Exhibit (h)(6)
FORM OF
TRADE PROCESSING AGREEMENT
This Agreement is entered into as of October ___, 2003 by and among
AMERICAN PERFORMANCE FUNDS (the "Trust"), a Massachusetts business trust, and
BANK OF OKLAHOMA, N.A. ("Fiduciary"), a national banking association, 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.")
WHEREAS, the Trust is a registered management investment company;
WHEREAS, Fiduciary provides administrative services comprised of, but not
limited to, recordkeeping, reporting and processing services (the
"Administrative Services") to accounts for which it is a named fiduciary,
including, but not limited to trust and custody accounts and qualified employee
benefit plans (the "Accounts"), and Administrative Services for each Account
include processing and transfer arrangements for the investment and reinvestment
of Account assets in investment media pursuant to the provisions of the
Account's governing document in one or more omnibus accounts maintained by the
Fiduciary with the Funds; and
WHEREAS, the Trust desires that Fiduciary accept orders for the purchase,
exchange and redemption of shares of the Funds (the "Shares") by the Accounts,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. PERFORMANCE OF SERVICES. Fiduciary agrees to perform the administrative
services and functions with respect to Shares owned by Accounts.
2. PRICING INFORMATION. The Trust or its designee will furnish Fiduciary,
subject to availability, on each business day that the New York Stock Exchange
is open for business ("Business Day"), with the following information ("Price
Information"): (i) net asset value information for each Fund as of the close of
regular trading (currently 4:00 p.m. Eastern Time) on the New York Stock
Exchange or at such other times at which a Fund's net asset value is calculated
as specified in such Fund's prospectus (the "Close of Trading"); and (ii)
dividend and capital gains information for each Fund as it becomes available.
The Trust or its designee shall provide the Price Information, subject to
availability, to Fiduciary by 7:00 p.m. Eastern Time on the same Business Day.
The Trust may, in its discretion, cause the Trust's transfer agent or other
designee to provide the Price Information directly to Fiduciary.
3. ORDERS; DISTRIBUTIONS. Fiduciary, as limited agent of the Trust, shall
accept from the Accounts orders for the purchase, exchange or redemption of
Shares of the Funds ("Orders") and shall transmit such Orders to the Trust or
its designee. Fiduciary agrees that Orders derived from instructions received in
proper form by Fiduciary prior to the Close of Trading on any given Business Day
shall be processed that same evening and transmitted to the Trust or its
designee by 7:00 a.m. Eastern Time on the next Business Day. Fiduciary agrees
that payment for net purchases of Shares attributable to all orders executed for
the Accounts shall be wired by Fiduciary or its designee to a custodial account
designated by the Trust no later than 6:00 p.m. Eastern Time on the Business Day
following the Business Day that instructions in proper form are received and
processed by Fiduciary. The Business Day on which instructions are received in
proper form by Fiduciary by the Close of Trading will be the date as of which
Shares will be purchased and redeemed as a result of such instructions.
Instructions received in proper form by Fiduciary after the Close of Trading on
any given Business Day shall be treated as if received on the next following
Business Day. At the Trust's instruction, Fiduciary will provide such
instructions directly to the Trust's transfer agent.
4. MAINTENANCE OF RECORDS. Each party or its designee shall maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Services and in making Shares available to the
Accounts.
5. RELATIONSHIP OF PARTIES. Except to the extent specifically provided
herein, it is understood and agreed that all Services performed hereunder by
Fiduciary shall be as a limited agent and independent contractor and not as an
employee or general agent of the Trust, and none of the parties shall hold
itself out as an agent of any other party with the authority to bind such party.
6. TERMINATION. This Agreement shall terminate,
(a) at the option of the Trust or Fiduciary upon 60 days' advance
written notice to the other parties hereto; or
(b) in the event of a material breach that has not been cured within
10 days following a written notice of breach to the breaching
party.
7. INDEMNIFICATION. Fiduciary agrees to indemnify and hold harmless the
Trust and each of its trustees, officers, employees, agents and each person, if
any, who controls them within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), against any losses, claims, damages, liabilities
or expenses to which an indemnitee may become subject insofar as those losses,
claims, damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon (i) any orders that are not timely transmitted by
Fiduciary in accordance with Section 3 of this Agreement; (ii) Fiduciary's
negligence or willful misconduct in performing the Services; (iii) any breach by
Fiduciary of any material representation, warranty or covenant made in this
Agreement; or (iv) any requests that are submitted by duly authorized
representatives of Fiduciary on behalf of Accounts for transaction adjustments
(including, but not limited to, the pricing of net purchases or net redemptions
of Shares on an "as
of" basis). Fiduciary 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.
8. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party
represents that (a) it is free to enter into this Agreement and that by doing so
it will not breach or otherwise impair any other agreement or understanding with
any other person, corporation or other entity and (b) it has full power and
authority under applicable law, and has taken all action necessary, to enter
into and perform this Agreement. Fiduciary further represents, warrants and
covenants that:
(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.
9. NOTICE. Each notice required by this Agreement shall be given in writing
and delivered personally or mailed by certified mail or courier service to the
other parties at the following addresses or such other addresses that may be
furnished:
If to the Trust:
American Performance Funds
0000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000-0000
If to Fiduciary to:
Bank of Oklahoma, N.A.
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Attention:
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A notice given pursuant to this Section 9 shall be deemed given immediately when
delivered personally, three days after the date of certified mailing, or one day
after delivery by courier service.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
11. GENERAL PROVISIONS. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations, promises,
statements, arrangements, agreements, warranties and understandings between the
parties with respect to the subject matter hereof, whether oral or written,
express or implied. This Agreement may be modified or amended, and the terms of
this Agreement may be waived, only by writing signed by each of the parties.
This Agreement shall not be assigned by either party hereto, without the prior
written consent of the other party hereto. The provisions of Section 4 and 7
shall survive termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of this _____ day of October, 2003.
AMERICAN PERFORMANCE FUNDS
By: ___________________________
Title: ________________________
BANK OF OKLAHOMA, N.A.
By: ___________________________
Title: ________________________
