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Exhibit (h)(2)(b)
AMENDMENT TO
ADMINISTRATION AGREEMENT
This Amendment is made as of January 1, 2000, between THE EMPIRE
BUILDER TAX FREE BOND FUND, a Massachusetts business trust (the "Trust"), BISYS
FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS FUND SERVICES ("BFSLP"), and
BISYS FUND SERVICES OHIO, INC. (the "New Administrator"). The parties hereby
amend the Administration Agreement (the "Agreement") between the Trust and
BFSLP, dated as of October 1, 1996, as set forth below.
WHEREAS, the parties hereto wish to substitute the New Administrator
for BFSLP as the administrator under the Agreement;
WHEREAS, the parties hereto wish to modify Article 2 of the Agreement,
entitled "Administrative Services," for the purpose of more specifically
delineating the services to be provided under the Agreement but not for the
purpose of expanding or reducing the scope of such services;
WHEREAS, the parties hereto wish to modify Article 4 of the Agreement,
entitled "Compensation of the Administrator"; and
WHEREAS, the parties hereto wish to modify Schedule A to the Agreement,
by amending the sections entitled "Fees" and "Term".
NOW THEREFORE, in consideration of the foregoing and the mutual
premises and convenants 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. The New Administrator shall replace BFSLP as the Administrator
under the Agreement.
3. Article 2 of the Agreement, entitled "Administrative Services",
shall be amended by replacing the items described in paragraphs
(a)-(r) on pages 2-4 with the following:
Without limiting the generality of the foregoing, the
Administrator shall perform the services described in Schedule
B attached hereto.
4. Article 4 of the Agreement, entitled "Compensation of the
Administrator", shall be amended by adding the following language
at the end of the first paragraph of subsection (A):
The Trust shall also reimburse the Administrator for its
reasonable out-of-pocket expenses, provided that such expenses
are approved in advance, in writing, by either (1) the Trust's
Board of Trustees or (2) the investment adviser to the Trust.
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5. Schedule B, which is appended hereto, shall be added to the
Agreement.
6. Schedule A to the Agreement shall be amended by replacing the fee
schedule contained in the section entitled "Fees" with the
following:
Fifteen one-hundredths of one percent (.15%) of the Trust's
average daily net assets, subject to an annual minimum fee of
$200,000.
7. Schedule A to the Agreement shall be further amended by replacing
the first and second sentences of the first paragraph in the
section entitled "Term" 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.
This Agreement shall be renewed automatically for successive
periods of one year after the Initial Term, unless written
notice of nonrenewal is provided by either party not less than
sixty days prior to the end of the then-current term.
8. Schedule A to the Agreement, shall be further amended by replacing
the last paragraph of the section entitled "Term" 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, the Administrator
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 the Administrator under this Agreement
(excluding any sub-contractor appointed by the Administrator
as provided in Article 8 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 the Administrator equal to the balance due the
Administrator 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
the Administrator is replaced or a third 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 the Administrator 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
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payable within thirty (30) days following the first day on
which the Administrator is replaced or a third party is added
by the Trust.
The parties further acknowledge and agree that, in the event
the Administrator is replaced, or a third party is added, as
set forth above, (i) a determination of actual damages
incurred by the Administrator would be extremely difficult,
and (ii) the cash payment provision contained herein is
intended to adequately compensate the Administrator for
damages incurred and is not intended to constitute any form of
penalty.
9. 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.
10. Except as specifically set forth herein, all other provisions of
the Agreement shall remain in full force and effect.
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 LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc., General Partner
By: /s/ William J. Tomko
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Title: President
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BISYS FUND SERVICES OHIO, INC.
By: /s/ William J. Tomko
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Title: President
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