EXHIBIT 99.9(b)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
CRABBE HUSON FUNDS
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
Article 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK. . . . . . . . 1
Article 2 FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . 3
Article 3 REPRESENTATIONS AND WARRANTIES OF THE BANK. . . . . . . 3
Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUNDS . . . . . . 4
Article 5 DATA ACCESS AND PROPRIETARY INFORMATION . . . . . . . . 4
Article 6 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 5
Article 7 STANDARD OF CARE. . . . . . . . . . . . . . . . . . . . 6
Article 8 COVENANTS OF THE TRUST AND THE BANK . . . . . . . . . . 6
Article 9 TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . 7
Article 10 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . 8
Article 11 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . 8
Article 12 MASSACHUSETTS LAW TO APPLY. . . . . . . . . . . . . . . 8
Article 13 FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . 8
Article 14 CONSEQUENTIAL DAMAGES . . . . . . . . . . . . . . . . . 8
Article 15 MERGER OF AGREEMENT . . . . . . . . . . . . . . . . . . 9
Article 16 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 9
Article 17 MULTIPLE FUNDS. . . . . . . . . . . . . . . . . . . . . 9
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the _____ day of ____________________, 199___, between
Crabbe Huson Funds, a Delaware business trust, (the "Trust"), on behalf of the
Mutual Funds listed on the attached schedule (as may be amended from time to
time having their principal offices and places of business at 000 XX Xxxxxxxx,
Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000, (the "Funds"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company having its principal office and
place of businesses at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Bank").
WHEREAS, the Trust desires to appoint the Bank as its transfer agent,
dividend disbursing agent, custodian of certain retirement plans and agent in
connection with certain other activities, and the Bank desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints the Bank to act as, and the Bank agrees
to act as its transfer agent for the Funds' authorized and issued shares of
its beneficial interests, no par value, ("Shares"), dividend disbursing
agent, custodian of certain retirement plans and agent in connection with
any accumulation, open-account or similar plans provided to the
shareholders of the Trust ("Shareholders") and set out in the currently
effective prospectus and statement of additional information ("prospectus")
of the Trust, including without limitation any periodic investment plan or
periodic withdrawal program.
1.2 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Trust and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the Custodian of each of the Funds as authorized
by the Trust's Board of Trustees of the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, the Bank shall execute transactions directly with
broker-dealers authorized by the Trust who shall thereby be
deemed to be acting on behalf of the Trust;
(v) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner such
monies as instructed by the redeeming Shareholders;
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(vi) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Funds;
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt
by the Bank of indemnification satisfactory to the Bank and
protecting the Bank and the Funds, and the Bank at its
option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and
without such indemnity;
(ix) Maintain records of account for and advise the Funds and its
Shareholders as to the foregoing; and
(x) Record the issuance of shares of the Funds and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number
of shares of the Funds which are authorized, based upon data
provided to it by the Funds, and issued and outstanding.
The Bank shall also provide the Funds on a regular basis
with the total number of shares which are authorized and
issued and outstanding and shall have no obligation, when
recording the issuance of shares, to monitor the issuance of
such shares or to take cognizance of any laws relating to
the issue or sale of such shares, which functions shall be
the sole responsibility of the Trust.
(b) In addition to and neither in lieu nor in contravention of
the services set forth in the above paragraph (a), the Bank
shall: (i) perform the customary services of a transfer
agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including
without limitation any periodic investment plan or periodic
withdrawal program), including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, mailing Shareholder reports
and prospectuses to current Shareholders, withholding taxes
on U.S. resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders,
preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of
Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information
and (ii) provide a system which will enable the Funds to
monitor the total number of Shares sold in each State.
(c) In addition, the Trust shall (i) identify to the Bank in
writing those transactions and assets to be treated as
exempt from blue sky reporting for each State and (ii)
verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of the
Bank for the Trust's blue sky State registration status is
solely limited to the initial establishment
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of transactions subject to blue sky compliance by the Funds
and the reporting of such transactions to the Funds as
provided above.
(d) Procedures as to who shall provide certain of these services
in Article 1 may be established from time to time by
agreement between the Trust and the Bank per the attached
service responsibility schedule. The Bank may at times
perform only a portion of these services and the Trust or
its agent may perform these services on the Funds's behalf.
(e) The Bank shall provide additional services on behalf of the
Trust (i.e., escheatment services) which may be agreed upon
in writing between the Trust and the Bank.
Article 2 FEES AND EXPENSES
2.1 For the performance by the Bank pursuant to this Agreement, the Trust
agrees to pay the Bank an annual maintenance fee for each Shareholder
account as set out in the initial fee schedule attached hereto. Such fees
and out-of-pocket expenses and advances identified under Section 2.2 below
may be changed from time to time subject to mutual written agreement
between the Trust and the Bank.
2.2 In addition to the fee paid under Section 2.1 above, the Trust agrees
to reimburse the Bank for out-of-pocket expenses, including but not limited
to confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage, or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by the Bank at the request or with
the consent of the Trust, will be reimbursed by the Trust on behalf of the
applicable fund.
2.3 The Trust agrees to pay all fees and reimbursable expenses within five
days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to the Bank by the Trust at least
seven (7) days prior to the mailing date of such materials.
Article 3 REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Trust that:
3.1 It is a trust company duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
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Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUNDS
The Trust represents and warrants to the Bank that:
4.1 It is a Delaware business trust duly organized and existing and in
good standing under the laws of Delaware.
4.2 The Trust is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
4.3 All actions required by said Declaration of Trust and By-Laws have
been taken to authorize the Trust to enter into and perform this Agreement.
4.4 The Trust is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
4.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares of the Trust being offered for sale.
Article 5 DATA ACCESS AND PROPRIETARY INFORMATION
5.1 The Trust acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Trust by the Bank as part of the Trust's ability
to access certain Fund-related data ("Customer Data") maintained by the
Bank on data bases under the control and ownership of the Bank or other
third party ("Data Access Services") constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary Information")
of substantial value to the Bank or other third party. In no event shall
Proprietary Information be deemed Customer Data. The Trust agrees to treat
all Proprietary Information as proprietary to the Bank and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting the
foregoing, the Trust agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Bank and solely in accordance
with the Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such
fact and dispose of such information in accordance with the
Bank's instructions;
(d) to refrain from causing or allowing third-party data
acquired hereunder from being retransmitted to any other
computer facility or other location, except with the prior
written consent of the Bank;
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(e) that the Trust shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Article 5. The obligations of this Article shall
survive any earlier termination of this Agreement.
5.2 If the Trust notifies the Bank that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, the Bank shall endeavor in a timely manner
to correct such failure. Organizations from which the Bank may obtain
certain data included in the Data Access Services are solely responsible
for the contents of such data and the Trust agrees to make no claim against
the Bank arising out of the contents of such third-party data, including,
but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH
ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS
ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.3 If the transactions available to the Trust include the ability to
originate electronic instructions to the Bank in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information (such transactions constituting a
"COEFI"), then in such event the Bank shall be entitled to rely on the
validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in conformity
with security procedures established by the Bank from time to time.
Article 6 INDEMNIFICATION
6.1 The Bank shall not be responsible for, and the Trust shall indemnify
and hold the Bank harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out
of or attributable to:
(a) All actions of the Bank or its agent or subcontractors
required to be taken pursuant to this Agreement, provided
that such actions are taken in good faith and without
negligence or willful misconduct.
(b) The Trust's lack of good faith, negligence or willful
misconduct which arise out of the breach of any
representation or warranty of the Trust hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or
services which (i) are received by the Bank or its agents or
subcontractors, and (ii) have been prepared, maintained or
performed by the Trust or any other person or firm on
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behalf of the Trust including but not limited to any
previous transfer agent or registrar.
(d) The reliance on, or the carrying out by the Bank or its
agents or subcontractors of any instructions or requests of
the Trust.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares
be registered in such state or in violation of any stop
order or other determination or ruling by any federal agency
or any state with respect to the offer or sale of such
Shares in such state.
6.2 At any time the Bank may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors shall not be
liable and shall be indemnified by the Trust for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of
such counsel. The Bank, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or document furnished by or on
behalf of the Trust, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Bank or its agents or
subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Trust, and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Trust. The Bank, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of
the officers of the Trust, and the proper countersignature of any former
transfer agent or former registrar, or of a co-transfer agent or co-
registrar.
6.3 In order that the indemnification provisions contained in this Article
6 shall apply, upon the-assertion of a claim for which the Trust may be
required to indemnify the Bank, the Bank shall promptly notify the Trust of
such assertion, and shall keep the Trust advised with respect to all
developments concerning such claim. The Trust shall have the option to
participate with the Bank in the defense of such claim or to defend against
said claim in its own name or in the name of the Bank. The Bank shall in
no case confess any claim or make any compromise in any case in which the
Trust may be required to indemnify the Bank except with the Trust's prior
written consent.
6.4 Limit exposure of individual funds for actions arising by conduct of
other fund.
Article 7 STANDARD OF CARE
7.1 The Bank shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct of that of its
employees.
Article 8 COVENANTS OF THE TRUST AND THE BANK
8.1 The Trust shall promptly furnish to the Bank the following:
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(a) A certified copy of the resolution of the Board of Trustees
of the Trust authorizing the appointment of the Bank and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Trust
and all amendments thereto.
8.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
8.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Trust and the applicable Fund and will be
preserved, maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to the Trust and the applicable
Fund on and in accordance with its request.
8.4 The Bank and the Trust and the applicable Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by
law.
8.5 In case of any requests or demands for the inspection of the
Shareholder records of the Trust and the applicable Fund, the Bank will
endeavor to notify the Trust and the applicable Fund and to secure
instructions from an authorized officer of the Trust and the applicable
Fund as to such inspection. The Bank reserves the right, however; to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
Article 9 TERMINATION OF AGREEMENT
9.1 This Agreement shall continue for a period of one year (the "Initial
Term") and be renewed or terminated as stated below.
9.2 This Agreement may be terminated or renewed after the Initial Term by
either party upon sixty (60) days written notice to the other.
9.3 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne
by the Trust. Additionally, the Bank reserves the right to charge for any
other reasonable expenses associated with such termination.
9.4 Should either party terminate before the Initial Term, the terminating
party shall reimburse the other party for all reasonable costs and out-of-
pocket expenses incurred by
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the other party associated with the movement of records and material from
the prior transfer agent to the Bank during the transition or conversation
from the prior transfer agent.
Article 10 ASSIGNMENT
10.1 Except as provided in Section 10.3 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
10.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
10.3 The Bank may, without further consent on the part of the Funds,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(1) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(1)"), (ii) a
BFDS subsidiary duly registered as a transfer agent pursuant to Section
17A(c)(1) or (iii) a BFDS affiliate; provided, however, that the Bank shall
be as fully responsible to the Funds for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Article 11 AMENDMENT
11.1 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Board of Trustees of the Trust.
Article 12 MASSACHUSETTS LAW TO APPLY
12.1 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Article 13 FORCE MAJEURE
13.1 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform
or otherwise from such causes.
Article 14 CONSEQUENTIAL DAMAGES
14.1 Neither party to this Agreement shall be liable to the other party
for Consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
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Article 15 MERGER OF AGREEMENT
15.1 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
Article 16 COUNTERPARTS
16.1 This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
Article MULTIPLE FUNDS
17.1 Each Fund shall be regarded for all purposes hereunder as a separate
party apart from each other Fund. Unless the context otherwise requires,
with respect to every transaction covered by this Agreement, every
reference herein to the Funds or the Trust shall be deemed to relate to the
particular Fund to which such transaction relates. Under no circumstances
shall the rights, obligations or remedies with respect to a particular Fund
constitute a right, obligation or remedy applicable to any other Fund. The
use of this single document to memorialize the separate agreement of the
Trust on behalf of each Fund is understood to be for clerical convenience
only and shall not constitute any basis for joining the Funds for any
reason.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
BY:
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ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY:
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Executive Vice President
ATTEST:
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STATE STREET BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
1. Receives orders for the purchase of Shares. X
2. Issue Shares and hold Shares in Shareholders X
accounts.
3. Receive redemption requests. X
4. Effect transactions 1-3 above directly with broker- X
dealers.
5. Pay over monies to redeeming Shareholders. X
6. Effect transfers of Shares. X
7. Prepare and transmit dividends and distributions. X
8. Issue Replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and accurate control X
book for each issue of securities.
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Mail prospectuses to current Shareholders. X
15. Withhold taxes on U.S. resident and non-resident X
alien accounts.
16. Prepare and file U.S. Treasury Department forms. X
17. Prepare and mail account and confirmation X
statements for Shareholders.
18. Provide Shareholder account information. X
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19. Blue sky reporting. X
* Such services are more fully described in article 1.2 (A), (b) and (c) of
the Agreement.
BY:
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ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY:
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EXECUTIVE VICE PRESIDENT
ATTEST:
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FUND SCHEDULE
* Crabbe Huson Small Cap Fund
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