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Exhibit B.23(h)(2)
TRANSFER AGENCY SERVICES AGREEMENT
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THIS AGREEMENT is made as of July 1, 2000 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), 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 PFPC 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 PFPC 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 PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC 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 Securities and Exchange Commission.
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(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(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 PFPC or (ii) trade
instructions transmitted (and received by PFPC) 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, tested telegram,
cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC 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. PFPC
accepts such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC 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 each Portfolio's administration agreements if PFPC is
not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
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(h) Copies (certified or authenticated where applicable) of any and
all amendments or supplements to the foregoing.
PFPC will on an annual basis provide to the Fund the audited financial
statements of PNC Bank Corp.
4. Compliance with Rules and Regulations. PFPC 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 PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC 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 PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC 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 PFPC knows such instructions
are inconsistent with any of the foregoing (for example because
PFPC has received prior Written Instructions, or has
participated in discussions on the same issue) unless and until
PFPC receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC 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 PFPC or differ from
the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized
by the Oral Instructions or PFPC's ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions
provided that PFPC's actions comply with the other provisions
of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
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(b) Advice of Counsel. If PFPC shall be in doubt as to any question
of law pertaining to any action it should or should not take,
PFPC 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, if none of the foregoing is available
and time is of the essence, PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice it
receives from counsel, PFPC may rely upon and follow the advice
of counsel. In any such case, PFPC 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 PFPC. PFPC 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 PFPC 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 PFPC 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 PFPC'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 PFPC, 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 PFPC's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense.
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 PFPC, 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 PFPC 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
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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"), PFPC 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 PFPC and provided that any such information
disclosed to an affiliate of PFPC shall be under the same limitations
on non-disclosure.
9. Cooperation with Accountants. PFPC 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.
10. PFPC System. PFPC 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 PFPC in connection with the services provided by PFPC to
the Fund; provided, however, that PFPC 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. PFPC 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, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC 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 PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
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12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The
Fund acknowledges that PFPC 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
PFPC 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 PFPC takes in
reliance upon Oral or Written Instructions received from the Fund or
which PFPC is required to take or refrain from taking in accordance
with the provisions of this Agreement. Neither PFPC, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC'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 PFPC's or its
affiliates own willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties and obligations. PFPC 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
investment portfolio of the Fund.
(b) PFPC 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 PFPC in contravention
of the terms of this Agreement or caused by PFPC'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 PFPC's following Oral or Written Instructions
which PFPC reasonably believed to have been valid and genuinely given.
PFPC 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 PFPC (the "PFPC 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
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arising from (i) goods, services or programs not owned, developed or
provided by PFPC, (ii) the combination by the Fund or the Portfolios of
the PFPC Materials with any other goods, services or programs not owned
or developed by or on behalf of PFPC, or (iii) the failure of the Fund
or the Portfolios to use the PFPC Materials as authorized or for their
intended purpose.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except 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 PFPC and the Fund in a written
amendment hereto. PFPC 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. PFPC shall be liable only for any damages arising
out of PFPC's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC'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) PFPC 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 PFPC's control,
provided that PFPC has acted in accordance with the standard
set forth in Section 14(a) above; and (ii) PFPC 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 PFPC reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC 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 PFPC or
its affiliates and PFPC acted without regard to such likely
losses or damages and (ii) PFPC's cumulative liability to the
Fund for all losses, claims, suits, controversies, breaches or
damages for any cause whatsoever (including but not limited to
those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not
exceed the lesser of $100,000 or the fees received by PFPC for
services provided hereunder during the 12 months immediately
prior to the date of such loss or damage; provided, however,
that any liability (or any expenses incident to such liability)
caused by PFPC's or its affiliates' own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties
and obligations under this Agreement shall not be subject to
the foregoing cap on liability.
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(d) No party may assert a cause of action against PFPC 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 to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(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) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the Fund;
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(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 PFPC 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; and
(v) Issue and cancel certificates (when requested in
writing by the shareholder).
(c) Purchase of Shares. PFPC 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 to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
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(d) Redemption of Shares. PFPC 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 proper form and directs the method of
redemption. If Shares are received in proper form, Shares shall
be redeemed before the funds are provided to PFPC from the
Fund's custodian (the "Custodian"). If the recordholder has not
directed that redemption proceeds be wired, when the Custodian
provides PFPC 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 PFPC of a redemption desired by a shareholder, and the
Custodian provides PFPC with funds, PFPC 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.
(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, PFPC 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.
PFPC 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.
PFPC 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) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
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- Any pre-authorized check plan; and
- Direct purchases through broker wire orders,
checks and applications.
(ii) PFPC 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.
(g) Communications to Shareholders. Upon timely Written
Instructions, PFPC 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, PFPC will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) Records. PFPC 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;
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(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;
(vi) Information with respect to withholdings;
(vii) Any information required in order for PFPC 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. PFPC 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 PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
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(j) Shareholder Inspection of Stock Records. Upon a request from
any Fund shareholder to inspect stock records, PFPC will notify
the Fund and the Fund will issue instructions granting or
denying each such request. Unless PFPC has acted contrary to
the Fund's instructions, the Fund agrees to and does hereby
release PFPC 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, PFPC 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. PFPC 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. PFPC may, in its sole discretion, use
the services of a third party to perform some of or all such
services.
(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, PFPC shall have no responsibility
for any escheatment services.
(m) Print Mail. In addition to performing the foregoing services,
the Fund hereby engages PFPC as its print/mail service provider
with respect to those items identified in the [Fee Schedule/Fee
Letter].
16. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by PFPC 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 PFPC, will be borne by the
Fund. In the event that PFPC 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 PFPC, will be borne by PFPC. In the event
of termination, PFPC 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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17. Notices. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
Parkway, Wilmington, Delaware 19809, Attention: President; (b) if to
the Fund, at 3200 Horizon Drive, P.O. Box 61503, King of Prussia PA
19406-0903 , Attention: Thomas Calabria 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.
19. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of PNC Bank Corp., provided that PFPC gives the Fund 90 days
prior written notice of such assignment or delegation.
20. Non-Solicitation. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of PFPC's employees.
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 PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(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.
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(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, PFPC 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.
(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 first above written.
PFPC INC.
By: /s/ Stephen M. Wynne
----------------------------------------
Title: Executive Vice President
-------------------------------------
McM FUNDS
By: /s/ Deane A. Nelson
---------------------------------------
Title: Secretary
-------------------------------------
15
<PAGE>
EXHIBIT A
---------
THIS EXHIBIT A, dated as of July 1, 2000, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of July 1, 2000, between PFPC Inc.
and McM Funds.
PORTFOLIOS
----------
McM Principal Preservation Fund
McM Intermediate Fixed Income Fund
McM Fixed Income Fund
McM Balanced Fund
McM Equity Investment Fund
McM S&P 500 Index Fund
16
