Exhibit 99(h)(2)
AMENDMENT TO
MASTER SERVICES AGREEMENT
AMENDMENT made as of the 30th day of September, 2005 between GIANT 5
FUNDS TRUST COMPANY (the "Trust"), a Delaware business trust having a principal
place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 and BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation
having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000, to that certain Master Services Agreement dated September 30, 2005 by and
between BISYS and the Trust (as in effect on the date hereof, the "Agreement").
WHEREAS, pursuant to the Agreement, BISYS provides administration, fund
accounting and transfer agency services for each of the investment portfolios of
the Trust (collectively, the "Funds");
WHEREAS, the Trust desires that as of September 30, 2005 (the
"Effective Date") that BISYS Fund Services, Inc. ("BFI") becomes the non-bank
trustee/custodian to the XXX Accounts of the Funds (as such term is defined in
Section 2 below), and that BISYS provide certain retirement plan custodial
services for the XXX Accounts of the Funds; and
WHEREAS, BISYS is willing to perform the services enumerated in this
Amendment on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Trust and BISYS hereby agree as follows:
1. RETENTION OF BISYS.
The Trust hereby appoints BISYS Fund Services, Inc. ("BFI"), an
affiliate of BISYS, as the non-bank trustee/custodian to the XXX Accounts of the
Funds, and retains BISYS to provide the non-bank trustee/custodian services as
set forth in Section 2 below, with such appointment and retention to be
effective as of the Effective Date. BISYS and the Trust hereby agree that
commencing on the Effective Date, BISYS will perform such services upon the
terms set forth in the Agreement, as modified by this Amendment, including the
Schedule hereto.
2. TRUSTEE/CUSTODIAN SERVICES.
(i) BFI has obtained a non-bank Trustee/Custodian Notice of Approval
letter from the Treasury Department, Internal Revenue Service, dated December
31, 2003. BFI, together with BISYS, has the knowledge and capabilities to act as
a passive non-bank trustee/custodian of Traditional XXX, Xxxx XXX, Xxxxxxxxx
Education Savings, SIMPLE XXX, and 403(b)(7) accounts offered by the Funds for
which BISYS acts as transfer agent (collectively,
"XXX Accounts"). BISYS has the knowledge and capabilities to perform the
services undertaken by BISYS under Schedule A to this Amendment.
(ii) BISYS agrees that effective as of the Effective Date, BFI shall
act as a non-bank trustee/custodian for the XXX Accounts, and BISYS shall
perform the services undertaken by BISYS under Schedule A attached hereto, but
only so long as (x) BISYS continues to act as transfer agent to the Funds and
retains all legal qualifications to act as such, (y) BFI retains all legal
qualifications to act as non-bank trustee/custodian, and (z) BFI has not
resigned as non-bank trustee/custodian to the XXX Accounts after transmitting
written notice of resignation as non-bank trustee/custodian to the XXX Account
Holders in accordance with all XXX Account plan agreements. In its capacity as
non-bank trustee/custodian, BFI will act only as a passive non-bank trustee
(within the meaning of Section 1.408-2(e)(6)(i)(A) of the IRS regulations), and
neither BISYS nor BFI will have any discretion to direct investments within any
of the XXX Accounts.
(iii) In the event that BFI ceases to act as non-bank
trustee/custodian, whether due to loss of legal qualifications or otherwise, but
BISYS continues to act as transfer agent, in which event it performs
sub-custodial services on behalf of another qualified retirement custodian,
BISYS shall no longer be entitled to the entire share of the Custodial Fees (as
hereinafter defined and set forth in Section 3 below), but shall be entitled to
a proportionate share of the Custodial Fees taking into account the period of
time during such year that BFI was the non-bank trustee/custodian for the XXX
Accounts and further taking into account the services (for which the parties
acknowledge an appropriate allocation of a minimum of $13.00 per XXX Account
(whether open or closed, and for all plan or account types)) that BISYS
continues to perform with respect to the XXX Accounts pursuant to Schedule A
hereto.
(iv) In the event that BFI ceases to act as non-bank trustee/custodian
whether due to loss of legal qualifications or otherwise, and BISYS ceases to
act as transfer agent, BISYS shall be entitled to a proportionate share of the
Custodial Fees based on the portion of the year for which BFI and BISYS provide
trustee/custodian and transfer agent services, respectively.
(v) BISYS and BFI shall have the right to review and comment upon the
plan agreements and other documentation relating to or affecting its services
hereunder, and shall have no liability for any modifications made thereto
without their express written consent. BISYS and BFI may rely upon the most
recent versions of the plan agreement and such other documentation provided to
them, and shall render services hereunder in a manner consistent with the terms
of such plan agreement and such other documentation.
(vi) In relation to the XXX Accounts, BISYS will perform the functions
described in Schedule A hereto, subject to the terms of the Agreement and this
Amendment.
3. FEES FOR TRUSTEE/CUSTODIAN SERVICES.
Commencing with the Effective Date, as compensation for service as
non-bank trustee/custodian and for providing the services set forth in Schedule
A hereto, BISYS and BFI shall collect and retain (in December of each year or
earlier, if collected due to the closing of an
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XXX Account or by reason of a holder of an XXX Account making an earlier
payment) from the XXX Accounts, all of the custodial fees ($15.00 per social
security number per year) (the "Custodial Fees") payable pursuant to the XXX
Account plan agreements and documentation. It is understood and agreed that in
the event any custodial fees payable by a holder of an XXX Account are waived by
the Trust or the Trust's adviser, such waiver shall not reduce the amount of the
Custodial Fees due to BISYS, and instead shall be payable by the Trust or its
adviser, as the case may be.
4. ADDITIONAL AMENDMENTS TO THE AGREEMENT.
(i) The Trust and BISYS hereby agree that the following references to
"BISYS" in the Agreement shall be deemed to refer to both "BISYS" and "BFI", as
the case may be:
(a) All references to "BISYS" in Sections 6, 7, and 8 of
the Agreement; and
(b) All references to "BISYS" in the first four
paragraphs of Section 9 and the first paragraph of
Section 10 of the Agreement. In addition, the Trust
and BISYS agree that the Trust's obligation to
indemnify BISYS and BFI pursuant to Section 10 shall
also include any Losses (as such term is defined
therein) resulting directly and proximately from
BFI's appointment as non-bank trustee/custodian.
(ii) The Trust agrees that it will provide BISYS and BFI with the
Funds' Declaration of Trust and any amendments thereto, the Funds' prospectuses
and all other forms commonly used with regard to transactions with holders of
the XXX Accounts (including, without limitation, the Custodial Plan Agreement
(the "Plan Agreement")), a copy of the resolutions of the Board of Trustees of
the Trust regarding the approval of this Amendment, the appointment of BFI as
non-bank trustee and custodian, and the authorization of a specified officer to
execute this Amendment (the foregoing hereinafter referred to collectively as
the "Fund Provided Documentation"). The Trust agrees that it will provide BISYS
and BFI with advance notice of any amendments to the Fund Provided Documentation
and that BISYS and BFI will not be responsible for changing or conforming any of
their services to any such amendments until the affected party has reviewed and
accepted responsibility for the relevant changes in services, which it may
reject in its sole and absolute discretion. BISYS and BFI may rely on any
amendments to or changes in any of the Fund Provided Documentation, and the
indemnification provisions in the Agreement shall be applicable to the relevant
party's reasonable reliance upon such amendments and/or changes. Although each
of BISYS and BFI and is authorized to rely on the above-mentioned amendments to
and changes in the Fund Provided Documentation, in the event the same relate to
BFI's designation as non-bank trustee and custodian and/or the services provided
by BISYS or BFI under this Amendment, the relevant party shall have no liability
for failure to comply with or take any action in conformity with such amendments
or changes except as agreed upon in writing.
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(iii) Nonpublic personal financial information relating to consumers or
customers of BISYS, BFI or the Trust provided by, or at the direction of the
Trust to BISYS or BFI, or collected or retained by BISYS or BFI in the course of
performing their respective duties with respect to the Accounts, shall be
considered confidential information. Neither BISYS nor BFI, shall give, sell or
in any way transfer such confidential information to any person or entity, other
than to affiliates of BISYS or BFI except at the direction of the Trust or as
required or permitted by law. BISYS shall have in place and shall 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 BISYS, BFI or the Trust. The Trust represents to BISYS and BFI that it has
adopted a Statement of its privacy policies and practices and agrees to provide
BISYS and BFI with a copy of that statement annually.
(iv) NOTWITHSTANDING ANYTHING IN THIS AMENDMENT OR THE AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL THE TRUST BISYS OR BFI, OR THEIR RESPECTIVE
AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES OR PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORSEEABLE OR WHETHER ANY OF THE PARTIES OR ANY ENTITIY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
5. REPRESENTATIONS.
(i) The Trust represents that it has full power and authority to enter
into and perform this Amendment; that it will promptly notify BISYS in the event
that the Trust is for any reason unable to perform any of its obligations under
this Amendment; that this Amendment has been presented to the Board of Trustees
for the Funds and has been approved by such Board of Trustees; and that BISYS
has been presented with a copy of the resolution approving same.
(ii) BISYS represents that it has full power and authority to enter
into and perform this Amendment. BISYS further represents that it will promptly
notify the Trust in the event that BISYS is for any reason unable to perform any
of its obligations pursuant to this Amendment.
(iii) EXCEPT AS EXPRESSLY PROVIDED IN THIS AMENDMENT, ALL
REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) CONCERNING THE SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES
PROVIDED UNDER THIS AGREEMENT BY BISYS AND BFI ARE COMPLETELY DISCLAIMED.
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6. MISCELLANEOUS.
(i) This Amendment supplements and amends the Agreement. The provisions
set forth in this Amendment supersede all prior negotiations, understandings and
agreements bearing upon the subject matter covered herein, including any
conflicting provisions of the Agreement or any provisions of the Agreement that
directly cover or indirectly bear upon matters covered under this Amendment.
(ii) Each reference to the Agreement in the Agreement (as it existed
prior to this Amendment) and in every other agreement, contract or instrument to
which the parties are bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided in this Amendment,
the provisions of the Agreement remain in full force and effect (including,
without limitation, the term of the Agreement). No amendment or modification to
this Amendment shall be valid unless made in writing and executed by both
parties hereto.
(iii) Paragraph headings in this Amendment are included for convenience
only and are not to be used to construe or interpret this Amendment.
(iv) This Amendment may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall constitute one and
the same agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
GIANT 5 FUNDS TRUST COMPANY
By:
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Title:
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BISYS FUND SERVICES OHIO, INC.
By:
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Title:
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SCHEDULE A TO THE AMENDMENT TO THE TRANSFER AGENCY AGREEMENT
BETWEEN GIANT 5 FUNDS TRUST COMPANY, AND
BISYS FUND SERVICES OHIO, INC.
ADDITIONAL SERVICES RELATED TO XXX ACCOUNTS
BFI will act as the XXX custodian for the Funds' XXX Accounts, and BISYS will
perform the additional recordkeeping and administrative functions listed below
with respect to those accounts (in addition to any applicable services already
set forth in the Agreement).
1. Perform good order review by ERISA guidelines of documents required to
open new retirement accounts for fund shareholders. This includes
obtaining an executed retirement application by both the shareholder
and the custodian.
2. Perform good order review by ERISA guidelines and process transfers
specific to retirement accounts. These include transfers from prior
custodian or to successor custodians, direct rollovers from qualified
plans, and Xxxx conversions. This includes obtaining acceptance by an
authorized delegate of the successor custodian.
3. Perform annual population extraction, notification, ERISA good order
review, and processing of required mandatory distributions for
shareholders aged 70 1/2 or older.
4. Record the names of beneficiaries identified by the holder of the XXX
Account (the "Account Holder").
5. Calculate distributions, withdrawals, required withholding and other
payments to Account Holders.
6. Process contributions and distributions for Account Holders.
7. Collect close-out and/or custodial fees when retirement plan assets
are fully liquidated from accounts and disburse revenue in accordance
with prospectus, XXX disclosure, and/or XXX custodial agreement
language.
8. Collect custodial fees from Account Holders who elect prepayment and
disburse revenue in accordance with prospectus, XXX disclosure, and/or
XXX custodial agreement language.
9. Coordinate and execute the annual XXX custodial fee event to collect
fees from active retirement plan Account Holders via asset
liquidation. Disburse revenue in accordance with prospectus, XXX
disclosure, and/or XXX custodial agreement language.
10. Retain all ERISA required Account Holder documents in original form.
These documents will include IRS Form 0000-X, Xxxxx 0000-X, -XX, - XX,
-XX, -SEP, and 403(b)(7) plan agreements.
11. Tracking, production, and filing to Account Holders and government
entities of federal and state tax forms specific to retirement plan
accounts (i.e. Forms 1099-R and 5498).
12. Complete annual W4P federal withholding solicitation.
13. Maintain Form W-4P elections for federal and state withholding on
retirement plan distributions for each retirement plan shareholder and
perform withholding accordingly.
14. Respond to Account Holder written and verbal operational inquiries
related to their retirement accounts.
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