AMENDMENT NO. 3 TO ADMINISTRATION AGREEMENT
Exhibit (h)(4)
AMENDMENT NO. 3 TO
AMENDMENT NO. 3 (“Amendment”) made as of the 16th day of December, 2005 by and among PROFUNDS, a Delaware business trust having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ACCESS ONE TRUST, a Delaware business trust having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (ProFunds and Access One Trust are collectively referred to herein as the “Trusts”) and BISYS FUND SERVICES LIMITED PARTNERSHIP (“BISYS”), an Ohio limited partnership having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, to that certain Administration Agreement dated January 1, 2004, as amended (the “Agreement”), under which BISYS performs certain management and administration services for the Trusts. All capitalized terms used but not defined herein shall have the meaning given to them in the Agreement.
WHEREAS, the Agreement provides that BISYS shall perform such additional services as are mutually agreed upon in writing by the parties;
WHEREAS, the Trusts desire that BISYS perform certain additional services for the Trusts;
WHEREAS, BISYS is willing to perform the services enumerated in this Amendment on the terms and conditions set forth in this Amendment; and
WHEREAS, BISYS and the Trusts wish to enter into this Amendment to the Agreement in order to set forth the terms under which BISYS will perform the services enumerated herein on behalf of the Trusts, and to supplement and clarify certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the Trusts and BISYS hereby agree as follows:
| 1. | Form N-Q Services |
BISYS will provide the following additional services to assist the Trusts in connection with the requirements of Form N-Q:
| (a) | Prepare and file Form N-Q for all Funds; |
| (b) | Coordinate Form N-Q certification process, including facilitating related Disclosure Committee meetings and due diligence visits, consistent with the annual and semiannual report process; and |
| (c) | Include all tax-related disclosures in Form N-Q for all Funds. |
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| 2. | Fees |
In addition to all fees, expenses and miscellaneous fees or charges provided for under the Agreement, BISYS shall be entitled to receive from the Trusts the amounts set forth on Schedule A hereto, reflecting the amounts charged by BISYS for the performance of services.
| 3. | Representations and Warranties |
Each party represents and warrants to the other that this Amendment has been duly authorized and, when executed and delivered by it, will constitute a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.
| 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 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 separately 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 each party 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.
(e) All capitalized terms not defined herein shall have meaning ascribed to such terms in the 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.
| PROFUNDS | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | President | |
| ACCESS ONE TRUST | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | President | |
| BISYS FUND SERVICES LIMITED PARTNERSHIP | ||
| By: | BISYS Fund Services Inc. | |
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | President | |
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SCHEDULE A
TO THE AMENDMENT NO. 3 TO THE
BETWEEN PROFUNDS, ACCESS ONE TRUST
AND BISYS FUND SERVICES LIMITED PARTNERSHIP
Dated December 16, 2005
Form N-Q Fees
Fee Schedule
| One Time Implementation Fee (Due by 12/31/05) |
$ | 40,000 |
On-Going Annual Fee
The Fee is based on the number of Funds in each Form N-Q filing after September 1, 2005.
| Number of Funds |
Fee Per Form N-Q Filing | ||
| 1 Fund |
$ | 2,000 | |
| 2-10 Funds |
$ | 4,000 | |
| 11-15 Funds |
$ | 5,000 | |
| 16-20 Funds |
$ | 6,000 | |
| 21-25 Funds |
$ | 7,000 | |
| 26-30 Funds |
$ | 8,000 | |
| 31-35 Funds |
$ | 9,000 | |
| 36-40 Funds |
$ | 10,000 | |
| 41-45 Funds |
$ | 11,000 | |
| 46-50 Funds |
$ | 12,000 | |
| 51-55 Funds |
$ | 13,000 | |
| 56-60 Funds |
$ | 14,000 | |
| 61-65 Funds |
$ | 15,000 | |
| 66-70 Funds |
$ | 16,000 | |
| 71-75 Funds |
$ | 17,000 | |
| 76-80 Funds |
$ | 18,000 | |
| 81-85 Funds |
$ | 19,000 | |
| 86-90 Funds |
$ | 20,000 | |
| 91-95 Funds |
$ | 21,000 | |
| 96-100 Funds |
$ | 22,000 | |
| 101-105 Funds |
$ | 23,000 | |
| 106-110 Funds |
$ | 24,000 | |
| 111-115 Funds |
$ | 25,000 | |
| 116-120 Funds |
$ | 26,000 | |
| Over 120 Funds |
|
To be agreed by the parties, if such additional Funds are established. | |
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