ADMINISTRATION AGREEMENT
Exhibit (h)(1)
THIS AGREEMENT is made as of this 1st day of July, 2004 by and between AMERICAN PERFORMANCE
FUNDS, a Massachusetts business trust (the “Trust”), and BOK INVESTMENT ADVISERS, INC., an Oklahoma
corporation (the “Administrator”).
WHEREAS, the Trust is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the “1940 Act”), consisting of several series of shares
of beneficial interest (“Shares”); and
WHEREAS, the Trust desires the Administrator to provide, and the Administrator is willing to
provide, management and administrative services to such series of the Trust as the Trust and the
Administrator may agree (“Portfolios”) and as listed on Schedule A attached hereto and made a part
of this Agreement, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, the
Trust and the Administrator hereby agree as follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Trust hereby retains the Administrator to act
as the administrator of the Portfolios and to furnish the Portfolios with the management and
administrative services as set forth in Article 2 below. The Administrator hereby accepts such
employment to perform the duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an independent contractor
and, unless otherwise expressly provided or authorized, shall have no authority to act for or
represent the Trust in any way and shall not be deemed an agent of the Trust.
ARTICLE 2. ADMINISTRATIVE SERVICES. The Administrator shall perform or supervise the
performance by others of administrative services in connection with the operations of the
Portfolios, and, on behalf of the Trust, will investigate, assist in the selection of and conduct
relations with custodians, depositories, accountants, legal counsel, underwriters, brokers and
dealers, corporate fiduciaries, insurers, banks and persons in any other capacity deemed to be
necessary or desirable for the Portfolios’ operations. The Administrator shall provide the Trustees
of the Trust with such reports regarding investment performance as they may reasonably request but
shall have no responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
The Administrator shall provide the Trust with regulatory reporting, all necessary office
space, equipment, personnel, compensation and facilities (including facilities for Shareholders’
and Trustees’ meetings) for handling the affairs of the Portfolios and such other services as the
Administrator shall, from time to time, determine to be necessary to perform its obligations
under this Agreement. In addition, at the request of the Board of Trustees, the Administrator shall make
reports to the Trust’s Trustees concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Trust expenses and control all disbursements for the Trust, and
as appropriate, compute the Trust’s yields, total return, expense ratios, portfolio turnover rate
and, if required, Portfolio average dollar-weighted maturity;
(b) assist Trust counsel with the preparation of prospectuses, statements of additional
information, registration statements and proxy materials;
(c) prepare such reports, applications and documents (including reports regarding the
sale and redemption of Shares as may be required in order to comply with Federal and state
securities law) as may be necessary or desirable to register the Trust’s Shares with state
securities authorities, monitor the sale of Trust Shares for compliance with state securities laws,
and file with the appropriate state securities authorities the registration statements and reports
for the Trust and the Trust’s Shares and all amendments thereto, as may be necessary or convenient
to register and keep effective the Trust and the Trust’s Shares with state securities authorities
to enable the Trust to make a continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Trust’s investment adviser and
independent auditors, communications to Shareholders, including the semi-annual and annual reports
to Shareholders;
(e) supervise the Trust’s transfer agent with respect to the payment of dividends and
other distributions to Shareholders;
(f) calculate performance data of the Portfolios for dissemination to information
services covering the investment Trust industry;
(g) coordinate and supervise the preparation and filing of the Trust’s tax returns;
(h) examine and review the operations and performance of the various organizations
providing services to the Trust or any Portfolio of the Trust, including, without limitation, the
Trust’s investment adviser, distributor, custodian, fund accountant, transfer agent, outside legal
counsel and independent public accountants, and at the request of the Board of Trustees, report to
the Board on the performance of organizations;
(i) assist with the design, development, and operation of the Portfolios, including new
classes, investment objectives, policies and structure;
(j) provide individuals reasonably acceptable to the Trust’s Board of Trustees to serve
as officers of the Trust, who will be responsible for the management of certain of the Trust’s
affairs as determined by the Trust’s Board of Trustees;
(k) obtain and keep in effect fidelity bonds and directors and officers/errors and
omissions insurance policies for the Trust in accordance with the requirements of Rules 17g-1
and 17d-1(7) under the 1940 Act as such bonds and policies are approved by the Trust’s Board
of Trustees;
(l) monitor and advise the Trust and its Portfolios on their regulated investment company
status under the Internal Revenue Code of 1986, as amended;
(m) perform all administrative services and functions of the Trust and each Portfolio to
the extent administrative services and functions are not provided to the Trust or such Portfolio
pursuant to the Trust’s or such Portfolio’s investment advisory agreement, distribution agreement,
custodian agreement, transfer agent agreement and fund accounting agreement;
(n) furnish advice and recommendations with respect to other aspects of the business and
affairs of the Portfolios as the Trust and the Administrator shall determine desirable;
(o) prepare and file with the SEC the semi-annual report for the Trust on Form N-SAR and
all required notices pursuant to Rule 24f-2;
(p) assist in monitoring and developing compliance procedures for each Portfolio which
will include, among other matters, procedures to monitor compliance with each Portfolio’s
investment objective, policies, restrictions, tax matters and applicable laws and regulations;
(q) provide legal support to the Trust with respect to regulatory matters including:
monitoring regulatory and legislative developments which may affect the Trust and assisting in the
strategic response to such developments, assisting the Trust in routine regulatory examinations or
investigations of the Trust, and working closely with outside counsel to the Trust in response to
any litigation or non-routine regulatory matters; and
(r) assist the Trust in preparing for Board meetings by (i) coordinating board book
production and distribution, (ii) assisting in the preparation of Board agendas, (iii) attending
Board meetings, (iv) preparing the Administrator section of Board materials, (v) preparing Board
meeting materials, including but not limited to, materials relating to annual contract approvals
and 12b-1 plan approvals, as agreed upon by the parties, and (vi) such other Board meeting
functions that are agreed upon by the parties.
The Administrator shall perform such other services for the Trust that are mutually agreed
upon in writing by the parties from time to time.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own expense the executive,
supervisory and clerical personnel necessary to perform its obligations under this Agreement. The
Administrator shall also provide the items which it is obligated to provide under this Agreement,
and shall pay all compensation, if any, of officers and Trustees of the Trust who are affiliated
persons of the Administrator or any affiliated corporation of the Administrator; provided, however,
that unless otherwise specifically provided, the Administrator shall
not be obligated to pay the compensation of any employee of the Trust retained by the Trustees of the
Trust to perform services on behalf of the Trust.
(B) THE TRUST. The Trust assumes and shall pay or cause to be paid all other expenses of the
Trust not otherwise allocated herein, including, without limitation, organization costs, taxes,
expenses for legal and auditing services, the expenses of preparing (including typesetting),
printing and mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing Shareholders, all expenses incurred in connection
with issuing and redeeming Shares, the costs of custodial services, the cost of initial and ongoing
registration of the Shares under Federal and state securities laws, fees and out-of-pocket expenses
of Trustees who are not affiliated persons of the Administrator or the Investment Adviser to the
Trust or any affiliated corporation of the Administrator or the Investment Adviser, insurance,
interest, brokerage costs, litigation and other extraordinary or nonrecurring expenses, and all
fees and charges of investment advisers to the Trust.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION FEE. For the services to be rendered, the facilities furnished and the
expenses assumed by the Administrator pursuant to this Agreement, the Trust shall pay to the
Administrator compensation at an annual rate specified in Schedule A attached hereto. Such
compensation shall be calculated and accrued daily, and paid to the Administrator monthly. The
Trust shall also reimburse the Administrator for its out-of-pocket expenses, including, but not
limited to, the travel and lodging expenses incurred by officers and employees of the Administrator
that are also Trustees of the Trust in connection with attendance at Board meetings.
If this Agreement becomes effective subsequent to the first day of a month or terminates
before the last day of a month, the Administrator’s compensation for that part of the month in
which this Agreement is in effect shall be prorated in a manner consistent with the calculation of
the fees as set forth above. Payment of the Administrator’s compensation for the preceding month
shall be made promptly.
(B) SURVIVAL OF COMPENSATION RIGHTS. All rights of compensation under this Agreement for
services performed as of the termination date shall survive the termination of this Agreement.
ARTICLE 5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The duties of the Administrator shall
be confined to those expressly set forth herein, and no implied duties are assumed by or may be
asserted against the Administrator hereunder. The Administrator shall not be liable for any error
of judgment or mistake of law or for any loss arising out of any act or omission in carrying out
its duties hereunder, except a loss resulting from willful misfeasance, bad faith or negligence in
the performance of its duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of applicable law which cannot be
waived or modified hereby. (As used in this Article 5, the term “Administrator” shall include
directors, officers, employees and other agents of the Administrator as well as the Administrator
itself.)
The Administrator may apply to the Trust at any time for instructions and may consult counsel
for the Trust or its own counsel and with accountants and other experts with respect to any matter
arising in connection with the Administrator’s duties, and the Administrator shall not be liable or
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.
Also, the Administrator 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
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.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the Administrator rendered to the
Trust are not to be deemed to be exclusive. The Administrator is free to render such services to
others and to have other businesses and interests. It is understood that directors, officers,
employees and Shareholders of the Trust are or may be or become interested in the Administrator, as
officers, employees or otherwise and that partners, officers and employees of the Administrator and
its counsel are or may be or become similarly interested in the Trust, and that the Administrator
may be or become interested in the Trust as a Shareholder or otherwise.
ARTICLE 7. DURATION OF THIS AGREEMENT. The Term of this Agreement shall be as specified in
Schedule A hereto.
ARTICLE 8. ASSIGNMENT. This Agreement shall not be assignable by either party without the
written consent of the other party; provided, however, that the Administrator may, at its expense,
subcontract with any entity or person concerning the provision of the services contemplated
hereunder. The Administrator shall not, however, be relieved of any of its obligations under this
Agreement by the appointment of such subcontractor and provided further, that the Administrator
shall be responsible, to the extent provided in Article 5 hereof, for all acts of such
subcontractor as if such acts were its own. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
ARTICLE 9. AMENDMENTS. This Agreement may be amended by the parties hereto only if such
amendment is specifically approved (i) by the vote of a majority of the Trustees of the Trust, and
(ii) by the vote of a majority of the Trustees of the Trust who are not parties to this Agreement
or interested persons of any such party, cast in person at a Board of Trustees meeting called for
the purpose of voting on such approval.
ARTICLE 10. CERTAIN RECORDS. The Administrator shall maintain customary records in connection
with its duties as specified in this Agreement. 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 the
Administrator on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made available to or surrendered
promptly to the Trust on request.
In case of any request or demand for the inspection of such records by another party, the
Administrator shall notify the Trust and follow the Trust’s instructions as to permitting or
refusing such inspection; provided that the Administrator may exhibit such records to any person in
any case where it is advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Trust has agreed to indemnify
the Administrator against such liability.
ARTICLE 11. DEFINITIONS OF CERTAIN TERMS. The terms “interested person” and “affiliated
person,” when used in this Agreement, shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may be granted by the
Securities and Exchange Commission.
ARTICLE 12. NOTICE. Any notice required or permitted to be given by the Administrator to the
Trust shall be deemed sufficient if sent by registered or certified mail, postage prepaid,
addressed to the President of the Trust at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 unless the Trust
has provided to the Administrator written notice of a different address. Any notice required or
permitted to be given by the Trust to the Administrator shall be deemed sufficient if sent by
registered or certified mail, postage prepaid, addressed to the President of the Administrator at
Bank Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000 unless the Administrator has provided to the Trust
written notice of a different address.
ARTICLE 13. 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 Trust and its assets, 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.
ARTICLE 14. MULTIPLE ORIGINALS. This Agreement may be executed in two or more counterparts,
each of which when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
ARTICLE 15. PRIVACY. Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to Administrator, or collected
or retained by Administrator to perform its duties as administrator of the Trusts shall by
considered confidential information. Administrator shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of
Administrator except at the direction of the Trust or as required or permitted by law.
Administrator 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 of the Trust. The
Trust represents to Administrator that it has adopted a Statement of its privacy policies and
practices as required by Securities and Exchange Commission Regulation S-P and agrees to provide
Administrator with a copy of that statement annually.
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/ Xxxxxx X. Xxxxx | |||
| Title: President | ||||
| BOK INVESTMENT ADVISERS, INC. |
||||
| By: | /s/ J. Xxxxx Xxxxxxxxx | |||
| Title: President | ||||
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF JULY 1, 2004
BETWEEN AMERICAN PERFORMANCE FUNDS
AND
BOK INVESTMENT ADVISERS, INC.
DATED AS OF JULY 1, 2004
BETWEEN AMERICAN PERFORMANCE FUNDS
AND
BOK INVESTMENT ADVISERS, INC.
PORTFOLIOS: This Agreement shall apply to all Portfolios of the Trust either now or hereafter
created. The current portfolios of the Trust are set forth below:
U.S. Treasury Fund
|
Bond Fund | Equity Fund | ||
Cash Management Fund
|
Intermediate Bond Fund | Balanced Fund | ||
Institutional U.S. Treasury Fund
|
Intermediate Tax-Free Bond Fund | Growth Equity Fund | ||
Institutional Cash Management Fund
|
Short-Term Income Fund | Small Cap Equity Fund | ||
Institutional Tax-Free Money Market Fund |
(collectively, the “Portfolios”).
FEES: Pursuant to Article 4, in consideration of services rendered and expenses assumed
pursuant to this Agreement, the Trust will pay the Administrator on the first business day of each
month, or at such time(s) as the Administrator shall request and the parties hereto shall agree, a
fee computed daily at the annual rate of:
Twenty one-hundredths of one percent (.20%) of each Portfolio’s average daily net
assets.
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 purposes of determining the fees payable to the Administrator, the value of the net assets
of a particular Fund shall be computed in the manner described in the Trust’s Declaration of Trust
or in the Prospectus or Statement of Additional Information respecting that Fund as from time to
time is 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.
The parties hereby confirm that the fees payable hereunder shall be applied to each Portfolio
as a whole, and not to separate classes of shares within the Portfolios.
The fee payable by the Trust hereunder shall be allocated to each Portfolio based upon its pro
rata share of the total fee payable hereunder. Such fee as is attributable to each
Portfolio shall be a separate (and not joint or joint and several) obligation of each such
Portfolio. The Administrator may agree, from time to time, to waive any fees payable under
this Agreement. Such waiver shall be at the Administrator’s sole discretion.
TERM: Pursuant to Article 7, the term of this Agreement shall commence on July 1, 2004, and
shall remain in effect until June 30, 2009 (“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 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 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.
Notwithstanding the foregoing, after such termination for so long as the Administrator, 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 the Administrator and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination. The Administrator
shall be entitled to collect from the Trust, in addition to the compensation described in this
Schedule A, the amount of all of the Administrator’s cash disbursements for services in connection
with the Administrator’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, the
Administrator 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, the Administrator is replaced as administrator, or if a third party is added to
perform all or a part of the services provided by the Administrator under this Agreement (excluding
any sub-administrator appointed by the Administrator as provided in Article 8 hereof), then the
Trust shall make a one-time cash payment, as liquidated damages, to the
Administrator equal to the balance due the Administrator 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 the Administrator 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.
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 the Administrator is not
retained to provide administration 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 the Administrator ceases to be
retained, as set forth above, (i) a determination of actual damages incurred by the Administrator
would be extremely difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate the Administrator for damages incurred and is not intended to
constitute any form of penalty.
| AMERICAN PERFORMANCE FUNDS |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Title: President | ||||
| BOK INVESTMENT ADVISERS, INC. |
||||
| By: | /s/ J. Xxxxx Xxxxxxxxx | |||
| Title: President | ||||
