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EXHIBIT 9(U)
ACCOUNTING SERVICES AGREEMENT
This Agreement is made as of January 10, 1994 by and between CONCORD
HOLDING CORPORATION ("Concord"), a Delaware corporation, PFPC INC. ("PFPC"), a
Delaware corporation, which is an indirect wholly-owned subsidiary of PNC Bank
Corp., and PACIFIC HORIZON FUNDS, INC. (the "Fund").
WHEREAS, Concord has entered into an Administration Agreement dated
November 13, 1989, as amended (the "Administration Agreement") to provide
administration services (including but not limited to fund accounting services)
to the Fund, which is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Administration Agreement provides that Concord may from time
to time employ or associate with itself such person or persons as it may
believe to be particularly fitted to assist in the performance of the
Administration Agreement;
WHEREAS, Concord desires to retain PFPC to provide fund accounting
services for the Portfolios of the Fund listed on Appendix A, as amended from
time to time (the "Portfolios"), and PFPC is willing to provide such services,
all as more fully set forth below;
WHEREAS, PFPC is experienced in providing fund accounting services to
investment companies and possesses facilities sufficient to provide such
services; and
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WHEREAS, the Board of Directors of the Fund has approved the
appointment of PFPC to provide fund accounting services on behalf of the Fund
for the Portfolios.
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, the parties agree as follows:
1. DEFINITIONS.
(a) "AUTHORIZED PERSON". The term "Authorized Person" shall
mean any officer of the Fund and any other person, who is duly authorized by
the Fund's Governing Board, to give oral and Written Instructions on behalf of
the Fund, provided, however, that if the Governing Board determines that Oral
Instructions or Written Instructions require the approval of more than one
person, the term "Authorized Person" shall mean such persons as are in
combination so authorized. Such persons are listed in the Certificate attached
hereto as the Authorized Persons Appendix to each Services Attachment to this
Agreement. If PFPC provides more than one service hereunder, the Fund's
designation of Authorized Persons may vary by service.
(b) "CFTC". The term "CFTC" shall mean the Commodities
Futures Trading Commission.
(c) "GOVERNING BOARD". The Term "Governing Board" shall
mean the Fund's Board of Directors, or, where duly authorized, a competent
committee thereof.
(d) "ORAL INSTRUCTIONS". The term "Oral Instructions"
shall mean oral instructions received by PFPC from an Authorized
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Person or from a person reasonably identified to PFPC as an Authorized Person.
(e) "SEC". The term "SEC" shall mean the Securities and
Exchange Commission.
(f) "SECURITIES AND COMMIDITIES LAWS". The term
"Securities and Commodities Laws" shall mean the "1933 Act" which shall mean
the Securities Act of 1933, the "1934 Act" which shall mean the Securities
Exchange Act of 1934, the "1940 Act" which shall mean the Investment Company
Act of 1940, and the "CEA" which shall mean the Commodities Exchange Act, in
each case as amended.
(g) "SHARES". The terms "Shares" shall mean the shares
of any series or class of common stock of the Fund.
(h) "WRITTEN INSTRUCTIONS". The term "Written
Instructions" shall mean written instructions signed by one or more Authorized
Persons as required by the Governing Board from time to time and received by
PFPC. The instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. APPOINTMENT. Concord hereby appoints PFPC to provide fund
accounting services for the Portfolios, in accordance with the terms set forth
in this Agreement. PFPC accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. Concord has provided or, where
applicable, will provide PFPC with the following:
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(a) certified or authenticated copies of the resolutions of
the Fund's Governing Board, approving the appointment of PFPC or its affiliates
to provide fund accounting services for the Portfolios;
(b) a copy of the Fund's most recent effective
registration statement for the Portfolios;
(c) a copy of the Administration Agreement; and
(d) certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities and Commodities Laws and any other laws, rules and regulations of
state and federal governmental authorities having jurisdiction with respect to
all duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund.
5. INSTRUCTIONS. Unless otherwise provided in this Agreement or
by resolution of the Governing Board which has been submitted to PFPC, PFPC
shall act only upon Oral and Written Instructions.
PFPC shall be entitled to rely upon any Oral and Written Instructions.
PFPC may assume that any Oral 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 Governing
Board or any committee thereof or of the Fund's shareholders.
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Concord shall forward, or shall cause the Fund 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 shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions. PFPC
shall incur no liability to Concord or to the Fund in acting upon Oral or
Written Instructions.
6. 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 Oral or Written
Instructions.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to
any questions of law pertaining to any action it should or should not take,
PFPC may request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Fund or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict
between Oral or Written Instructions PFPC receives from the Fund, and the
written advice it receives from counsel, PFPC shall be entitled to rely upon
and follow such advice of counsel after notice to the Fund.
(d) PROTECTION OF PFPC. PFPC shall be protected in any
action it takes or does not take in reasonable reliance upon
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Oral or Written Instructions it receives from the Fund or written advice of
counsel.
Nothing in this paragraph shall be construed so as to impose an
obligation upon PFPC (i) to seek Oral or Written Instructions, or (ii) to act
in accordance with such Oral or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of PFPC's properly
taking or not taking such action.
Nothing in this sub-section shall excuse PFPC when an action or
omission on the part of PFPC constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC of any duties or obligations under
this Agreement.
7. RECORDS. The books and records pertaining to the Fund, which
are in the possession of PFPC, shall be the property of the Fund. Concord, the
Fund or the Fund's Authorized Persons, shall have access to such books and
records at all times during PFPC's normal business hours. Upon the reasonable
request of Concord or the Fund, copies of any such books and records shall be
provided by PFPC to Concord or the Fund or to an Authorized Person of the Fund,
at the expense of the requesting party. Consistent with Treasury regulation
Section 1.864-2 (c)(2)(iii)(5), such books and records shall be maintained at
an office located in Ireland for any Portfolio identified in writing by Concord
or the Fund to PFPC.
PFPC shall keep the following records:
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(a) all above-referenced books and records with respect
to the Fund's books of account;
(b) records of the Fund's securities transactions.
PFPC shall preserve any such books and records in accordance with the
requirements of Rule 3la-2 under the 1940 Act.
8. COMFIDENTIALITY. PFPC agrees to keep confidential and to treat as
proprietary information of the Fund all records of the Fund and information
relative to the Fund and its shareholders (past, present and potential), unless
the release of such records or information is otherwise authorized by the
Governing Board. Should PFPC be required to provide such information or
records to duly constituted authorities (who may institute civil or criminal
contempt proceedings for failure to comply), PFPC shall not be required to
seek the Fund's consent prior to disclosing such information but shall be
required to give Concord and the Fund prior written notice of PFPC's intent to
disclose such information.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the
Fund's independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules. PFPC shall take all
reasonable action in the performance of its obligations under this Agreement to
assure that the necessary information is made available to such accountants for
the expression of their opinion, as such may be required by the Fund from time
to time.
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10. DISASTER RECOVERY. As soon as reasonably possible, PFPC shall
at its expense enter into and shall maintain in effect with appropriate parties
one or more agreements making reasonable provision of 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
but shall have no liability with respect thereto.
11. COMPENSATION. 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 approved by Concord in writing and consistent with resolutions adopted
by the Fund's Governing Board.
12. INDEMNIFICATION. Concord agrees to indemnify and hold
harmless PFPC and its nominees from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities arising
under the Securities and Commodities Laws and any state and foreign securities
and blue sky laws, and amendments thereto), and expenses, including (without
limitation) attorneys' fees and disbursements, arising directly or indirectly
from any action which PFPC takes or does not take (i) at the request or on the
direction of or in reliance on the advice of Concord or the Fund or (ii) upon
Oral or Written Instructions, provided that neither PFPC, nor any of its
nominees, shall be indemnified against any liability to Concord, to the Fund or
to its shareholders (or any expenses incident to
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such liability) arising out of PFPC's own willful misfeasance, negligence or
reckless disregard of its duties and obligations under this Agreement.
13. RESPONSIBILITY OF PFPC. PFPC shall be under no duty to take
any action on behalf of Concord or the Fund except as specifically set forth
herein or as may be specifically agreed to by PFPC, in writing. PFPC shall be
obligated to exercise care and diligence in the performance of its duties
hereunder and shall be responsible for failure to perform its duties under this
Agreement arising out of PFPC's negligence. Notwithstanding the foregoing,
PFPC shall not be responsible for losses beyond its control, provided that PFPC
has acted in accordance with the standard of care set forth above; and provided
further that PFPC shall only be responsible for that portion of losses or
damages suffered by the Fund that are attributable to the negligence of PFPC.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, PFPC, in connection with its duties under this
Agreement, shall not be liable for (a) the validity or invalidity or authority
or lack thereof of any Oral or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (b) delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood or catastrophe, acts
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of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
PFPC acknowledges that the performance of this Agreement is for the
benefit of the Fund, that PFPC shall be directly liable and responsible to the
Fund and to Concord for the performance of its obligations hereunder, and
that either the Fund or Concord may therefore enforce, in its own name and
for itself such liability, and responsibility against PFPC.
Notwithstanding anything in this Agreement to the contrary, PFPC
expressly disclaims all responsibility for consequential damages, including but
not limited to any that may result from performance or nonperformance of any
duty or obligation whether expressed or implied in this Agreement and also
expressly disclaims any express or implied warranty of products or services
provided in connection with the Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES.
(a) Services on a Continuing Basis. PFPC will perform
the following accounting functions if requested by Concord or the Fund:
(i) Journalize the Fund's investment, capital
share and income and expense activities;
(ii) Verify investment buy/sell trade tickets
when received from the Fund's investment
advisor and transmit trades to the Fund's
custodian for proper settlement;
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(iii) Maintain individual ledgers for investment
securities in both U.S. dollars and foreign
currency terms;
(iv) Maintain historical tax lots for each
security and foreign currency;
(v) Reconcile cash and investment balances of
the Fund with the custodian, and provide the
Fund's investment advisor with the beginning
cash balance available for investment
purposes in both U.S. dollar and foreign
currency terms;
(vi) Update the cash availability throughout the
day as required by the Fund's advisor;
(vii) Post to and prepare the Fund's Statement of
Assets and Liabilities and the Statement of
Operations in U.S. dollar terms;
(viii) Calculate various contractual expenses (e.g.,
advisory and custody fees);
(ix) Record expense accruals as provided by Fund
management;
(x) Record all disbursements from the Fund upon
Written Instructions;
(xi) Calculate capital gains and losses and
foreign exchange gains and losses;
(xii) Determine the Fund's net income in both U.S.
dollar and foreign currency terms;
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(xiii) Obtain security market quotes and foreign
exchange rates from independent pricing
services approved by the Fund's Governing
Board, or if such quotes are unavailable,
then obtain them from the Advisor or as
otherwise directed by resolution of the
Governing Board, and in either case calculate
the market value of the Fund's investments in
both U.S. dollar and foreign currency terms;
(xiv) Transmit or mail a copy of the daily
portfolio valuation and any other required
reports to the Advisor and Concord;
(xv) Compute the net asset value of the Fund in
U.S. dollars and the dividend rate per share;
(xvi) As appropriate, compute the Fund's yields,
total return, expense ratios, portfolio
turnover rate, and, if required, portfolio
average dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement in U.S.
dollars, which will include the following
items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
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Schedule of Capital Gains and
Losses.
(xviii) Provide certain financial information
necessary to facilitate the preparation of
the Fund's annual U.S. Federal income tax
returns;
(b) Consistent with Treasury regulation Section
1.8642(c)(2)(iii)(5), (6), (7) and (8), the accounting functions performed by
PFPC shall be performed at an office located in Ireland for any Portfolio
identified in writing by Concord or the Fund to PFPC.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by Concord, by the Fund or by PFPC on one hundred eighty (180) days
prior written notice to the other parties to the agreement.
16. NOTICES. All notices and other communications, including
Written Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. 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.
Notices shall be addressed (a) if to PFPC at PFPC's address, 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to Concord, at Concord's address,
000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (b) if to the Fund at 125
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X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with copies to Xxxxxx X. Xxxxxxx,
Esq., Chairman, XxXxxxxxx & Xxxxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000-0000 and to W. Xxxxx XxXxxxxx, III, Esq., Secretary, Drinker
Xxxxxx & Xxxxx, Philadelphia National Bank Building, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000; or (d) if to none of the foregoing, at such other
address as shall have been notified to the sender of any such Notice or other
communication.
17. DELEGATION. PFPC may delegate any or all of its duties under
this Agreement to any offshore affiliate for Portfolios identified in writing
by Concord or the Fund to PFPC, provided that PFPC shall retain responsibility
therefore as specified herein.
18. AMENDMENTS. This Agreement, or any term thereof, may be
changed or waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. ASSIGNMENT. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by Concord
without the written consent of PFPC, or by PFPC without the written consent of
Concord and of the Fund, authorized or approved by a resolution of the Fund's
Governing Board.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
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all of which together shall constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
22. NO LIMITATION. Nothing contained in this Agreement shall be
construed in any way so as to limit the obligations of any signing party as set
forth in the letter agreement dated July 21, 1993 by and among PFPC, Bank of
America NTSA, Seattle-First National Bank and Concord Financial Group, Inc.
23. MISCELLANEOUS. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody with the approval of the Fund in one or more separate documents
their agreement, if any, with respect to delegated duties and/or Oral
Instructions. 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.
This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law. 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. This Agreement shall be binding
and
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shall inure to the benefit of the parties hereto and their respective
successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the day and year first above
written.
CONCORD HOLDING CORPORATION
By:/s/ Xxxxxxx Xxxxxxxxx
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Chief Executive Officer
PFPC INC.
By:/s/ Xxxxxxx X. Xxxxx
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Executive Vice President
PACIFIC HORIZON FUNDS, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
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Treasurer
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APPENDIX A
Pacific Horizon Blue Chip Fund
Pacific Horizon Flexible Bond Fund
Pacific Horizon Asset Allocation Fund
Pacific Horizon National Municipal Bond Fund
Pacific Horizon Corporate Bond Fund
Pacific Horizon Utilities Fund
Pacific Horizon Growth and Income Fund
Pacific Horizon International Bond Fund
Pacific Horizon International Equity Fund
Pacific Horizon Short-Term Government Fund
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AUTHORIZED PERSONS
APPENDIX
Name (Typed) Signature
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
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