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Exhibit 9.1
ACCOUNTING SERVICES AGREEMENT
This Agreement is made as of September 5, 1995 by and among
TIME HORIZON FUNDS, a Delaware business trust (the "Company"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Manager"), and BISYS Fund
Services Ohio, Inc., an Ohio corporation (the "Accountant").
WHEREAS, the Manager has entered into a Management Agreement
dated September 5, 1995 (the "Management Agreement") to provide administration
and advisory services (including but not limited to fund accounting services)
to the Company, which is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Management Agreement provides that the Manager
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
Management Agreement;
WHEREAS, the Manager desires to retain the Accountant to
provide fund accounting services for the portfolios of the Company listed on
Appendix A, as amended from time to time (each individually a "Fund," and
collectively, the "Funds"), and the Accountant is willing to provide such
services, all as more fully set forth below;
WHEREAS, the Accountant is experienced in providing fund
accounting services to investment companies and possesses facilities sufficient
to provide such services; and
WHEREAS, the Board of Trustees of the Company has approved the
appointment of the Accountant to provide fund accounting services on behalf of
the Company.
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, the parties agree as follows:
1. Definitions.
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(a) "Authorized Person." The term "Authorized
Person" shall mean any officer of the Company and any other person, who is duly
authorized by the Company's Governing Board, to give Oral and Written
Instructions on behalf of the Company, provided, however, that if the Governing
Board determines that Oral Instructions or Written Instructions
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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 amended from time to time, as the
Authorized Persons Appendix to this Agreement. If the Accountant provides more
than one service hereunder, the Company'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 Company's Board of Trustees or, where duly authorized, a
competent committee thereof.
(d) "ORAL INSTRUCTIONS." The term "Oral
Instructions" shall mean oral instructions received by the Accountant from an
Authorized Person or from a person reasonably identified to the Accountant as
an Authorized Person.
(e) "SEC." The term "SEC" shall mean the
Securities and Exchange Commission.
(f) "SECURITIES AND COMMODITIES 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 or any series or class of units of beneficial interest of the Company.
(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
the Accountant. The instructions may be delivered by hand, mail, courier
service, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENt. The Manager hereby appoints the
Accountant to provide fund accounting services, in accordance with the terms
set forth in this Agreement. The
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Accountant accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Manager has provided or,
where applicable, will provide the Accountant with the following:
(a) certified or authenticated copies of the
resolutions of the Company's Governing Board, approving the appointment of the
Accountant or its affiliates to provide fund accounting services;
(b) a copy of the Company's most recent effective
registration statement;
(c) a copy of the Company's Management Agreement;
and
(d) certified or authenticated copies of any and
all amendments or supplements to the foregoing.
4. DESCRIPTION OF ACCOUNTING SERVICES. The Accountant
shall perform all necessary accounting functions including, without limitation,
the following:
(a) Journalize the Company's investment, capital
share and income and expense activities;
(b) Verify investment buy/sell trade tickets when
received from the Manager and transmit trades to the Company's custodian for
proper settlement;
(c) Maintain individual ledgers for investment
securities in both U.S. dollars and foreign currency terms;
(d) Maintain historical tax lots for each
security and foreign currency;
(e) Reconcile cash and investment balances of the
Company with the custodian, and provide the Manager with the beginning cash
balance available for investment purposes in both U.S. dollar and foreign
currency terms;
(f) Reconcile capital share transactions between
the Transfer Agent and each Fund;
(g) Update the cash availability throughout
the day as required by the Manager;
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(h) Post to and prepare the Company's Statement
of Assets and Liabilities and the Statement of Operations in U.S. dollar
terms;
(i) Calculate various contractual expenses (e.g.,
distribution and custody fees);
(j) Record and update expense accruals;
(k) Record all disbursements from the Company
upon Written Instructions;
(l) Pay all invoices properly authorized and
presented in proper form;
(m) Calculate capital gains and losses and
foreign exchange gains and losses;
(n) Determine each Fund's net income in both U.S.
dollar and foreign currency terms;
(o) Obtain security market quotes and foreign
exchange rates from independent pricing services approved by the Company's
Governing Board, or if such quotes are unavailable, then obtain them as
directed by resolution of the Governing Board, and in either case calculate the
market value of the Company's investments in both U.S. dollar and foreign
currency terms;
(p) Transmit or mail a copy of the daily
portfolio valuation and any other required reports to the Manager;
(q) Provide necessary computations for the
presentation of data in connection with financial information to be supplied to
regulators, shareholders, trustees, the Manager and any industry publications
(including but not limited to Lipper Analytical Services);
(r) Prepare any and all accounting data for
regulatory filings and shareholder communications;
(s) Compute the net asset value of each Fund of
the Company in U.S. dollars and the dividend rate per share on each business
day;
(t) As appropriate, compute each Fund's
yields, total return, expense ratios, portfolio turnover rate, and, if
required, portfolio average dollar-weighted maturity; and
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(u) 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
- Schedule of Capital Gains and Losses.
(v) Provide certain financial information
necessary to facilitate the preparation of the Company's annual local, state
and U.S. federal income tax returns;
(w) Maintain records in connection with each
Fund's election to be treated as a regulated investment company under Section
851 of the Internal Revenue Code of 1986, as amended ("IRC"), including records
of gross income, dividends, interest and other categories of gross income
described in IRC section 851(b)(2), and gross income derived from the sale or
disposition by the Fund of stock, securities or other property described in IRC
section 851(b)(3) that was held for less than 3 months, and timely notify
Company management of any potential noncompliance with the gross income
requirements of IRC sections 851(b)(2) and 851(b)(3).
5. COMPLIANCE WITH GOVERNING INSTRUMENTS AND LAWS. In
performing its duties as Accountant for the Company, the Accountant shall act
in conformity with the Company's Declaration of Trust, Bylaws, prospectuses and
statements of additional information, and the instructions and directions of
the Board of Trustees of the Company. In addition, the Accountant shall
conform to and comply with the requirements of the 1940 Act, the Rules and
Regulations of the SEC, and all other applicable federal or state laws and
regulations.
6. INSTRUCTIONS. Unless otherwise provided in this
Agreement or by resolution of the Governing Board which has been submitted to
the Accountant, the Accountant shall act only upon Oral and Written
Instructions.
The Accountant shall be entitled to rely upon any Oral and
Written Instructions unless such reliance is unreasonable under the
circumstances. The Accountant 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 Company's Governing
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Board or of the Company's shareholders unless such assumption is unreasonable
under the circumstances.
The Manager shall forward to the Accountant Written
Instructions confirming Oral Instructions so that the Accountant 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 Accountant shall in no way invalidate the transactions
or enforceability of the transactions authorized by the Oral Instructions. The
Accountant shall incur no liability to the Manager in acting upon Oral or
Written Instructions.
7. RIGHT TO RECEIVE ADVICE.
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(a) ADVICE OF THE COMPANY. If the Accountant is
in doubt as to any action it should or should not take, the Accountant may
request Oral or Written Instructions.
(b) ADVICE OF COUNSEL. If the Accountant is in
doubt as to any question of law pertaining to any action it should or should
not take, the Accountant may request advice from reasonably qualified counsel
of its own choosing at its own cost (who may be counsel for the Company, the
Manager or the Accountant, at the option of the Accountant).
(c) CONFLICTING ADVICE. In the event of a
conflict between Oral or Written Instructions the Accountant receives from the
Company, and the written advice it receives from counsel, the Accountant shall
be entitled to rely upon and follow such advice of counsel after notice to the
Company and to the Manager.
(d) PROTECTION OF THE ACCOUNTANT. The
Accountant shall be protected in any action it takes or does not take in
reasonable reliance upon Oral or Written Instructions it receives from the
Company or written advice of reasonably qualified counsel. Nothing in this
paragraph (d) shall be construed so as to impose an obligation upon the
Accountant (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 the Accountant's
properly taking or not taking such action. Nothing in this paragraph (d) shall
excuse the Accountant when an action or omission on the part of the Accountant
constitutes willful misfeasance, bad faith, negligence or reckless disregard by
the Accountant of any duties or obligations under this Agreement.
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8. RECORDS. The books and records pertaining to the
Company which are in the possession of the Accountant shall be the property of
the Company. The Manager, the Company or the Company's Authorized Persons
shall have access to such books and records at all times during the
Accountant's normal business hours. Such inspections shall not unreasonably
disrupt the business of the Accountant. Upon the reasonable request of the
Manager or the Company, copies of any such books and records shall be provided
by the Accountant to the Manager or the Company or to an Authorized Person of
the Company at the expense of the Accountant.
The Accountant shall keep the following records:
(a) all books and records with respect to the Company's books of account
maintained by it pursuant to Section 4 hereof; and (b) records of all of the
Company's securities transactions. The Accountant shall preserve any such
books and records in accordance with the requirements of Rule 31a-2 under the
1940 Act.
All computer programs and procedures developed to perform
services required to be provided by the Accountant under this Agreement are the
property of the Accountant. All records and other data except such computer
programs and procedures are the exclusive property of the Company and all such
other records and data shall be furnished to the Company, or successor Company
Accountant or such other entity that the Company may specify, in a form
specified by the Company as soon as practicable after termination of this
Agreement for any reason.
9. CONFIDENTIALITY. The Accountant agrees to keep
confidential and to treat as proprietary information of the Company all records
of the Company and information relating to the Company and its shareholders
(past, present and potential), unless the release of such records or
information is otherwise authorized by the Governing Board. Should the
Accountant be required to provide such information or records to duly
constituted authorities (who may institute civil or criminal contempt
proceedings for failure to comply), the Accountant shall not be required to
seek the Company's consent prior to disclosing such information but shall be
required to give the Manager and the Company prior written notice of the
Accountant's intent to disclose such information.
10. LIAISON WITH ACCOUNTANTS. The Accountant shall act
as liaison with the Company's independent public accountants and shall provide
such accountants with account
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analyses, fiscal year summaries, and other audit-related schedules. The
Accountant shall at all times keep the Manager fully informed regarding its
liaison activities and shall promptly notify the Manager and the Company of any
inquires or contact by governmental agencies regarding the Company. The
Accountant shall not respond to any such governmental inquiries without the
consent of the Company and the Manager, unless required to do so by law (in
which event it shall give the Manager and the Company prior written notice of
its response). The Accountant 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 Company from time to time.
11. DISASTER RECOVERY. The Accountant shall at its own
expense enter into and shall maintain in effect with appropriate parties one or
more agreements making reasonable provision for emergency use of electronic
data processing equipment to the extent appropriate equipment is available. In
the event of equipment failures, the Accountant shall, at no additional expense
to the Company, take reasonable steps to minimize service interruptions but
shall have no liability with respect thereto.
12. COMPENSATION. As compensation for services rendered
by the Accountant during the term of this Agreement, the Company shall pay to
the Accountant a fee or fees as set forth in Appendix B.
13. INDEMNIFICATION. The Manager agrees to indemnify and
hold harmless the Accountant 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 the Accountant takes or does not
take (i) at the request or on the direction of or in reliance on the advice of
the Manager or the Company or (ii) upon Oral or Written Instructions, provided
that neither the Accountant, nor any of its nominees, shall be indemnified
against any liability to the Manager, to the Company or to its shareholders (or
any expenses incident to such liability) arising out of the Accountant's own
willful misfeasance, bad faith, negligence
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or reckless disregard of its duties and obligations under this Agreement.
The Accountant agrees to indemnify and hold harmless the
Manager 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 the Manager takes or does not take at the request or on the
direction of or in reliance on the advice of the Accountant, provided that
neither the Manager, nor any of its nominees, shall be indemnified against any
liability to the Accountant, to the Company or to its shareholders (or any
expenses incident to such liability) arising out of the Manager's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
14. RESPONSIBILITY OF THE ACCOUNTANT. The Accountant
shall be under no duty to take any action on behalf of the Manager or the
Company except as specifically set forth herein or as may be specifically
agreed to by the Accountant in writing. The Accountant 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 the Accountant's negligence. Notwithstanding the foregoing, the
Accountant shall not be responsible for losses beyond its control, provided
that the Accountant has acted in accordance with the standard of care set forth
above; and provided further that the Accountant shall only be responsible for
that portion of losses or damages suffered by the Company that are attributable
to the negligence of the Accountant.
15. DURATION AND TERMINATION. This Agreement shall
continue until terminated by the Company, the Manager or the Accountant on
sixty (60) days prior written notice to the other party. After such
termination, for so long as the Accountant, with the written consent of the
Company, in fact continues to perform any one or more of the services
contemplated by this Agreement or any schedule or exhibit hereto, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect.
Compensation due the Accountant and unpaid by the Company upon such
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termination shall be immediately due and payable upon and notwithstanding such
termination. The Accountant shall be entitled to collect from the Company, in
addition to the compensation described under Section 12 hereof the amount of
all of the Accountant's cash disbursements for services approved in advance by
the Manager in connection with the Accountant's activities in effecting such
termination, including without limitation the delivery to the Company and/or
its designees of the Company's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination, for a reasonable fee the
Accountant shall provide the Company with reasonable access to any Company
documents or records remaining in its possession and previously provided to the
Company under Section 8, hereof.
16. NOTICES. Notices of any kind to be given to the
Manager hereunder by the Accountant shall be in writing and shall be duly given
if mailed or delivered to the Manager at the following address:
Bank of America NT&SA WITH A COPY TO:
000 Xxxxx Xxxxxx Xxxxxx Xxxxxx X. Xxxxx
Xxx Xxxxxxx, XX 00000 Bank of America NT&SA
Attention: Xxxxx XxXxxxx Xxxxxx 000 X. Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
or at such other address or to such individual as shall be so specified by the
Manager to the Accountant.
Notices of any kind to be given to the Accountant hereunder by
the Manager shall be in writing and shall be duly given if mailed or delivered
to the Accountant at the following address:
UNTIL SEPTEMBER 18, 1995:
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BISYS Fund Services Ohio, Inc.
0000 X. Xxxxxx-Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
AFTER SEPTEMBER 18, 1995:
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BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
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or at such other address or to such individual as shall be so specified by the
Accountant to the Manager.
A copy of all notices to the Manager or the Accountant shall be
given to the Company. Notices of any kind to be given to the Company by the
Manager or Accountant shall be in writing and shall be duly given if mailed or
delivered to the Company at the following address:
Time Horizon Funds with a copy to
0000 X. Xxxxxx-Xxxxxxxxx Xxxxx X. X'Xxxxx, Esq.
Xxxxxxxx, Xxxx 00000 Vedder, Price, Xxxxxxx &
Attention: President Kammholz
000 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
or at such other address or such individual as shall be so specified by the
Company to the Manager and Accountant.
17. DELEGATION. The Accountant may not delegate any of its
duties under this Agreement to any affiliate or third party sub- contractor
without the prior written consent of the Company and the Manager.
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 the
Accountant to any person, including without limitation to any affiliate of the
Accountant, without the written consent of the Manager and of the Company,
authorized or approved by a resolution of the Company's Governing Board. This
Agreement will automatically terminate in the event of its assignment, as
described hereunder, or as such term is defined in the 1940 Act.
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.
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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. NAMES. The name "Time Horizon Funds" refers 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 April 12, 1995, as
amended, which is hereby referred to and a copy of which is on file at the
principal office of the Company. The trustees, officers, employees and agents
of the Company shall not personally be bound by or liable under any written
obligation, contract, instrument, certificate or other interest or undertaking
of the Company made by the trustees or by an officer, employee or agent of the
Company, 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 series or class of shares of the Company may
enforce claims against the Company only against the assets belonging to such
series or class.
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 Company in one or more
separate documents their agreement, if any, with respect to delegated 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
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shall be binding and 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.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
/s/Xxxxx XxXxxxx-Xxxxxx
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(title) Senior Vice President
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BISYS FUND SERVICES OHIO, INC.
/s/J. Xxxxx Xxxxx
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(name) J. Xxxxx Xxxxx
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(title) Executive Vice President
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TIME HORIZON FUNDS
/s/Xxxxxx X. Xxxxxxxx
--------------------------------
(name) Xxxxxx X. Xxxxxxxx
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(title) Senior Vice President
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APPENDIX A
Funds
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Time Horizon Fund 1
Time Horizon Fund 2
Time Horizon Fund 3
And any other portfolios of the Company, whether now existing or
hereafter created, for which the Company has approved the Accountant to provide
accounting services and for which the Accountant provides accounting services.
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APPENDIX B
FEE SCHEDULE
The monthly fees for each Fund will be calculated based upon the
greater of $2,500 or the following fee schedule: 0.0125% of average assets
between $10 million and $50 million; 0.025% of average net assets between $50
million and $200 million; 0.02% of next $200 million and $500 million of
average net assets; and 0.015% of average net assets greater than $500 million.
For the first year, the Fund Accountant shall receive no fee,
provided, however, that if the assets in the Funds reach $10 million, the Fund
Accountant shall receive the greater of $2,500 or 0.0125% of the average net
assets.
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