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EXHIBIT 9.4
SUB-ADMINISTRATION AGREEMENT
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AGREEMENT made as of September 5, 1995 by and between Bank of America
National Trust and Savings Association (the "Manager") and BISYS Fund Services
Ohio, Inc., an Ohio corporation (the "Sub-Administrator").
WHEREAS, the Manager has entered into a Management Agreement dated
September 5, 1995 (the "Management Agreement") to provide management services
to Time Horizon Funds (the "Company"), which is an investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and which is comprised of multiple investment portfolios as specified in
the Management Agreement (each a "Fund" and collectively the "Funds");
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 Sub-Administrator to
provide administration services for the Funds and the Sub-Administrator is
willing to provide such services, all as more fully set forth below;
WHEREAS, the Sub-Administrator is experienced in providing
administration 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 Sub-Administrator as sub-administrator of the Company.
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
I. SUB-ADMINISTRATION
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1. APPOINTMENT OF SUB-ADMINISTRATOR. The Manager retains the
Sub-Administrator for the term of this Agreement and the Sub-Administrator
hereby agrees to perform the services and duties set forth in this Section I
for the compensation provided in this Section I.
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2. SERVICES AND DUTIES.
(A) The Sub-Administrator shall be responsible for all
services set forth in Section (A) of the Management Agreement except oversight
activities.
(B) The Sub-Administrator shall promptly notify the
Manager and the Company of any inquiries or contacts by governmental officers
regarding the Funds. The Sub-Administrator shall not reply to any such
governmental inquires without the consent of the Manager and the Company unless
required to do so by law (in which event it shall give the Manager and the
Company prior written notice of its response).
3. COMPENSATION. For the services provided and the
expenses assumed as Sub-Administrator until December 31, 1998, the Manager
shall pay the Sub-Administrator a fee, computed daily and payable monthly, at
the annual rate of 0.02% of each Fund's average daily net assets from $0 to
$124.99 million; 0.05% of each Fund's average daily net assets from $125.00
million to $199.99 million; and 0.08% of each Fund's average daily net assets
over $200.00 million. Thereafter, such fees shall be as agreed upon by the
Manager and Sub-Administrator from time to time. The Sub-Administrator shall
pay all costs and expenses of maintaining the offices of the Company, wherever
located, and shall arrange for payment by the Company of all expenses payable
by the Company.
4. SERVICES NOT EXCLUSIVE. The Sub-Administrator shall
for all purposes herein be deemed to be an independent contractor and shall,
unless otherwise expressly provided herein or authorized by the Board of
Trustees from time to time, have no authority to act for or represent the
Company in any way or otherwise be deemed its agent. The services furnished by
the Sub-Administrator hereunder are not deemed exclusive, and the
Sub-Administrator shall be free to furnish similar services to others so long
as its services under this Agreement are not impaired thereby.
5. EXPENSES ASSUMED AS SUB-ADMINISTRATOR. Except as
otherwise stated in this Agreement, the Sub-Administrator shall pay all
expenses incurred by it in performing its services and duties hereunder as
Sub-Administrator including the cost of any independent pricing service used in
connection with the Funds (other than the cost of securities purchased for the
Company).
The Company shall bear other expenses incurred in the
operation of the Funds, including without limitation: (i) taxes, interest,
brokerage fees and commissions, if any, (ii) fees of
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trustees who are not officers, directors, partners, employees or holders of 5
percent or more of the outstanding voting securities of the Manager or any of
its affiliates, (iii) Securities and Exchange Commission (the "Commission")
fees and state blue sky registration and qualification fees, (iv) charges of
custodians, transfer and dividend disbursing agents' fees, (v) certain
insurance premiums, outside auditing and legal expenses, costs of maintaining
Company existence, (vi) costs of preparing and printing prospectuses or any
supplements or amendments thereto necessary for the continued effective
registration of the shares of the Company under federal or state securities
laws, (vii) costs of printing and distributing any prospectus, supplement or
amendment thereto for existing shareholders of the Funds described therein,
(viii) costs of shareholders' reports and meetings, and any extraordinary
expenses. It is understood that certain advertising, marketing, shareholder
servicing, administration and/or distribution expenses to be incurred in
connection with the shares of the Funds may be paid by the Company as provided
in any plan which may in the sole discretion of the Company be adopted in
accordance with Rule 12b-1 under the 1940 Act, and that such expenses shall be
paid apart from any fees paid under this Agreement.
6. RIGHT TO INSPECT. The Manager and the Company shall
have the right at any time to inspect the records (including work papers and
the other related documents) in the possession of the Sub-Administrator
relating to the Company.
7. DISASTER RECOVERY. The Sub-Administrator shall at
its 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 Sub-Administrator shall, at
no additional expense to the Manager or the Company, take reasonable steps to
minimize service interruptions but shall have no liability with respect
thereto.
II. CONFIDENTIALITY
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The Sub-Administrator shall 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 inquires concerning investment in the
Funds, and shall not use such records and information for any purpose other
than performance of its responsibilities and duties hereunder or under any
agreement with the Company, except after prior notification
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to and approval by the Board of Trustees of the Company. The Manager shall use
its best efforts to cause the Company to not unreasonably withhold such
approval, it being understood that such approval will not be withheld where the
Sub-Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply, when the Sub-Administrator is requested to divulge such
information by duly constituted authorities.
III. LIMITATION OF LIABILITY
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The Sub-Administrator acknowledges that the performance of
this Agreement is for the benefit of the Funds, that the Sub- Administrator
shall be directly liable and responsible to the Manager and the Company for
performance of its obligations hereunder, and that either the Funds (or the
Company on behalf of the Funds) or the Manager may therefore enforce in its own
name and for itself such liability and responsibility against the
Sub-Administrator; provided that, except as otherwise provided herein, the
Sub-Administrator shall not be liable for any error of judgment or mistake of
law or for any loss suffered by any Fund in connection with the matters to
which this Agreement relates, except loss resulting from willful misfeasance,
bad faith or negligence on its part in the performance of its obligations and
duties under this Agreement or reckless disregard of such obligations and
duties. Any person, even though also an officer, director, partner, employee
or agent of the Sub-Administrator, who may be or may become an officer,
trustee, employee or agent of the Company, shall be deemed, when rendering
services to the Company or to any Fund, or acting on any business of the
Company or any Fund (other than services or business in connection with the
Sub-Administrator's duties hereunder or under any agreement with the Company)
to be rendering such services to or acting solely for the Company or Fund and
not as an officer, director, partner, employee or agent or one under the
direction or control of the Sub-Administrator even though paid by the
Sub-Administrator.
IV. TERMINATION
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This Agreement shall continue with respect to each Fund until
terminated with respect to such Fund by either party hereto, or by the Company,
giving notice in writing specifying the date of such termination, which date
shall be not less than 60 days after the date of the giving of such notice.
This Agreement shall not be assignable by the Sub-Administrator to any person,
including without limitation to any affiliate of the Sub-Administrator, without
the written consent of the Manager and the Company, authorized or approved by a
resolution of the Board of
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Trustees of the Company; and any attempt by the Sub-Administrator to assign any
of its rights and duties under this Agreement without such prior written
consent shall constitute grounds for immediate termination of this Agreement
and shall not require any notice. This Agreement will automatically terminate
upon the earlier of (i) termination of the Management Agreement, or (ii) the
date of its assignment, as described hereunder or as such term is defined in
the 1940 Act. After termination of this Agreement, for so long as the
Sub-Administrator, with the written consent of the Manager, 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 Sub-Administrator and unpaid by
the Manager upon such termination shall be immediately due and payable upon and
notwithstanding such termination. The Sub-Administrator shall be entitled to
collect from the Manager, in addition to the compensation described under
Section 1.3 hereof, the amount of all the Sub-Administrator's cash
disbursements for services approved in advance by the Manager in connection
with the Sub-Administrator's activities in effecting such termination,
including without limitation, the delivery to the Manager 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
Sub-Administrator shall provide the Manager and the Company with reasonable
access to any Company documents or records remaining in its possession.
V. INDEMNIFICATION
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1. INDEMNIFICATION. The Manager agrees to indemnify and
hold harmless the Sub-Administrator 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 Sub-Administrator 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 Sub-Administrator, 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
Sub-Administrator's own willful misfeasance, bad faith, negligence or
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reckless disregard of its duties and obligations under this Agreement.
The Sub-Administrator 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 Sub-Administrator,
provided that neither the Manager, nor any of its nominees, shall be
indemnified against any liability to the Sub-Administrator, to the Fund 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.
2. 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 Company 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.
VI. 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 whom enforcement of the change, waiver, discharge or
termination is sought.
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VII. NOTICES
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Notices of any kind to be given to the Manager hereunder by the
Sub-Administrator 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
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx XxXxxxx-Xxxxxx
WITH A COPY TO:
Bank of America NT&SA
Legal Department
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address or to such individual as shall be so specified by the
Manager to the Sub-Administrator.
Notices of any kind to be given to the Sub-Administrator hereunder by
the Manager shall be in writing and shall be duly given if mailed or
delivered to the Sub-Administrator at the following address:
Until September 18, 1995
BISYS Fund Services Ohio, Inc.
0000 X. Xxxxxx-Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
After September 18, 1995
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
or at such other address or to such individual as shall be so specified by the
Sub-Administrator to the Manager.
A copy of all notices to the Manager or the Sub-Administrator shall be
given to the Company. Notices of any kind to be given to the Company by the
Manager or Sub-Administrator shall be in writing and shall be duly given if
mailed or delivered to the Company at the following address:
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Until September 18, 1995: WITH A COPY TO
Time Horizon Funds Xxxxx X. X'Xxxxx, Esq.
0000 X. Xxxxxx-Xxxxxxxxx Xx. Vedder, Price, Xxxxxxx &
Xxxxxxxx, Xxxx 00000 Kammholz
Attention: President 000 X. XxXxxxx, 00XX Xxxxx
Xxxxxxx, Xxxxxxxx 00000
After September 18, 1995:
Time Horizon Funds
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: President
or at such other address or such individual as shall be so specified by the
Company to the Manager and Sub-Administrator.
VIII. MISCELLANEOUS
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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 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 Delaware law (without reference to
principles of conflicts of 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.
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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.
BISYS FUND Services Ohio, Inc.
(name)/s/J. Xxxxx Xxxxx
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(title) Executive Vice President
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Attest:/s/Xxxxxx X. Xxxxxxxx
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(name) Xxxxxx X. Xxxxxxxx
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(title) Senior Vice President
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BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/Xxxxx XxXxxxx-Xxxxxx
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(name) Xxxxx XxXxxxx-Xxxxxx
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(title) Senior Vice President
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Attest:/s/Xxxxxx X. Xxxxx
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(name) Xxxxxx X. Xxxxx
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(title) Vice President
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