EXHIBIT (h)(ii)(A)
AMENDMENT TO MANAGEMENT AND
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ADMINISTRATION AGREEMENT
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This Amendment is made as of January 1, 2000, between Fifth Third Funds,
formerly known as Fountain Square Funds (the "Trust") and BISYS Fund Services
Limited Partnership d/b/a BISYS Fund Services ("Administrator"). The parties
hereby amend the Management and Administration Agreement (the "Original
Agreement" and, as amended by this Amendment, the "Agreement") between the
Company and Administrator, dated as of April 1, 1997, as set forth below.
WHEREAS, the parties wish to modify certain terms of the Original
Agreement, as more particularly described herein.
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 Original Agreement.
2. Section 4 of the Agreement shall be amended by inserting the following
language after the first sentence of that section:
The Trust agrees to indemnify and hold harmless
Administrator, its employees, agents, directors, officers
and nominees from and against any and all claims, demands,
actions and suits, whether groundless or otherwise, and
from and against any and all judgments, liabilities,
losses, damages, costs, charges, counsel fees and other
expenses of every nature and character arising out of or
in any way relating to Administrator's actions taken or
nonactions with respect to the performance of services
under this Agreement or based, if applicable, upon
reasonable reliance on information, records, instructions
or requests, given or made to Administrator by the Trust
or the investment adviser and on any records provided by
any fund accountant (other than Administrator) or
custodian thereof; provided, that this indemnification
shall not apply to actions or omissions of Administrator
in cases of its own bad faith, willful misfeasance,
negligence or from reckless disregard by it of its
obligations and duties; and further provided, that prior
to confessing any claim against it which may be the
subject of this indemnification, Administrator shall give
the Trust written notice of and reasonable opportunity to
defend against said claim in its own name or in the name
of Administrator. Administrator agrees to indemnify and
hold harmless the Trust, its agents, Trustees, officers
and nominees from and against any and all actions, suits,
demands and claims, whether
groundless or otherwise, and from and against any and all
judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature
and character arising out of or in any way relating to
Administrator's bad faith, willful misfeasance,
negligence, or reckless disregard by it of its obligations
and duties with respect to the performance of services
under this Agreement.
3. Section 5 of the Original Agreement shall be amended by replacing the
first sentence of the first paragraph of such section with the
following:
This Agreement shall become effective as of the date first
written above and shall continue in effect unless earlier
terminated by either party hereto as provided hereunder,
until March 31, 2002.
4. Section 5 of the Original Agreement shall be further amended by
replacing the second paragraph of that section with the following:
For purposes of this Agreement, "cause" shall mean (a) a
material breach of this Agreement that has not been
remedied for thirty (30) days following written notice of
such breach by the non-breaching party; (b) a final,
unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been
found guilty of criminal or unethical behavior in the
conduct of its business; (c) financial difficulties on the
part of the party to be terminated which are evidenced by
the authorization or commencement of, or involvement by
way of pleading, answer, consent or acquiescence in, a
voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any
applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization
of debtors or to the modification or alteration of the
rights of creditors; (d) any circumstance which
substantially impairs the performance of the obligations
and duties of the party to be terminated, or the ability
to perform those obligations and duties, as contemplated
herein. Notwithstanding the foregoing, the absence of
either or both an annual review or ratification of this
Agreement by the Board of Trustees shall not, in and of
itself, continue "cause" as used herein.
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
Original 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.
FIFTH THIRD FUNDS
By: __________________________________
Title:________________________________
BISYS FUND SERVICES
LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By: __________________________________
Title:________________________________
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