Exhibit 99.B.23(h)(1)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made by and between New York Life Investment
Management LLC, a Delaware limited liability company ("NYLIM"), 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 NYLIM to provide administration and
accounting services 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 NYLIM wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the 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) "Advisor" means McMorgan & Company LLC.
(d) "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.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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 parent(s).
(g) "Custodian" means the Bank of New York.
(h) "Oral Instructions" mean oral instructions received by NYLIM
from an Authorized Person or from a person reasonably believed
by NYLIM to be an Authorized Person. NYLIM 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.
(i) "SEC" means the U.S. Securities and Exchange Commission.
(j) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940
Act, the CEA and any applicable state securities law.
(k) "Shares" means the shares of beneficial interest of any series
or class of the Fund.
(k) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by NYLIM or (ii) trade
instructions transmitted (and received by NYLIM) 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, mail, electronic mail,
tested telegram, cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints NYLIM to provide administration
and accounting services to each of the Portfolios, in accordance with
the terms set forth in this Agreement. NYLIM accepts such appointment
and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide NYLIM with the following:
(a) at NYLIM's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of NYLIM or its affiliates to provide services to
each Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution/underwriting agreement with respect
to each class of Shares representing an interest in a
Portfolio;
(e) a copy of each additional administration agreement with
respect to a Portfolio;
(f) a copy of the Underwriting Agreement and Transfer Agency
Services Agreement made in respect of the Fund or a Portfolio;
and
(g) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
NYLIM will on an annual basis provide to the Fund the audited financial
statements of New York Life Insurance Company.
4. Compliance with Rules and Regulations.
NYLIM 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 NYLIM hereunder. Except as specifically set forth herein,
NYLIM assumes no responsibility for such compliance by the Fund or
other entity.
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5. Instructions.
(a) Unless otherwise provided in this Agreement, NYLIM shall act
only upon Oral Instructions or Written Instructions.
(b) NYLIM 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 NYLIM to be an Authorized
Person) pursuant to this Agreement. NYLIM 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 NYLIM knows such instructions
are inconsistent with any of the foregoing (for example
because NYLIM has received prior Written Instructions, or has
participated in discussions on the same issue) unless and
until NYLIM receives Written Instructions to the contrary.
(c) The Fund agrees to forward to NYLIM Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by NYLIM or its affiliates) so that
NYLIM 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 NYLIM or differ from the Oral Instructions
shall in no way invalidate the transactions or enforceability
of the transactions authorized by the Oral Instructions or
NYLIM's ability to rely upon such Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to
have been received from an Authorized Person, NYLIM shall
incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that NYLIM's
actions comply with the other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If NYLIM is in doubt as to any action it
should or should not take, NYLIM may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If NYLIM shall be in doubt as to any
question of law pertaining to any action it should or should
not take, NYLIM 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, NYLIM, at the option of NYLIM).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions NYLIM receives from the Fund and the advice NYLIM
receives from counsel, NYLIM may rely upon and follow the
advice of counsel. In any such case, NYLIM 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 NYLIM. NYLIM 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 NYLIM believes, in good
faith, to be consistent with those directions or advice and
Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon
NYLIM 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
NYLIM's properly taking or not taking such action.
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7. Records; Visits.
(a) The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of
NYLIM 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 NYLIM's normal
business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by
NYLIM to the Fund or to an Authorized Person, at the Fund's
reasonable expense.
(b) NYLIM shall keep the following records:
(i) all books and records with respect to each
Portfolio's books of account;
(ii) records of each Portfolio's securities transactions;
and
(iii) all other books and records as NYLIM is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
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 NYLIM, 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 NYLIM 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"), NYLIM 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 NYLIM and provided that any such information
disclosed to an affiliate of NYLIM shall be under the same limitations
on non-disclosure.
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9. Liaison with Accountants. NYLIM shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to each Portfolio. NYLIM shall take all reasonable action in the
performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. NYLIM System. NYLIM 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 NYLIM in connection with the services provided by NYLIM to
the Fund; provided, however, that NYLIM shall have no right to retain
title to or ownership of any database which consists of information
pertaining to the transactions of the Fund or its shareholders.
11. Disaster Recovery. NYLIM 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, NYLIM shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. NYLIM 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 NYLIM'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 NYLIM during the
term of this Agreement, the Fund, on behalf of each Portfolio, will pay
to NYLIM a fee or fees set forth in the agreement in Exhibit B attached
hereto and made a part hereof, as such Exhibit B may be amended from
time to time in writing by NYLIM and the Fund.
13. Indemnification. (a) The Fund, on behalf of each Portfolio, agrees to
indemnify and hold harmless NYLIM 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 NYLIM takes in reliance upon Oral or Written
Instructions received from the Fund or which NYLIM is required to take
or refrain from taking in accordance with the provisions of this
Agreement. Neither NYLIM, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by NYLIM's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement. NYLIM 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) NYLIM 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 NYLIM in contravention
of the terms of this Agreement or caused by NYLIM'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 NYLIM's following Oral or Written
Instructions which NYLIM reasonably believed to have been valid and
genuinely given. NYLIM 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 NYLIM (the "NYLIM 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 NYLIM, (ii) the
combination by the Fund or the Portfolios of the NYLIM Materials with
any other goods, services or programs not owned or developed by or on
behalf of NYLIM, or (iii) the failure of the Fund or the Portfolios to
use the NYLIM Materials as authorized or for their intended purpose.
14. Responsibility of NYLIM.
(a) NYLIM shall be under no duty to take any action hereunder on
behalf of the Fund or any Portfolio 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 NYLIM and
the Fund in a written amendment hereto. NYLIM 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. NYLIM shall be
liable only for any damages arising out of NYLIM's failure to
perform its duties under this Agreement to the extent such
damages arise out of NYLIM's willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) NYLIM 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 NYLIM's
control, provided that NYLIM has acted in accordance with the
standard set forth in Section 14(a) above; and (ii) NYLIM
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 NYLIM
reasonably believes to be genuine.
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(c) Notwithstanding anything in this Agreement to the contrary,
neither NYLIM 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 NYLIM or
its affiliates and NYLIM acted without regard to such likely
losses or damages. (d) No party may assert a cause of action
against NYLIM 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 Accounting Services on a Continuous Basis.
NYLIM will perform the following accounting services with respect to
each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Portfolio (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes no later than a.m.
Pacific time;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
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(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Portfolio's
assets; to the extent that there are no market quotations
readily available for a security in the Fund's portfolios,
NYLIM will immediately advise the Adviser of such fact and
will coordinate determination of fair market value with
procedures approved by the Fund's Board of Trustees.
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xv) Compute net asset value; and
(xvi) As appropriate, or requested, compute yields, total return,
expense ratios, portfolio turnover rate, and, if required,
portfolio average dollar-weighted maturity.
16. Description of Administration Services on a Continuous Basis.
NYLIM will perform the following administration services with respect
to each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund
statistical data as requested on an ongoing basis;
(iv) Monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended;
(v) Prepare, coordinate with the Fund and the Fund's counsel, and
file with the SEC the Fund's annual, semi-annual, and
quarterly shareholder reports;
(vi) Prepare, coordinate with the Fund's counsel and file with the
SEC Post-Effective Amendments to the Fund's Registration
Statement, prepare reports to the SEC including, the
preparation and filing of (i) semi-annual reports on Form
N-SAR and (ii) Notices pursuant to Rule 24f-2;
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(vii) Assist in the preparation of notices of Annual or Special
Meetings of Shareholders and Proxy materials relating to such
meetings;
(viii) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund
in accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and policies are
approved by the Fund's Board of Trustees;
(ix) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(x) Draft agendas, resolutions and materials for quarterly and
special Board meetings;
(xi) Coordinate the preparation, assembly and mailing of Board
materials;
(xii) Maintain the Fund's corporate calendar to assure compliance
with various filing and Board approval deadlines;
(xiii) Coordinate contractual relationships and communications
between the Fund and its contractual service providers; and
(xiv) Monitor the Fund's compliance with the amounts and conditions
of each state qualification.
17. Duration and Termination. This Agreement shall become effective on
November 10, 2001 and shall continue in effect until terminated by the
Fund or by NYLIM 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 accounting
and administration services agent(s) (and any other service
provider(s)), and all reasonable trailing expenses incurred by NYLIM,
will be borne by the Fund. In the event that NYLIM gives notice of
termination, all reasonable expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor accounting and administration services agent(s) (and any
other service provider(s)), and all reasonable trailing expenses
incurred by NYLIM, will be borne by NYLIM. In the event of termination,
NYLIM agrees that it will cooperate in the smooth transition of
services and to minimize disruption to the Fund and its shareholders.
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18. Notices. Notices shall be addressed (a) if to NYLIM, 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.
19. Amendments. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. Delegation; Assignment. NYLIM may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary
of, New York Life Insurance Company provided that NYLIM gives the Fund
90 days prior written notice of such assignment or delegation. The Fund
expressly agrees that NYLIM may delegate its duties, in whole or in
part, to the Custodian.
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) 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 NYLIM
hereunder without the prior written approval of NYLIM, which
approval shall not be unreasonably withheld or delayed unless
such modifications or the adoption of such policies are
required by law.
(b) Except as expressly provided in this Agreement, NYLIM 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.
(c) 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. 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. Notwithstanding any provision hereof, the services of
NYLIM are not, nor shall they be, construed as constituting
legal advice or the provision of legal services for or on
behalf of the Fund or any other person.
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(d) 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) 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.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and permitted assigns.
(f) 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 Administration and Accounting Services Agreement effective as of
November 10, 2001 between NYLIM 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: Administration and Accounting Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to
be paid to New York Life Investment Management LLC ("NYLIM") under the terms of
the Administration and Accounting Services Agreement dated September 28, 2001
between McM Funds ("you" or the "Fund") and NYLIM (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
NYLIM certain fees and reimburse NYLIM for its out-of-pocket expenses incurred
on its behalf, as follows:
1. Administration Services
A. Asset Based Fee:
The following annual fee will be calculated based upon the Funds'
aggregate average net assets and paid monthly:
.08% of the first $100 million of aggregate average daily net assets;
.05% of the next $500 million of aggregate average daily net assets;
.03% of the aggregate average daily net assets in excess of $600
million.
B. Minimum Monthly Fee:
The minimum monthly fee will be $4,166 for the initial series issued by
the Fund, $1,000 for each additional separate series and $1,000 for each
additional class per portfolio, exclusive of out-of-pocket expenses.
2. Accounting Services
A. Maintenance Fee:
The following annual fee will be calculated based upon the Funds,
average net assets and paid monthly:
$24,000 on the Fund's first $10 million of average daily net assets per
portfolio;
.02% on the Funds' aggregate assets between $10 million and $500
million; and
.01% on the Funds' aggregate assets over $500 million.
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B. Monthly Multiple Class Fee:
The monthly multiple class fee will be $1,000 for each additional class
per portfolio, exclusive of out-of-pocket expenses.
3. Out-of-Pocket Expenses
The Fund will reimburse NYLIM for out-of-pocket expenses incurred on
the Fund's behalf, including, but not limited to, postage, telephone,
telex, overnight express charges, deconversion costs, costs to obtain
independent security market quotes, processing fees related to initial
Blue Sky filings and travel expenses incurred for Board meeting
attendance.
4. Miscellaneous
NYLIM 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 NYLIM 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
NYLIM.
After the one year anniversary of the effective date of this Agreement,
NYLIM 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,
NEW YORK LIFE INVESTMET MANAGEMENT LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Managing Director
-----------------------------
Agreed and Accepted:
McM FUNDS
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President & Secretary
------------------------------
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