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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,
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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: /s/ Jeffrey C. Cusick
Title: Vice President
BISYS FUND SERVICES
LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By: Mark A. Dillon
Title: Executive Vice President
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