TRADE PROCESSING AGREEMENT
Exhibit (h)(11)
This Agreement is entered into as of October 31, 2003 by and among American Performance Funds
(the “Trust”), a Massachusetts business trust, and BISYS Retirement Services, Inc. (“Retirement
Services”), a Delaware corporation, with respect to each currently existing investment portfolio of
the Trust and each investment portfolio of the Trust that may be established from time to time
(such investment portfolios being individually referred to herein as the “Fund” and collectively as
the “Funds.”)
(b) Payment for net distributions, in the case of fixed-income funds, will include (when
applicable) income accrued during the current accrual period. Dividends and capital gains
distributions will be automatically reinvested at net asset value in accordance with each Fund’s
then current prospectus. The Trust will provide to Retirement Services or its designee: (a) daily
confirmations of Account activity on the Business Day after each day on which a purchase or
redemption of Shares is effected for the particular Account, (b) monthly statements detailing
activity in each Account within 15 Business Days after the end of each month, and (c) such other
reports as may be reasonably requested by Retirement Services in connection with its performance of
the Services.
(b) (i) All confidential information of a party and of the third parties with which it does
business, including without limitation non-public information of retirement plans and participants,
is collectively referred to as its “Confidential Information.” Except as require to perform its
obligations under this Agreement or as otherwise expressly permitted by this Agreement, the Trust
and Retirement Services will: (i) keep and maintain all Confidential Information of the other in
strict confidence, using such degree of care as is appropriate to avoid unauthorized use or
disclosure; (ii) not, directly or indirectly, disclose any Confidential Information of the other to
any third party, except with the other’s prior written consent; and (iii) not make use of the other
party’s Confidential Information for its own purposes or the benefit of any party except the other.
(ii) The Trust and Retirement Services each will be permitted to disclose the other’s
Confidential Information only to its employees, legal counsel, auditors and agents (collectively,
“Representatives”) having a need to know the Confidential Information in connection with the
performance of its obligations under this Agreement. The Trust and Retirement Services will
instruct their respective Representatives as to their obligations under this Agreement. Despite
any contrary provision in this Agreement, either party may disclose the other party’s Confidential
Information to the extent required to comply with law or a court order; provided, however, that
each party must promptly notify the other party of receipt of a request for Confidential
Information made pursuant to law or court order, must give the other party a reasonable opportunity
to prevent the disclosure of the Confidential Information, and must reasonably cooperate with the
other party in any efforts it makes to prevent the disclosure of the Confidential Information.
(ii) Despite any contrary provision in this Agreement, Confidential Information of a party
will not include information that: (A) is or becomes generally known to the public not as a result
of a disclosure by the other, (B) is rightfully in the possession of the other before disclosure by
the first party, (C) is independently developed by the other without reliance on the Confidential
Information, or (D) is received by the other in good faith and without restriction from a third
party not under a confidentiality obligation to the first party and having the right to make such
disclosure.
(b) The Trust will pay the cost of registration of the Shares with the Securities and Exchange
Commission and in states where required. Except as expressly set forth in this Agreement, each
party will bear all expenses incidental to the performance of its obligations under this Agreement.
(a) | at the option of the Trust or Retirement Services upon 60 days’ advance written notice to the other parties hereto; or | ||
(b) | at the option of the Trust or Retirement Services, in the event of a material breach by the other party that has not been cured within 30 days following |
the other party’s receipt of a written notice of breach sent by the non- breaching party. |
(b) The Trust agrees to indemnify and hold harmless Retirement Services and each of its trustees,
officers, employees, agents and each person, if any, who controls them within the meaning of the
Securities Act, against any Damages to which any indemnitee may become subject insofar as those
Damages (or action in respect thereof) arise out of or are based upon (i) the Trusts’ negligence or
willfil misconduct in performing its obligations under this Agreement; or (ii) any material breach
by the Trust of any representation, warranty or covenant made in this Agreement. The Trust will
reimburse the indemnities for any legal or other expenses reasonably incurred, as incurred, by them
in connection with investigating or defending such losses, claims or actions.
c) No party will be entitled to indemnification pursuant to this Agreement to the extent that such
party’s negligence, willful misconduct or material breach of any representation, warranty or
covenant made in this Agreement contributed to the damages for which such party seeks
indemnification.
(i) | it is not required to be registered as a broker-dealer or a transfer agent under the 1934 Act or any applicable state securities laws, including as a result of entering into and performing the Services set forth in this Agreement; and |
(ii) | it has adopted and implemented internal controls reasonably designed to prevent instructions received from or on behalf of the Accounts on a given Business Day after the Close of Trading from being aggregated with the order for net purchases or net redemptions of Shares for that Business Day. |
The Trust further represents, warrants and covenants that the Trust is registered as an
investment company under the Investment Company Act of 1940, as amended, and its Shares are
registered under the Securities Act.
If to the Trust:
If to Retirement Services to:
BISYS Retirement Services, Inc.
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
The BISYS Group, Inc.
00 Xxxx Xxxxxx — 10th floor
Xxx Xxxx, XX 00000
Attention: General Counsel
00 Xxxx Xxxxxx — 10th floor
Xxx Xxxx, XX 00000
Attention: General Counsel
A notice given pursuant to this Section 10 shall be deemed given immediately when delivered
personally, three days after the date of certified mailing, or one day after delivery by courier
service.
11. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
act of terrorism, change in any law or regulation, fire, flood, tornado, earthquake or storm, or
other like event, disruption or outage of communications, power or other utility or labor strikes.
AMERICAN PERFORMANCE FUNDS |
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By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | VP and Mutual Fund Product Manager | |||
BISYS RETIREMENT SERVICES, INC. |
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By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxxxxxx X. Xxxxxxx | |||
Title: | President |
SCHEDULE A
THE FEES
The Trust will pay Retirement Services a Fee equal to $12 per Fund per Account position. Retirement
Services will invoice such fees to the Trust quarterly based on the number of positions maintained
at any time during each quarter. All such invoices are due upon receipt.