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Exhibit (h)(8)
SUB-ADMINISTRATION AGREEMENT
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AGREEMENT made this 15th day of September, 1999, between BISYS FUND
SERVICES OHIO, INC. (the "Administrator"), an Ohio corporation 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 an Administration
Agreement, dated September 15, 1999 (the "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, the fund
accountant under its Fund Accounting Agreement, and
the investment adviser for the Funds under its
Investment Advisory 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. 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 the Sub-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 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 any person reasonably believed by the Sub-Administrator to
be 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. The Sub-Administrator agrees
to indemnify and hold harmless the 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 bad faith, willful misfeasance, negligence
or from reckless disregard by it of its obligations and duties, with respect to
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performance of services under this Agreement, and further provided that prior to
confessing any claim against it which may be the subject of this
indemnification, the Administrator shall give the Sub-Administrator written
notice of and reasonable opportunity to defend against said claim in its own
name or in the name of the 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 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
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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.
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 Ohio, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Title: SVP
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Date: September 15, 1999
Bank of Oklahoma, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Title: V.P. & Product Manager
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Date: September 15, 1999
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SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND BANK OF OKLAHOMA, N.A.
DATED SEPTEMBER 15, 1999
NAME OF FUND
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American Performance U.S. Treasury Fund
American Performance Cash Management Fund
American Performance Bond Fund
American Performance Intermediate Bond Fund
American Performance Short-Term Income Fund
American Performance Intermediate Tax-Free Bond Fund
American Performance Equity Fund
American Performance Balanced Fund
American Performance Growth Equity Fund
American Performance Small Cap Equity Fund
BISYS Fund Services Ohio, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Title: SVP
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Date: September 15, 1999
Bank of Oklahoma, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Title: V.P. & Product Manager
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Date: September 15, 1999
