EXHIBIT (h)(8)
FORM OF
SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
DATED AS OF JULY 1, 2004
BETWEEN BOK INVESTMENT ADVISERS, INC.
AND
BISYS FUND SERVICES OHIO, INC.
AMENDED AND RESTATED AS OF JANUARY 20, 2006
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
Institutional U.S. Treasury Fund
Cash Management Fund
Institutional Cash Management Fund
Institutional Tax-Free Money Market Fund*
Intermediate Tax-Free Bond Fund
Short-Term Income Fund
Intermediate Bond Fund
Bond Fund
Balanced Fund
U.S. Tax-Efficient Large Cap Equity Fund
Growth Equity Fund
U.S. Tax-Efficient Small Cap Equity Fund
U.S. Large Cap Equity Fund(1)
U.S. Mid Cap Equity Fund(1)
U.S. Small Cap Equity Fund(1)
U.S. Tax-Efficient Mid Cap Equity Fund(1)
(collectively, the "Portfolios").
ASSET-BASED SUB-ADMINISTRATION FEE:
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(1) As of January 20, 2006 these Funds have not commenced operations. Until
each such Fund commences operations, services will not be rendered and
expenses will not be incurred under this Agreement.
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-Free
Money Market Fund.
* Notwithstanding the foregoing, the Sub-Administrator's fee for the
Institutional Tax-Free 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-Free Money Market Fund,
certain charges and expenses shall be subject to allocation as set forth in
the 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 terminaton 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.
IN WITNESS WHEREOF, the parties hereto have caused this amended and
restated Schedule A to be fully executed as January 20, 2006.
BOK INVESTMENT ADVISERS, INC. BISYS FUND SERVICES OHIO, INC.
By: By:
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Title: Title:
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AGREED AND ACKNOWLEDGED:
AMERICAN PERFORMANCE FUNDS
By:
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Title:
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