Exhibit h(2)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of August 1, 2005 by and between PFPC Inc., a
Massachusetts corporation ("PFPC"), and CRM MUTUAL FUND TRUST, a Delaware
statutory trust (the "Fund").
WITNESSETH :
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 provide administration and
accounting services to its investment Series listed on Exhibit A attached hereto
and made a part hereof, as such Exhibit A may be amended from time to time (each
a "Series"), and PFPC 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) "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
1
Exhibit h(2)
hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "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.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(h) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(i) "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 electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration and
accounting services to each of the Series, in accordance with the terms
set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. 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
2
Exhibit h(2)
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 other entity.
4. 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 Instructions or
Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents of the
Fund or of any vote, resolution or proceeding of the Fund's Board of
Trustees or of the Fund's shareholders, unless and until PFPC
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) 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.
If the Written Instructions differ from the Oral Instructions, any
actions that PFPC takes or omits based on the Oral Instructions
3
Exhibit h(2)
before PFPC has a reasonable opportunity to act on the Written
Instructions shall be valid and enforceable.
5. 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.
(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 counsel
for the Fund, the Fund's investment adviser or 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 PFPC receives from counsel, PFPC may
rely upon and follow the advice of counsel. PFPC shall provide the
Fund with prior written notice of its intention to follow advice of
counsel that is materially inconsistent with Oral or Written
Instructions. PFPC shall further provide the Fund with a copy of
such advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund and
without liability for any action PFPC takes or does not take in
reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC receives from or on behalf of the Fund or from
counsel and which PFPC believes, acting reasonably, to be consistent
with those directions or advice and Oral Instructions or Written
4
Exhibit h(2)
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Series 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.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Series' books of
account;
(ii) records of each Series' securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
7. 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
5
Exhibit h(2)
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; (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 Confidential
Information and shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the time it is first
obtained, and was previously obtained through an unrelated source and not
subject to a duty of confidentiality; (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
requested or required to be disclosed by the receiving party pursuant to a
court order, subpoena, governmental or regulatory agency request or law
(provided the receiving party will provide the other party written notice
of the same, to the extent such notice is permitted); (e) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; (f) release of such information by PFPC is necessary in connection
with the provision of services under this Agreement; or (g) has been or is
independently developed
6
Exhibit h(2)
or obtained by the receiving party.
8. LIAISON WITH ACCOUNTANTS. PFPC 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
Series. PFPC 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.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all of
its proprietary 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.
10. 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.
7
Exhibit h(2)
11. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term of
this Agreement, the Fund, on behalf of each Series, will pay to PFPC
a fee or fees as may be agreed to in writing by the Fund and PFPC.
(b) The undersigned hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC to such adviser or sponsor or
any affiliate of the Fund relating to this Agreement have been fully
disclosed to the Board of Trustees of the Fund and that, if required
by applicable law, such Board of Trustees has approved or will
approve the terms of this Agreement, any such fees and expenses, and
any such benefits.
12. INDEMNIFICATION. (a) The Fund, on behalf of each Series, agrees to
indemnify, defend and hold harmless PFPC and its affiliates, including
their respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities (including,
reasonable 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 connection with the provision of services to the Fund.
Notwithstanding the foregoing, neither PFPC, nor any of its affiliates,
nor any of their officers, directors, agents, or employees, shall be
8
Exhibit h(2)
indemnified against any liability (or any expenses incident to such
liability) caused by PFPC's or its affiliates' own willful misfeasance,
bad faith, negligence or reckless disregard in the performance of PFPC's
activities under this Agreement or any material breach by PFPC of this
Agreement or any other agreement between PFPC and the Fund. Any amounts
payable by the Fund hereunder shall be satisfied only against the relevant
Series' assets and not against the assets of any other investment series
of the Fund. The provisions of this Section 12 shall survive termination
of this Agreement.
(b) PFPC agrees to defend, indemnify and hold the Fund and its officers,
directors and employees harmless from all taxes, charges, expenses,
assessments, claims and liabilities (including reasonable attorneys' fees
and disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) arising under the
Securities Laws and any state and foreign securities and blue sky laws)
caused by the negligence, bad faith or willful misfeasance of PFPC in the
performance of its duties hereunder. Notwithstanding the foregoing, the
Fund shall not be indemnified against any liability (or any expenses
incident to such liability) caused by the Fund's or the Fund's other
service providers' misfeasance, bad faith or negligence or any material
breach by the Fund of this Agreement or any other agreement between PFPC
and the Fund.
9
Exhibit h(2)
(c) LEGAL ACTION AGAINST INDEMNIFICATION PARTY.
(i) Notice of the Action
A party that seeks indemnification under Section 12 must promptly give the
other party notice of any legal action. But a delay in notice does not
relieve an indemnifying party of any liability to an indemnified party,
except to the extent the indemnifying party shows that the delay
prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense
The indemnifying party may participate in the defense at any time or it
may assume the defense by giving notice to the other party. After assuming
the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the other party;
(2) is not liable to the other party for any later attorney's fees
or for any other later expenses that the other party incurs, except
for reasonable investigation costs;
(3) must not compromise or settle the action without the other
party's consent (but the other party must not unreasonably withhold
its consent); and
(4) is not liable for any compromise or settlement made without its
consent.
(iii) Failing to Assume the Defense
10
Exhibit h(2)
If the indemnifying party fails to participate in or assume the defense
within 15 days after receiving notice of the action, the indemnifying
party is bound by any determination made in the action or by any
compromise or settlement made by the other party.
(d) The provisions of this Section 12 shall survive termination of this
Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf
of the Fund or any Series except as specifically set forth herein 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,
negligence or reckless disregard of such duties or any material
breach by PFPC of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements
11
Exhibit h(2)
of nature; or non-performance by a third party; and (ii) PFPC shall
not be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which PFPC
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by PFPC or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to each
Series:
(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 Series (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;
12
Exhibit h(2)
(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;
(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;
(xi) Calculate capital gains and losses;
(xii) Determine the net income of each Series;
(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, at
the Fund's expense and in either case calculate the market
value of each Series' Investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xv) Compute the net asset value of each Series share class;
(xvi) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required,
portfolio average dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement, which will include
the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
13
Exhibit h(2)
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Series:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Series and Fund statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Prepare and file the Fund's Semi Annual Reports with the SEC on
Form N-SAR and Notices pursuant to Rule 24f-2;
(vi) Monitor each Series' status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vii) Prepare the Fund's annual and semi-annual shareholder reports
(including Form N-CSR) and Form N-Q, and coordinate with the
Fund's financial printer the filing of Forms N-CSR and N-Q with
the SEC;
(viii) Monitor sales of the Fund's shares and assure that the Fund has
properly registered such shares with the applicable state
authorities;
(ix) Prepare and monitor an expense budget for each Series, including
accruals for each category of expenses;
(x) Determine the amount of dividends and other distributions payable
to shareholders as necessary to maintain the qualification as a
regulated investment company of each Series of the Fund under the
Code;
(xi) Prepare and coordinate with the Fund's counsel the annual
Post-Effective Amendment to the Fund's registration statement
(other than adding a new series or class), and coordinate with
the Fund's financial printer to make such filing with the SEC;
(xii) Assist administratively in obtaining the fidelity bond and
directors' and officers'/ errors and omissions insurance policies
for the Fund in accordance with the requirements of Rules 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;
(xiii) Coordinate the filing of the Fund's fidelity bond with the SEC;
14
Exhibit h(2)
(xiv) Prepare notices, agendas, and resolutions for quarterly Board
meetings and draft actions by written consent of the Board;
(xv) Coordinate the preparation, assembly and mailing of quarterly
Board materials;
(xvi) Attend quarterly Board meetings, make presentations at such
meetings as appropriate, and draft minutes of such meetings;
(xvii) Maintain a calendar for the Fund that shall list various SEC
filing and Board approval deadlines;
(xviii) Maintain the Fund's contract files;
(xix) Provide compliance policies and procedures related to services
provided by PFPC and, if mutually agreed, certain PFPC
affiliates, summary procedures thereof and an annual
certification letter; and
(xx) Provide a sub-certification to the Fund's chief executive officer
and chief financial officer in support of certain matters related
to the work product prepared by PFPC and set forth in the Fund's
Form N-CSR and Form N-Q filings.
All regulatory services are subject to the review and approval of Fund
counsel.
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue for a
period of one (1) year (the "Initial Term"). Upon the expiration of
the Initial Term, this Agreement will automatically renew for
successive terms of two (2) years (the "Renewal Terms"). Either
party may terminate this Agreement effective at the end of the
Initial Term or any Renewal Term by providing written notice to the
other party of its intent not to renew. Notice of termination must
be received not less than thirty (30) days prior to the expiration
of the Initial Term or the then current Renewal Term, as applicable.
15
Exhibit h(2)
(b) In the event of termination, all expenses associated with movement
of records and materials and conversion thereof to a successor
service provider will be borne by the Fund. This Section 16(b) shall
survive termination of this Agreement.
(c) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as PFPC may inform the Fund in writing); (b) if to the Fund, at
000 Xxxxxxx Xxxxxx, 00 Xxxxx, Xxx Xxxx, XX 00000 , Attention: Xxxxxx Xxxx;
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.
16
Exhibit h(2)
18. PFPC DATA REPOSITORY AND ANALYTICS SUITE SERVICES. PFPC shall provide to
the Fund the data repository and analytics suite services as set forth on
Exhibit B attached hereto and made a part hereof, as such Exhibit B may be
amended from time to time, subject to the terms of this Agreement and the
terms set forth in such Exhibit B. Persons who are the Fund "Authorized
Users" to access data repository and analytics suite are set forth on
Exhibit C attached hereto and made a part hereof, as such Exhibit C may be
amended from time to time.
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. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives the Fund 30 days prior written
notice of such assignment.
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. MISCELLANEOUS.
(a) The Fund will notify PFPC of any changes to its registration
statement or policies that would likely affect the obligations or
responsibilities of PFPC hereunder. Notwithstanding anything in this
Agreement to the contrary, the Fund agrees that PFPC shall not be
bound by any changes to the Fund's registration statement or
17
Exhibit h(2)
changes in policies which, in either case, would affect materially
the obligations or responsibilities of PFPC hereunder unless PFPC
shall have accepted such modifications or changes, which acceptance
shall not be unreasonably withheld or delayed. PFPC will reasonably
cooperate with the Fund in good faith to address any such
modifications or changes that increase PFPC's work burden or that
pose operational difficulties.
(b) 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.
PFPC disclaims any warranty of title or non-infringement except as
otherwise set forth in 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 PFPC 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.
18
Exhibit h(2)
(d) The Fund will provide such information and documentation as PFPC may
reasonably request in connection with services provided by PFPC to
the Fund.
(e) 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.
(f) 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.
(g) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(h) The Fund and PFPC agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the trustees of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such trustees nor such
execution and delivery by such officers shall be deemed to have been
made by any of them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property of the
Fund (or applicable series thereof),
19
Exhibit h(2)
as provided in the Declaration of Trust.
(i) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of PFPC's
affiliates are financial institutions, and PFPC may, as a matter of
policy, request (or may have already requested) the Fund's name,
address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC may also ask (and
may have already asked) for additional identifying information, and
PFPC may take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
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/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
Title: Senior Vice President
CRM MUTUAL FUND TRUST
By: /s/ Xxxxxx Xxxx
---------------
Xxxxxx Xxxx
Title: CFO
20
Exhibit h(2)
EXHIBIT A
THIS EXHIBIT A, dated as of August 1, 2005 is Exhibit A to that certain
Administration and Accounting Services Agreement dated as of August 1, 2005
between PFPC Inc. and CRM Mutual Fund Trust.
SERIES
Small Cap Value
(Investor Class and Institutional Class share classes)
Mid Cap Value
(Investor Class and Institutional Class share classes)
Large Cap Value
(Investor Class and Institutional Class share classes)
Small/Mid Cap Value
(Investor Class and Institutional Class share classes)
21
Exhibit h(2)
EXHIBIT B
DATA REPOSITORY AND ANALYTICS SUITE
1. PFPC SERVICES. PFPC will:
(a) Provide Internet access to PFPC's data repository and analytics
suite at xxx.xxxxxxxxxxxx.xxx or other site operated by PFPC (the
"Site") for Fund portfolio data otherwise supplied by PFPC to the
Fund or its service providers via other electronic or manual
methods. Types of information to be provided on the Site include:
(i) data relating to portfolio securities (other than Compliance
Reporting Services, as defined below), (ii) general ledger balances
and (iii) net asset value-related data, including NAV and net asset,
distribution and yield detail (collectively, the "Accounting
Services"). Types of information to be provided on the Site also
include: [data relating to portfolio securities relative to certain
provisions of the Internal Revenue Code, securities laws or the
Fund's offering documents] (collectively, the "Compliance Reporting
Services") (the Accounting Services and the Compliance Reporting
Services are together referred to in Exhibits B and C as the
"Services"). The parties hereby agree that the Compliance Reporting
Services are back-end reports only and that PFPC (i) makes no
representation or warranty about the accuracy of the Compliance
Reporting Services, or how complete such information is, at any time
and (ii) shall have no liability whatsoever with respect to the
accuracy or inaccuracy or complete or incomplete nature of the
Compliance Reporting Services or reliance thereon by any party
absent willful misfeasance, bad faith or negligence on the part of
PFPC;
(b) Supply each of the Authorized Users specified on Exhibit C as
permissible users of the Data Repository and Analytics Suite (the
"Users") with a logon ID and Password;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. With respect to the Accounting
Services, Users will be able to modify standard inquiries to develop
user-defined inquiry tools; however, PFPC will review computer costs
for running user-defined inquiries and may assess surcharges for
those requiring excessive hardware resources (in addition to any
fees otherwise agreed in writing between the Fund and PFPC). In
addition, costs for developing custom reports or enhancements are
not included in any fees otherwise agreed in writing between the
Fund and PFPC and will be billed separately to the Fund;
(d) Utilize a form of encryption that is generally available to the
public in the U.S. for standard Internet browsers and establish,
monitor and verify firewalls and other security features
(commercially reasonable for this type of information and these
22
Exhibit h(2)
types of users) and exercise commercially reasonable efforts to
attempt to maintain the security and integrity of the Site; and
(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service
interruptions.
2. DUTIES OF THE FUND AND THE USERS. The Fund and the Users (to the extent
applicable) will:
(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC
immediately in the event that a logon ID or password is lost, stolen
or if the Fund or a User has reason to believe that a logon ID or
password is or was being used by an unauthorized person.
3. STANDARD OF CARE; LIMITATIONS OF LIABILITY
(a) Nothing in this Section 3 shall in any way serve to limit any
limitation of liability provision otherwise applicable to PFPC under
the Agreement. In the event of a conflict between the specific terms
of this Exhibit B and the balance of the Agreement, this Exhibit B
shall control as to the Services.
(b) The Fund acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC's
provision of Services is dependent upon the proper functioning of
the Internet and services provided by telecommunications carriers,
firewall providers, encryption system developers and others. The
Fund agrees that PFPC shall not be liable in any respect for the
actions or omissions of any third party wrongdoers (i.e., hackers
not employed by PFPC or its affiliates) or of any third parties
involved in the Services and shall not be liable in any respect for
the selection of any such third party, unless that selection
constitutes willful misfeasance, bad faith or negligence on the part
of PFPC.
(c) Without limiting the generality of the foregoing or any other
provisions of this Exhibit B or the Agreement, PFPC shall not be
liable for delays or failures to perform any of the Services or
errors or loss of data occurring directly or indirectly by reason of
circumstances beyond PFPC's reasonable control, including without
limitation the items referenced in Section 13(b)(i) of the Agreement
and including without limitation, functions or malfunctions of the
Internet or telecommunications services, firewalls, encryption
systems or security devices occurring directly or indirectly by
reason of circumstances beyond PFPC's reasonable control or by
reason of laws or regulations imposed after the date of this Exhibit
B.
4. DURATION, TERMINATION AND CHANGES TO TERMS.
23
Exhibit h(2)
(a) PFPC shall have the right at any time to provide notice of changes
to the terms and fees described in this Agreement. Such changes will
become effective and bind the parties hereto after sixty (60) days
from the date PFPC notifies the Fund of such changes, unless the
Fund terminates this Agreement pursuant hereto or the parties agree
otherwise at such time.
(b) Either party may terminate this Exhibit upon sixty (60) days' prior
written notice to the other. Any outstanding fees must be paid
before this Agreement terminates, unless PFPC waives such
requirement.
5. MISCELLANEOUS. In the event of a conflict between specific terms of this
Exhibit and the balance of the Agreement, this Exhibit shall control as to the
Services.
24
Exhibit h(2)
EXHIBIT C
Data Repository and Analytics Suite Authorized Users
The following individuals shall be Fund Authorized Users to access PFPC's data
repository and analytics suite:
NAME COMPANY OR FIRM SIGNATURE
----------------- ----------------------------- ----------------------
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Xxxxxxx Xxxxxx
------------------
Xxxxxx Xxxx Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Xxxxxx Xxxx
---------------
Addison West Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Addison West
----------------
Xx Xxxxx Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Xx Xxxxx
------------
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Xxxxxx Xxxxxxxx
-------------------
Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XxXxxxx, LLC /s/ Xxxxxxxx Xxxxxxxx
---------------------
25
