TRADE PROCESSING AGREEMENT
Exhibit (h)(12)
This Agreement is entered into as of October 31, 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:
If to Fiduciary to:
Bank of Oklahoma, N.A.
Bank Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Bank Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
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 the date first written above.
| AMERICAN PERFORMANCE FUNDS |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Title: President | ||||
| BANK OF OKLAHOMA, N.A. |
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| By: | /s/ J. Xxxxx Xxxxxxxxx | |||
| Title: President | ||||
