EXHIBIT 23 (h)(2)(b)
AMENDMENT TO
FUND ACCOUNTING AGREEMENT
This Amendment is made as of January 1, 2005, between XXXXXX XXXXXXXXX
TRUST (the "Trust"), and BISYS FUND SERVICES, OHIO, INC. ("BISYS"). The parties
hereby amend the Fund Accounting Agreement between the Trust and BISYS dated as
of January 1, 2003 (the "Agreement"), as set forth below.
WHEREAS, the parties hereto wish to extend the term of the Agreement and
make certain other changes to the Agreement; and
WHEREAS, the parties hereto wish to clarify the provisions of the Agreement
governing the calculations of net asset value by BISYS on behalf of the Trust.
NOW THEREFORE, in consideration of the foregoing and the mutual premises
and covenants herein set forth, the parties agree as follows:
1. Capitalized terms not otherwise defined herein shall have the same
meaning as in the Agreement.
2. Section 6 to the Agreement entitled "Term" shall be amended by
replacing the first paragraph of the Section with the following:
This Agreement shall become effective as of the date first
written above and shall continue in effect until December 31,
2005 (the "Initial Term"). In addition, this Agreement may be
terminated by mutual agreement of the parties or immediately for
"cause", as defined below.
3. The remaining provisions of Section 6 shall be construed as if set
forth at length in this Amendment as applicable to the "Initial Term"
as defined in this Amendment.
4. The following changes are made in order to update and amend provisions
governing the calculation of net asset value and related provisions:
(a) The specific sections or sub-sections of the Agreement pertaining to
the services of BISYS which involve calculating the net asset value per share
and obtaining pricing information for portfolio securities are amended to
reflect the following terms:
(i) BISYS will calculate the net asset value per share ("NAV") of each
class of shares offered by each Fund in accordance with the relevant
provisions of the applicable Prospectus of each Fund and applicable
regulations under the 1940 Act;
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(ii) In each calculation of NAV, BISYS will apply securities pricing
information as required or authorized under the terms of the valuation
policies and procedures of the Trust ("Valuation Procedures"),
including (A) pricing information from independent pricing services
("Independent Pricing Services"), with respect to securities for which
market quotations are readily available (including, for this purpose,
matrix prices as determined by such pricing services); or (B) values
supplied in accordance with the Valuation Procedures by a committee
("Pricing Committee") established pursuant to the Valuation
Procedures;
(iii) In the event that the Trust amends its Valuation Procedures to
provide that valuation methods for a particular Fund or Funds, shall
include fair value pricing information or adjustment factors obtained
from independent fair value pricing services approved by the Trust
(collectively, "Fair Value Information Vendors"), BISYS shall
calculate the NAV using such fair value pricing information or
adjustment factors obtained from Fair Value Information Vendors. In
such event, BISYS will coordinate the preparation of reports that are
prepared or provided by Fair Value Information Vendors that have a
group arrangement with BISYS, which assist the Trust with its
monitoring and evaluation its use of such Fair Value Information
Vendors under the Trust's Valuation Procedures. The services to be
rendered by BISYS under this section 4 (iii) and Section 4(b) are
referred to as the "Fair Value Support Services".
(b) Consistent with the terms of the Agreement, in connection with the
services provided in 4(a) above, BISYS will keep and maintain the books and
records that are required to be kept and maintained under Rule 31a-1 or other
applicable regulations under the 1940 Act, including (i) those identified in
4(a)(ii)(A) - (C) above, as applicable; and (ii) fair value prices and/or
adjustment factors provided by Fair Value Information Vendors approved by the
Trust; and (iii) market prices for securities that are valued in accordance with
fair value determinations made by the Pricing Committee.
(c) The Trust hereby instructs and authorizes BISYS to provide to Fair
Value Information Vendors, if any, approved by the Trust such information
pertaining to any Fund or Funds as may be reasonably necessary for any such
vendor to service the Trust or, in the case of a Fair Value Information Vendor
that has a group arrangement with BISYS, to provide such information pertaining
to any Fund or Funds as may be reasonably necessary for BISYS to provide any
Fair Value Support Service contemplated hereunder.
The Trust understands and acknowledges that while BISYS' Fair Value Support
Services (if applicable) contemplated hereunder are intended to assist the Trust
and its Board in carrying out their responsibilities under the Valuation
Procedures in connection with the Trust's use of fair value pricing information
or adjustment factors obtained from Fair Value Information Vendors that have a
group relationship with BISYS, BISYS does not assume responsibility for the
accuracy or appropriateness of pricing information or methodologies (whether
from Independent Pricing Services, the Pricing Committee or otherwise),
including, without limitation, any fair value pricing information or adjustment
factors provided by any such Fair Value Information Vendors The Trust retains
its overall responsibility to ensure that the Trust's Valuation Procedures (i)
set forth policies and procedures with respect to the use of Fair Valuation
Information Vendors (including the monitoring of the services and fair value
prices/adjustment factors provided by any such vendors); (ii) set forth criteria
for determining when market quotations are no longer reliable for a particular
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portfolio security; (iii) provide appropriate guidance with respect to the
methodology or methodologies by which the current fair value of any security
held by a Fund or Funds is determined , and (iv) regularly review the
appropriateness and accuracy of the method used in valuing securities and make
any necessary adjustments.
(d) The Trust represents, warrants and covenants that in accordance with
the Trust's Valuation Procedures, the Trust has approved, or shall approve, each
Independent Pricing Vendor. Additionally, the use of any Fair Value Information
Vendor shall be similarly approved before any fair value prices/adjustment
factors provided by Fair Value Information Vendor is used by BISYS in rendering
fund accounting services, including for this purpose, the Fair Value Support
Services hereunder.
(e) The Trust has furnished BISYS with a copy of the Trust's Valuation
Procedures and any related policies or procedures applicable to the services
hereunder, and BISYS agrees to render its services hereunder in a manner
consistent with the Valuation Procedures and such related policies or
procedures, including but not limited to the "second source pricing" methodology
set forth in the Valuation Procedures) as specified in the Valuation Procedures
and as they may be amended from time to time, provided that the Trust will
submit any material amendments to its Valuation Procedures and such related
policies or procedures to BISYS for BISYS' review, and any amendment that would
have a material impact upon the services to be rendered by BISYS or the
responsibilities of BISYS shall be subject to approval by BISYS in good faith,
including but not limited to the approval of any Fair Value Information Vendor,
the provision of Fair Valuation Support Services by BISYS and the approval of
Independent Pricing Services.
5. Each reference to the Omnibus Fee Agreement (in Section 2 or
otherwise) in the Agreement shall be construed as referencing the new
Omnibus Fee Agreement, dated January 1, 2005.
6. This Amendment may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together shall
constitute one and the same instrument.
7. Except as specifically set forth herein, all other provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
THE XXXXXX XXXXXXXXX TRUST
By: ________________________
Title:______________________
BISYS FUND SERVICES OHIO, INC.
By: ________________________
Title:______________________
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