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EXHIBIT 9(G)
SPECIAL MANAGEMENT SERVICES AGREEMENT
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This Agreement is made as of this 22nd day of April, 1992
among PACIFIC HORIZON FUNDS, INC., a Maryland corporation (the "Company"),
CONCORD HOLDING CORPORATION, a Delaware corporation ("Concord"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank").
WHEREAS, the Company 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 offers and maintains the following
investment portfolios: Prime Fund, Treasury Fund, California Tax- Exempt Money
Market Fund and Pacific Horizon Tax-Exempt Money Market Fund (the "Funds"); and
WHEREAS, Concord and Security Pacific National Bank currently
provide special services for the benefit of the series of shares known as
"Pacific Horizon Shares" in each of the Funds pursuant to a Special Management
Services Agreement dated as of 22 April, 1992 (the "Current Agreement"); and
WHEREAS, Security Pacific National Bank is this day merging
with the Bank (the "Merger"); and
WHEREAS, the Company desires to retain Concord and the Bank to
provide the aforesaid special services for "Pacific Horizon Shares" following
the Merger;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties hereto agree as follows:
I. SPECIAL SERVICES
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1. APPOINTMENT. The Company hereby appoints Concord and
the Bank to provide the services described herein for the Pacific Horizon
Shares of each Fund on the terms and for the period set forth in this
Agreement, and Concord and the Bank hereby accept such appointment and agree to
perform such services and duties for the compensation provided in this Section
I.
2. SERVICES. Subject to the supervision and control of
the Company's Board of Directors, Concord and the Bank will provide the
following services on behalf of the Pacific Horizon Shares of each Fund:
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(i) Developing and monitoring the investor programs that
are offered from time to time in connection with Pacific Horizon Shares, which
may include individual retirement accounts and other ERISA options, automatic
deposit and withdrawal programs, check writing privileges, audio response
services, dividend options permitting payment in automated clearing house
funds, lock box facilities and direct deposit programs;
(ii) Providing dedicated facilities and equipment in La
Jolla to serve the needs of investors, including walk-in facilities, 800
numbers, electronic audio systems and communications systems to handle
shareholder inquiries, and in connection with such facilities to provide
full-time, on-site management personnel;
(iii) Developing and maintaining specialized systems for the
automatic investments of customers of the Bank, Concord and selected
broker/dealers, including any required interfaces between the Company's systems
and those of such other parties;
(iv) Monitoring services to other, non-sweep customers of
broker/dealers who have invested in Pacific Horizon Shares, including the
operation of telephone lines for daily quotations of yield; and
(v) Maintaining the registration or qualification of
Pacific Horizon Shares for sale under the securities laws of all states, unless
the Company determines that registration or qualification is unnecessary with
respect to a particular state or states. Payment of share registration fees
and any fees for qualifying or continuing the qualification of the Company
shall be made by the Company.
(b) Concord and the Bank will pay from their fees
under this Agreement (or from their other resources) the costs of other
specialized programs that are deemed desirable with respect to their own
customers who invest in Pacific Horizon Shares, including the operation of
arrangements to facilitate same-day share purchases by customers of the Bank
through the use of a joint repurchase agreement in accordance with the terms of
the exemptive order granted by the Securities and Exchange Commission (the
"Commission") to the Company. The Bank's and Concord's responsibilities in
connection with the operation of such joint repurchase agreement shall include,
without limitation, the processing of transaction activity, the accounting of
cash availability and the daily calculation of income adjustments attributable
to transactions.
(c) In addition, Concord and the Bank will
provide the following services with respect to holders of Pacific Horizon
Shares in the Funds who have made a minimum initial purchase of less than
$500,000:
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(i) Providing and supervising a facility to receive
purchase and redemption orders via toll-free IN-WATS telephone lines;
(ii) Providing for the preparing, supervising and mailing
of confirmations for all purchase and redemption orders;
(iii) Providing and supervising the operation of an
automated data processing system to process purchase and redemption orders
received by Concord (Concord assumes responsibility for the accuracy of the
data transmitted for processing or storage);
(iv) Overseeing the performance of the Funds' custodian
under the Custody Agreement and the Funds' transfer agent under the Transfer
Agency Agreement including a selective review of all correspondence from the
transfer agent to shareholders for accuracy and timeliness in handling
inquiries and review of dividend checks, statements and purchase and redemption
orders for proper turn-around;
(v) Making available information concerning each Fund to
shareholders; distributing written communications to each Fund's shareholders
such as periodic listings of each Fund's portfolio securities, annual and
semi-annual reports, and Prospectuses and supplements thereto; and handling
shareholder problems and calls relating to administrative matters;
(vi) Providing and supervising the services of employees
("relationship coordinators") whose principal responsibility and function shall
be to preserve and strengthen each Fund's relationships with its shareholders;
(vii) Assuring that persons are available to transmit
redemption requests to the Company's transfer agent as promptly as practicable;
(viii) Assuring that persons are available to transmit orders
accepted for the purchase of shares to the transfer agent of the Company as
promptly as practicable;
(ix) Preparing regular reports for internal use and for
distribution to the Company's Board of Directors concerning all shareholder
activity; and
(x) Responding to shareholder inquiries sent to the
Company.
(d) Concord and the Bank may make payments to
third parties for services provided in connection with the investments of their
customers in Pacific Horizon Shares, but
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such payments will be borne by Concord and the Bank and not by the Company.
(e) In performing their services and duties
hereunder, Concord and the Bank will act in conformity with the Company's
Charter, Bylaws and Prospectuses and with the instructions and directions of
the Board of Directors of the Company, and 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 and
the Bank may from time to time employ or associate with themselves such person
or persons as they 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 the Bank and that Concord and
the Bank shall be as fully responsible to the Company for the acts and
omissions of any subcontractor as they are for their own acts and omissions.
4. EXPENSES ASSUMED UNDER THIS AGREEMENT. Concord and
the Bank shall pay all expenses incurred by them in performing their services
and duties hereunder.
5. COMPENSATION. For the services provided and the
expenses assumed pursuant to this Section I, the Company will pay Concord and
the Bank a fee, computed daily and payable monthly, at the annual rate of .32%
of the average net asset value of the Pacific Horizon Shares of each Fund that
are outstanding from time to time. Concord and the Bank hereby agree to waive
such portion of the fee payable to them hereunder as is necessary to assure
that the amount of such fee which is required to be accrued by the Company on
any day with respect to the Pacific Horizon Shares of any Fund does not exceed
the income to be accrued to such Horizon Shares on that day.
II. CONFIDENTIALITY
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Concord and the Bank 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 Group, Inc.
inquiries concerning investment in the Funds, and will not use such records and
information for any purpose other than performance of their 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 and the Bank may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted
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authorities, or when so requested by the Company. Nothing contained herein,
however, shall prohibit the Bank from advertising to or soliciting the public
generally with respect to other products or services, including, but not
limited to, any advertising or marketing via radio, television, newspapers,
magazines or direct mail solicitation, regardless of whether such advertisement
or solicitation may coincidentally include prior or present Company
shareholders or those persons or entities who have responded to Concord
Financial Group, Inc. inquiries.
III. LIMITATIONS OF LIABILITY
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Concord and the Bank 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 their part
in the performance of their duties or from reckless disregard by them of their
obligations and duties under this Agreement.
IV. DURATION AND TERMINATION
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This Agreement shall become effective with respect to a Fund
on the date of the consummation of the Merger of Security Pacific National Bank
and the Bank, provided that the shareholders of the Fund have previously
approved the Agreement, and unless sooner terminated as provided herein, shall
continue until October 31, 1992. 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 "interested persons" of the Company and who have no
direct or indirect financial interest in the operation of this Agreement (the
"Disinterested Directors"), pursuant to a vote 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 Pacific
Horizon Shares 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 Disinterested Directors or
by a vote of a majority of the outstanding Pacific Horizon Shares of such Fund,
by Concord or by the Bank at any time, without the payment of any penalty, on
60 days' written notice to the other parties to the Agreement. This Agreement
will automatically and immediately terminate in the event of its assignment.
(As used in this Agreement, the terms "majority of the outstanding Pacific
Horizon Shares," "interested person" and "assignment" shall have the same
meaning as such terms have in the 1940 Act.)
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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; provided that any material amendment of the terms of
this Agreement (including any amendment to increase the compensation payable
under Section I hereof) shall become effective only upon approval by a majority
of the Company's Board of Directors, including a majority of the Disinterested
Directors, pursuant to a vote cast in person at a meeting called for the
purpose of voting on such approval.
VI. NOTICES
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Notices of any kind to be given to the Company hereunder by
Concord and the Bank 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, or at such other address or to
such individual as shall be so specified by the Company to Concord and the
Bank. Notices of any kind to be given to Concord and the Bank hereunder by the
Company shall be in writing and shall be duly given if mailed or delivered to
Concord at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President, with a copy mailed or delivered to
the Bank at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxx, or at such other addresses or to such individuals as
shall be so specified by Concord or the Bank, respectively, to the Company.
VII. MISCELLANEOUS
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1. CERTAIN REPRESENTATIONS. Concord and the Bank each
represents, warrants and agrees on behalf of itself that the compensation
payable to it hereunder, together with any other compensation payable to it in
connection with the investment of its customers' assets in the Funds, will be
disclosed by it to such customers, will be authorized by such customers and
will not result in an excessive fee to it.
2. BOARD REPORTS. Concord and the Bank shall provide
the Board of Directors of the Company, at least quarterly, with a written
report of all amounts expended pursuant to this Agreement and the purpose for
which the amounts were expended.
3. CONSTRUCTION. 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 made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected
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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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Xxxxxx X. Xxxxxxx, President
CONCORD HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxx XxXxxxx-Xxxxxx
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Senior Vice President
And: /s/ Xxxxx Xxxx
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