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EXHIBIT 9(M)
ADMINISTRATION AGREEMENT
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[Non-Money Market Funds]
This Administration Agreement is made as of this 13th day of
November, 1989 between PACIFIC HORIZON FUNDS, INC., a Maryland corporation
(herein called the "Company"), and CONCORD HOLDING CORPORATION, a Delaware
corporation (herein called "Concord").
WHEREAS, the Company is a Maryland corporation which is an
open-end management investment company and is so registered under the
Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Company will offer and maintain the following
investment portfolios: High Yield Bond, Aggressive Growth, GNMA Extra,
Convertible Securities and California TaxExempt Bond Funds (individually a
"Fund" and collectively the "Funds"); and
WHEREAS, pursuant to a Distribution Agreement of even date
herewith (the "Distribution Agreement") between the Company and Concord
Financial Group, Inc. ("Concord Financial"), the Company has retained Concord
Financial as its Distributor to provide for the sale and distribution of shares
of common stock of each Fund, each such share having a par value of $.001
(herein collectively called "Shares"); and
WHEREAS, the Company desires to retain Concord as its
Administrator to provide it with administrative services for the Funds, and
Concord is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties hereto agree as follows:
I. ADMINISTRATION
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1. APPOINTMENT OF ADMINISTRATOR. The Company hereby
appoints Concord as Administrator of each Fund on the terms and for the period
set forth in this Agreement and Concord hereby accepts such appointment and
agrees to perform the services and duties set forth in this Section I for the
compensation provided in this Section. The Company understands that Concord
now acts and will continue to act as administrator of various investment
companies and fiduciary of other managed accounts, and the Company has no
objection to Concord's so acting. In addition, it is understood that the
persons employed by Concord to assist in
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the performance of its duties hereunder will not devote their full time to such
services and nothing herein contained shall be deemed to limit or restrict the
right of Concord or any affiliate of Concord to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature.
2. SERVICES AND DUTIES.
(A) Subject to the supervision and control of the
Company's Board of Directors, Concord will provide facilities, equipment,
statistical and research data, clerical, accounting and bookkeeping services,
internal auditing and legal services, and personnel to carry out all
administrative services required for operation of the business and affairs of
the Funds, other than those investment advisory functions which are to be
performed by the Company's Investment Adviser, the services of Concord
Financial as Distributor pursuant to the Distribution Agreement, those services
to be performed by The Bank of New York pursuant to the Company's Custody
Agreement and Transfer Agency Agreement and those services normally performed
by the Company's counsel and auditors. Concord's responsibilities include
without limitation the following services:
(1) Providing a facility to receive
purchase and redemption orders for Shares via toll-free
IN-WATS telephone lines;
(2) Providing for the preparing,
supervising and mailing of confirmations for all purchase and
redemption orders for Shares;
(3) Providing and supervising the
operation of an automated data processing system to process
purchase and redemption orders for Shares received by Concord
(Concord assumes responsibility for the accuracy of the data
transmitted for processing or storage);
(4) Overseeing the performance of The
Bank of New York under the Custody Agreement and Transfer
Agency Agreement with respect to the Funds;
(5) Making available information
concerning each Fund to its shareholders; distributing written
communications to each Fund's shareholders such as periodic
listings of each Fund's securities, annual and semi-annual
reports, and prospectuses and supplements thereto; and
handling shareholder problems and calls relating to
administrative matters; and
(6) Providing and supervising the
services of employees ("relationship coordinators") whose
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principal responsibility and function shall be to preserve and
strengthen each Fund's relationships with its shareholders.
(B) Concord shall assure that persons are
available to transmit redemption requests for Shares to the Company's transfer
agent as promptly as practicable.
(C) Concord shall assure that persons are
available to transmit orders accepted for the purchase of Shares to the
transfer agent of the Company as promptly as practicable.
(D) Concord shall participate in the periodic
updating of the Funds' prospectuses and statements of additional information
and shall accumulate information for and, subject to approval by the Company's
Treasurer and legal counsel, coordinate the preparation, filing, printing and
dissemination of reports to the Funds' shareholders and the Commission,
including but not limited to annual reports and semi-annual reports on Form
N-SAR, notices pursuant to Rule 24f-2 and proxy materials pertaining to the
Funds.
(E) Concord shall compute each Fund's net asset
value per share on each business day.
(F) Concord shall calculate dividends and capital
gain distributions to be paid to each Fund's shareholders in conformity with
subchapter M of the Internal Revenue Code.
(G) Concord shall pay all costs and expenses of
maintaining the offices of the Company, wherever located, and shall arrange for
payment by the Company of all expenses payable by the Company.
(H) Concord, after consultation with legal
counsel for the Company, shall determine the jurisdictions in which the Shares
shall be registered or qualified for sale and, in connection therewith, shall
be responsible for the maintenance of the registration or qualification of the
Shares for sale under the securities laws of any state. Payment of Share
registration fees and any fees for qualifying or continuing the qualification
of the Company shall be made by the Company.
(I) Concord shall provide the services of certain
persons who may be appointed as officers of the Company by the Company's Board
of Directors.
(J) Concord shall oversee the maintenance by The
Bank of New York of the books and records pertaining to the Funds required
under the 1940 Act in connection with the performance of the Custody Agreement
and Transfer Agency Agreement, and shall maintain such other books and records
with respect to the Funds
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(other than those required to be maintained by the Company's Investment
Adviser) as may be required by law or may be required for the proper operation
of the business and affairs of the Funds. Without limiting the foregoing,
Concord shall obtain from the Company's prior administrator all books and
records pertaining to the Funds that are required to be maintained under the
1940 Act and that are in the prior administrator's possession, and shall be
responsible for the proper maintenance of such records throughout the term of
this Agreement. In compliance with the requirements of Rule 31a-3 under the
1940 Act, Concord agrees that all such books and records which it maintains, or
is responsible for maintaining, for the Company and the Funds are the property
of the Company and further agrees to surrender promptly to the Company any of
such books and records upon the Company's request. Concord further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act said books
and records required to be maintained by Rule 31a-1 under said Act.
(K) Concord shall prepare the Funds' federal,
state and local income tax returns.
(L) Concord shall prepare and, subject to
approval of the Company's Treasurer, disseminate to the Company's directors
each Fund's quarterly financial statements and schedules of investments, and
shall prepare such other reports relating to the business and affairs of the
Funds (not otherwise appropriately prepared by the Company's Investment
Adviser, counsel or auditors) as the officers and directors of the Company may
from time to time reasonably request in connection with performance of their
duties.
(M) Concord shall assist The Bank of New York and
the Company's Investment Adviser, counsel and auditors as required to carry out
the business and operations of the Funds.
(N) In performing its duties as Administrator for
the Funds, Concord will act in conformity with the Company's Charter, By-laws,
prospectuses and statements of additional information, and the instructions and
directions of the Board of Directors of the Company. In addition, Concord will
conform to and comply with the requirements of the 1940 Act and all other
applicable federal or state laws and regulations.
3. SUBCONTRACTORS. It is understood that Concord may
from time to time employ or associate with itself such person or persons as
Concord may believe to be particularly fitted to assist in the performance of
this Agreement; provided, however, that the compensation of such person or
persons shall be paid by Concord and that Concord shall be as fully responsible
to the Company for the acts and omissions of any subcontractor as it is for its
own acts and omissions. Without limiting the generality
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of the foregoing, it is understood that Concord intends to enter into an
agreement with The Bank of New York under which said institution will provide
certain accounting, bookkeeping, pricing and dividend and distribution
calculation services with respect to the Funds.
4. EXPENSES ASSUMED AS ADMINISTRATOR. Except as
otherwise stated in this subsection 4, Concord shall pay all expenses incurred
by it in performing its services and duties hereunder as Administrator
including the cost of any independent pricing service used in connection with
the Funds. Other expenses to be incurred in the operation of the Funds (other
than those borne by the Company's Investment Adviser) including taxes,
interest, brokerage fees and commissions, if any, fees of directors who are not
officers, directors, partners, employees or holders of 5 percent or more of the
outstanding voting securities of the Company's Investment Adviser or Concord or
any of their affiliates, Securities and Exchange Commission fees and state blue
sky registration and qualification fees, advisory fees, charges of custodians,
transfer and dividend disbursing agents' fees, certain insurance premiums,
outside auditing and legal expenses, costs of maintaining corporate existence,
costs attributable to shareholder services, including without limitation
telephone and personnel expenses, costs of preparing and printing prospectuses
or any supplement or amendment thereto, necessary for the continued effective
registration of the Shares under federal or state securities laws, costs of
printing and distributing any prospectus, supplement or amendment thereto for
existing shareholders of the Fund described therein, costs of shareholders'
reports and corporate meetings and any extraordinary expenses will be borne by
the Funds. It is understood that certain advertising, marketing, shareholder
servicing, administration and/or distribution expenses to be incurred in
connection with the Shares may be paid by the Company as provided in any Plan
which may in the sole discretion of the Company be adopted in accordance with
Rule 12b-1 under the 1940 Act, and that such expenses will be paid apart from
any fees paid under this Agreement.
5. COMPENSATION. For the services provided and the
expenses assumed as Administrator pursuant to Section I of this Agreement, the
Company will pay Concord a fee, computed daily and payable monthly, at the
annual rate of .20 percent of the average net assets of the GNMA Extra Fund and
Convertible Securities Fund and .30 percent of the average net assets of the
High Yield Bond, Aggressive Growth and California Tax-Exempt Bond Funds. Such
fee as is attributable to each Fund shall be a separate (and not joint or joint
and several) obligation of each such Fund. Notwithstanding anything to the
contrary herein, if in any fiscal year the aggregate expenses of any Fund (as
defined under the securities regulations of any state having jurisdiction over
such Fund) exceed the expense limitations of any such state, the
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Company may deduct from the fees to be paid hereunder, or Concord will bear, to
the extent required by state law, that portion of such excess which bears the
same relation to the total of such excess as Concord's fee hereunder with
respect to such Fund bears to the total fees otherwise payable for the fiscal
year with respect to such Fund pursuant to this Agreement and the investment
advisory agreement then in effect for such Fund. Concord's obligation is not
limited to the amount of its fees hereunder. Such deduction or payment, if
any, will be estimated and accrued daily and paid on a monthly basis.
II. CONFIDENTIALITY
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Concord will treat confidentially and as proprietary
information of the Company all records and other information relative to the
Company and the Funds and prior or present shareholders or those persons or
entities who respond to Concord Financial's inquiries concerning investment in
the Company, and will not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder or under
any other agreement with the Company, except after prior notification to and
approval in writing by the Company, which approval shall not be unreasonably
withheld and may not be withheld where Concord may be exposed to civil or
criminal contempt proceedings for failure to comply, when Concord is requested
to divulge such information by duly constituted authorities, or when Concord is
so requested by the Company.
III. LIMITATIONS OF LIABILITY
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Concord shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company or by any Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Any person, even though also an officer,
director, partner, employee or agent of Concord, who may be or become an
officer, director, employee or agent of the Company, shall be deemed, when
rendering services to the Company or to any Fund, or acting on any business of
the Company or of any Fund (other than services or business in connection with
Concord's duties as Administrator hereunder or under any other agreement with
the Company) to be rendering such services to or acting solely for the Company
or Fund and not as an officer, director, partner, employee or agent or one
under the control or direction of Concord even though paid by Concord.
IV. DURATION AND TERMINATION
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This Agreement shall become effective with respect to a Fund
on the date it is approved by the shareholder(s) of the Fund
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and, unless sooner terminated as provided herein, shall continue until October
31, 1991. Thereafter, if not terminated, this Agreement shall continue
automatically as to a particular Fund for successive terms of one year,
provided that such continuance is specifically approved at least annually (a)
by a vote of a majority of those members of the Board of Directors of the
Company who are not parties to this Agreement or "interested persons" of any
such party, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Board of Directors of the Company or by vote of a
"majority of the outstanding voting securities" of such Fund; PROVIDED,
HOWEVER, that this Agreement may be terminated by the Company at any time with
respect to any Fund, without the payment of any penalty, by vote of a majority
of the entire Board of Directors of the Company or by a vote of a "majority of
the outstanding voting securities" of such Fund on 60 days' written notice to
Concord, or by Concord at any time, without the payment of any penalty, on 90
days' written notice to the Company. This Agreement will automatically and
immediately terminate in the event of its "assignment." (As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested person" and "assignment" shall have the same meaning as such terms
have in the 1940 Act.)
V. AMENDMENT OF THIS AGREEMENT
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No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which an enforcement of the change, waiver, discharge or
termination is sought.
VI. NOTICES
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Notices of any kind to be given to the Company hereunder by
Concord shall be in writing and shall be duly given if mailed or delivered to
the Company at Xxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxx, President, or at such other address or to
such individual as shall be so specified by the Company to Concord. Notices of
any kind to be given to Concord hereunder by the Company shall be in writing
and shall be duly given if mailed or delivered to Concord at 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx,
President, or at such other address or to such individual as shall be so
specified by Concord to the Company.
VII. MISCELLANEOUS
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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. If any provision of this
Agreement shall be held or
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made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. Subject to the provisions of
Section IV hereof, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by New York law; PROVIDED, HOWEVER, that nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or regulation
of the Commission thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
PACIFIC HORIZON FUNDS, INC.
By:/s/ Xxxxxx X. Xxxxxxx
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President
Attest:/s/ W. Xxxxx XxXxxxxx, III
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Secretary
CONCORD HOLDING CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxx
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President
Attest:/s/ Xxxx Murgidichien
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Secretary
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