at the time specified in the notice,
which date shall not be less than ninety (90) days after the date of giving
notice. Upon the effective termination date, the Trust shall pay to Fund/Plan
such compensation as may be due as of the date of termination and shall likewise
reimburse Fund/Plan for any out-of-pocket expenses and disbursements reasonably
incurred by Fund/Plan to such date.
(d) If a successor to any of Fund/Plan's duties or
responsibilities under this Agreement is designated by the Trust by written
notice to Fund/Plan in connection with the termination of this Agreement,
Fund/Plan shall promptly upon such termination and at the expense of the Trust,
transfer all Required Records and shall cooperate in the transfer of such duties
and responsibilities.
For the purpose of determining fees payable to Fund/Plan, the value of
Fund's net assets shall be computed at the times and in the manner specified in
Fund's then current Prospectus and Statement of Additional Information.
During the term of this Agreement, should the Trust seek services or
functions in addition to those stated, a written amendment to this Agreement
specifying the additional services and corresponding compensation shall be
executed by both Fund/Plan and the Trust.
GENERAL PROVISIONS
Section 4.
(a) Fund/Plan, its directors, officers, employees,
shareholders and agents shall only be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with the
performance of this Agreement that results from willful misfeasance, bad faith,
negligence or reckless disregard on the part of Fund/Plan in the performance of
its obligations and duties under this Agreement.
(b) Any person, even though also a director, officer,
employee, shareholder or agent of Fund/Plan, who may be or become an officer,
trustee, employee, or agent of the Trust, shall be deemed, when rendering
services to such entity or acting on any business of the Trust, (other than
services or business in connection with Fund/Plan's duties hereunder), to be
rendering such services to or acting solely for the Trust and not as a director,
officer, employee, shareholder or agent of, or one under the control or
direction of Fund/Plan even though that person is being paid salary by
Fund/Plan.
(c) Notwithstanding any other provision of this Agreement, the
Trust shall indemnify and hold harmless Fund/Plan, its directors, officers,
employees, shareholders and agents from and against any and all
claims, demands, expenses and liabilities (whether with or without basis in fact
or law) of any and every nature which Fund/Plan may sustain or incur or which
may be asserted against Fund/Plan by any person by reason of, or as a result of
(i) any action taken or omitted to be taken by Fund/Plan in good faith hereunder
or (ii) any action taken or omitted to be taken by Fund/Plan in connection with
its appointment under this agreement, which action or omission was taken in good
faith in reliance upon any law, act, regulation or interpretation of the same
even though the same may thereafter have been altered, changed, amended, or
repealed. Indemnification under this subparagraph, however, shall not apply to
actions or omissions of Fund/Plan or its directors, officers, employees,
shareholders, or agents in cases of its or their own negligence, willful
misconduct, bad faith, or reckless disregard of its or their own duties
hereunder.
(d) Fund/Plan shall give written notice to the Trust within
ten (10) business days of receipt by Fund/Plan of a written assertion or claim
of any threatened or pending legal proceeding which may be subject to this
indemnification. The failure to notify the Trust of such written assertion or
claim shall not, however, operate in any manner whatsoever to relieve the Trust
of any liability arising under this Section or otherwise, except to the extent
that failure to give notice prejudices the Trust.
(e) For any legal proceeding giving rise to this
indemnification, the Trust shall be entitled to defend or prosecute any claim in
the name of Fund/Plan at its own expense and through counsel of its own choosing
if it gives written notice to Fund/Plan within ten (10) business days of
receiving notice of such claim. Notwithstanding the foregoing, Fund/Plan may
participate in the litigation at its own expense through counsel of its own
choosing. In the event the Trust chooses to defend or prosecute such claim, the
parties shall cooperate in the defense or prosecution thereof and shall furnish
such records and other information as are reasonably necessary.
(f) The Trust shall not settle any claim under (d) and (e)
above without Fund/Plan's express written consent, which consent shall not be
unreasonably withheld. Fund/Plan shall not settle any such claim under (d) and
(e) above without the Trust's express written consent which likewise shall not
be unreasonably withheld.
Section 5.
(a) The term of this Agreement shall be for a period of two
(2) years, commencing on the execution date ("effective date") of this
Agreement.
(b) The fee schedule set forth in Schedule "A" attached shall
be fixed for two (2) years after the effective date of this Agreement. At the
end of the first year, the fee schedule will be subject to annual review and
adjustment.
(c) After the initial two year term of this Agreement, the
Trust or Fund/Plan may give written notice to the other of the termination of
this Agreement, such termination to take effect at the time specified in the
notice, which date shall not be less than ninety (90) days after the date of
giving notice. Upon the effective termination date, the Trust shall pay to
Fund/Plan such compensation as may be due as of the date of termination and
shall likewise reimburse Fund/Plan for any out-of-pocket expenses and
disbursements reasonably incurred by Fund/Plan to such date.
(d) In the event that a successor to any of Fund/Plan's duties
or responsibilities under this Agreement is designated by the Trust by
appropriate and timely written notice to Fund/Plan, Fund/Plan shall,
promptly upon such termination and at the expense of the Trust, transfer all
pertinent records and shall cooperate in the transfer of such duties and
responsibilities.
Section 6. This Agreement may be amended from time to time by a
supplemental agreement executed by the Trust and Fund/Plan.
Section 7. Except as otherwise provided in this Agreement, any notice
or other communication required by or permitted to be given in connection with
this Agreement shall be in writing, and shall be delivered in person or sent by
first class mail, postage prepaid, to the respective parties as follows: If to
McM Funds: If to Fund/Plan:
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McM Funds Fund/Plan Services, Inc.
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President President
Copies to:
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Heller, Ehrman, White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
Section 8. The Trust represents and warrants to Fund/Plan that the
execution and delivery of this Agreement by the undersigned officers of the
Trust has been duly and validly authorized by resolution of the Board of
Trustees of the Trust.
Section 9. This Agreement may be executed in two or more counterparts,
each of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 10. This Agreement shall extend to and shall be binding upon
the Parties and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of Fund/Plan or by Fund/Plan without the written consent of the Trust,
authorized or approved by a resolution of their respective Boards of Directors.
Section 11. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania and the venue of any action arising under this
Agreement shall be ▇▇▇▇▇▇▇▇▇▇ County, Commonwealth of Pennsylvania if the suit
is instituted by the Trust. If a suit is instituted by Fund/Plan, the venue of
such action arising under this Agreement shall be San Francisco, California.
Section 12. No provision of this Agreement may be amended or modified,
in any manner except in writing, properly authorized and executed by Fund/Plan
and the Trust.
Section 13. If any part, term or provision of this Agreement is held by
any court to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid provided that the basic Agreement is not thereby
substantially impaired.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement,
consisting in its entirety of six typewritten pages, together with Schedule "A"
and "B" to be signed by their duly authorized officers, as of the day and year
first above written.
McM Funds Fund/Plan Services, Inc.
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
SCHEDULE "A"
SCHEDULE OF FEES
I. Annual Custody Fee Schedule on Combined Assets: (1/12th payable
monthly)
.00015 On the First $500 Million of Average Net Assets
.0001 On the Next $1.5 Billion of Average Net Assets
.00009 Over $2.0 Billion of Average Net Assets
Minimum of $3,600 per Portfolio, per Year
II. Custody Domestic Securities Transactions Charge: (payable monthly)
Book Entry DTC, Federal Book Entry, PTC $12.00
Physical/Options/Futures $20.00
Mortgage Backed Securities - Principal Pay Down Per Pool $ 7.00
RICs GICs $24.00
Wire Transfer in/out not related to Securities Transaction $ 6.50
Note: A transaction includes, Buy, Sells, Maturities or
Free Security Movement.
III. When Issued, Securities Lending, Index Futures:
Should any of these investment vehicles require a separate segregated
custody account, a fee of $250 per account per month will apply.
OUT-OF-POCKET EXPENSES
The Funds will reimburse Fund/Plan Services monthly for all out-of-pocket
expenses, including telephone, postage, telecommunications, special reports,
record retention, special reports. The cost of copying and sending materials to
auditors for off-site audits will be an additional expense.
ADDITIONAL SERVICES
To the extent the Funds commence using investment techniques such as Security
Lending, Short Sales, Futures, Leveraging, Precious Metals and/or foreign
trading, additional fees will apply.
Activities of a non-recurring nature such as fund consolidations, mergers, or
reorganizations will be subject to negotiation. To the extent the Funds should
decide to issue multiple/separate classes of shares, additional fees will apply.
Any enhanced services or reports will be quoted upon request.
SCHEDULE "B"
Identification of Series
Below are listed the "Series" to which services under this Agreement are to be
performed as of the execution date of this Agreement:
"McM Funds"
1. Equity Investment Fund
2. Balanced Fund
3. Intermediate Fixed Income Fund
4. Fixed Income Fund
5. Principal Preservation Fund
This Schedule "B" may be amended from time to time by agreement of the Parties.
