Exhibit 23(h)(3)(c)
SECOND AMENDMENT TO
FUND ACCOUNTING AGREEMENT
AMENDMENT made as of the 20th day of June, 2007, between THE EMPIRE
BUILDER TAX FREE BOND FUND, (the "Trust"), a Massachusetts business trust having
its place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and BISYS
FUND SERVICES OHIO, INC. ("BISYS"), having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, to that certain Fund Accounting
Agreement, dated October 1, 1996, between the Trust and BISYS FUND SERVICES,
INC. ("BFS"), which was amended on January 1, 2000 (the "First Amendment," and
the Agreement, as amended and in effect on the date hereof, the "Agreement").
All capitalized terms used but not defined herein shall have the meanings given
to them in the Agreement.
WHEREAS, the Agreement and the First Amendment erroneously provide that
BFS is a party to the Agreement (rather than BISYS);
WHEREAS, pursuant to the Agreement, BISYS (and not BFS) performs certain
fund accounting services for the Trust with respect the series' of the Trust
(the "Funds," and each individually, a "Fund");
WHEREAS, BISYS and the Trust desire to amend and modify certain terms of
the Agreement as set forth herein, and to ratify the Agreement and the First
Amendment by acknowledging BISYS as the correct party to the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter contained and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Trust and BISYS hereby agree as
follows:
1. Amendments.
(a) Section 6 of the Agreement, shall be amended by deleting the first two
sentences of the first paragraph in their entirety and replacing them with the
following:
"The initial term of this Agreement shall be for a period commencing
on January 1, 2008 and ending on December 31, 2008. Unless otherwise
terminated under the terms of this Agreement, this Agreement shall
be renewed automatically for successive one-year terms unless
written notice not to renew is given by the non-renewing party to
the other party at least 60 days prior to the expiration of the
then-current term. Notwithstanding the foregoing, this Agreement may
be terminated by either party upon the provision of one hundred
eighty (180) days' advance written notice, from the Board of
Trustees of the Trust, or from BISYS, respectively. Following any
termination of this Agreement as set forth in this Section 6, for so
long as Fund Accountant, with the written consent of the Trust, 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."
(b) Section 20 of the Agreement shall be deleted in its entirety and
replaced with the following:
"Any notice provided hereunder shall be sufficiently given when sent
by registered or certified mail to the party required to be served
with such notice at the following address, or at such other address
as such party may from time to time specify in writing to the other
party pursuant to this Section 20, if to the Trust, at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and if to BISYS, at BISYS Fund
Services Ohio, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attn:
President, with a copy to The BISYS Group, Inc., 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx, XX 00000, Attn: General Counsel."
(c) BISYS and the Trust acknowledge that the Agreement and the First
Amendment erroneously provide that BFS (rather than BISYS) is a party to the
Agreement, and acknowledge that all services provided to the Trust pursuant to
the Agreement have been and continue to be provided by BISYS. Accordingly, BISYS
and the Trust hereby ratify the Agreement and the First Amendment and
acknowledge that all of the benefits and burdens set forth in the Agreement with
respect to BFS run to BISYS, and not to BFS.
2. Representations and Warranties.
(a) The Trust represents (i) that it has full power and authority to enter
into and perform this Amendment (ii) that this Amendment, and all information
relating thereto has been presented to and reviewed by the Board of Trustees of
the Trust (the "Board"), and (iii) that the Board has approved this Amendment.
(b) BISYS represents that it has full power and authority to enter into
and perform this Amendment.
3. Effective Date.
This Amendment shall be effective as of January 1, 2008.
4. Miscellaneous.
(a) 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.
(b) 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. No amendment or
modification to this Amendment shall be valid unless made in writing and
executed by both parties hereto.
(c) Paragraph headings in this Amendment are included for convenience only
and are not to be used to construe or interpret this Amendment.
(d) 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
THE EMPIRE BUILDER TAX FREE BOND FUND
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Director, Mutual Funds
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
