EXHIBIT (h)(3)
SUB-ADMINISTRATION AGREEMENT
----------------------------
AGREEMENT made this 1st day of January, 2001, between the ASO Services
Company, Inc. ("ASC"), a corporation organized under the laws of the State of
Delaware and having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, and AmSouth Bank (the "Sub-Administrator"), a
state-chartered bank having its main office at 0000 Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, ASC has entered into a Management and Administration
Agreement, dated as of January 1, 2001, (the "Management and Administration
Agreement"), with AmSouth Funds (the "Trust"), a Massachusetts business trust
having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000, concerning the provision of management and administrative services for
each Fund of the Trust, as such Funds of the Trust may exist from time to time
(individually referred to herein as the "Fund" and collectively as the "Funds");
and
WHEREAS, ASC desires to retain the Sub-Administrator to assist it in
performing administrative services with respect to each Fund and the
Sub-Administrator is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS SUB-ADMINISTRATOR. The Sub-Administrator will assist ASC
in providing mutually agreed upon administrative services with respect to each
Fund as may be reasonably requested by ASC from time to time. Such services may
include, but are in no way limited to, such clerical, recordkeeping, accounting,
stenographic, and administrative services, as will enable ASC to more
efficiently perform its obligations under the Management and Administration
Agreement. Specific assignments with which the Sub-Administrator may be asked to
assist ASC include:
(i) Compliance
a. Assist in response to examination letters received from
the Securities and Exchange Commission.
b. Assist in response to audit requests from the Trust's
independent accountants.
c. Coordinate with legal staff for the provision of
compliance consulting and advice to portfolio manager.
(ii) Operational Matters
a. Review calendar and files of all Board and shareholder
meeting materials.
b. Review and supplement annual regulatory filing
calendar.
c. Review prospectuses as prepared by counsel to the
Trust.
d. Review periodic supplements to prospectuses, as
prepared by counsel to the Trust.
e. Review and supplement operating manual of the Trust.
f. Communicate all income breakdown data to Trust
Department and coordinate the printing and mailing of
state income letters to such shareholders.
g. Review all regulatory filings.
h. Coordinate distribution of proxy statements and
tabulation of proxies to Trust Department shareholders.
i. Review Form N-SARs.
j. Review 24f-2 filings.
k. Review 17f-2 audits.
l. Coordinate all Adviser NRSRO rating meetings.
m. Review authorized signors list, and Trust compliance
calendars.
n. Advise on product development issues.
(iii) Board Process and Meetings
a. Assist in preparation of Board meeting materials.
b. Review Board agendas and administrative sections of
Board materials.
c. Participate at Board meetings.
d. Review all Board minutes.
(iv) Legal Services
a. Assist in preparing for and complying with any
regulatory examinations of or involving the Trust.
b. Respond to state securities agency comment letters.
c. Respond to regulatory agency inquiries.
(v) Blue Sky
a. Assist in determining appropriate states and amounts
from state blue-sky authorities.
b. Review and monitor the sale of shares in the Trust
Department in individual states.
c. Conduct requested blue-sky fee analyses.
(vi) Miscellaneous
a. Assist with implementation and management of DDA Sweep.
b. Provide a designated project manager for routine
ongoing projects.
c. Assist with institutional trades.
d. Provide assistance with asset-related conversions.
e. Provide fulfillment services.
2. COMPENSATION; REIMBURSEMENT OF EXPENSES. ASC shall pay the
Sub-Administrator for the services to be provided by the Sub-Administrator under
this Agreement such amount, not to exceed ten one-hundredths of one percent
2
(.10%) of the Trust's average daily net assets, that the parties shall agree
upon from time to time. In addition, ASC agrees to reimburse the
Sub-Administrator for the Sub-Administrator's reasonable out of pocket expenses
in providing services hereunder.
3. EFFECTIVE DATE. This Agreement shall become effective with respect
to a Fund as of the date first written above (or, if a particular Fund is not in
existence on that date, on the date of the Fund's inception) (the "Effective
Date").
4. TERM. This Agreement shall continue in effect with respect to a
Fund, for so long as the Management and Administration Agreement dated January
1, 2001 between ASC and the Trust remains in effect.
5. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION. The Sub-Administrator shall use its best efforts to insure the
accuracy of all services performed under this Agreement, but shall not be liable
to ASC or the Trust for any action taken or omitted by the Sub-Administrator in
the absence of bad faith, willful misfeasance, negligence or from reckless
disregard by it of its obligations and duties. ASC agrees to indemnify and hold
harmless the Sub-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 the
Sub-Administrator's actions taken or nonactions with respect to the performance
of services under this Agreement with respect to a Fund or based, if applicable,
upon reasonable reliance on information, records, instructions or requests with
respect to such Fund given or made to the Sub-Administrator by a duly authorized
representative of ASC; provided that this indemnification shall not apply to
actions or omissions of the Sub-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, the
Sub-Administrator shall give ASC written notice of and reasonable opportunity to
defend against said claim in its own name or in the name of the
Sub-Administrator.
The Sub-Administrator agrees to indemnify and hold harmless the
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 the Sub-Administrator's bad
faith, willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties, with respect to the performance of services under this
Agreement.
6. RECORD RETENTION AND CONFIDENTIALITY. The Sub-Administrator shall
keep and maintain on behalf of the Trust all books and records which the Trust
and the Sub-Administrator are, or may be, required to keep and maintain in
connection with the services to be provided hereunder pursuant to any applicable
statutes, rules and regulations, including without limitation Rules 31a-1 and
31a-2 under the 1940 Act. The Sub-Administrator further agrees that all such
books and records shall be the property of the Trust and to make such books and
records available for inspection by the Trust, by ASC, or by the Securities and
3
Exchange Commission at reasonable times and otherwise to keep confidential all
books and records and other information relative to the Trust and its
shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
7. UNCONTROLLABLE EVENTS. The Sub-Administrator assumes no
responsibility hereunder, and shall not be liable, for any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control.
8. RIGHTS OF OWNERSHIP. All computer programs and procedures developed
to perform the services to be provided by the Sub-Administrator under this
Agreement are the property of the Sub-Administrator. All records and other data
except such computer programs and procedures are the exclusive property of the
Trust and all such other records and data will be furnished to ASC and/or the
Trust in appropriate form as soon as practicable after termination of this
Agreement for any reason.
9. RETURN OF RECORDS. The Sub-Administrator may at its option at any
time, and shall promptly upon the demand of ASC and/or the Trust, turn over to
ASC and/or the Trust and cease to retain the Sub-Administrator's files, records
and documents created and maintained by the Sub-Administrator pursuant to this
Agreement which are no longer needed by the Sub-Administrator in the performance
of its services or for its legal protection. If not so turned over to ASC and/or
the Trust, such documents and records will be retained by the Sub-Administrator
for six years from the year of creation. At the end of such six-year period,
such records and documents will be turned over to ASC and/or the Trust unless
the Trust authorizes in writing the destruction of such records and documents.
10. REPRESENTATIONS OF ASC. ASC certifies to the Sub-Administrator that
this Agreement has been duly authorized by ASC and, when executed and delivered
by ASC, will constitute a legal, valid and binding obligation of ASC,
enforceable against ASC 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.
11. REPRESENTATIONS OF THE SUB-ADMINISTRATOR. The Sub-Administrator
represents and warrants that: (1) the various procedures and systems which the
Sub-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 the Sub-Administrator's records, data, equipment
facilities and other property used in the performance 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 the Sub-Administrator and, when
executed and delivered by the Sub-Administrator, will constitute a legal, valid
and binding obligation of the Sub-Administrator, enforceable against the
Sub-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.
12. INSURANCE. The Sub-Administrator shall notify ASC should any of its
insurance coverage be cancelled or reduced. Such notification shall include the
date of change and the reasons therefor. The Sub-Administrator shall notify ASC
4
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 ASC
from time to time as may be appropriate of the total outstanding claims made by
the Sub-Administrator under its insurance coverage.
13. NOTICES. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to ASC at the following address: 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and to the Sub-Administrator at the
following address: 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 or at
such other address as either party may from time to time specify in writing to
the other party pursuant to this Section.
14. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
15. ASSIGNMENT. This Agreement and the rights and duties hereunder
shall not be assignable with respect to a Fund by either of the parties hereto
except by the specific written consent of the other party and with the specific
written consent of the Trust.
16. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
[SEAL] ASO SERVICES COMPANY, INC.
By: __________________________________
Title: _________________________________
AMSOUTH BANK
By: __________________________________
Title: _________________________________
5
