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EXHIBIT 9(d)
FUND ACCOUNTING AGREEMENT
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FUND ACCOUNTING AGREEMENT
As Amended and Restated
May 12, 1995
AGREEMENT made this 5th day of September, 1990, between the American
Performance Funds (the "Trust"), a Massachusetts business trust having its
principal place of business at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000, and BISYS Fund Services Ohio, Inc. (formerly, The Winsbury Service
Corporation) ("BISYS"), a corporation organized under the laws of the State of
Ohio having its principal place of business at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform certain fund accounting
services for each investment fund of the Trust identified on Schedule A hereto
(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. 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"):
(a) 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;
(b) 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;
(c) Separate ledger accounts required by subsection (b)(2)(ii)
and (iii) of the Rule; and
(d) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the Rule.
All such books and records shall be the property of the Trust, and BISYS agrees
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 records and other information relative to the Trust; except
when requested to divulge such information by duly-constituted authorities or
court process, or when requested by the Trust.
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In addition to the maintenance of the books and records specified
above, BISYS shall perform the following accounting services daily for each
Fund:
(a) calculate the net asset value per Share;
(b) calculate the dividend and capital gain distribution, if
any;
(c) calculate the yield;
(d) Provide the following reports:
(i) a current security position report;
(ii) a summary report of transactions and
pending maturities (including the
principal, cost, and accrued interest on
each fund security in maturity date
order); and
(iii) a current cash position report (including
cash available from fund sales and
maturities and sales of a Fund's Shares
less cash needed for redemptions and
settlement of fund purchases);
(e) Such other similar services with respect to a Fund as may
be reasonably requested by the Trust.
2. COMPENSATION. BISYS shall be entitled to receive a fee from each
investment fund, calculated daily and paid monthly, at the annual rate of three
one-hundredths of one percent (.03%) of average net assets between $0 and $150
million, two one-hundredths of one percent (.02%) of average net assets over
$150 million but less than $250 million and one and one half one-hundredths of
one percent (.015%) of average net assets equaling or exceeding $250 million.
3. EFFECTIVE DATE. This Agreement shall become effective with respect
to a Fund as of September 5, 1990 (the "Effective Date").
4. TERM. This Agreement shall become effective on September 5, 1990
and, unless earlier terminated by either party hereto as provided hereunder
shall continue until December 31, 1998. This Agreement may be terminated as of
December 31, 1996 by either party hereto providing written notice to the other
party hereto by no later than November 1, 1996. Unless otherwise terminated as
provided herein, on December 31, 1998, this Agreement shall be renewed
automatically for a three year term and thereafter shall be automatically
renewed for successive three year terms, unless in each case written notice not
to renew is given by the non-renewing party at least sixty days prior to the
expiration of the then current term. Compensation due BISYS and unpaid by the
Trust upon such termination due to non-renewal 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
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described under Paragraph 2 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.
5. STANDARD OF CARE; INDEMNIFICATION. 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 misconduct or negligence. 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.
6. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
7. 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.
8. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of The Commonwealth of
Massachusetts.
9. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of
the Declaration of Trust of the Trust is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this instrument
is executed on behalf of the Trustees of the Trust as Trustees and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees or Shareholders individually but are binding only upon the
assets and property of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
Seal American Performance Funds
By /s/ D. Xxx X. Xxxxxx
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Title: Vice President
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Seal BISYS Fund Services Ohio, Inc.
(formerly The Winsbury Service
Corporation)
By /s/ Xxxxxxx X. Xxxxxx
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Title: Exec. V.P.
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Amended Schedule A
to the
Fund Accounting Agreement
between BISYS Fund Services Ohio, Inc.
(formerly the Winsbury Service Corporation) and
American Performance Funds
as amended and restated May 12, 1995
Name of the Fund
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American Performance U.S. Treasury Fund
American Performance Cash Management Fund
American Performance Bond Fund
American Performance Intermediate Bond Fund
American Performance Intermediate Tax-Free Bond Fund
American Performance Equity Fund
American Performance Aggressive Growth Fund
American Performance Short-Term Income Fund
American Performance Balanced Fund
Seal American Performance Funds
By /s/ D. Xxx X. Xxxxxx
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Date: May 12, 1995
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BISYS Fund Services Ohio, Inc.
By /s/ Xxxxxxx X. Xxxxxx
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Date: May 12, 1995
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