Exhibit (h)(4)
SUB-ADMINISTRATION AGREEMENT
AGREEMENT, made this 1st day of January, 2002 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, (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 January 1, 2002 (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 in 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
covered by the Administration Agreement and 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 Fund 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 the
Tulsa, Oklahoma-based service providers;
(iii) furnish statistical and research data;
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(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 Statement;
(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 net asset value of each Fund shall be computed in the
same manner as in the Administration Agreement.
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.
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5. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION. The duties of the Sub-Administrator shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against it hereunder. The Sub-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. Any officer, director, employee or agent of
the Sub-Administrator who is or who becomes an officer, Trustee, employee or
agent of the Trust shall be deemed, when engaged in rendering the Services
hereunder in such capacity, to be rendering services directly to or for the
Trust, and shall not be deemed to be acting as an officer, director, employee or
agent or one under the control or direction of Administrator.
So long as the Sub-Administrator acts in good faith and
with due diligence and without negligence, BISYS shall indemnify the
Sub-Administrator and hold it harmless from and against any and all actions,
suits and claims, whether groundless or otherwise, and from and against any and
all losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
arising directly or indirectly out of the Sub-Administrator's actions taken or
nonactions with respect to the performance of services hereunder; provided,
however, that Administrator's obligation under the foregoing indemnity and hold
harmless shall apply only to the extent that Administrator is in fact fully
indemnified and held harmless by the Trust, under the Administration Agreement,
for any and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) incurred by Administrator (including, without
limitation, any indemnification amounts payable to the Sub-Administrator), and
any payments of indemnity shall be due only if, as and when such amounts payable
to the Sub-Administrator by Administrator under this paragraph are in fact
received by Administrator from the Trust.
The Sub-Administrator shall indemnify Administrator and hold
it harmless from and against any and all actions, suits and claims, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) arising directly
or indirectly out of the Sub-Administrator's appointment as sub-administrator,
and any actions taken by or omissions of the Sub-Administrator hereunder
involving its negligence, willful misfeasance or reckless disregard of its
obligations under this Agreement.
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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 time 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-conditioned authorities or court process.
7. UNCONTROLLABLE EVENTS. The Sub-Administrator assumes no
responsibility hereunder, and shall not be liable, for any damage, lost 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 b 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, Attn: President, and
to the Sub-Administrator at the following address:
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Xxx Xxxxxxxx Xxxxxx, Xxxxx, XX 00000, Attn: __________, 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.
14. CONFIDENTIALITY/ PRIVACY. The Sub-Administrator agrees on
behalf of itself and its employees to treat confidentially and as the
proprietary information of the Trust, all records and other information relative
to the Trust and prior, present or potential shareholders, and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except, after prior notification to and
approval in writing by Administrator or the Trust, which approval shall not be
unreasonably withheld.
The Sub-Administrator acknowledges that 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 Funds shall be
considered confidential information. Sub-Administrator Service Trust shall not
give, sell or in any way transfer such confidential information to any person or
entity, except at the direction of Administrator or as required or permitted by
law. Sub-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 or customers of the Trust. The
Sub-Administrator acknowledges receipt of the Trust's Statement of its privacy
policies and practices as required by Securities and Exchange Commission
Regulation S-P.
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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/ Xxxx Xxxxxxx
----------------
Title: Executive Vice President
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Vice President
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SCHEDULE A
TO THE
SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND
BANK OF OKLAHOMA, N.A.
NAME OF FUND
------------
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
