EXHIBIT (h)(3)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of August, 2004, between Asset Management
Fund (the "Trust"), a Delaware statutory trust having its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and BISYS Fund
Services Ohio, Inc. ("BISYS"), an Ohio corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust and BISYS entered into a Fund Accounting Agreement
dated August 1, 1999 (the "1999 Agreement"), whereby BISYS agreed to perform
administration services for the Trust, which has continued in effect through the
date hereof:
WHEREAS, the Trust desires that BISYS continue to perform fund
accounting services for the Trust and each investment portfolio of the Trust, as
now in existence and listed on Schedule A, or as hereafter may be established
from time to time (individually referred to herein as the "Fund" and
collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into a new Agreement in order to
set forth the terms under which BISYS will perform the fund accounting services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, the Trust and BISYS hereby agree as follows:
1. SERVICES AS FUND ACCOUNTANT
BISYS agrees to perform the services described herein in accordance
with all applicable laws, rules and regulations (including, where applicable,
Generally Acceptable Accounting Principles) and in accordance with any
reasonable instructions of the Trust and the Trust's Declaration of Trust,
Bylaws, Prospectus and Statement of Additional Information.
(a) Maintenance of Books and Records. BISYS will keep and maintain
the following books and records of each Fund pursuant to Rule
31a-1 (the "Rule") under the Investment Company Act of 1940,
as amended (the "1940 Act"):
(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.
(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 ("NAV") of
each class of shares offered by each Fund in
accordance with the relevant provisions of the
applicable Prospectus of each Fund and applicable
regulations under the 1940 Act;
(ii) In each calculation of NAV, apply securities pricing
information as required or authorized under the terms
of the valuation policies and procedures of the Trust
("Valuation Procedures").
(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;
(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;
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(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 or the Trust's investment adviser, 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,
without additional compensation:
(i) Provide monthly a hard copy of the unaudited
financial statements described below, upon request of
the Trust. The unaudited financial statements will
include the following items:
Unaudited Statement of Assets and Liabilities,
Unaudited Statement of Operations,
Unaudited Statement of Changes in Net Assets, and
Unaudited Condensed Financial Information;
(ii) Provide accounting information for the following:
(1) federal and state income tax returns and federal
excise tax returns;
(2) the Trust's semi-annual reports with the
Securities and Exchange Commission ("SEC") on Form N-SAR;
(3) the Trust's annual, semi-annual and quarterly (if
any) shareholder reports;
(4) registration statements on Form N-1A and other
filings relating to the registration of shares;
(5) the Administrator's monitoring of the Trust's
status as a regulated investment company under Subchapter M of
the Internal Revenue Code, as amended;
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(6) annual audit by the Trust's auditors; and
(7) examinations performed by the SEC.
(e) BISYS shall provide on a timely basis to the Trust's
investment adviser, administrator, transfer agent, distributor
and custodian and other persons providing services to the
Trust such fund accounting information that BISYS prepares or
maintains hereunder that such persons may reasonably request
in connection with the performance of their respective duties
and obligations with respect to the Trust. BISYS will report
to the Board of Trustees of the Trust at each meeting of the
Board of Trustees and will keep the Board of Trustees informed
of material developments affecting the Trust.
2. AGENTS
BISYS may utilize agents in its performance of its services and, with
the prior consent of the Trust, appoint in writing other parties qualified to
perform specific fund accounting services reasonably acceptable to the Trust
(individually, a "Sub-Agent") to carry out some or all of its responsibilities
under this Agreement; provided, however, that a Sub-Agent shall be the agent of
BISYS and not the agent of the Trust, and that BISYS shall be fully responsible
for the acts of such Sub-Agent and shall not be relieved of any of its
responsibilities hereunder by the appointment of a Sub-Agent.
3. COMPENSATION
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with the terms of the Omnibus Fee Agreement
between the Trust and BISYS dated as of August 1, 2004 (the "Fee Agreement").
4. REIMBURSEMENT OF EXPENSES AND MISCELLANEOUS SERVICE FEES
(a) In addition to paying BISYS the fees provided in Section 3,
the Trust agrees to reimburse BISYS for its reasonable
out-of-pocket expenses in providing services hereunder,
including without limitation the following:
(i) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust;
(ii) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by BISYS in communication with the Trust,
the Trust's investment adviser or custodian, dealers
or others as required for BISYS to perform the
services to be provided hereunder;
(iii) The cost of microfilm or microfiche of records or
other materials;
(iv) All systems-related expenses associated with the
provision of special reports and services pursuant to
Section 1(c) herein;
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(v) Any expenses BISYS shall incur at the written
direction of an officer of the Trust (other than an
employee of BISYS) thereunto duly authorized; and
(vi) Any additional expenses reasonably incurred by BISYS
in the performance of its duties and obligations
under this Agreement (but not including any amounts
related to pricing information, other than as
provided in paragraph 4(b)(iii), below).
(b) In addition, BISYS shall be entitled to receive the following
amounts:
(i) Systems development fees billed at an hourly rate of
$150 per hour, as approved by the Trust;
(ii) Ad hoc reporting fees billed at an agreed upon rate;
and
(iii) Charges for the pricing information obtained from
third party vendors for use in pricing the securities
of each Fund's portfolio pursuant to Section 1(b)(ii)
of this Agreement, which shall not exceed the amounts
that would be incurred if the Fund were to obtain the
information directly from the relevant vendor or
vendors.
5. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY
BISYS shall use reasonable best efforts to ensure 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 reckless disregard by it of its obligations and
duties hereunder. The duties of BISYS shall be confined to those expressly set
forth herein, and no implied duties are assumed by or may be asserted against
BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, 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. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
BISYS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
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NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. TERM
This Agreement shall continue in effect unless earlier terminated by
either party hereto as provided hereunder until August 1, 2007 (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 only (i) by mutual
agreement of the parties, or (ii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause,
or (iii) on or after February 1, 2006, at the election of either party, by
provision of ninety (90) days advance written notice of termination or (iv)
prior to February 1, 2006, at the election of the Trust, by provision of one
hundred twenty (120) days advance written notice of termination, subject to the
liquidated damages provision set forth below. Written notice of nonrenewal must
be provided at least ninety (90) 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 of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
series of negligent acts or omissions or other breaches of this Agreement which,
in the aggregate, constitutes in the reasonable judgment of the Trust's Board of
Trustees, a serious failure to perform satisfactorily BISYS' obligations
hereunder, (c) 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 (d) 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. BISYS shall not terminate this Agreement pursuant to clause (a)
above based solely upon the Trust's failure to pay an amount to BISYS which is
the subject of a good faith dispute, if (i) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be possible under
the circumstances, and (ii) the Trust continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the
event that BISYS, in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
written consent of the Trust, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification, shall continue
in full force and effect. Fees and out-of-pocket expenses incurred by BISYS but
unpaid
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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 fees and disbursements provided by Sections 3 and 4
hereof, the amount of all of BISYS' cash disbursements in connection with BISYS'
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties of the Trust's property, records, instruments and documents upon the
presentment by BISYS of invoices for such cash disbursements.
If for any reason other than mutual agreement of the parties or
"cause," as defined above, during the first eighteen (18) months of the Initial
Term of this Agreement (i.e., until February 1, 2006), BISYS' services are
terminated hereunder, BISYS is replaced as fund accountant, or a third party is
added to perform all or a part of the services provided by BISYS under this
Agreement (excluding any Sub-Fund Accountant appointed as provided in Section 2
hereof), then the Trust shall make a one-time cash payment, in consideration of
the fee structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to the balance that would be due BISYS for its services
hereunder during the remainder of such eighteen-month period, assuming for
purposes of calculation of the payment that such balance shall be based upon the
average assets of the Trust and fees payable to BISYS monthly during the twelve
(12) months prior to the date that services terminate, BISYS is replaced or a
third party is added.
In the event the Trust or any Fund is merged into another legal entity
in part or in whole pursuant to any form of business reorganization (including
without limitation a purchase of assets) or is liquidated in part or in whole
prior to February 1, 2006, the parties acknowledge and agree that the liquidated
damages provision set forth above shall be applicable only in those instances in
which BISYS is not retained by the other party to such business reorganization
or any successor entity to provide fund accounting services consistent with this
Agreement, including the compensation provision payable hereunder. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
The parties further acknowledge and agree that, in the event services
are terminated, BISYS is replaced or a third party is added, 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. INDEMNIFICATION
Each Fund agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, whether groundless or otherwise, and from and
against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way relating to BISYS' actions taken or nonactions with respect
to the performance of services under this Agreement with respect to such Fund or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests with respect to such Fund given or made to BISYS by a
duly authorized representative of the Trust;
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provided, however, that BISYS shall not be protected in relying on any
information, records, instructions or requests given or made to or prepared by
BISYS or any affiliate of BISYS or any officer of the Trust that is an officer
or employee of BISYS or any affiliate of BISYS; and provided, further, that this
indemnification shall not apply to actions or omissions of BISYS in cases of its
own bad faith, willful misfeasance, negligence or from reckless disregard by it
of its obligations and duties, and further provided that prior to confessing any
claim against it which may be the subject of this indemnification, BISYS shall
give the Trust written notice of and reasonable opportunity to defend against
said claim in its own name or in the name of BISYS.
Notwithstanding the foregoing, BISYS agrees to indemnify and hold
harmless the Trust, its employees, agents, trustees, officers and nominees from
and against any and all actions, suits, demands and claims, whether groundless
or otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character arising out of or in any way relating to BISYS' bad faith,
willful malfeasance or misfeasance, negligence, or reckless disregard by it of
its obligations and duties with respect to the performance of services under
this Agreement.
The indemnifying party shall be entitled to participate at its own
expense or, if it acknowledges its responsibility to indemnify the other party,
it may elect to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the indemnifying party elects to assume
the defense of any such claim, the defense shall be conducted by counsel chosen
by the indemnifying party and satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party.
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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 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Any records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by BISYS on behalf of
the Trust shall be prepared and maintained at the expense of BISYS, but shall be
the property of the Trust and will be surrendered promptly to the Trust on
request, and made available for inspection by the Trust or by the Commission at
reasonable times. BISYS shall otherwise keep confidential all books and records
and other information relative to the Trust and its shareholders, except when
(i) disclosure is required by law, (ii) BISYS is advised by counsel that it may
incur liability for failure to make a disclosure unless (in cases involving
potential exposure to civil liability) the Trust has agreed to indemnify BISYS
against such liability, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, or (iv) BISYS is requested to
make a disclosure by the Trust. BISYS shall provide the Trust with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable.
9. ACTIVITIES OF BISYS
The services of BISYS rendered to the Trust hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Trust, and that BISYS may be or become interested in the Trust as a
shareholder or otherwise
10. REPORTS
BISYS shall 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. In the event that
errors or discrepancies, except such errors and discrepancies as may not
reasonably be expected to be discovered by the recipient after conducting a
diligent examination, are not so reported promptly, 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.
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11. RIGHTS OF OWNERSHIP
All computer programs and procedures employed or developed by or on
behalf of BISYS 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 shall 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 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 the time period required by applicable regulation.
At the end of such 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 AND WARRANTIES
The Trust represents and warrants that: (1) BISYS has been in, and
shall continue to be in compliance in all material respects with all provisions
of law applicable to BISYS in connection with the performance of its duties
under this Agreement, (2) as of the close of business on the effective date of
this Agreement, each Fund that is in existence as of the effective date has
authorized unlimited shares, and (3) 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.
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 reasonably
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.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF
ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE SERVICES OR ANY
GOODS PROVIDED
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INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT BY BISYS ARE COMPLETELY
DISCLAIMED.
14. INSURANCE
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled or reduced. Such notification shall include the
date of cancellation or reduction 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 should the total outstanding claims made by BISYS under its
insurance coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
15. INFORMATION FURNISHED BY THE TRUST
The Trust has furnished to BISYS, or will furnish upon request, the
following, as amended and current as of the effective date of this Agreement:
(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) Certified copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto; and
(ii) Resolutions of the Board of Trustees of the Trust
covering approval of this Agreement and authorization
for specified officers of the Trust to instruct BISYS
hereunder.
(c) A list of all officers of the Trust and any other persons (who
may be associated with the Trust or its investment adviser),
together with specimen signatures of those officers and other
persons, who are authorized to instruct BISYS in all matters.
(d) Two copies of the Prospectuses and Statement of Additional
Information of each Fund.
(e) A copy of the Trust's Valuation Procedures and any related
policies or procedures applicable to the services hereunder.
BISYS agrees to render its services hereunder in a manner
consistent with the Valuation Procedures.
The Trust will submit any material amendments to its Valuation
Procedures and related policies or procedures to BISYS for BISYS' review, and
any amendment that would have a
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material impact upon the services to be rendered by BISYS or the
responsibilities of BISYS shall be subject to approval by BISYS in good faith.
16. INFORMATION FURNISHED BY BISYS
BISYS has furnished to the Trust, or will furnish upon request,
evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
(b) Authorization of BISYS to act as fund accountant for the
Trust.
17. 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 15 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, which approval shall not
be unreasonably withheld.
18. LEGAL ADVICE; RELIANCE ON PROSPECTUS AND INSTRUCTIONS
BISYS may apply to the Trust at any time for instructions and may
consult with counsel for the Trust and with accountants and other experts with
respect to any matter arising in connection with BISYS' duties, and BISYS shall
not be liable nor accountable for any action taken or omitted by it in good
faith in accordance with such instruction or with the opinion of such counsel,
accountants or other experts. BISYS shall notify the Trust at any time BISYS
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS or any affiliated companies) with regard to BISYS'
responsibilities and duties pursuant to this Agreement. After so notifying the
Trust, BISYS, at its discretion, shall be entitled to seek, receive and act upon
advice of legal counsel of its choosing, such advice to be at the expense of the
Trust unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
As to the services to be provided hereunder, BISYS will comply with and
may rely conclusively upon the terms of the Prospectuses and Statement of
Additional Information of the Trust relating to the relevant Funds to the extent
that such services are described therein, as well as the minutes of Board
meetings (if applicable) and other records of the Trust unless BISYS receives
written instructions to the contrary in a timely manner from the Trust.
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. The
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Administrator will not be held to have notice of any change of authority of any
officers, employees or agents of the Trust until receipt of written notice
thereof from the Trust.
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 except that BISYS shall provide the Trust with
any information that it maintains about the Trust's shareholders that the Trust
is required to disclose in its Form N-1A registration statement. BISYS shall
have no obligation to take cognizance of any laws relating to the sale of the
Trust's shares.
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: if to the Trust, to c/o Shay Assets Management, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇; with a copy to the Trust at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; and
if to BISYS, to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; Attn: President,
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. 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. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
22. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A DELAWARE STATUTORY
TRUST
This Agreement shall be governed by and provisions shall be construed
in accordance with the laws of the State of Ohio and the applicable provisions
of the 1940 Act or the rules and regulations thereunder. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the 1940 Act shall control. It
is expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Board, and this Agreement has been signed and delivered by an authorized officer
of the Trust, acting as such, and neither such authorization by the Board nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Trust as provided in the Trust's
Declaration of Trust.
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23. INSTRUCTIONS, APPROVAL OR CONSENT BY THE TRUST; IMPUTATION
Any reference herein to any instructions, approval or consent of the
Trust shall not include any instructions, approvals or consents given by any
officer of the Trust that is an officer, employee or agent of BISYS or any
affiliate of BISYS, unless specifically authorized in an agreement executed by
the Trust, or otherwise by the Board of Trustees of the Trust.
24. PRIVACY
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS to perform its duties shall be considered
confidential information. BISYS shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of BISYS
except at the direction of the Trust or as required or permitted by law. BISYS
shall have in place and maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust. The Trust represents to BISYS that it
has adopted a Statement of its privacy policies and practices as required by the
Commission's Regulation S-P and agrees to provide BISYS with a copy of that
statement annually.
25. MISCELLANEOUS
Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
This Agreement constitutes the complete agreement of the parties hereto
as to the subject matter covered by this Agreement, and supercedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1999 Agreement.
This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of the Trust
(other than an officer or employee of BISYS) does not conflict with or violate
any requirements of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ASSET MANAGEMENT FUND
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
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SCHEDULE A
FUND ACCOUNTING AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
FUNDS
U.S. Government Fund
Intermediate Mortgage Fund
Short U.S. Government Fund
Ultra Short Fund
Adjustable Rate Mortgage (ARM) Fund
Money Market Fund
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