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Exhibit (h)(3)(b)
AMENDMENT TO
FUND ACCOUNTING AGREEMENT
This Amendment is made as of January 1, 2000, between THE EMPIRE
BUILDER TAX FREE FUND (the "Trust"), a Masschusetts business trust and BISYS
FUND SERVICES, INC. ("Fund Accountant"). The parties hereby amend the Fund
Accounting Agreement (the "Agreement") between the Trust and Fund Accountant,
dated as of October 1, 1996, as set forth below.
WHEREAS, the parties hereto wish to modify Section 6 of the Agreement,
entitled "Term"; and
WHEREAS, the parties hereto wish to modify Schedule A to the Agreement,
entitled "FEES", by amending the fee schedule contained therein.
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 of the Agreement shall be amended by replacing the
first sentence of the first paragraph with the following:
The initial term of this Agreement shall be for a
period commencing on October 1, 1996 and ending on
December 31, 1997.
3. Section 6 of the Agreement shall be further amended by
replacing the last paragraph of the section with the
following:
If, for any reason other than non-renewal, mutual
agreement of the parties or a material breach that
has not been remedied in accordance with the terms of
this Agreement, Fund Accountant is replaced as the
service provider under this Agreement or, if a third
party is added to perform all or a part of the
services provided by Fund Accountant under this
Agreement (excluding any Sub-accountant appointed by
Fund Accountant as provided in Section 2 herein),
then the Trust shall make a one-time cash payment, in
consideration of the fee structure and services to be
provided under this Agreement and not as a penalty,
to Fund Accountant equal to the balance due Fund
Accountant for the remainder of the then-current term
of this Agreement, assuming for purposes of
calculation of the payment that such balance shall be
based upon the average amount of Trust assets for the
twelve months prior to the date Fund Accountant is
replaced or a third
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party is added by the Trust.
In the event the Trust is merged into another legal
entity in part or in whole pursuant to any form of
business reorganization, or is liquidated in part or
in whole prior to the expiration of the then-current
term of this Agreement, the parties acknowledge and
agree that the one-time cash payment set forth above
shall be applicable in those instances in which Fund
Accountant is not retained to provide services
consistent with this Agreement, including the level
of assets subject to such services. The one-time cash
payment referenced above shall be due and payable
within thirty (30) days following the first day on
which Fund Accountant is replaced or a third party is
added by the Trust.
The parties further acknowledge and agree that, in
the event Fund Accountant is replaced, or a third
party is added, as set forth above, (i) a
determination of actual damages incurred by Fund
Accountant would be extremely difficult, and (ii) the
cash payment provision contained herein is intended
to adequately compensate Fund Accountant for damages
incurred and is not intended to constitute any form
of penalty.
4. Schedule A to the Agreement, entitled "FEES", shall be amended
by replacing the fee schedule contained therein with the
following:
Fund Accountant shall be entitled to receive a fee
from each Fund in accordance with the following
schedule:
Three one-hundredths of one percent (.03%) of the
Trust's average daily net assets, subject to an
annual minimum fee of $40,000 per Fund
Schedule A shall be further amended by adding the following to
the section entitled "Multiple Class of Shares":
An additional fee of $10,000 per class shall be paid
for each additional share class that is added.
5. 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.
6. Except as specifically set forth herein, all other provisions
of the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
THE EMPIRE BUILDER TAX FREE BOND FUND
By: /s/ Michael J. Lynch
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Title: Senior Vice President
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BISYS FUND SERVICES, INC.
By: /s/ William J. Tonko
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Title: President
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