EXHIBIT (h)(4)
FORM OF SUB-ADMINISTRATION AGREEMENT.
FORM OF
SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of July 1, 2004 by and between BOK INVESTMENT
ADVISERS, INC., an Oklahoma corporation (the "Administrator"), and BISYS Fund
Services Ohio, Inc., an Ohio corporation (the "Sub-Administrator" or "BISYS").
WHEREAS, American Performance Funds, a Massachusetts business trust (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");
WHEREAS, the Trust has entered into an Agreement under which the
Administrator acts as the administrator of the Trust dated July 1, 2004 (the
"Administration Agreement"); and
WHEREAS, the Administrator desires to retain the Sub-Administrator to
provide, and the Sub-Administrator is willing to provide, management and
administrative services to such series of the Trust as the Administrator and the
Sub-Administrator may agree on ("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 Administrator and the Sub-Administrator hereby agree
as follows:
ARTICLE 1. Retention of the Sub-Administrator. The Administrator hereby
retains the Sub-Administrator to act as the Sub-Administrator of the Portfolios
and to furnish the Portfolios with the management and administrative services as
set forth in Article 2 below. The Sub-Administrator hereby accepts such
employment to perform the duties set forth below.
The Sub-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 Administrator or the
Portfolios in any way and shall not be deemed an agent of the Trust.
ARTICLE 2. Administrative Services. The Sub-Administrator shall perform or
supervise the performance by others of certain administrative services in
connection with the operations of the Portfolios, and, on behalf of the
Administrator, 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 Sub-Administrator shall provide the Trustees of the
Trust (the "Board") 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. At
the request of the Board, the Sub-Administrator shall make reports to the Board
concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing subject to the oversight
of the Administrator, the Sub-Administrator shall:
i. Calculate contractual Trust expenses and make and control
all disbursements for the Trust, subject to review and
approval of an authorized person (designated on the list of
authorized persons approved by the Board), including
administration of trustee and vendor fees and compensation
on behalf of the Trust; and compute the Trust's yields,
total return, expense ratios, portfolio turnover rate, and
if required, average dollar-weighted maturity, as
appropriate;
ii. Assist Trust counsel with the preparation of prospectuses,
statements of additional information, registration
statements and proxy materials;
iii. Prepare such reports, applications and documents (including
reports regarding the sale and redemption of shares in the
Trust as may be required in order to comply with Federal and
state securities laws) as may be necessary or desirable to
register the Shares with state securities authorities,
monitor the sale of 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 Shares and all amendments
thereto, as may be necessary or convenient to register and
keep effective the registration of the Trust and the Shares
with state securities authorities to enable the Trust to
make a continuous offering of its Shares;
iv. Coordinate and prepare, with the assistance and approval of
the Trust's investment adviser, counsel, officers and
independent auditors, drafts of communications to
shareholders of record of the Trust ("Shareholders"),
including the annual report to Shareholders; the semi-annual
report to Shareholders; prepare and file the final certified
versions thereof on Form N-CSR; prepare and file the Trust's
Form N-SAR; and file all required notices pursuant to Rule
24f-2;
v. Coordinate the distribution of prospectuses, supplements,
proxy materials and reports to Shareholders; and coordinate
the solicitation and tabulation of proxies in connection
with the meeting of Shareholders, if held;
vi. Coordinate with the transfer agent with respect to the
payment of dividends and other distributions to
Shareholders;
vii. Calculate performance data of the Portfolios for
dissemination to no more than fifteen (15) information
services covering the investment company industry;
viii. Prepare and file the Trust's tax returns;
ix. Assist with the layout and printing of prospectuses and
assist with and coordinate layout and printing of the
Portfolios semi-annual and annual reports to Shareholders;
x. Assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives,
policies and structure, and provide consultation related to
legal and regulatory aspects of the establishment,
maintenance, and liquidation or dissolution of Portfolios;
xi. Make available individuals reasonably acceptable to the
Trust's Board of Trustees to serve as officers of the Trust
in ministerial or administrative capacities relevant to
Sub-Administrator's services and those of its affiliates,
except as otherwise provided in this Agreement, and subject
to the provisions of Schedule B (Supplemental Provisions)
and the BISYS Policies referred to therein;
xii. Assist in obtaining and maintaining fidelity bonds and
directors and officers/errors and omissions insurance
policies for the Trust in accordance with Rules 17g-1 and
17d-1 under this 1940 Act at the expense (except as
otherwise provided in the Agreement) of the Administrator or
the Trust and file the fidelity bonds and any notices with
the SEC as required under the 1940 Act, to the extent such
bonds and policies are approved by the Board;
xiii. Monitor and advise the Trust and its Portfolios on the
regulated investment company status of the Trust under the
Internal Revenue Code of 1986, as amended. In connection
with the foregoing, prepare and send quarterly reminder
letters related to such status, and prepare quarterly
compliance checklist for use by investment adviser(s) if
requested;
xiv. Maintain corporate records for the Trust including, but not
limited to, minute books, the Declarations of Trust and
By-Laws of the Trust;
xv. Assist in developing portfolio compliance procedures for
each Portfolio, and provide daily and periodic compliance
monitoring services incorporating certain of those
procedures, which will include, among other matters,
compliance with investment restrictions imposed by the 1940
Act, each Portfolio's investment objective, defined
investment policies and restrictions, tax diversification,
distribution and income requirements, and applicable laws
and regulations, provided such are determinable based upon
the Portfolio's accounting records;
xvi. Coordinate the implementation of service arrangements
covered by Shareholder Service Plans adopted by the Board
with the financial institutions that serve, or propose to
serve, as shareholder services agents thereunder
("Shareholder Service Agents"); review the qualifications of
Shareholder Service Agents to serve as such under the
relevant Shareholder Service Plan;
report to the Board regarding amounts paid under Shareholder
Service Agreements and the nature of Services provided by
the Shareholder Service Agents thereunder; and maintain
appropriate records in connection with the foregoing;
xvii. Provide assistance and guidance to the Administrator with
respect to matters governed by or related to regulatory
requirements and developments including: monitoring
regulatory and legislative developments which may affect the
Trust and assisting in strategic planning in response
thereto; assisting the Administrator and providing on-site
personnel in responding to and providing documents for
routine regulatory examinations or investigations; and
coordinating with and taking instructions from counsel to
the Trust pertaining to the Trust in response to such
routine or non-routine regulatory matters;
xviii. Assist the Administrator in preparing for Board meetings by
(i) coordinating Board book production and distribution,
(ii) assisting in the preparation of Board agendas, (iii)
preparing the relevant sections of the Board materials
required to be prepared by BISYS, (iv) assisting in the
gathering and coordinating of special materials related to
annual contract renewals and approval of Rule 12b-1 plans,
for and as directed by the Trustees or fund counsel, and
related matters, (v) attending Board meetings, and (vi)
performing such other Board meeting functions as shall be
agreed by the parties in writing;
xix. Furnish advice and recommendations with respect to other
aspects of the business and affairs of the Portfolios as the
Administrator shall request and the parties shall agree in
writing;
xx. Assist in filing of the Portfolio's voting records (as
approved by the investment adviser) on Form N-PX;
xxi. File holdings reports on Form N-Q as required at the end of
the first and third fiscal quarters of each year;
xxii. Prepare quarterly brokerage allocation compliance checklist
and supporting documentation for use by investment
adviser(s), as requested;
xxiii. Oversee/coordinate payment of Trustee compensation;
xxiv. Review proxy statements prepared by Trust counsel;
xxv. Prepare and file, with the assistance of the Trust's
counsel, amendments to the Declaration of Trust as
necessary;
xxvi. Prepare, with the assistance of the Trust's counsel,
amendments to the By-Laws;
xxvii. Prepare and file, with the assistance of the Trust's
counsel, Form MT-1 for Massachusetts Business Trust;
xxviii. Prepare and maintain Trust policies and procedures; and
xxix. Provide, when necessary, consultation in relation to certain
other matters, including establishment of seed capital
accounts, establishment of foreign custody accounts, foreign
tax reclaim matters, and class action lawsuits.
The Sub-Administrator shall perform such other services for the
Administrator that are mutually agreed upon in writing by the parties from time
to time.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Sub-Administrator. The Sub-Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Sub-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 Sub-Administrator or any affiliated corporation of the
Sub-Administrator; provided, however, that unless otherwise specifically
provided, the Sub-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 or the Administrator. The Sub-Administrator shall have no
obligation to pay any other expenses of the Trust not otherwise specified
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 Sub-Administrator or any
affiliated corporation of the Sub-Administrator, 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 Sub-Administrator.
(A) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by the Sub-Administrator pursuant to this
Agreement, the Administrator shall pay to the Sub-Administrator compensation at
an annual rate specified in Schedule A attached hereto. Such compensation shall
be calculated and accrued daily, and paid to the Sub-Administrator monthly. The
Administrator shall also reimburse the Sub-Administrator for its
out-of-pocket expenses, including, but not limited to, the travel and lodging
expenses incurred by officers and employees of the Sub-Administrator required or
invited to attend, in connection with their 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 Sub-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 Sub-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 Sub-Administrator. 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 the
Sub-Administrator 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. (As used in this Article 5, the term
"Sub-Administrator" shall include directors, officers, employees and other
agents of the Sub-Administrator as well as the Sub-Administrator itself.)
The Sub-Administrator may apply to the Administrator 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 Sub-Administrator's duties, and the Sub-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 Sub-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 Sub-Administrator will not be held to have
notice of any change of authority of the Administrator or of any officers,
employees or agents of the Trust until receipt of written notice thereof from
the Administrator.
ARTICLE 6. Activities of the Sub-Administrator. The services of the
Sub-Administrator rendered to the Administrator are not to be deemed to be
exclusive. The Sub-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 Administrator are or may be or
become interested in the Sub-Administrator, as officers, employees or otherwise
and that partners, officers and employees of the Sub-Administrator and its
counsel are or may be or
become similarly interested in the Administrator, and that the Sub-Administrator
may be or become interested in the Administrator 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 Sub-Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Sub-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 Sub-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. Indemnification. 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,
and from and against any and all judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses (including reasonable investigation
expenses) of every nature and character (collectively, "Losses") arising out of
or in any way relating to the Sub-Administrator's actions taken or omissions
with respect to the performance of services under this Agreement or based, if
applicable, upon reasonable reliance on information, records, instructions or
requests given or made to the Sub-Administrator by the Administrator, the Trust,
or the investment adviser, fund accountant, or custodian of the Trust; 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 reckless disregard by it of its obligations and duties.
The Sub-Administrator shall indemnify, defend, and hold the Administrator
harmless from and against any and all Losses resulting directly and proximately
from BISYS' willful misfeasance, bad faith or negligence in the performance of
its duties, or by reason of reckless disregard of its obligations and duties
hereunder.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited, provided that any such advanced expenses shall be reimbursed by the
indemnified party if an ultimate determination is made that indemnification is
not merited under the circumstances. If in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to notify the indemnifying party promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the indemnifying party, but failure to do so
in good faith shall not affect the rights hereunder except to the extent the
indemnifying party is materially prejudiced thereby. As to any matter eligible
for indemnification, an indemnified party shall act reasonably and in accordance
with good faith business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent shall not
be unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
ARTICLE 11. Certain Records. The Sub-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
Sub-Administrator on behalf of the Administrator shall be prepared and
maintained at the expense of the Sub-Administrator, but shall be the property of
the Administrator and will be made available to or surrendered promptly to the
Administrator on request.
In case of any request or demand for the inspection of such records by
another party, the Sub-Administrator shall notify the Administrator and follow
the Administrator's instructions as to permitting or refusing such inspection;
provided that the Sub-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 Administrator has agreed to indemnify the Sub-Administrator
against such liability.
ARTICLE 12. 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 13. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the other party
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000 or at the last address furnished in writing by the other party to the
party giving notice pursuant to this Article.
ARTICLE 14. 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 assets of the Trust, 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 15. 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 16. Privacy. Nonpublic personal financial information relating to
consumers or customers of the Trust provided by, or at the direction of the
Administrator or the Administrator to the Sub-Administrator, or collected or
retained by Sub-Administrator to perform its duties as Sub-Administrator shall
be considered confidential information. Sub-Administrator shall not give, sell
or in any way transfer such confidential information to any person or entity,
other than affiliates of Sub-Administrator except at the direction of the Trust
or the 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 of the Trust. The Administrator represents to Sub-Administrator
that the trust has adopted a Statement of its privacy policies and practices as
required by Securities and Exchange Commission Regulation S-P and agrees to
provide Sub-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.
BOK INVESTMENT ADVISERS, INC.
By: __________________________
Title: _______________________
BISYS FUND SERVICES OHIO, INC.
By:___________________________
Title:________________________
AGREED AND ACKNOWLEDGED:
AMERICAN PERFORMANCE FUNDS
By: _______________________________
Title: ____________________________
SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
DATED AS OF JULY 1, 2004
BETWEEN BOK INVESTMENT ADVISERS, INC.
AND
BISYS FUND SERVICES OHIO, 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:
Equity Fund
Small Cap Equity Fund
Balanced Fund
Growth Equity Fund
Bond Fund
Intermediate Bond Fund
Intermediate Tax-Free Bond Fund
Short-Term Income Fund
U.S. Treasury Fund
Cash Management Fund
Institutional Cash Management Fund
Institutional U.S. Treasury Fund
Institutional Tax-Exempt Money Market Fund*
(collectively, the "Portfolios").
ASSET-BASED SUB-ADMINISTRATION FEE:
Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Administrator will
pay the Sub-Administrator on the first business day of each month,
or at such time(s) as the Sub-Administrator shall request and the
parties hereto shall agree, a fee computed daily at the annual rate
of:
Three one-hundredths of one percent (.03%) of each Portfolio's
average daily net assets except for the Institutional
Tax-Exempt Money Market Fund.
*Notwithstanding the foregoing, the Sub-Administrator's fee
for the Institutional Tax-Exempt Money Market Fund, shall be
governed by that certain Omnibus Fee Agreement between the
Trust and BISYS, dated as
of the date hereof. In addition, for the Institutional
Tax-Exempt Money Market Fund, certain charges and expenses
shall be subject to allocation as set forth in Omnibus Fee
Agreement.
MISCELLANEOUS FEES:
BISYS shall be paid $12,000 annually by the Trust for providing an
individual to serve as the Trust's Anti-Money Laundering Reporting
Officer. The twelve thousand dollar ($12,000) annual fee shall be
waived by BISYS as long as the Compliance Services Agreement between
the Trust and BISYS remains in effect.
GENERAL:
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. In the event of a termination of this Agreement in
accordance with its terms 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
Sub-Administrator, the value of the net assets of a particular
Portfolio 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 Portfolio 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 Portfolio.
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 Sub-Administrator may agree, from time to time, to waive any
fees payable under this Agreement. Such waiver shall be at the
Sub-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 for five (5) years, 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 only (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 and may be provided by either the
Administrator or the Trust. Notwithstanding anything in this
Agreement, this Agreement will terminate immediately upon the
termination of the Administration Agreement.
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 Sub-Administrator, with the written consent of the
Administrator, 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
Sub-Administrator and unpaid by the Administrator upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. The Sub-Administrator shall be
entitled to collect from the Administrator, in addition to the
compensation described in this Schedule A, the amount of all of the
Sub-Administrator's cash disbursements for services in connection
with the Sub-Administrator's activities in effecting such
termination, including without limitation, the delivery to the
Administrator and/or its designees of the Administrator's property,
records, instruments and documents, or any copies thereof.
Subsequent to such termination, for a reasonable fee, the
Sub-Administrator will provide the Administrator with reasonable
access to any documents or records remaining in its possession.
During the Initial Term, if for any reason other than non-renewal,
mutual agreement of the parties or "cause," as defined above, the
Sub-Administrator is terminated or replaced as Sub-Administrator, or
if a third party is added to perform all or a part of the
administrative services provided by the Sub-Administrator under this
Agreement (excluding any sub-contractors appointed by the
Sub-Administrator as provided in Article 8 hereof), then the
Administrator shall make a one-time cash payment, as liquidated
damages, to the Sub-Administrator equal to the balance due the
Sub-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 the fees that would be earned by Sub-Administrator shall be
based
upon the average net asset values of the Trust and fees payable to
BISYS monthly during the twelve (12) months prior to the date that
services terminate, BISYS is replaced or a third party is added;
provided, however, that, in the event the Sub-Administrator is
terminated or replaced or a third party is added to perform services
at any time after June 30, 2009, the Administrator shall not be
required to make a liquidated damages payment.
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 Sub-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
Sub-Administrator ceases to be retained, as set forth above, (i) a
determination of actual damages incurred by the Sub-Administrator
would be extremely difficult, and (ii) the liquidated damages
provision contained herein is intended to adequately compensate the
Sub-Administrator for damages incurred and is not intended to
constitute any form of penalty.
SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
DATED AS OF JULY 1, 2004
BETWEEN BOK INVESTMENT ADVISERS, INC.
AND
BISYS FUND SERVICES OHIO, INC.
SUPPLEMENTAL SERVICE PROVISIONS
1. PROVISION OF CERTIFYING OFFICER(S).
Subject to the provisions of this Section 1 and Section 3 below, BISYS shall
make BISYS employees available to the Trust to serve, upon designation as such
by the Board, as the Principal Executive Officer and Chief Financial Officer of
the Trust or under such other title to perform similar functions, and which are
each a Certifying Officer under Xxxxxxxx-Xxxxx. BISYS' obligation in this regard
shall be met by providing appropriately qualified employees of BISYS (or its
affiliates) who, in the exercise of his or her duties to the Trust, shall act in
good faith and in a manner reasonably believed by him or her to be in the best
interests of the Trust. BISYS shall select, and may replace, each specific
employee that it makes available to serve in the designated capacity as a
Certifying Officer, in BISYS' reasonable discretion, taking into account such
person's responsibilities concerning, and familiarity with, the Trust's
operations.
For so long as BISYS provides a Certifying Officer, the Trust's disclosure
and control procedures, (the "Trust DCPs") shall contain (or the Trust and BISYS
shall otherwise establish) mutually agreeable procedures governing the
certification of Reports by Certifying Officers, and the parties shall comply
with such procedures in all material respects. Among other things, the
procedures shall provide as follows:
i. The Trust shall establish and maintain a Disclosure Controls
and Procedures Committee (the "DCP Committee") to evaluate the
Trust DCPs in accordance with Rule 30a-3 under the 1940 Act.
The DCP Committee shall include (at a minimum) the Trust's
Principal Executive Officer, Chief Financial Officer, and
Chief Legal Officer (if any) and such other individuals as may
be necessary or appropriate to enable the DCP Committee to
ensure the cooperation of, and to oversee, each of the Trust's
agents that records, processes, summarizes, or reports
information contained in Reports (or any information from
which such information is derived), including the Funds' Other
Providers.
ii. The Trust shall require (a) Service Providers to provide
sub-certifications on internal controls, upon which the
Certifying Officers may rely in certifying Reports, in form
and content reasonably acceptable to the Certifying Officers
and consistent with Xxxxxxxx-Xxxxx, and (b) that such
sub-certifications are delivered to the DCP Committee and the
Certifying
Officers sufficiently in advance of the DCP Committee meeting
described in (iii) below.
iii. The DCP Committee shall (a) establish a schedule to ensure
that all required disclosures in any Report, including the
financial statements, are identified and prepared in a
timeframe sufficient for it to review such disclosures, (b)
meet prior to the filing date of each Report to review the
accuracy and completeness of the relevant Report, and (c)
record its considerations and conclusions in a written
memorandum sufficient for it to adequately to support
conclusions pertaining to Trust DCPs as required by Item 9 of
Form N-CSR or other Report. In conducting its review and
evaluations, the DCP Committee shall:
a. review SAS 70 reports pertaining to BISYS and
other service providers to the Trust, ("Service
Providers"), if applicable, or in the absence of
any such reports, consider the adequacy of the
sub-certifications supplied by the Service
Providers;
b. consider whether there are any significant
deficiencies or material weaknesses in the design
or operation of the Trust DCPs or internal
controls over financial reporting that could
adversely affect the Trust's ability to record,
process, summarize, and report financial
information, and in the event that any such
weaknesses or deficiencies are identified,
disclose them to the Trust's Certifying Officers,
audit committee, and auditors;
c. consider whether, to the knowledge of any member
of the DCP Committee, there has been or may have
been any fraud, whether or not material, and, if
so, disclose the facts and circumstances thereof
to the Certifying Officers, and the Trust's audit
committee and auditors; and
d. determine whether there was any change in internal
controls over financial reporting that occurred
during the Trust's most recent fiscal half-year
that has materially affected or is reasonably
likely to materially affect, the Trust's internal
control over financial reporting.
A Certifying Officer shall have the full discretion to decline to certify a
particular Report that fails to meet the standards set forth in the
certification, and to report matters involving fraud or other failures to meet
the standards of applicable law to the audit committee of the Board.
The Trust shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under Xxxxxxxx-Xxxxx.
Without limitation of the foregoing, except
for those obligations which are expressly delegated to or assumed by BISYS in
this Agreement, the Trust shall maintain responsibility for, and shall support
and facilitate the role of each Certifying Officer and the DCP Committee in,
designing and maintaining the Trust's DCPs in accordance with applicable laws.
2. AML COMPLIANCE OFFICER.
It is understood that the Trust is a financial institution subject to the law
entitled Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of 2001 and
the Bank Secrecy Act (collectively, the "AML Acts"), and is required to comply
with the AML Acts and applicable regulations thereunder (collectively, the
"Applicable AML Laws").
Subject to the provisions of this Section 2 and Section 3 below of this
Schedule B, BISYS agrees to make available to the Trust a person to serve as the
Trust's anti-money laundering compliance officer ("AML Compliance Officer").
BISYS' obligation in this regard shall be met by providing an appropriately
qualified employee or agent of BISYS (or its affiliates) who, in the exercise of
his or her duties to the Trust, shall act in good faith and in a manner
reasonably believed by him or her to be in the best interests of the Trust.
Subject to the relevant terms of the transfer agency or other services agreement
under which BISYS provides certain anti-money laundering services to the Trust,
the AML Compliance Officer will assist the Trust in operating the written
anti-money laundering program adopted by the Board of the Trust and provided to
BISYS (the "AML Program"), and shall perform the duties assigned to the AML
Compliance Officer which are set forth in the AML Program.
The obligations of BISYS set forth in this Section shall terminate
automatically upon any termination of the transfer agency agreement under which
BISYS provides transfer agency services to the Trust.
3. ADDITIONAL PROVISIONS CONCERNING EXECUTIVE OFFICERS.
It is mutually agreed and acknowledged by the parties that the Certifying
Officers and the AML Compliance Officer contemplated under the provisions of
this Section 3 of this Agreement will be executive officers of the Trust
("Executive Officers"). In addition, the parties agree that the provisions of
Sections 1 - 2 are subject to the internal policies of BISYS concerning the
activities of its employees and their service as officers of funds (the "BISYS
Policies"), a copy of which shall be provided to the Trust upon request. The
Trust's governing documents (including its Agreement and Declaration of Trust
and By-Laws) and/or resolutions of its Board shall contain mandatory
indemnification provisions that are applicable to each Executive Officer, that
are designed and intended to have the effect of fully indemnifying him or her
and holding him or her harmless with respect to any claims, liabilities and
costs arising out of or relating to his or her service in good faith in a manner
reasonably believed to be in the best interests of the Trust, except to the
extent he or she would otherwise be liable to the Trust by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
The Trust shall provide coverage to each Executive Officer under its
directors and officers liability policy that is appropriate to the Executive
Officer's role and title, and consistent with coverage applicable to the other
officers holding positions of executive management.
In appropriate circumstances, each Executive Officer shall have the
discretion to resign from his or her position, in the event that he or she
reasonably determines that there has been or is likely to be (a) a material
deviation from the BISYS Policies, (b) an ongoing pattern of conduct involving
the continuous or repeated violation of Applicable AML Laws or Applicable
Securities Laws, or (c) a material deviation by the Trust from the terms of this
Agreement governing the services of such Executive Officer that is not caused by
such Executive Officer or BISYS. In addition, each Executive Officer shall have
reasonable discretion to resign from his or her position in the event that he or
she determines that he or she has not received sufficient cooperation from the
Trust or its Other Providers to make an informed determination regarding any of
the matters listed above.
Each Executive Officer may, and the Trust shall, promptly notify BISYS of any
issue, matter or event that would be reasonably likely to result in any claim by
the Trust, one or more Trust shareholder(s) or any third party which involves an
allegation that any Executive Officer failed to exercise his or her obligations
to the Trust in a manner consistent with applicable laws (including but not
limited to any claim that a Report failed to meet the standards of
Xxxxxxxx-Xxxxx and other applicable laws).
Notwithstanding any other agreement or instrument that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Trust complies with Applicable
AML Laws or the Applicable Securities Laws, and (b) whenever an employee or
agent of BISYS serves as an Executive Officer of the Trust, as long as such
Executive Officer acts in good faith and in a manner reasonably believed to be
in the best interests of the Trust (and would not otherwise be liable to the
Trust by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office), the Trust
shall indemnify the Executive Officer and BISYS and hold the Executive Officer
and BISYS harmless from any loss, liability, expenses (including reasonable
attorneys fees) and damages incurred by them arising out of or related to the
service of such employee or agent of BISYS as an Executive Officer of the Trust.
