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EXHIBIT 9.1
SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of _______, 1997 by and among BANK OF
AMERICA NT & SA ("Bank of America"), PFPC INC., a Delaware corporation
("PFPC"), which is an indirect wholly owned subsidiary of PNC Bank Corp. and
PACIFIC INNOVATIONS TRUST, a Delaware business trust (the "Fund").
W I T N E S S E T H :
WHEREAS, Bank of America has entered into an Administration
Agreement dated ________, 1997, with the Fund (the "Administration Agreement"),
concerning the provision of administrative services to the portfolios listed
on Exhibit A attached hereto and made a part hereof, as such Exhibit A may be
amended from time to time (each, a "Portfolio" and collectively, the
"Portfolios");
WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Bank of America wishes to retain PFPC to provide
sub-administration services and the Fund wishes to retain PFPC to provide
accounting services to the Portfolios and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the
parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as
amended.
(b) "1934 Act" means the Securities Exchange Act of
1934, as amended.
(c) "Authorized Person" means any officer of the Fund
and any other person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund and listed on
the Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto as may be received by PFPC. An Authorized Person's scope of
authority may be limited by the Fund by setting forth such limitation in the
Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as
amended.
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(e) "Oral Instructions" mean oral instructions
received by PFPC from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person.
(f) "SEC" means the Securities and Exchange
Commission.
(g) "Securities Laws" means the 1933 Act, the 1934
Act, the 1940 Act and the CEA.
(h) "Shares" mean the shares of beneficial interest
of any series or class of the Fund.
(i) "Written Instructions" mean written instructions
signed by an Authorized Person and received by PFPC. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. Bank of America hereby appoints PFPC to
provide sub-administration services and the Fund hereby appoints PFPC to
provide accounting services to the each of 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. The Fund or Bank of America has
provided or, where applicable, will provide PFPC with the following:
(a) certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the appointment of PFPC
or its affiliates to provide services to each Portfolio and approving this
Agreement;
(b) a copy of the Fund's most recent effective
registration statement;
(c) a copy of each Portfolio's advisory, sub-advisory
or management agreement or agreements;
(d) a copy of the distribution agreement with respect
to each class of Shares representing an interest
in a Portfolio;
(e) a copy of any additional administration agreement
with respect to a Portfolio;
(f) a copy of any shareholder servicing or transfer
agency agreement made in respect of the Fund or a Portfolio; and
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(g) copies (certified or authenticated, where
applicable) of any and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to
comply with all applicable requirements of the Securities Laws, and any laws,
rules and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by Bank of America, the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC
shall act only upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral
Instructions and Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized Person) pursuant
to this Agreement. PFPC 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 Board of Trustees or of the Fund's
shareholders, unless and until PFPC receives Written Instructions to the
contrary.
(c) Bank of America shall cause the Fund to forward
to PFPC Written Instructions confirming Oral Instructions (except where such
Oral Instructions are given by PFPC) 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. Where
Oral Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC shall incur no liability to Bank of
America or the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the other provisions of
this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of Bank of America or the Fund. If PFPC
is in doubt as to any action it should or should not take, PFPC may request
directions or advice, including Oral Instructions or Written Instructions, from
Bank of America or the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as
to any question 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 Bank of America, the Fund or PFPC, at the option of
PFPC).
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(c) Conflicting Advice. In the event of a conflict
between directions, advice or Oral Instructions or Written Instructions PFPC
receives from Bank of America or the Fund and the advice PFPC receives from
counsel, PFPC may rely upon and follow the advice of counsel. In the event
PFPC so relies on the advice of counsel, PFPC shall remain liable for any
action or omission on the part of PFPC which constitutes willful misfeasance,
bad faith, negligence or reckless disregard by PFPC of any duties, obligations
or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in
any action it takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from Bank of America or
the Fund or from counsel and which PFPC believes, in good faith, to be
consistent with those directions, advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral Instructions
or Written Instructions, or (ii) to act in accordance with such directions,
advice or Oral Instructions or Written Instructions unless, under the terms of
another provision of this Agreement, the same is a condition of PFPC's properly
taking or not taking such action. Nothing in this subsection 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, obligations
or responsibilities set forth in this Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and
the Portfolios which are in the possession or under the control of PFPC shall
be the property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities laws,
rules and regulations. The Fund and Authorized Persons, as well as bank,
securities and insurance regulators, shall have access to such books and
records at all times during PFPC's normal business hours. Upon the reasonable
request of Bank of America or the Fund, copies of any such books and records
shall be provided by PFPC to Bank of America or the Fund or to an Authorized
Person, at the Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to
each Portfolio's books of account;
(ii) records of each Portfolio's securities
transactions;
(iii) all other books and records as PFPC is
required to maintain pursuant to Rule
31a-1 of the 1940 Act in connection with
the services provided hereunder.
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8. CONFIDENTIALITY. PFPC agrees to keep confidential all
records of the Fund and information relating to the Fund and its shareholders,
unless the release of such records or information is otherwise consented to, in
writing, by Bank of America. Bank of America agrees that such consent shall
not be unreasonably withheld and may not be withheld where PFPC may be exposed
to civil or criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities.
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 with respect to each
Portfolio. PFPC shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is made
available to such accountants for the expression of their opinion, as required
by the Fund.
10. DISASTER RECOVERY. PFPC shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provisions for 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 Bank of America or 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, Bank of America will pay to PFPC a fee
or fees with respect to the sub-administration services provided herein as
described in paragraph 15 below as may be agreed to in writing by Bank of
America and PFPC. As compensation for accounting services described in
paragraph 14 below rendered by PFPC during the term of this Agreement, the Fund
will pay to PFPC a fee or fees with respect to the accounting services provided
herein as may be agreed to in writing by the Fund and PFPC.
12. INDEMNIFICATION. Bank of America (for itself and on
behalf of the Fund) agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state or 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 or
omission to act which PFPC takes (i) at the request or on the direction of or
in reliance on the advice of Bank of America or the Fund or (ii) upon Oral
Instructions or Written Instructions. PFPC shall not, however, be indemnified
against any liability (or any expenses incident to such liability) arising out
of PFPC's own willful misfeasance, bad faith, negligence or reckless disregard
of its duties and obligations under this Agreement.
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13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on
behalf of Bank of America, the Fund or any Portfolio 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 liable for any damages arising out of PFPC's
failure to perform its duties under this Agreement to the extent such damages
arise out of PFPC's willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing
or of any other provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, provided that PFPC has acted in accordance with the
standard of care set forth above; and (ii) PFPC shall not be liable for (A) the
validity or invalidity or authority or lack thereof of any Oral Instruction 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) subject to Section 10, 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, catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, PFPC shall not be liable for any consequential, special or indirect
losses or damages which Bank of America, the Fund or any Portfolio may incur or
suffer by or as a consequence of PFPC's performance of the services provided
hereunder, whether or not the likelihood of such losses or damages was known by
PFPC.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to each
Portfolio:
(i) Journalize investment, capital share and income
and expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the investment adviser for a
Portfolio (the "Adviser") and transmit trades to
the Fund's custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each security;
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(v) Reconcile cash and investment balances of the
Fund with the Custodian, and provide the Adviser
with the beginning cash balance available for
investment purposes;
(vi) Update the cash availability throughout the
day as required by the Adviser;
(vii) Post to and prepare the Statement of Assets and
Liabilities and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g.,
advisory and custody fees);
(ix) Monitor the expense accruals and notify an
officer of the Fund of any proposed adjustments;
(x) Control all disbursements and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent
pricing services approved by the Adviser, or if
such quotes are unavailable, then obtain such
prices from the Adviser, and in either case
calculate the market value of each Portfolio's
investments;
(xiv) Transmit or mail a copy of the daily portfolio
valuation to the Adviser;
(xv) Compute net asset value for each Portfolio and
transmit to the Portfolio's transfer agent;
(xvi) As appropriate, compute yields, total return,
expense ratios, portfolio turnover rate, and, if
required, portfolio average dollar-weighted
maturity; and
(xvii) Prepare a monthly financial statement, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
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Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. DESCRIPTION OF SUB-ADMINISTRATION SERVICES ON A CONTINUOUS
BASIS.
PFPC will perform the following sub-administration
services with respect to each Portfolio:
(i) Prepare quarterly broker security transactions
summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and
Fund statistical data as requested on an ongoing
basis;
(iv) Prepare for execution and file the Fund's Federal
and state tax returns;
(v) Prepare and file the Fund's Semi-Annual Reports
with the SEC on Form N-SAR;
(vi) Prepare and file with the SEC the Fund's annual
and semi-annual shareholder reports;
(vii) Assist in the preparation of registration
statements and other filings relating to the
registration of Shares;
(viii) Monitor each Portfolio's status as a regulated
investment company under Sub-chapter M of the
Internal Revenue Code of 1986, as amended;
(ix) Coordinate contractual relationships and
communications between the Fund and its
contractual service providers;
(x) Monitor the Fund's compliance with the amounts
and conditions of each state qualification;
(xi) Assist in the monitoring of compliance with 1940
Act provisions and the rules thereunder and the
investment policies and limitations as stated in
the Fund's registration statement;
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(xii) Prepare minutes of the meetings of the Board of
Trustees and shareholders and assist Fund counsel
as required; and
(xiii) Perform such administrative services (including
without limitation, the furnishing of reports to
the Board) as the Fund or an Authorized Person
shall from time to time reasonably request.
16. DURATION AND TERMINATION. This Agreement shall continue
until terminated without penalty by a party on sixty (60) days' prior written
notice to the other parties.
17. 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 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000; (b) if to Bank of America, at Bank of America NT & SA, 000
Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx
XxXxxxx-Xxxxxx, with a copy to Bank of America NT & SA, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attn: Xxx Xxxxx, Esq.;
(c) if to the Fund, at __________ ; or (d) if to none of the foregoing, at such
other address as shall have been provided to the sender of any such notice or
other communication by the other party.
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 any party
without the written consent of the other parties.
20. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but 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.
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22. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the
entire agreement and understanding among the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties and Oral Instructions.
(b) Captions. 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.
(c) Governing Law. This Agreement shall be deemed to
be a contract made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. 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.
(e) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of
any party to this Agreement shall constitute the valid and binding execution
hereof by such party.
(g) Responsibility of Trustees, etc.. The names
"Pacific Innovations Trust" and "Trustee of Pacific Innovations Trust" refer
respectively to the trust created and the trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated _________________, which is hereby referred to and a copy of which
is on file at the principal office of the Fund. The trustees, officers,
employees and agents of the Fund shall not personally be bound by or liable
under any written obligation, contract, instrument, certificate or other
interest or undertaking of the Fund made by the trustees or by an officer,
employee or agent of the Fund, in his or her capacity as such, nor shall resort
be had to their private property for the satisfaction of any obligation or
claim thereunder. All persons dealing with any class of shares of the Fund may
enforce claims against the Fund only against the assets belonging to such
class.
(h) Reservation of Authority. Notwithstanding any
other provision of this Agreement, it is understood and agreed that the Fund
shall at all times retain the ultimate responsibility for directions and
control of all services provided pursuant to this Agreement, and retain the
right to direct, approve or disapprove any action taken hereunder, which
responsibility and right shall be reasonably exercised, provided,
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however, that this Paragraph 22(h) shall not in any way limit or interfere with
the rights and protections afforded to PFPC pursuant to Paragraphs 5, 6, 8, 12
or 13 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
PFPC INC.
By:
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Title:
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BANK OF AMERICA NT & SA
By:
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Title:
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PACIFIC INNOVATIONS TRUST
By:
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Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of ______, 1997, is Exhibit A to that
certain Sub-Administration and Accounting Services Agreement dated as of _____,
1997 among PFPC INC., BANK OF AMERICA NT & SA and PACIFIC INNOVATIONS TRUST.
PORTFOLIOS
Money Market Fund
Managed Bond Fund
Capital Income Fund
Mid Cap Equity Fund
Blue Chip Fund
Aggressive Growth Fund
International Fund
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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