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Exhibit (H)(7)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 15th day of September, 1997 by and between
BANK OF AMERICA NT&SA ("BofA"), having its principal place of business at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and The Bank of New York, a
New York corporation authorized to do a banking business, having its principal
place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
called the "Bank").
WITNESSETH:
WHEREAS, BofA serves in the capacity of Administrator to Pacific
Horizon Funds, Inc. (the "Fund");
WHEREAS, the Bank is in the business of providing, among other things,
recordkeeping and fund accounting services to mutual funds; and
WHEREAS, BofA and the Bank wish to establish a relationship whereby the
Bank will provide fund accounting services to the various Portfolios of Pacific
Horizon Funds, Inc., listed on Appendix A to this Agreement (individually,
"Portfolio" and collectively "Portfolios");
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, BofA and the Bank hereby agree as follows:
1. BofA hereby appoints the Bank as its agent for the benefit of
the Fund to perform the duties hereinafter set forth.
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2. The Bank hereby accepts appointment as agent of BofA for the benefit
of the Fund and agrees to perform the duties hereinafter set forth.
3. Subject to the provisions of paragraphs 5 and 6 below, the Bank shall
compute the net asset value per share of each Series of shares (the "Series")
of the Fund and shall value the securities held by the Fund (the "Securities")
at such times and dates and in the manner specified in the then currently
effective Prospectus of the Fund.
4. Subject to the provisions of paragraphs 5 and 6 below, the Bank shall
also compute the net income and capital gains of each Series for dividend
purposes and the net income and capital gains per share at such times and dates
and in the manner specified in the then currently effective Prospectus of the
Fund.
5. To the extent valuation of Securities or computation of a Series' net
asset value, net income or capital gains for dividend purposes, or net income
or capital gains per share as specified in the Fund's then currently effective
Prospectus is at any time inconsistent with any applicable laws or regulations,
BofA shall immediately so notify the Bank in writing. Thereafter BofA shall (a)
either furnish the Bank at all appropriate times with the values of such
Securities, each Series' net asset value, net income or capital gains for
dividend purposes or net income or capital gains per share, as the case may be,
or (b) subject to the prior approval of the Bank, instruct the Bank in writing
to value Securities and compute each Series' net asset value, net income or
capital gains for dividend purposes, and net income or capital gains per share
in a manner which BofA then represents in writing to be consistent with all
applicable laws and regulations. BofA may also from time to time, subject to
the prior approval of the Bank, instruct the Bank in writing to compute the
value of the Securities, a Series' net asset value, net income or capital
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gains for dividend purposes, or net income or capital gains per share in a
manner other than as specified in paragraphs 3 and 4 of this Agreement. By
giving such instruction, BofA shall be deemed to have represented that such
instruction is consistent with all applicable laws and regulations and the then
currently effective Prospectus of the Fund. BofA shall have sole responsibility
for determining the method of valuation of Securities and the method of
computing each Series' net asset value, net income and capital gains for
dividend purposes and net income and capital gains per share.
6. BofA shall furnish the Bank with any and all instructions,
explanations, information, specifications, and documentation deemed necessary
by the Bank in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and
times of accrual of a Series liabilities and expenses. BofA shall also furnish
the Bank with bid, offer, or market values of Securities if the Bank notifies
BofA that same are not available to the Bank from a security pricing or similar
service listed on Schedule 1 hereto and utilized by the Bank at the time such
information is required for calculations hereunder. At any time and from time
to time, BofA also may furnish the Bank with bid, offer, or market values of
Securities and instruct the Bank to use such information in its calculations
hereunder. The Bank shall at all times have the right to terminate its
utilization of, or subscriptions to, any securities pricing or similar service
listed on Schedule 1 hereto.
7. The Bank shall advise the Fund, the Fund's custodian and the Fund's
transfer agent of the net asset value, net income and capital gains for
dividend purposes, and net income and capital gains per share of each Series
upon completion of the computations required to be made by the Bank pursuant to
this Agreement.
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8. The Bank shall as agent of BofA and for the benefit of the
Fund, maintain and keep current the books, accounts and other documents, if
any, listed in Appendix A hereto and made a part hereof, as such Appendix A
may be amended from time to time, and preserve any such books, accounts and
other documents in accordance with the applicable provisions of Rule 31a-2 of
the General Rules and Regulations under the Investment Company Act of 1940, as
amended (the "Rules"). Such books, accounts and other documents shall be made
available upon reasonable request for inspection by officers, employees and
auditors of the Fund and/or of BofA during the Bank's normal business hours.
9. All records maintained and preserved by the Bank pursuant to
this Agreement, including but not limited to those in an electronic format,
which the Fund is required to maintain and preserve in accordance with the
above-mentioned Rules shall be and remain the property of the Fund and shall
be surrendered to the Fund or to BofA promptly upon request by BofA or by the
Fund in the form in which such records have been maintained and preserved. Upon
reasonable request of BofA or the Fund, the Bank shall provide in electronic
media, hard copy, or on micro-film, whichever the Bank shall elect, any records
included in any such delivery which are maintained by the Bank on a computer
disc, or are similarly maintained, and BofA shall reimburse the Bank for its
expenses of providing such hard copy or micro-film.
10. The Bank, in performing the services required of it under the
terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information, specifications
and documentation furnished to it by BofA and shall have no duty or obligation
to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of Securities; the amounts or formula for calculating
the amounts and times of accrual of Series' liabilities and expenses; the
amounts
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receivable and the amounts payable on the sale or purchase of Securities; and
amounts receivable or amounts payable for the sale or redemption of Fund shares
effected by or on behalf of the Fund. In the event the Bank's computations
hereunder rely, in whole or in part, upon information, including, without
limitation, bid, offer or market values of Securities or other assets, or
accruals of interest or earnings thereon, from a pricing or similar service
listed on Schedule 1 hereto, the Bank shall not be responsible for, under any
duty to inquire into, or deemed to make any assurances with respect to, the
accuracy or completeness of such information, provided, however, that in the
event any such information provided by the pricing or similar service listed on
Schedule 1 hereto utilized by the Bank (the "Initial Information") exceeds, or
causes the Fund's net asset value to exceed, the tolerance permitted under the
variance tests then generally utilized by the Bank in connection with
agreements similar to this Agreement, the Bank shall obtain such information
from another service listed on Schedule 1 hereto. If such information from such
other service is within a permitted tolerance to the Initial Information under
variance tests then generally utilized by the Bank in connection with
agreements similar to this Agreement, the Bank shall utilize the Initial
Information in its calculations hereunder; if such information is not within
such tolerance, the Bank shall notify BofA and use such information as BofA may
specify.
11. The Bank shall not be required to inquire into any valuation of
Securities or other assets by the Fund or any third party described in
preceding paragraph 10 hereof, even though the Bank in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
12. The Bank, in performing the services required of it under the terms
of this Agreement, shall not be responsible for determining whether any
interest accruable to the Fund is or
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will be actually paid, but will accrue such interest until otherwise instructed
by BofA.
13. (a) The Bank shall not be responsible for delays or errors which
occur by reason of circumstances beyond its control in the performance of its
duties under this Agreement, including, without limitation, labor difficulties
external to the Bank, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, communication or power supply, or other similar
circumstances. Nor shall the Bank be responsible for delays or failures to
supply the information or services specified in this Agreement where such
delays or failures are caused by the failure of any person(s) other than the
Bank to supply any instructions, explanations, information, specifications or
documentation deemed necessary by the Bank in the performance of its duties
under this Agreement.
(b) Notwithstanding preceding paragraph 13(a), the Bank shall
maintain during the period of this Agreement at its own cost and expense
commercially reasonable back-up capability and commercially reasonable
emergency recovery and contingency plans.
14. No provision of this Agreement shall prevent the Bank from offering
services similar or identical to those covered by this Agreement to any other
corporations, associations or entities of any kind. Any and all operational
procedures, techniques and devices developed by the Bank in connection with the
performance of its duties and obligations under this Agreement, including those
developed in conjunction with the Fund, shall be and remain the property of the
Bank, and the Bank shall be free to employ such procedures, techniques and
devices in connection with the performance of any other contract with any other
person whether or not such contract is similar or identical to this Agreement.
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15. The Bank may, with respect to questions of law, apply to and
obtain the advice and opinion of counsel to the Fund or its own counsel and
shall be entitled to rely on the advice or opinion of such counsel. The costs
of any such advice or opinion shall be borne by the Bank.
16. (a) Unless otherwise provided in this Agreement, the Bank
shall act only upon oral instructions and written instructions.
(b) The Bank shall be entitled to rely upon any oral
instructions it receives from an Authorized Person (or from a person reasonably
believed by the Bank to be an Authorized Person) pursuant to this Agreement. The
Bank may assume that any oral instruction or written instruction received
hereunder is not in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or proceeding of the
Fund's of BofA's Board of Directors or shareholders or with any prior oral or
written instructions or other instructions of BofA unless and until the Bank
receives written instructions to the contrary.
(c) BofA shall forward to the Bank written instructions
confirming oral instructions so that the Bank 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
the Bank shall in no way invalidate the transactions or enforceability of the
transactions authorized by the oral instruction. Where oral instructions or
written instructions reasonably appear to have been received from an Authorized
Person, the Bank shall incur no liability to BofA or the Fund in acting upon
such oral instructions or written instructions provided that the Bank's actions
comply with the other provisions of this Agreement.
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(d) As used herein the term "Authorized Person" shall be any person,
whether or not an officer or employee of BofA, duly authorized to give oral
and/or written instructions on behalf of BofA, such person to be designated in
a certificate of Authorized Persons which contains a specimen signature of such
person.
17. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, the incompleteness or
inaccuracy of any specifications or other information furnished by the Fund, or
for delays caused by circumstances beyond the Bank's control, unless such loss,
damage or expense arises out of the bad faith, negligence, or willful
misconduct of the Bank. In no event shall the Bank be liable to the Company or
any third party for special, indirect, or consequential damages, or for lost
profits or loss of business, arising under or in connection with this
Agreement, even if previously informed of the possibility of such damages and
regardless of the form of action.
18. Without limiting the generality of the foregoing, BofA shall
indemnify the Bank against and save the Bank harmless from any loss, damage or
expense, including counsel fees and other costs and expenses of a defense
against any claim or liability, arising from any one or more of the following:
(a) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to
the Bank by any third party described in preceding paragraph 10 hereof or by
or on behalf of the Fund;
(b) Action or inaction taken or omitted to be taken by the Bank
pursuant to written or oral instructions of the Fund
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or otherwise without bad faith, negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in
good faith in accordance with the advice or opinion of counsel for the Fund or
its own counsel;
(d) Any improper use by the Fund or its agents, distributor or
investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities and the method of
computing each Series' net asset value, net income or capital gains for
dividend purposes, and net income or capital gains per share; or
(f) Any valuations of Securities, net asset value, net income
or capital gains for dividend purposes, or net income or capital gains per share
provided by the Fund.
19. In consideration for all of the services to be performed by the
Bank as set forth herein the Bank shall be entitled to receive reimbursement
for all out-of-pocket expenses agreed to and approved in advance by BofA and
such compensation as may be agreed upon in writing from time to time between
the Bank and BofA.
20. Attached hereto as Appendix B is a list of persons duly authorized
by the Board of Directors or by-laws of BofA to execute this Agreement and give
any written or oral instructions, or written or oral specifications, by or on
behalf of BofA. From time to time BofA may deliver a new Appendix B to add or
delete any person and the Bank shall be entitled to rely on the last Appendix B
actually received by the Bank.
21. BofA represents and warrants to the Bank that it has all requisite
power to execute and deliver this Agreement, to
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give any written or oral instructions contemplated hereby, and to perform the
actions or obligations contemplated to be performed by it hereunder, and has
taken all necessary action to authorize such execution, delivery, and
performance.
22. Unless The Bank of New York is acting as the sole custodian for the
Fund, on each day on which the Bank is to make calculations hereunder, BofA
shall deliver or cause the Fund to deliver to the Bank, at least one-half hour
before the Bank is to make any such calculations, a signed written
specification of the Securities of each Series. The Bank shall be entitled to
rely on such specifications in making its calculations hereunder for such day.
If The Bank of New York is acting as the sole custodian for the Fund, the Bank
shall be entitled to rely on specifications of Securities furnished by The Bank
of New York as custodian.
23. This Agreement shall not be assignable by BofA without the prior
written consent of the Bank, or by the Bank without the prior written consent
of BofA.
24. Either of the parties hereto may terminate this Agreement by giving
the other party a notice in writing specifying the date of such termination,
which shall not be less than ninety (90) days after the date of giving of such
notice. Upon the date set forth in such notice, the Bank shall deliver to the
Fund all records then property of the Fund and, upon such delivery, the Bank
shall be relieved of all duties and responsibilities under this Agreement.
25. This Agreement may not be amended or modified in any manner except by
written agreement executed on behalf of both parties hereto.
26. This Agreement is executed in the State of New York and all laws and
rules of construction of the State of New York
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(other than those relating to choice of laws) shall govern the rights, duties
and obligations of the parties hereto.
27. The performance and provisions of this Agreement are intended to
benefit only the Bank, BofA and the Fund, and no rights shall be granted to any
other person by virtue of this Agreement.
28. The Bank shall provide to the Fund's independent certified public
accountants copies of such reports as the Bank shall have provided hereunder,
and copies of such supporting documentation as shall have been utilized by the
Bank in preparing such reports.
30. The Bank agrees to treat all records and all information received
hereunder relative to the Fund, its shareholders and its customers as
confidential, and shall not authorize the use of such records or information
for any purpose other than the performance of its responsibilities and duties
hereunder. Notwithstanding any other provision in this Agreement, however, the
Bank may divulge such information to its auditors, its counsel, its regulators,
or any securities regulators, or to any other person when it is advised by its
counsel that it may be liable for a failure to do so.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
BANK OF AMERICA NT&SA
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Attest:
/s/ Xxxxxxx X'Xxxxx
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Xxxxxxx X'Xxxxx
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX, VP
Attest:
/s/ [ILLEGIBLE]
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
BANK OF AMERICA NT&SA
I. The Bank of New York (the "Bank"), as agent for BANK OF AMERICA NT&SA
for the benefit of Pacific Horizon Funds, Inc. (the "Fund"), shall maintain the
following records on a daily basis for each Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
3. Net income of the Fund for dividend purposes
4. Net income per share
5. Yield of the Fund
II. The Bank shall maintain the following records on a monthly basis for
each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis, and a
Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
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The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, the Bank uses the Account Journals
produced by The Bank of New York Custody System to record daily settlements of
the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchase for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
00
XXXXXXXX X
I, , of BANK OF AMERICA NT&SA, a Maryland
corporation (the "Fund"), do hereby certify that:
The following individual serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Directors of
the Fund to each such position and qualified therefor in conformity with the
Fund's Articles of Incorporation and By-Laws, and the signatures set forth
opposite their respective names are their true and correct signatures. Each
such person is authorized to give written or oral instructions or written or
oral specifications by or on behalf of the Fund to the Bank.
Name Position Signature
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SCHEDULE 1
Xxxxxx Data Corp.
IDC Corp.
X.X. Xxxxxx Co., Inc.
Xxxxxxx Xxxxx
Standard & Poor's Corp.
Xxxxxx'x
Bloomberg
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Appendix A
List of Portfolios
Pacific Horizon National Municipal Bond Fund
Pacific Horizon Treasury Fund
Pacific Horizon Prime Fund
Pacific Horizon Capital Income Fund
Pacific Horizon Treasury Only Fund
Pacific Horizon Aggressive Growth Fund
Pacific Horizon California Tax Exempt Money Market
Pacific Horizon Tax Exempt Bond Fund
Pacific Horizon Tax Exempt Money Fund
Pacific Horizon Government Fund
Pacific Horizon U.S. Government Securities Fund
