EXHIBIT (h)(i)
FORM OF ADMINISTRATION AGREEMENT.
FORM OF
ADMINISTRATION AGREEMENT
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: ________________________________
Title: President
BOK INVESTMENT ADVISERS, INC.
By: ________________________________
Title: President
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
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: ________________________________
Title: President
BOK INVESTMENT ADVISERS, INC.
By: ________________________________
Title: President
