Exhibit (h)(3)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of January, 2002, between AMERICAN
PERFORMANCE FUNDS, a Massachusetts business trust (the "Trust"), and BISYS FUND
SERVICES OHIO, INC., an Ohio corporation ("BISYS").
WHEREAS, the Trust desires that BISYS perform certain fund accounting
services for each series of the Trust (individually referred to herein as a
"Fund" and collectively as the "Funds"); and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS FUND ACCOUNTANT.
(a) MAINTENANCE OF BOOKS AND RECORDS. BISYS will keep and
maintain the following books and records of each Fund
pursuant to Rule 31a-1 under the Investment Company
Act of 1940 (the "Rule"):
(i) Journals containing an itemized daily record
in detail of all purchases and sales of
securities, all receipts and disbursements
of cash and all other debits and credits, as
required by subsection (b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all
asset, liability, reserve, capital, income
and expense accounts, including interest
accrued and interest received, as required
by subsection (b)(2)(i) of the Rule;
(iii) Separate ledger accounts required by
subsection (b)(2)(ii) and (iii) of the Rule;
and
(iv) A monthly trial balance of all ledger
accounts (except shareholder accounts) as
required by subsection (b)(8) of the Rule.
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(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES. In addition
to the maintenance of the books and records specified
above, BISYS shall perform the following accounting
services daily for each Fund:
(i) Calculate the net asset value per share
utilizing prices obtained from the sources
described in subsection 1(b)(ii) below;
(ii) Obtain security prices from independent
pricing services, or if such quotes are
unavailable, then obtain such prices from
each Fund's investment adviser or its
designee, as approved by the Trust's Board
of Trustees;
(iii) Verify and reconcile with the Funds'
custodian all daily trade activity;
(iv) Compute, as appropriate, each Fund's net
income and capital gains, dividend payables,
dividend factors, 7-day yields, 7-day
effective yields, 30-day yields, and
weighted average portfolio maturity;
(v) Review daily the net asset value calculation
and dividend factor (if any) for each Fund
prior to release to shareholders, check and
confirm the net asset values and dividend
factors for reasonableness and deviations,
and distribute net asset values and yields
to NASDAQ;
(vi) Report to the Trust the daily market pricing
of securities in any money market Funds,
with the comparison to the amortized cost
basis;
(vii) Determine unrealized appreciation and
depreciation on securities held in variable
net asset value Funds;
(viii) Amortize premiums and accrete discounts on
securities purchased at a price other than
face value, if requested by the Trust;
(ix) Update fund accounting system to reflect
rate changes, as received from a Fund's
investment adviser, on variable interest
rate instruments;
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(x) Post Fund transactions to appropriate
categories;
(xi) Accrue expenses of each Fund according to
instructions received from the Trust's
Administrator;
(xii) Determine the outstanding receivables and
payables for all (1) security trades, (2)
Fund share transactions and (3) income and
expense accounts;
(xiii) Provide accounting reports in connection
with the Trust's regular annual audit and
other audits and examinations by regulatory
agencies; and
(xiv) Provide such periodic reports as the parties
shall agree upon, as set forth in a separate
schedule.
(c) SPECIAL REPORTS AND SERVICES.
(i) BISYS may provide additional special reports
upon the request of the Trust or a Fund's
investment adviser, which may result in an
additional charge, the amount of which shall
be agreed upon between the parties.
(ii) BISYS may provide such other similar
services with respect to a Fund as may be
reasonably requested by the Trust, which may
result in an additional charge, the amount
of which shall be agreed upon between the
parties.
(d) ADDITIONAL ACCOUNTING SERVICES. BISYS shall also
perform the following additional accounting services
for each Fund:
(i) Provide monthly a download (and hard copy
thereof) of the financial statements
described below, upon request of the Trust.
The download will include the following
items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
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(ii) Provide accounting information for the
following:
(A) federal and state income tax
returns and federal excise tax
returns;
(B) the Trust's semi-annual reports
with the Securities and Exchange
Commission ("SEC") on Form N-SAR;
(C) the Trust's annual, semi-annual and
quarterly (if any) shareholder
reports;
(D) registration statements on Form
N-1A and other filings relating to
the registration of shares;
(E) the Administrator's monitoring of
the Trust's status as a regulated
investment company under Subchapter
M of the Internal Revenue Code, as
amended;
(F) annual audit by the Trust's
auditors;
(G) examinations performed by the SEC;
and
(H) quarterly reports to Trustees
regarding manually priced
securities.
2. SUBCONTRACTING.
BISYS may, at its expense, subcontract with any entity or
person concerning the provision of the services contemplated hereunder;
provided, however, that BISYS shall not be relieved of any of its obligations
under this Agreement by the appointment of such subcontractor and provided
further, that BISYS shall be responsible, to the extent provided in Section 7
hereof, for all acts of such subcontractor as if such acts were its own.
3. COMPENSATION.
The Trust shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in,
Schedule A hereto, as such Schedule may be amended from time to time.
4. REIMBURSEMENT OF EXPENSES.
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In addition to paying BISYS the fees described in Section 3
hereof, the Trust agrees to reimburse BISYS for its out-of-pocket expenses in
providing services hereunder, including without limitation the following:
(a) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust;
(b) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by BISYS in communication with the Trust,
the Trust's investment advisor or custodian, dealers
or others as required for BISYS to perform the
services to be provided hereunder;
(c) The cost of obtaining security market quotes pursuant
to Section l(b)(ii) above;
(d) The cost of microfilm or microfiche of records or
other materials;
(e) Any expenses BISYS shall incur at the written
direction of an officer of the Trust thereunto duly
authorized; and
(f) Any additional expenses reasonably incurred by BISYS
in the performance of its duties and obligations
under this Agreement.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Fund
as of January 1, 2002 (or, if a particular Fund is not in existence on that
date, on the date an amendment to Schedule A to this Agreement relating to the
Fund is executed) (the "Effective Date").
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6. TERM.
This Agreement shall continue in effect with respect to a
Fund, unless earlier terminated by either party hereto as provided hereunder,
until December 31, 2005 (the "Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed automatically for
successive one-year periods ("Rollover Periods"). This Agreement may be
terminated without penalty (i) by provision of a notice of nonrenewal in the
manner set forth below, (ii) by mutual agreement of the parties or (iii) for
"cause," as defined below, upon the provision of 60 days advance written notice
by the party alleging cause. Written notice of nonrenewal must be provided at
least 60 days prior to the end of the Initial Term or any Rollover Period, as
the case may be.
For purposes of this Agreement, "cause" shall mean (a) a
material breach if the Agreement that has not been cured within thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors.
After such termination for so long as BISYS, with the written
consent of the Trust, 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 BISYS and unpaid by the Trust upon such termination shall be
immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Trust, in addition to the compensation
described under Section 3 hereof, the amount of all of BISYS's cash
disbursements for services in connection with BISYS's activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination, for a reasonable fee, BISYS
will provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
If, for any reason other than nonrenewal, mutual agreement of
the parties or "cause," as defined above, BISYS is replaced as fund accountant,
or if a third party is added to perform all or a part of the services provided
by BISYS under this Agreement (excluding any
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sub-accountant appointed by BISYS as provided in Section 2 hereof), then the
Trust shall make a one-time cash payment, as liquidated damages, to BISYS equal
to the balance due BISYS under this Agreement for the lesser of (A) the next six
months of the Initial Term or (B) the remainder of such Initial Term, assuming
for purposes of calculation of the payment that (i) such balance shall be based
upon the average amount of the Trust's assets for the twelve months prior to the
date BISYS is replaced or a third party is added and (ii) such payment shall be
based upon the actual fee being charged, which may or may not be lower than the
contractual fee amount; provided, however, that, in the event BISYS is replaced
or a third party is added to perform services at any time after December 31,
2004, the Trust shall not be required to make a liquidated damages payment.
In the event the Trust is merged into another legal entity in
part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide fund accounting services. Under such circumstances,
the one-time cash payment referenced above shall be due and payable on the day
prior to the first day during which assets are transferred pursuant to the plan
of reorganization or liquidation.
The parties further acknowledge and agree that, in the event
BISYS ceases to be retained, as set forth above, (i) a determination of actual
damages incurred by BISYS would be extremely difficult, and (ii) the liquidated
damages provision contained herein is intended to adequately compensate BISYS
for damages incurred and is not intended to constitute any form of penalty.
7. STANDARD OF CARE.
BISYS shall use its best efforts to insure the accuracy of all
services performed under this Agreement, but shall not be liable to the Trust
for any action taken or omitted by BISYS in the absence of bad faith, willful
misfeasance, negligence or from reckless disregard by it of its obligations and
duties.
8. RECORD RETENTION AND CONFIDENTIALITY.
BISYS shall keep and maintain on behalf of the Trust all books
and records which the Trust and BISYS is, or may be, required to keep and
maintain pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the Investment Company Act of
1940, as amended (the "1940 Act"), relating to the maintenance of books and
records in connection with the services to be provided hereunder. BISYS further
agrees that all such books
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and records shall be the property of the Trust and to make such books and
records available for inspection by the Trust or by the Securities and Exchange
Commission at reasonable times and otherwise to keep confidential all books and
records and other information relative to the Trust and its shareholders; except
when requested to divulge such information by duly-constituted authorities or
court process.
9. UNCONTROLLABLE EVENTS.
BISYS assumes no responsibility hereunder, and shall not be
liable, for any damage, loss of data, delay or any other loss whatsoever caused
by events beyond its reasonable control.
10. REPORTS.
BISYS will furnish to the Trust and to its properly authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports and at such times as are prescribed pursuant to the terms and the
conditions of this Agreement to be provided or completed by BISYS, or as
subsequently agreed upon by the parties pursuant to an amendment hereto. The
Trust agrees to examine each such report or copy promptly and will report or
cause to be reported any errors or discrepancies therein no later than three
business days from the receipt thereof. In the event that errors or
discrepancies, except such errors and discrepancies as may not reasonably be
expected to be discovered by the recipient within three days after conducting a
diligent examination, are not so reported within the aforesaid period of time, a
report will for all purposes be accepted by and binding upon the Trust and any
other recipient, and BISYS shall have no liability for errors or discrepancies
therein and shall have no further responsibility with respect to such report
except to perform reasonable corrections of such errors and discrepancies within
a reasonable time after requested to do so by the Trust.
11. RIGHTS OF OWNERSHIP.
All computer programs and procedures developed to perform
services required to be provided by BISYS under this Agreement are the property
of BISYS. All records and other data except such computer programs and
procedures are the exclusive property of the Trust and all such other records
and data will be furnished to the Trust in appropriate form as soon as
practicable after termination of this Agreement for any reason.
12. RETURN OF RECORDS.
BISYS may at its option at any time, and shall promptly upon
the Trust's demand, turn over to the Trust and cease to retain BISYS' files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the
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performance of its services or for its legal protection. If not so turned over
to the Trust, such documents and records will be retained by BISYS for six years
from the year of creation. At the end of such six-year period, such records and
documents will be turned over to the Trust unless the Trust authorizes in
writing the destruction of such records and documents.
13. REPRESENTATIONS OF THE TRUST.
The Trust certifies to BISYS that: (1) as of the close of
business on the Effective Date, each Fund that is in existence as of the
Effective Date has authorized unlimited shares, and (2) this Agreement has been
duly authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
14. REPRESENTATIONS OF BISYS.
BISYS represents and warrants that: (1) the various procedures
and systems which BISYS has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and BISYS' records, data, equipment facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are required for the
secure performance of its obligations hereunder, and (2) this Agreement has been
duly authorized by BISYS and, when executed and delivered by BISYS, will
constitute a legal, valid and binding obligation of BISYS, enforceable against
BISYS in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties.
15. INSURANCE.
BISYS shall notify the Trust should any of its insurance
coverage be canceled or reduced. Such notification shall include the date of
change and the reasons therefor. BISYS shall notify the Trust of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust from
time to time as may be appropriate of the total outstanding claims made by BISYS
under its insurance coverage.
16. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS.
The Trust has furnished to BISYS the following:
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(a) Copies of the Declaration of Trust of the Trust and
of any amendments thereto, certified by the proper
official of the state in which such Declaration has
been filed.
(b) Copies of the following documents:
(i) The Trust's Bylaws and any amendments
thereto; and
(ii) Certified copies of resolutions of the Board
of Trustees covering the approval of this
Agreement, authorization of a specified
officer of the Trust to execute and deliver
this Agreement and authorization for
specified officers of the Trust to instruct
BISYS thereunder.
(c) A list of all the officers of the Trust, together
with specimen signatures of those officers who are
authorized to instruct BISYS in all matters.
(d) Two copies of the Prospectuses and Statements of
Additional Information for each Fund.
17. INFORMATION FURNISHED BY BISYS.
(a) BISYS has furnished to the Trust the following:
(i) BISYS' Articles of Incorporation; and
(ii) BISYS' Bylaws and any amendments thereto.
(b) BISYS shall, upon request, furnish certified copies
of corporate actions covering the following matters:
(i) Approval of this Agreement, and
authorization of a specified officer of
BISYS to execute and deliver this Agreement;
and
(ii) Authorization of BISYS to act as fund
accountant for the Trust and to provide
accounting services for the Trust.
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18. AMENDMENTS TO DOCUMENTS.
The Trust shall furnish BISYS written copies of any amendments
to, or changes in, any of the items referred to in Section 16 hereof forthwith
upon such amendments or changes becoming effective. In addition, the Trust
agrees that no amendments will be made to the Prospectuses or Statements of
Additional Information of the Trust which might have the effect of changing the
procedures employed by BISYS in providing the services agreed to hereunder or
which amendment might affect the duties of BISYS hereunder unless the Trust
first obtains BISYS' approval of such amendments or changes.
19. COMPLIANCE WITH LAW.
Except for the obligations of BISYS set forth in Section 8
hereof, the Trust assumes full responsibility for the preparation, contents and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. BISYS shall have no obligation to
take cognizance of any laws relating to the sale of the Trust's shares. The
Trust represents and warrants that no shares of the Trust will be offered to the
public until the Trust's registration statement under the Securities Act and the
1940 Act has been declared or becomes effective.
20. NOTICES.
Any notice provided hereunder shall be sufficiently given when
sent by registered or certified mail to the party required to be served with
such notice, at the following address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
21. HEADINGS
Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
22. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not
be assignable with respect to a Fund by either of the parties hereto except by
the specific written consent of the other party.
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23. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A
MASSACHUSETTS BUSINESS TRUST.
This Agreement shall be governed by the laws of The
Commonwealth of Massachusetts. The names "American Performance Funds" and
"Trustees of American Performance Funds" refer respectively to the Trust created
and the Trustees, as trustees but not individually or personally, acting from
time to time under an Agreement and Declaration of Trust dated as of October 1,
1987 to which reference is hereby made and a copy of which is on file at the
office of the Secretary of State of The Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "American Performance Funds" entered into in
the name or on behalf thereof by any of the Trustees, representatives or agents
are made not individually, but in such capacities, and are not binding upon any
of the Trustees, shareholders or representatives of the Trust personally, but
bind only the assets of the Trust, and all persons dealing with any series of
shares of the Trust must look solely to the assets of the Trust belonging to
such series for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
AMERICAN PERFORMANCE FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Title: Executive Vice President
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SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT
DATED AS OF JANUARY 1, 2002
BETWEEN
AMERICAN PERFORMANCE FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Section 1.01 FEES
ANNUAL PER FUND FEE:
BISYS shall be entitled to receive a fee from each Fund in accordance
with the following schedule:
Three one-hundredths of one percent (.03%) of average net
assets up to $150 million.
Two one-hundredths of one percent (.02%) of average net assets
in excess of $150 million up to $250 million.
One and one-half one-hundredths of one percent (.015%) of
average net assets in excess of $250 million.
OUT-OF-POCKET EXPENSES:
----------------------
BISYS shall be entitled to be reimbursed for all out-of-pocket expenses,
including, but not limited to, the expenses set forth in Section 4 of the Fund
Accounting Agreement to which this Schedule A is attached.
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AMERICAN PERFORMANCE FUNDS BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
--------------------- ----------------
Title: Vice President Title: Executive Vice President
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