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EXHIBIT 9(a)
Management and Administration Agreement
dated as of April 1, 1996
between the Registrant and ASO Services Company
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MANAGEMENT AND ADMINISTRATION AGREEMENT
AS OF APRIL 1, 1996
ASO SERVICES COMPANY
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
AmSouth Mutual Funds, a Massachusetts business trust (the "Trust"),
herewith confirms its Agreement with the ASO Services Company ("Administrator")
as follows:
The Trust desires to employ a portion of its capital by investing and
reinvesting the same in investments of the type and in accordance with the
limitations specified in its Declaration of Trust and in the Prospectuses and
Statement of Additional Information relating to each of the investment
portfolios and any additional investment portfolios of the Trust, as each are or
will be identified on Schedule A hereto (such investment portfolios and any
additional investment portfolios together called the "Funds"), copies of which
have been or will be submitted to Administrator, and in resolutions of the
Trust's Board of Trustees. The Trust desires to engage Administrator to serve as
the manager and administrator for the Funds upon the following terms and
conditions.
1. Services as Manager and Administrator
Subject to the direction and control of the Board of Trustees of the
Trust, Administrator will assist in supervising all aspects of the operations of
the Funds except those performed by the investment adviser for the Funds under
its Investment Advisory Agreements, the custodian for the Funds under its
Custodial Services Agreement, the transfer agent for the Funds under its
Transfer Agency Agreement and the fund accountant for the Funds under its Fund
Accounting Agreement.
Administrator will maintain office facilities (which may be in the
office of Administrator or an affiliate but shall be in such location as the
Trust shall reasonably determine); furnish statistical and research data,
clerical and certain bookkeeping services and stationery and office supplies;
prepare the periodic reports to the Securities and Exchange Commission (the
"Commission") on Form N-SAR or any replacement forms therefor; compile data for,
assist the Trust or its designee in the preparation of, and file all the Funds'
federal and state tax returns and required tax filings other than those required
to be made by the Funds' custodian and transfer agent; prepare compliance
filings pursuant to state securities laws with the advice of the Trust's
counsel; respond to fund audits from both independent accountants and regulatory
agencies and coordinate Commission inspections; provide support and review of
certain periodic Commission and Internal Revenue Service qualification and
compliance measurement tests; assist to the extent requested by the Trust with
the Trust's
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preparation of its Annual and Semi-Annual Reports to Shareholders and its
Registration Statements (on Form N-1A or any replacement therefor); maintain
fund and director insurance as directed by the Trust; assist to the extent
requested by the Trust in the Trust's Shareholder Meeting and proxy solicitation
process; compile data for, prepare and file timely Notices to the Commission
required pursuant to Rule 24f-2 under the Investment Company Act of 1940 (the
"1940 Act"); keep and maintain Fund agreements with service providers and
broker-dealers; review and file all Fund advertising and sales material; keep
and maintain the financial accounts and records of the Funds, including
calculation of daily expense accruals; in the case of money market funds,
periodically review the amount of deviation, if any, of the current net asset
value per share (calculated using available market quotations or an appropriate
substitute that reflects current market conditions) from each money market
fund's amortized cost price per share; and generally assist in all aspects of
the operations of the Funds. In compliance with the requirements of Rule 31a-3
under the 1940 Act, Administrator hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
Administrator further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under the 1940 Act. Administrator may delegate some or all of its
responsibilities under this Agreement.
Administrator may, at its expense, subcontract with any entity or
person concerning the provision of the services contemplated hereunder;
provided, however, that Administrator shall not be relieved of any of its
obligations under this Agreement by the appointment of such subcontractor and
provided further, that Administrator shall be responsible, to the extent
provided in Section 4 hereof, for all acts of such subcontractor as if such acts
were its own.
2. Fees; Expenses; Expense Reimbursement
In consideration of services rendered and expenses assumed pursuant to
this Agreement, each of the Funds will pay Administrator on the first business
day of each month, or at such time(s) as Administrator shall request and the
parties hereto shall agree, a fee computed daily and paid as specified below
equal to the lesser of (a) the fee calculated at the applicable annual rate set
forth on Schedule A hereto. The fee for the period from the day of the month
this Agreement is entered into until the end of that month shall be prorated
according to the proportion which such period bears to the full monthly period.
Upon any termination of this Agreement before the end of any month, the fee for
such part of a month shall be prorated according to the proportion which such
period bears to the full monthly period and shall be payable upon the date of
termination of this Agreement.
For the purpose of determining fees payable to Administrator, the value
of the net assets of a particular Fund shall be computed in the manner described
in the Trust's Declaration of Trust or in the Prospectus or Statement of
Additional Information respecting that Fund as from time to time is in effect
for the computation of the value of such net assets in connection with the
determination of the liquidating value of the shares of such Fund.
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Administrator will from time to time employ or associate with itself
such person or persons as Administrator may believe to be particularly fitted to
assist it in the performance of this Agreement. Such person or persons may be
partners, officers, or employees who are employed by both Administrator and the
Trust. The compensation of such person or persons shall be paid by Administrator
and no obligation may be incurred on behalf of the Funds in such respect. Other
expenses to be incurred in the operation of the Funds including taxes, interest,
brokerage fees and commissions, if any, fees of Trustees who are not partners,
officers, directors, shareholders or employees of Administrator or the
investment adviser or distributor for the Funds, commission fees and state Blue
Sky qualification and renewal fees and expenses, investment advisory fees,
custodian fees, transfer and dividend disbursing agents' fees, fund accounting
fees including pricing of portfolio securities, certain insurance premiums,
outside auditing and legal expenses, costs of maintenance of corporate
existence, typesetting and printing prospectuses for regulatory purposes and for
distribution to current Shareholders of the Funds, costs of Shareholders' and
Trustees' reports and meetings and any extraordinary expenses will be borne by
the Funds; provided, however, that the Funds will not bear, directly or
indirectly, the costs of any activity which is primarily intended to result in
the distribution of shares of the Funds.
If in any fiscal year the aggregate expenses of a particular Fund (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, Administrator will
reimburse such Fund for a portion of such excess expenses equal to such excess
times the ratio of the fees respecting such Fund otherwise payable to
Administrator hereunder to the aggregate fees respecting such Fund otherwise
payable to Administrator hereunder and to AmSouth Bank of Alabama, formerly
AmSouth Bank, N.A., under the Investment Advisory Agreements between AmSouth
Bank, N.A. and the Trust. The expense reimbursement obligation of Administrator
is limited to the amount of its fees hereunder for such fiscal year, provided,
however, that notwithstanding the foregoing, Administrator shall reimburse a
particular Fund for such proportion of such excess expenses regardless of the
amount of fees paid to it during such fiscal year to the extent that the
securities regulations of any state having jurisdiction over the Trust so
require. Such expense reimbursement, if any, will be estimated daily and
reconciled and paid on a monthly basis.
3. Proprietary and Confidential Information
Administrator agrees on behalf of itself and its partners and employees
to treat confidentially and as proprietary information of the Trust all records
and other information relative to the Trust and prior, present, or potential
Shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Trust, which approval shall
not be unreasonably withheld and may not be withheld where Administrator may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust.
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4. Limitation of Liability
Administrator shall not be liable for any loss suffered by the Funds in
connection with the matters to which this Agreement relates, except for a loss
resulting from willful misfeasance, bad faith or negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Any person, even though also partner, employee,
or agent of Administrator, who may be or become an officer, Trustee, employee,
or agent of the Trust or the Funds shall be deemed, when rendering services to
the Trust or the Funds, or acting on any business of that party, to be rendering
such services to or acting solely for that party and not as a partner, employee,
or agent or one under the control or direction of Administrator even though paid
by it.
5. Term
This Agreement shall become effective as of the date first written
above (or, if a particular Fund is not in existence on the date, on the date an
amendment to Schedule A to this Agreement relating to that Fund is executed) and
shall continue until December 31, 2000, and unless sooner terminated as provided
herein, thereafter shall be renewed automatically for successive five-year
terms, unless written notice not to renew is given by the non-renewing party to
the other party at least 60 days prior to the expiration of the then-current
term; provided, however, that after such termination for so long as
Administrator, with the written consent of the Trust, in fact continues to
perform any one or more of the services contemplated by this Agreement or any
schedule or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Administrator shall be entitled to collect from the Trust, in
addition to the compensation described under paragraph 2 hereof, the amount of
all Administrator's cash disbursements for services in connection with
Administrator's activities in effecting such termination, including without
limitation, the delivery to the Trust, and/or its designee, of the Trust's
property, records, instruments and documents, or any copies thereof. Subsequent
to such termination for a reasonable fee to be paid by the Trust, Administrator
will provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
This Agreement shall be reviewed under the "cause" provisions of this
paragraph at least annually by the Trust's Board of Trustees, provided that this
Agreement is also reviewed and ratified by the majority of the Trust's Trustees
who are not parties to the Agreement or interested persons (as defined in the
▇▇▇▇ ▇▇▇) of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of reviewing and ratifying this Agreement, and provided
further that the scope of such review shall include whether there is any "cause"
(as defined below) that would justify terminating this Agreement. This Agreement
is terminable with respect to a particular Fund only through a failure to renew
(upon submission of timely written notice not to renew), upon mutual agreement
of the parties hereto or for "cause" (as
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defined below) by the party alleging "cause," in any case on not less than 60
days notice by the Trust's Board of Trustees or by Administrator.
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, negligence or reckless disregard on the part of the
party to be terminated with respect to its obligations and duties set forth
herein; (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) the dissolution or
liquidation of either party or other cessation of business other than a
reorganization or recapitalization of such party as an ongoing business; (d)
financial difficulties on the part of the party to be terminated which is
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; or (e) any circumstance which does nor
may substantially impair 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.
If, for any reason other than "cause" as defined above, Administrator
is replaced as fund manager and administrator, or if a third party is added to
perform all or a part of the services provided by Administrator under this
Agreement (excluding any sub-administrator appointed by Administrator as
provided in Section 1 hereof), then the Trust shall make a one-time cash
payment, as liquidated damages, to Administrator equal to the balance due
Administrator for (i) the remainder of the term of this Agreement, or (ii) two
years, whichever is shorter, assuming for purposes of calculation of the payment
that the asset level of the Trust on the date Administrator is replaced, or a
third party is added, will remain constant for the balance of the contract term.
6. Representations of the Trust.
The Trust certifies to Administrator that this Agreement has been duly
authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust 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.
7. Representations of Administrator.
Administrator represents and warrants that: (1) the various procedures
and systems which Administrator has implemented with regard to safeguarding from
loss or damage attributable to fire, theft, or any other cause of the records
and other data of the Trust and Administrator's records, data, equipment
facilities and other property used in the performance
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of its obligations hereunder are adequate and that it will make such changes
therein from time to time as are required for the secure performance of it
obligations hereunder, and (2) this Agreement has been duly authorized by
Administrator and, when executed and delivered by Administrator, will constitute
a legal, valid and binding obligation of Administrator, enforceable against
Administrator 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.
8. Insurance.
Administrator shall notify the Trust should any of its insurance
coverage be cancelled or reduced. Such notification shall include the date of
change and the reasons therefor. Administrator shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by Administrator under its insurance coverage.
9. Governing Law and Matters Relating to the Trust as a
Massachusetts Business Trust
This Agreement shall be governed by the law of the Commonwealth of
Massachusetts. The names "AmSouth Mutual Funds" and "Trustees of AmSouth Mutual
Funds" refer respectively to the Trust created and the Trustees, as trustees but
not individually or personally, acting from time to time under the Declaration
of Trust dated as of October 1, 1987, as amended June 25, 1993, to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of the Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter filed. The
obligations of "AmSouth Mutual Funds" entered into in the name or on behalf
thereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, Shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and all persons dealing with any series of shares of
the Trust must look solely to the assets of the Trust belonging to such series
for the enforcement of any claims against the Trust.
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If the foregoing is in accordance with your understanding, kindly so
indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
AMSOUTH MUTUAL FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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Accepted:
ASO SERVICES COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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Dated: As of April 1, 1996
Schedule A
to the
Management and Administration Agreement
between AmSouth Mutual Funds and
ASO Services Company
dated as of April 1, 1996
Name of Fund Compensation* Date
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AmSouth Prime Annual Rate of twenty As of April 1, 1996
Obligations, U.S. hundredths of one-percent
Treasury, Tax Exempt, (.20%) of each such
Equity, Regional Equity, Fund's average daily net
Balanced, Bond, Limited assets
Maturity, Municipal
Bond, Government
Income, Alabama Tax-
Free, and Florida Tax-
Free Funds.
AMSOUTH MUTUAL FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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ASO SERVICES COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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*All fees are computed daily and paid periodically.
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