Exhibit 99.B.23(h)(2)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as by and between NYLIM Service Company LLC, a
Delaware limited liability company ("SERVICE COMPANY"), and McM FUNDS, a
Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain SERVICE COMPANY to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent to
its investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and SERVICE COMPANY wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parents(s).
(f) "Oral Instructions" mean oral instructions received by SERVICE
COMPANY from an Authorized Person or from a person reasonably
believed by SERVICE COMPANY to be an Authorized Person.
SERVICE COMPANY may, in its sole discretion in each separate
instance, consider and rely upon instructions it receives from
an Authorized Person via electronic mail as Oral Instructions.
(g) "SEC" means the U.S. Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act , the CEA and any applicable state securities law.
(i) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by SERVICE COMPANY or (ii)
trade instructions transmitted (and received by SERVICE
COMPANY) by means of an electronic transaction reporting
system, access to which requires use of a password or other
authorized identifier. The instructions may be delivered by
hand, electronic mail, tested telegram, cable, telex or
facsimile sending device.
2. Appointment. The Fund hereby appoints SERVICE COMPANY to serve as
transfer agent, registrar, dividend disbursing agent and shareholder
servicing agent to the Fund in accordance with the terms set forth in
this Agreement. SERVICE COMPANY accepts such appointment and agrees to
furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide SERVICE COMPANY with the following:
(a) At SERVICE COMPANY's request, certified or authenticated
copies of the resolutions of the Fund's Board of Trustees,
approving the appointment of SERVICE COMPANY or its affiliates
to provide services to the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of the Fund's Administration and Accounting Services
Agreement if SERVICE COMPANY is not providing the Portfolio
with such services;
(f) A copy of the Underwriting Agreement made in respect of the
Fund or a Portfolio;
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(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
SERVICE COMPANY will on an annual basis provide to the Fund its audited
financial statements.
4. Compliance with Rules and Regulations. SERVICE COMPANY undertakes to
comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by SERVICE
COMPANY hereunder. Except as specifically set forth herein, SERVICE
COMPANY assumes no responsibility for such compliance by the Fund or
any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, SERVICE COMPANY
shall act only upon Oral Instructions or Written Instructions.
(b) SERVICE COMPANY shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by
SERVICE COMPANY to be an Authorized Person) pursuant to this
Agreement. SERVICE COMPANY may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's
shareholders, unless SERVICE COMPANY knows such instructions
are inconsistent with any of the foregoing (for example
because SERVICE COMPANY has received prior Written
Instructions, or has participated in discussions on the same
issue) or unless and until SERVICE COMPANY receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to SERVICE COMPANY Written
Instructions confirming Oral Instructions so that SERVICE
COMPANY receives the Written Instructions by the close of
business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by SERVICE COMPANY or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or SERVICE COMPANY's ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, SERVICE COMPANY shall incur no liability to
the Fund in acting upon such Oral Instructions or Written
Instructions provided that SERVICE COMPANY's actions comply
with the other provisions of this Agreement.
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6. Right to Receive Advice.
(a) Advice of the Fund. If SERVICE COMPANY is in doubt as to any
action it should or should not take, SERVICE COMPANY may
request directions or advice, including Oral Instructions or
Written Instructions, from the Fund.
(b) Advice of Counsel. If SERVICE COMPANY shall be in doubt as to
any question of law pertaining to any action it should or
should not take, SERVICE COMPANY may request advice from
counsel of its own choosing (who may be inside or outside
counsel for the Fund, the Fund's investment adviser or other
service providers or, if none of the foregoing is available
and time is of the essence, inside or outside counsel for
SERVICE COMPANY, at the option of SERVICE COMPANY).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions SERVICE COMPANY receives from the Fund, and the
advice it receives from counsel, SERVICE COMPANY may rely upon
and follow the advice of counsel. In any such case, SERVICE
COMPANY will use its best efforts to contact the Fund prior to
taking any actions inconsistent with Instructions previously
received by the Fund.
(d) Protection of SERVICE COMPANY. SERVICE COMPANY shall be
protected in any action it takes or does not take in reliance
upon directions or advice or Oral Instructions or Written
Instructions it receives from the Fund or from counsel and
which SERVICE COMPANY believes, in good faith, to be
consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon SERVICE
COMPANY to seek such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of
SERVICE COMPANY's properly taking or not taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which
are in the possession or under the control of SERVICE COMPANY, shall be
the property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during SERVICE COMPANY's
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by SERVICE COMPANY to
the Fund or to an Authorized Person, at the Fund's reasonable expense.
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8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or SERVICE COMPANY, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality
affords the Fund or SERVICE COMPANY a competitive advantage over its
competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be subject to such confidentiality obligations if
it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required to be disclosed
by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party both prompt oral and
written notice of such requirement and will to the extent possible
coordinate any such production with the Fund or the Fund's counsel, to
the extent such notice is permitted); (f) is relevant to the defense of
any claim or cause of action asserted against the receiving party; or
(g) has been or is independently developed or obtained by the receiving
party. In accordance with Section 248.11 of Regulation S-P (17 CFR
248.1 - 248.30) ("Reg S-P"), SERVICE COMPANY will not directly, or
indirectly through an affiliate, disclose any non-public personal
information, as defined in Reg S-P, received from the Fund to any
person that is not affiliated with the Fund or with SERVICE COMPANY and
provided that any such information disclosed to an affiliate of SERVICE
COMPANY shall be under the same limitations on non-disclosure.
9. Cooperation with Accountants. SERVICE COMPANY shall cooperate with the
Fund's independent public accountants and shall take all reasonable
actions in the performance of its obligations under this Agreement to
ensure that the necessary information is made available to such
accountants for the expression of their opinion, as required by the
Fund.
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10. SERVICE COMPANY System. SERVICE COMPANY shall retain title to and
ownership of any and all data bases, computer programs, screen formats,
report formats, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable matters, concepts,
expertise, patents, copyrights, trade secrets, and other related legal
rights utilized by SERVICE COMPANY in connection with the services
provided by SERVICE COMPANY to the Fund; provided, however, that
SERVICE COMPANY shall have no right to retain title to or ownership of
any database which consists solely of information pertaining to the
transactions of the Fund or its shareholders.
11. Disaster Recovery. SERVICE COMPANY shall enter into and shall maintain
in effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, SERVICE COMPANY shall, at no additional
expense to the Fund, take reasonable steps to minimize service
interruptions. SERVICE COMPANY shall have no liability with respect to
the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by SERVICE COMPANY's
own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties or obligations under this Agreement.
12. Compensation. As compensation for services rendered by SERVICE COMPANY
during the term of this Agreement, the Fund will pay to SERVICE COMPANY
a fee or fees in the agreement in Exhibit B attached hereto and made a
part hereof, as such Exhibit B may be amended from time to time as may
be agreed to from time to time in writing by the Fund and SERVICE
COMPANY. The Fund acknowledges that SERVICE COMPANY may receive float
benefits and/or investment earnings in connection with maintaining
certain accounts required to provide services under this Agreement.
13. Indemnification. (a) The Fund agrees to indemnify and hold harmless
SERVICE COMPANY and its affiliates from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
SERVICE COMPANY takes in reliance upon Oral or Written Instructions
received from the Fund or which SERVICE COMPANY is required to take or
refrain from taking in accordance with the provisions of this
Agreement. Neither SERVICE COMPANY, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by SERVICE COMPANY's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement, provided that in the
absence of a finding to the contrary the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of SERVICE COMPANY's or its
affiliates own willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties and obligations. SERVICE COMPANY
shall not make any claim for any amounts payable by the Fund hereunder
except against the relevant Portfolio's assets and not against the
assets of any other Portfolio of the Fund.
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(b) SERVICE COMPANY agrees to indemnify and hold harmless the Fund and
each Portfolio from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act of SERVICE COMPANY in
contravention of the terms of this Agreement or caused by SERVICE
COMPANY's willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement. Neither
the Fund, nor any Portfolio, shall be indemnified against any liability
(or any expenses incident to such liability) caused by SERVICE
COMPANY's following Oral or Written Instructions which SERVICE COMPANY
reasonably believed to have been valid and genuinely given. SERVICE
COMPANY further agrees to indemnify and hold harmless the Fund and the
Portfolios from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements) arising directly or indirectly from any claim by a third
party against the Fund or a Portfolio with respect to infringement of
any patent or copyright of any goods, services or programs supplied or
used by SERVICE COMPANY (the "SERVICE COMPANY Materials") in connection
with the provision of services to the Fund and the Portfolios
hereunder. The foregoing indemnification obligation shall not apply to
any claim based on or arising from (i) goods, services or programs not
owned, developed or provided by SERVICE COMPANY, (ii) the combination
by the Fund or the Portfolios of the SERVICE COMPANY Materials with any
other goods, services or programs not owned or developed by or on
behalf of SERVICE COMPANY, or (iii) the failure of the Fund or the
Portfolios to use the SERVICE COMPANY Materials as authorized or for
their intended purpose.
14. Responsibility of SERVICE COMPANY.
(a) SERVICE COMPANY shall be under no duty to take any action
hereunder on behalf of the Fund except as required by law or
as specifically set forth herein (which exception includes the
obligation to follow Oral or Written Instructions provided by
the Fund) or as may be specifically agreed to by SERVICE
COMPANY and the Fund in a written amendment hereto. SERVICE
COMPANY shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good
faith in performing services provided for under this
Agreement. SERVICE COMPANY shall be liable only for any
damages arising out of SERVICE COMPANY's failure to perform
its duties under this Agreement to the extent such damages
arise out of SERVICE COMPANY's willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties.
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(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) SERVICE COMPANY shall
not be liable for losses beyond its control, including without
limitation (subject to Section 11), delays or errors or loss
of data occurring by reason of circumstances beyond SERVICE
COMPANY's control, provided that SERVICE COMPANY has acted in
accordance with the standard set forth in Section 14(a) above;
and (ii) SERVICE COMPANY shall not be under any duty or
obligation to inquire into and shall not be liable for the
validity or invalidity or authority or lack thereof of any
Oral Instruction or Written Instruction, notice or other
instrument which conforms to the applicable requirements of
this Agreement, and which SERVICE COMPANY reasonably believes
to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither SERVICE COMPANY nor its affiliates shall be liable for
any consequential, special or indirect losses or damages,
unless the likelihood of such losses or damages was known by
SERVICE COMPANY or its affiliates and SERVICE COMPANY acted
without regard to such likely losses or damages.
(d) No party may assert a cause of action against SERVICE COMPANY
or any of its affiliates that allegedly occurred more than
60 months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with
shareholders and broker-dealers to complete or
correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
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(vi) Countersign share certificates, if applicable;
(vii) Prepare and mail to shareholders confirmation of
activity in accordance with Rule 10b-10 under the
1934 Act;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) If requested, mail duplicate confirmations to
broker-dealers of their clients' activity, whether
executed through the broker-dealer or directly with
SERVICE COMPANY;
(x) Provide periodic shareholder lists and statistics to
the Fund;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by SERVICE COMPANY Under Oral Instructions
or Written Instructions.
(i) Accept and post daily Share purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies or arrange for an
affiliate or other agent to do so; and
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(v) Issue and cancel certificates (when requested in
writing by the shareholder).
(c) Purchase of Shares. SERVICE COMPANY shall issue and credit an
account of an investor, in the manner described in the Fund's
prospectus, once it receives:
(i) A purchase order;
(ii) Proper information in good order to establish a
shareholder account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
(d) Redemption of Shares. SERVICE COMPANY shall redeem Shares only
if that function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in good order and directs the method of
redemption. If Shares are received in good order, Shares shall
be redeemed before the funds are provided to SERVICE COMPANY
from the Fund's custodian (the "Custodian"). If the
recordholder has not directed that redemption proceeds be
wired, when the Custodian provides SERVICE COMPANY with funds,
the redemption check shall be sent to and made payable to the
recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) transfer authorizations are signed by the
recordholder when Shares are held in book-entry form.
In accordance with the provisions of the Funds' prospectus,
when a broker-dealer, or other qualified financial
institution, notifies SERVICE COMPANY of a redemption desired
by a shareholder, and the Custodian provides SERVICE COMPANY
with funds, SERVICE COMPANY shall prepare and send the
redemption check, or wire, to the order of the broker-dealer
or other qualified financial institution, for the benefit of
the shareholder.
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(e) Dividends and Distributions. Upon receipt of a resolution of
the Fund's Board of Trustees authorizing the declaration and
payment of dividends and distributions, SERVICE COMPANY shall
issue dividends and distributions declared by the Fund in
Shares, or, upon shareholder election, pay such dividends and
distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction
and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules
or regulations. SERVICE COMPANY shall mail to the Fund's
shareholders such tax forms and other information, or
permissible substitute notice, relating to dividends and
distributions paid by the Fund as are required to be filed and
mailed by applicable law, rule or regulation. SERVICE COMPANY
shall prepare, maintain and file with the IRS and other
appropriate taxing authorities reports relating to all
dividends above a stipulated amount paid by the Fund to its
shareholders as required by tax or other law, rule or
regulation.
(f) Shareholder Account Services.
(i) SERVICE COMPANY may arrange, in accordance with the
prospectus, for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks
and applications.
(ii) SERVICE COMPANY may arrange, in accordance with the
prospectus, for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in a
automatic redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
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(g) Communications to Shareholders. Upon timely Written
Instructions, SERVICE COMPANY shall mail all communications by
the Fund to its shareholders, including:
(i) Reports to shareholders;
(ii) Monthly or quarterly statements;
(iii) Dividend and distribution notices; and
(iv) Proxy material.
In addition, SERVICE COMPANY or an affiliate will receive and
tabulate the proxy cards for the meetings of the Fund's
shareholders.
(h) Records. SERVICE COMPANY shall prepare, maintain and preserve
records for the accounts of each shareholder as required by
Rule 31a-1 and Rule 31a-2 under the Investment Company Act of
1940, including the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the maintenance of and
transactions in a shareholder's account;
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(vi) Information with respect to withholdings;
(vii) Any information required in order for SERVICE COMPANY
to perform any calculations required by this
Agreement; and
(viii) A record of each purchase, redemption and exchange
with respect to each shareholder account.
(i) Lost or Stolen Certificates. SERVICE COMPANY shall place a
stop notice against any certificate reported to be lost or
stolen and comply with all applicable federal regulatory
requirements for reporting such loss or alleged
misappropriation. A new certificate shall be registered and
issued only upon:
(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by SERVICE COMPANY; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect SERVICE COMPANY
and its affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request from
any Fund shareholder to inspect stock records, SERVICE COMPANY
will notify the Fund and the Fund will issue instructions
granting or denying each such request. Unless SERVICE COMPANY
has acted contrary to the Fund's instructions, the Fund agrees
to and does hereby release SERVICE COMPANY from any liability
for refusal of permission for a particular shareholder to
inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, SERVICE COMPANY shall cancel
outstanding certificates surrendered by the Fund to reduce the
total amount of outstanding shares by the number of shares
surrendered by the Fund.
(l) Lost Shareholders. SERVICE COMPANY shall perform such services
as are required in order to comply with Rule 17Ad-17 of the
1934 Act (the "Lost Shareholder Rules"), including, but not
limited to, those set forth below. SERVICE COMPANY may, in its
sole discretion, use the services of a third party to perform
some of or all such services.
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(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the
Lost Shareholder Rules.
Except as set forth above, SERVICE COMPANY shall have no
responsibility for any escheatment services.
(m) Print Mail. In addition to performing the foregoing services,
the Fund hereby engages SERVICE COMPANY to provide print/mail
services.
16. Duration and Termination. This Agreement shall become effective on
November 10, 2001 and shall continue in effect until terminated by the
Fund or by SERVICE COMPANY on sixty (60) days' prior written notice to
the other party. In the event the Fund gives notice of termination, all
reasonable expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor transfer
agent(s) (and any other service provider(s)), and all reasonable
trailing expenses incurred by SERVICE COMPANY, will be borne by the
Fund. In the event that SERVICE COMPANY gives notice of termination,
all reasonable expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor transfer
agent(s) (and any other service provider(s)), and all reasonable
trailing expenses incurred by SERVICE COMPANY, will be borne by SERVICE
COMPANY. In the event of termination, SERVICE COMPANY agrees that it
will cooperate in the smooth transition of services and to minimize
disruption to the Fund and its shareholders.
17. Notices. Notices shall be addressed (a) if to SERVICE COMPANY, at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: President; (b) if
to the Fund, at Xxx Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice is
sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
18. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
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19. Delegation; Assignment. SERVICE COMPANY may assign its rights and
delegate its duties hereunder to any majority-owned direct or indirect
subsidiary of SERVICE COMPANY or of New York Life Insurance Company.,
provided that SERVICE COMPANY gives the Fund 90 days prior written
notice of such assignment or delegation. The Fund expressly agrees that
SERVICE COMPANY may delegate its duties, in whole or in part, to Boston
Financial Data Services, Inc. ("BFDS") and that SERVICE COMPANY shall
remain liable for the performance of such duties by BFDS.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of SERVICE COMPANY hereunder
without the prior written approval of SERVICE COMPANY, which
approval shall not be unreasonably withheld or delayed unless
such modifications or the adoption of such policies are
required by law.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, SERVICE COMPANY hereby disclaims all
representations and warranties, express or implied, made to
the Fund or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement.
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(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year written below.
NYLIM LLC
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
Title: Chief Executive Officer
Date: September 28, 2001
McM FUNDS
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Title: Secretary
Date: September 28, 2001
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EXHIBIT A
THIS EXHIBIT A, dated as of November 10, 2001, is Exhibit A to that
certain Transfer Agency Services Agreement effective as of November 10, 2001,
between SERVICE COMPANY and McM Funds.
PORTFOLIOS
McM Principal Preservation Fund
McM Intermediate Fixed Income Fund
McM Fixed Income Fund
McM Balanced Fund
McM Equity Investment Fund
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September 28, 2001
McM FUNDS
Re: Transfer Agency Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to
be paid to NYLIM Service Company LLC ("SERVICE COMPANY") under the terms of a
Transfer Agency Services Agreement dated September 28, 2001 between McM Funds
("you" or the "Fund") and SERVICE COMPANY (the "Agreement") for service provided
on behalf of the Fund. Pursuant to paragraph 12 of the Agreement, and in
consideration of the services to be provided to the Fund, the Fund will pay
SERVICE COMPANY certain fees and reimburse SERVICE COMPANY for its out-of-pocket
expenses incurred on its behalf, as follows:
1) Account Fee: $18.00 per account per year
Fees shall be calculated and paid monthly based on one-twelfth (1/12th)
of the annual fee.
2) Minimum Monthly Fee:
The minimum monthly fee will be $2,500 for each portfolio and $1,250
per each additional class per portfolio, plus a monthly fee of $1,833
for the cost of providing two dedicated staff members. These fees are
exclusive of data storage charges, record retention fees, out-of-pocket
expenses and miscellaneous fees.
3) Maintenance Fee: $12.00 per account per year - IRA's, 403 B's,
DC/Benefit Plans
4) Out-of-Pocket Expenses include, but are not limited to, Fund
SERV/Networking, Print /Mail, internet hosting, and related service
programming, telephone lines, forms, envelopes, postage, overnight
delivery, mailgrams, hardware/phone lines for transmissions,
mircofilm/microfiche, wire fees, ACH charges, exchange fee, proxies,
record retention, b/c notices, account transcripts, consolidated
statement, audio response and development/programming costs, ad hoc
reports/labels/user tapes, conversion and deconversion expenses, travel
expenses, training expenses and expenses incurred at the direction of
the Fund. Out-of-pocket expenses are billed as they are incurred.
5) Shareholder Expenses include, but are not limited to: XXX/Xxxxx
processing, exchange fees between portfolios, requests for account
transcripts, returned checks, lost certificate bonding, overnight
delivery as requested by the shareholder, lost shareholder
search/reporting - $2.75 per account search, and wire fee for
disbursement if requested by the shareholder. Shareholder expenses are
billed as they are incurred.
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6) Miscellaneous
SERVICE COMPANY shall be entitled to the following fee for the
performance of any special legal services as described in the Agreement
in accordance with the Written Instructions of the Fund: $185 per hour
subject to certain project caps as may be agreed to by SERVICE COMPANY
and the Fund. Services and charges may vary based on volume.
Any fee, out-of-pocket expenses or shareholder expenses not paid within
30 days of the date of the original invoice will be charged a late
payment fee of 1% per month until payment of the fees are received by
SERVICE COMPANY.
After the one year anniversary of the effective date of this Agreement,
SERVICE COMPANY may adjust the fees described in the above sections
once per calendar year, upon thirty (30) days prior written notice in
an amount not to exceed the cumulative percentage increase in the
Consumer Price Index for All Urban Consumers (CPI-U) U.S. City Average,
all items (unadjusted) - (1982-84=100), published by the U.S.
Department of Labor since the last such adjustment in the Client's
monthly fees (or the Effective Date absent a prior such adjustment).
The fee for the period from the date hereof until the end of the year
shall be prorated according to the proportion which such period bears
to the full annual period.
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If the foregoing accurately sets forth our agreement and you intend to
be legally bound thereby, please execute a copy of this letter and return it to
us.
Very truly yours,
NYLIM SERVICE COMPANY LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
----------------------
Title: President & CEO
---------------
Agreed and Accepted:
McM FUNDS
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President & Secretary
-----------------------------
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