AMENDMENT AGREEMENT
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(The Bear Xxxxxxx Funds Administrative Services Agreement)
THIS AMENDMENT is made as of February 5, 2001 (the "Effective Date"), by
and between PFPC INC., a Massachusetts corporation ("PFPC") and The Bear
Xxxxxxx Funds, a Massachusetts business trust (the "Fund").
Recitals
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WHEREAS, the Fund is a registered investment company for which PFPC
provides administration and accounting services pursuant to an Administrative
Services Agreement, dated February 22, 1995, as amended to date (the "Original
Agreement").
WHEREAS, in addition to the services described in the Original Agreement,
the Fund desires that PFPC provide the Fund's service providers with Internet
access to certain fund portfolio data using PFPC DataStation ("DataStation"),
all in accordance with the terms of this Agreement; and
WHEREAS, the Fund and PFPC desire to amend the Original Agreement to
provide for such services and corresponding fees.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, PFPC and the Fund, intending to be legally bound hereby, agree as
follows.
1. Amendments to Original Agreement.
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(a) The Original Agreement is hereby amended to add a Section 23, which
shall read in full as follows:
"23. PFPC DataStation Access Services. PFPC shall provide to the
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Fund the DataStation Internet access services as set forth on Exhibit
B attached hereto and made a part hereof, as such Exhibit B may be
amended from time to time. Persons who are Fund "Authorized Persons"
to access DataStation are set forth on Exhibit C attached hereto and
made a part hereof, as such Exhibit C may be amended from time to
time."
(b) Exhibit B and Exhibit C are hereby added to the Original Agreement to
read in full as set forth in such Exhibits to this Agreement.
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2. Miscellaneous.
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(a) Except as specifically amended herein, and except as necessary to
conform to the intention of the parties hereinabove set forth, the Original
Agreement shall remain unaltered and in full force and effect and is hereby
ratified and confirmed. In the event of a conflict between the terms hereof and
the Original Agreement, as to the Internet services, this Agreement shall
control.
(b) This Agreement, together with its Exhibits, constitutes the complete
understanding and agreement of the parties with respect to the subject matter
hereof and supercedes all prior communications with respect thereto.
IN WITNESS WHEREOF, the parties hereto have set their hands by their duly
authorized representatives as of the year and date first above indicated.
THE BEAR XXXXXXX FUNDS
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
PFPC INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
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EXHIBIT B
DataStation Access Services
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THIS EXHIBIT B, dated as of February 5, 2001, is Exhibit B to the Administrative
Services Agreement dated February 22, 1995 as amended to date (the "Agreement")
between The Bear Xxxxxxx Funds (the "Fund") and PFPC Inc. ("PFPC"). This Exhibit
B shall supersede all previous forms of Exhibit B to the Agreement as of the
date hereof.
1. PFPC Services
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(a) Provide Internet access to PFPC DataStation ("DataStation") at
xxx.xxxxxxxxxxxxxxx.xxx (the "Site") for Fund portfolio data
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otherwise supplied by PFPC to Fund service providers via other
electronic and manual methods (the "Services"). Types of information
to be provided on the Site include: (i) data relating to portfolio
securities, (ii) general ledger balances, and (iii) net asset value-
related data (NAV and net asset, distribution and yield detail).
(b) Supply each of the Authorized Persons specified on Exhibit C as
permissible users of Datastation (the "Users") with a logon ID and
Password;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. Users will be able to modify
standard inquiries to develop user-defined inquiry tools; however,
PFPC will review computer costs for running user-defined inquiries
and may assess surcharges for those requiring excessive hardware
resources. In addition, costs for developing custom reports or
enhancements are not included in the fees set forth below and will
be negotiated and billed separately.
(d) Utilize a form of encryption that is generally available to the
public in the U.S. for standard Internet browsers and establish,
monitor and verify firewalls and other security features
(commercially reasonable for this type of information and these
types of users) and exercise commercially reasonable efforts to
attempt to maintain the security and integrity of the Site; and
(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service
interruptions.
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2. Duties of the Fund and the Users
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(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC
immediately in the event that a logon ID or password is lost, stolen
or if you have reason to believe that the logon ID and password are
being used by an unauthorized person.
3. Standard of Care; Limitations of Liability
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(a) Notwithstanding anything to the contrary contained in the Agreement or
this Exhibit B, PFPC shall be liable for direct damages incurred by
the Fund and which arising out of PFPC's failure to perform its duties
and obligations described in this Exhibit B to the extent such damages
constitute willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Exhibit B.
(b) The Fund acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC's
provision of Services is dependent upon the proper functioning of the
Internet and services provided by telecommunications carriers,
firewall providers, encryption system developers and others. The Fund
agrees that PFPC shall not be liable in any respect for the actions or
omissions of any third party wrongdoers (i.e., hackers not employed by
such party or its affiliates) or of any third parties involved in the
Services and shall not be liable in any respect for the selection of
any such third party, unless that selection constitutes a breach of
PFPC's standard of care above.
(c) Without limiting the generality of the foregoing or any other
provisions of this Exhibit B or the Agreement, PFPC shall not be
liable for delays or failures to perform any of the Services or errors
or loss of data occurring by reason of circumstances beyond such
party's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrections, war, riots or failure of the mails,
transportation, communication or power supply, functions or
malfunctions of the Internet or telecommunications services,
firewalls, encryption systems or security devices caused by any of the
above, or laws or regulations imposed after the date of this Exhibit.
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4. Fees for DataStation Services.
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As consideration for the performance by PFPC of the Services, the Fund will pay
the fees set forth below and any additional fees set forth in a separate fee
letter or work order as agreed between the parties from time to time:
Number of Portfolios Monthly Fee
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1-2 $250
3-5 $250 + $85 per portfolio over 2
6-10 $505 + $65 per portfolio over 5
11-15 $830 + $50 per portfolio over 10
16-20 $1,080 + $35 per portfolio over 15
over 20 $1,250 + $30 per portfolio over 20
5. Duration, Termination and Changes to Terms.
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(a) PFPC shall have the right at any time to review and propose changes to
the terms and fees described in this Agreement. Such changes will
become effective and bind the parties hereto after sixty (60) days
from the date PFPC notifies the Fund of such changes, unless the Fund
terminates this Agreement pursuant hereto or the parties agree
otherwise at such time.
(b) Either party may terminate this Agreement upon sixty (60) days prior
written notice to the other. Any outstanding fees must be paid before
this Agreement terminates.
6. Miscellaneous. In the event of a conflict between specific terms of this
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Exhibit B and the Agreement, this Exhibit B shall control as to the Internet
Services.
THE BEAR XXXXXXX FUNDS PFPC INC.
By:_______________________________ By:________________________________
Name: Name:
Title: Title:
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EvXHIBIT C
DataStation Authorized Persons
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THIS EXHIBIT C, dated as of February 5, 2001 is Exhibit C to the Administrative
Services Agreement dated February 22, 1995, as amended to date (the "Agreement")
between The Bear Xxxxxxx Funds (the "Fund") and PFPC Inc. ("PFPC"). This Exhibit
Cshall supersede all previous forms of Exhibit C to the Agreement as of the date
hereof.
The following individuals shall be Fund Authorized Persons to access PFPC
DataStation:
Name Company or Firm Signature
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THE BEAR XXXXXXX FUNDS PFPC INC.
By:_______________________________ By:_________________________
Name Name:
Title: Title:
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