exhibit h(1)
FORM OF TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of _________________, 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 serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent 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 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.
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(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" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(h) "Shares" mean 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 by 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 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. 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.
4. INSTRUCTIONS.
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(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 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 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
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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 it 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 or Oral Instructions or Written 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. 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
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or to an Authorized Person, at the Fund's expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include:
(i) 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;
(ii) 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;
(iii) 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
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if it:
(i) 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;
(ii) is or becomes publicly known or available through no wrongful act of
the receiving party;
(iii) is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(iv) 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
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receiving party will provide the other party written notice of the same,
to the extent such notice is permitted);
(v) release of such information by PFPC is necessary in connection with
the provision of services under this Agreement;
(vi) is relevant to the defense of any claim or cause of action asserted
against the receiving party; or
(vii) has been or is independently developed or obtained by the receiving
party.
8. 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.
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. Notwithstanding the foregoing,
the parties acknowledge the Fund shall retain all ownership rights in Fund data
which resides on the PFPC System.
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
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caused by PFPC's own willful misfeasance, bad faith, negligence or reckless
disregard of its duties or obligations under this Agreement.
11. COMPENSATION.
(a) 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. In
addition, the Fund agrees to pay, and will be billed separately in
arrears for, reasonable expenses incurred by PFPC in the performance
of its duties hereunder.
(b) PFPC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement. The
Fund acknowledges (i) PFPC may receive investment earnings from
sweeping the funds in such Service Accounts into investment accounts
including, but not limited, investment accounts maintained at an
affiliate or client of PFPC; (ii) balance credits earned with
respect to the amounts in such Service Accounts ("Balance Credits")
will be used to offset the banking service fees imposed by the cash
management service provider (the "Banking Service Fees"); (iii) PFPC
shall retain any excess Balance Credits for its own use; and (iv)
Balance Credits will be calculated and applied toward the Fund's
Banking Service Fees regardless of the Service Account balance sweep
described in Sub-Section (i).
(c) 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,
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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 the 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 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 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, 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,
negligence or reckless disregard of such duties and obligations under this
Agreement. The provisions of this Section 12 shall survive termination of
this Agreement.
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(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) to
the extent 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 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.
(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;
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(2) is not liable to the pother 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
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 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
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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 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 SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Furnish state-by-state registration reports;
(ii) Maintain proper shareholder registrations;
(iii) Review new applications and correspond with shareholders
to
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complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in con-junction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(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
clients;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and statement
information;
(xiii) Coordinate and support the Fund's shares being traded
on the Fund/Serv system;
(xiv) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xv) 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 Fund purchases and redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
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(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.
(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 record
holder 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.
When a broker-dealer notifies PFPC of a redemption desired by a customer, and
the Custodian provides PFPC with funds, PFPC shall prepare and send the
redemption check to the broker-dealer and made payable to the broker-dealer on
behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of the
Fund's
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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:
- 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;
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(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards for the
meetings of the Fund's shareholders.
(h) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class of
Shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid
and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current maintenance
of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent
to perform any calculations contemplated or required by
this Agreement.
(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
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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.
(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 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.
15. PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11, it
shall not disclose the non-public personal information of investors in the Fund
obtained under this Agreement, except as necessary to carry out the services set
forth in this Agreement or as otherwise permitted by law or regulation.
16. ANTI-MONEY LAUNDERING. To the extent the other provisions of this Agreement
require PFPC to establish, maintain and monitor accounts of investors in the
Fund consistent with securities laws, PFPC shall perform reasonable actions
necessary to help the Fund be in compliance with Section 352 of the USA PATRIOT
Act, as follows: In this regard, PFPC shall:
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(a) establish and implement written internal policies, procedures and controls
reasonably designed to help prevent the Fund from being used to launder money or
finance terrorist activities; (b) provide for independent testing, by an
employee who is not responsible for the operation of PFPC's AML program or by an
outside party, for compliance with PFPC's established policies and procedures;
(c) designate a person or persons responsible for implementing and monitoring
the operation and internal controls of PFPC's AML program; and (d) provide
ongoing training of PFPC personnel relating to the prevention of
money-laundering activities. Upon the reasonable request of the Fund, PFPC shall
provide to the Fund: (x) a copy of PFPC's written AML policies and procedures
(it being understood such information is to be considered confidential and
treated as such and afforded all protections provided to confidential
information under this Agreement); (y) at the option of PFPC, a copy of a
written assessment or report prepared by the party performing the independent
testing for compliance, or a summary thereof, or a certification that the
findings of the independent party are satisfactory; and (z) a summary of the AML
training provided for appropriate personnel. PFPC agrees to permit inspections
relating to its AML program by U.S. Federal departments or regulatory agencies
with appropriate jurisdiction and to make available to examiners from such
departments or regulatory agencies such information and records relating to its
AML program as such examiners shall reasonably request. Without limiting or
expanding the foregoing, the parties agree the provisions herein do not apply to
Section 326 of the USA PATRIOT Act (or other sections other than Section 352) or
regulations promulgated thereunder.
17. CUSTOMER IDENTIFICATION PROGRAM ("CIP") SERVICES.
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(a) To help the Fund comply with its Customer Identification Program (which
the Fund is required to have under regulations issued under Section 326 of
the USA PATRIOT Act) PFPC will do the following:
(i) Implement procedures under which new accounts in the Fund are not
established unless PFPC has obtained the name, date of birth (for
natural persons only), address and government-issued identification
number (collectively, the "Data Elements") for each corresponding
Customer (as defined in 31 CFR 103.131).
(ii) Use collected Data Elements to attempt to reasonably verify the
identity of each new Customer promptly before or after each
corresponding new account is opened. Methods may consist of
non-documentary methods (for which PFPC may use unaffiliated
information vendors to assist with such verifications) and
documentary methods (as permitted by 31 CFR 103.131), and may
include procedures under which PFPC personnel perform enhanced due
diligence to verify the identities of Customers the identities of
whom were not successfully verified through the first-level (which
will typically be reliance on results obtained from an information
vendor) verification process(es).
(iii) Record the Data Elements and maintain records relating to
verification of new Customers consistent with 31 CFR 103.131(b)(3).
(iv) Regularly report to the Fund about measures taken under (a)-(c)
above.
(v) If PFPC provides services by which prospective Customers may
subscribe for shares in the Fund via the Internet or telephone, work
with the Fund to notify prospective Customers, consistent with 31
CFR 103.(b)(5), about the Fund's CIP.
(vi) Set forth on a separate fee schedule compensation amounts due for
these CIP Services.
(b) Notwithstanding anything to the contrary, and without expanding the scope
of the express language above, PFPC need not collect the Data Elements for
(or verify) prospective customer (or accounts) beyond the requirements of
relevant regulation (for example, PFPC will not verify customers opening
accounts through NSCC) and PFPC need not perform any task that need not be
performed for the fund to be in compliance with relevant regulation.
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(c) Notwithstanding anything to the contrary, PFPC need not perform any of the
steps described above with respect to persons purchasing Shares via
exchange privileges.
18. 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 ("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 Introductory Term, the Initial Term or the then current
Renewal Term, as applicable.
(b) In the event of termination, all expenses associated with movement of
records and materials and conversion thereof to a successor transfer agent
will be borne by the Fund. This Section 18(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.
19. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx,
00
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, Xxx
Xxxx 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.
20. 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.
21. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
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 or delegation.
22. 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.
23. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
24. 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
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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. 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 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.
(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) Information. The Fund will provide such information and documentation as
PFPC may reasonably request in connection with services provided by PFPC
to the Fund.
(e) 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.
(f) 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.
(g) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the
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benefit of the parties hereto and their respective successors and
permitted assigns.
(h) 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. PFPC disclaims any warranty of title or non-infringement except
as otherwise set forth in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such
party. 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), as provided in the Declaration of
Trust.
(j) Customer Identification Program Notice. To help the U.S. government fight
the funding of terrorism and money laundering activities, U.S. Federal law
requires each financial
22
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.
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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:_______________________
Title:____________________
CRM MUTUAL FUND TRUST
By: Xxxxxx X. XxXxxxx
Title: CEO
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EXHIBIT A
THIS EXHIBIT A, dated as of___________________ , 2005, is Exhibit A to
that certain Transfer Agency Services Agreement dated as of ___________________
, 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)
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