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Exhibit 9(f)
SUB-ADMINISTRATION AGREEMENT
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AGREEMENT made this 25th day of July, 1997, between BISYS FUND SERVICES
LIMITED PARTNERSHIP, d/b/a BISYS Fund Services (the "Administrator"), a
partnership organized under the laws of the State of Ohio and having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, and BANK
OF OKLAHOMA, N.A., or its successors and assigns, (the "Sub-Administrator"), a
national bank with its principal office at Xxx Xxxxxxxx Xxxxxx, Xxxxx, XX 00000.
WHEREAS, the Administrator has entered into a Management and
Administration Agreement, dated September 5, 1990, as amended and restated on
May 12, 1995 (the "Management and Administration Agreement"), with the American
Performance Funds (the "Trust"), a Massachusetts business trust having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, concerning
the provision of management and administrative services for the investment
portfolios of the Trust identified on Schedule A hereto, as such Schedule shall
be amended from time to time (individually referred to herein as a "Fund" and
collectively as the "Funds"); and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
assist it in performing administrative services with respect to each Fund and
the Sub-Administrator 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 Sub-Administrator. As provided herein, the
Sub-Administrator will perform the following duties:
(i) assist the Administrator in the supervision of all aspects of
the operations of the Funds except those performed by the
distributor for the Funds under its Distribution Agreement,
the transfer agent for the Funds under its Transfer Agency
Agreement and the fund accountant under its Fund Accounting
Agreement;
(ii) serve as on-site liaison between the Trust and its Tulsa,
Oklahoma-based service providers;
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(iii) furnish statistical and research data;
(iv) assist the Administrator in the preparation of compliance
filings pursuant to state securities laws with the advice of
the Trust's counsel and coordinate with the transfer agent to
monitor the sale of the Funds' shares;
(v) assist the Administrator to the extent requested by the
Administrator in the preparation, mailing, and filing of the
Trust's Annual and Semi-Annual Reports to Shareholders and its
Registration Statements;
(vi) assist the Administrator in the preparation of Proxy
Statements and related documents with the advice of Trust's
counsel and coordinate the distribution of such documents; and
(vii) provide Trustee Board meeting support, including the
preparation of documents related thereto.
2. Compensation; Reimbursement of Expenses. The Administrator shall pay
the Sub-Administrator for the services provided under this Agreement a fee with
respect to each Fund calculated at the annual rate of five one-hundredths of one
percent (.05%) of such Fund's average daily net assets. The fee payable
hereunder shall be calculated and paid on a monthly basis. The fee for the
period from the day of the month this Agreement is entered into until the end of
that month shall be prorated according to the proportion which such period bears
to the full monthly period. Upon any termination of this Agreement before the
end of any month, the fee for such part of a month shall be prorated according
to the proportion which such period bears to the full monthly period and shall
be payable upon the date of termination of this Agreement.
For the purpose of determining fees payable to Administrator, the value
of the net assets of a particular Fund shall be computed in the manner described
in the Trust's Agreement and Declaration of Trust or in the prospectus or
Statement of Additional Information respecting the Fund as from time to time in
effect for the computation of the value of such net assets in connection with
the determination of the liquidating value of the shares of such Fund.
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3. Effective Date. This Agreement shall become effective with respect
to a Fund as of the date first written above (or, if a particular Fund is not in
existence on that date, on the date specified in the amendment to Schedule A to
this Agreement relating to such Fund or, if no date is specified, the date on
which such amendment is executed) (the "Effective Date").
4. Term. This Agreement shall continue in effect with respect to a Fund
for such time as the Management and Administration Agreement shall be in effect
with respect to such Fund.
5. Standard of Care; Reliance on Records and Instructions;
Indemnification. The Sub-Administrator shall use its best efforts to insure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Administrator or the Trust for any action taken or omitted by the
Sub-Administrator in the absence of bad faith, willful misfeasance, negligence
or from reckless disregard by it of its obligations and duties. The
Administrator agrees to indemnify and hold harmless the Sub-Administrator, 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,
counsel fees and other expenses of every nature and character arising out of or
in any way relating to the Sub-Administrator's actions taken or nonactions with
respect to the performance of services under this Agreement with respect to a
Fund or based, if applicable, upon reasonable reliance on information, records,
instructions or requests with respect to such Fund given or made to the
Sub-Administrator by a duly authorized representative of the Administrator;
provided that this indemnification shall not apply to actions or omissions of
the Sub-Administrator 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, the Sub-Administrator shall give the
Administrator written notice of and reasonable opportunity to defend against
said claim in its own name or in the name of the Sub-Administrator.
6. Record Retention and Confidentiality. The Sub-Administrator shall
keep and maintain on behalf of the Trust all books and records which the Trust
and the Sub- Administrator are, or may be, required to keep and maintain in
connection with the services to be provided hereunder pursuant to any applicable
statutes, rules and regulations, including without limitation Rules 31a-1 and
31a-2 under the 1940 Act. The Sub-Administrator further
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agrees that all such books and records shall be the property of the Trust and to
make such books and records available for inspection by the Trust, by the
Administrator, 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.
7. Uncontrollable Events. The Sub-Administrator 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.
8. Rights of Ownership. All computer programs and procedures developed
to perform the services to be provided by the Sub-Administrator under this
Agreement are the property of the Sub-Administrator. 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 Administrator
and/or the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason.
9. Return of Records. The Sub-Administrator may at its option at any
time, and shall promptly upon the demand of the Administrator and/or the Trust,
turn over to the Administrator and/or the Trust and cease to retain the
Sub-Administrator's files, records and documents created and maintained by the
Sub-Administrator pursuant to this Agreement which are no longer needed by the
Sub-Administrator in the performance of its services or for its legal
protection. If not so turned over to the Administrator and/or the Trust, such
documents and records will be retained by the Sub-Administrator 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 Administrator and/or the Trust unless the
Trust authorizes in writing the destruction of such records and documents.
10. Notices. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the Administrator at the following
address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, and to the Sub-Administrator at
the following address: Xxx Xxxxxxxx Xxxxxx, Xxxxx, XX 00000, or at such other
address as either party may from time to time specify in writing to the other
party pursuant to this Section.
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11. Headings. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
12. 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 and with the specific
written consent of the Trust.
13. Governing Law. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
BISYS FUND SERVICES LIMITED
PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Sr. Vice President
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Date: July 18, 1997
BANK OF OKLAHOMA, N.A.
By: /s/ X. X. Xxxxxxxx
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Title: Executive Vice President
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Dated: July 18, 1997
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