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EXHIBIT (d)(11)
FORM OF THE INVESTMENT SUB-ADVISORY AGREEMENT DATED MARCH 13, 2000
BETWEEN AMSOUTH BANK AND XXXXXXX XXXXXXXX MANAGEMENT, LLC
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FORM OF
SUB-INVESTMENT ADVISORY AGREEMENT
Sub-Investment Advisory Agreement made as of the 13th day of March, 2000,
between AMSOUTH BANK, a bank organized under the laws of the State of Alabama
having its principal office and place of business at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (herein called the "Adviser"), and XXXXXXX XXXXXXXX
MANAGEMENT, LLC, having its principal office and place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called the "Sub-Adviser").
WHEREAS, The AmSouth Funds (herein called the "Fund") is an open-end,
management investment company, registered under the Investment Company Act of
1940, as amended (the 1940 Act"); and
WHEREAS, the Fund employs the Adviser to provide advisory services
pursuant to an Investment Advisory Agreement dated August 1, 1988, as revised,
between the Fund and the Adviser (the "Investment Advisory Agreement") with
respect to the Fund's portfolio or portfolios set forth on Schedule 1 attached
hereto, as such may be revised from time to time (the "Series"; if there are
more than one Series to which this Agreement applies, the provisions herein
shall apply severally to each such Series); and
WHEREAS, the Fund intends to employ ASO Services Company (the
"Administrator") to act as the Fund's administrator; and
WHEREAS, the Adviser, in its capacity as investment adviser to the Series,
desires to retain the Sub-Adviser to provide the day-to-day management of the
Series' investments, the Fund consents to the Adviser retaining the Sub-Adviser
to provide such services, and the Sub-Adviser is willing to perform such
services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it-is agreed between the parties hereto as follows:
1. Appointment.
The Adviser hereby retains the Sub-Adviser to act as sub-investment
adviser to the Series for the period and on the terms set forth in this
Agreement. The Sub-Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
2. Services of Sub-Adviser.
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Subject to the oversight and supervision of the Adviser, the Sub-Adviser
will provide a continuous investment program for the Series, including
investment research and day-to-day management with respect to such Series'
assets. The Sub-Adviser will provide the services rendered by it under this
Agreement in accordance with the investment criteria and policies established
from time to time for the Series by the Adviser, the Series' investment
objective, policies and restrictions as stated in the Fund's Prospectus and
Statement of Additional Information for the Series, as from time to time in
effect, and resolutions of the Fund's Board of Trustees. The Fund and the
Adviser wish to be informed of important developments materially affecting the
Series, portfolio and the Sub-Adviser agrees to furnish to the Fund and the
Adviser from time to time such information as may be appropriate for this
purpose.
3. Other Covenants.
The Sub-Adviser agrees that it will:
(a) comply with all applicable rules and regulations of the
Securities and Exchange Commission in performance of its duties as
sub-investment adviser for the Series and, in addition, will conduct its
activities under this Agreement in accordance with other applicable federal and
state law;
(b) provide, or cause to be provided, to the Board of Trustees of
the Fund such reports, statistical data and economic information as may be
reasonably requested in connection with the Sub-Adviser's services hereunder;
(c) use the same skill and care in providing such services as it
uses in providing services to fiduciary accounts for which it has investment
responsibilities;
(d) place orders pursuant to its investment determinations for the
Series either directly with the issuer or with any broker or dealer. In
executing portfolio transactions and selecting brokers or dealers, the
Sub-Adviser will use its best efforts to seek on behalf of the Series the best
overall terms available. In assessing the best overall terms available for any
transaction, the Sub-Adviser shall consider all factors that it deems relevant,
including the breadth of the market in the security, the price of the security,
the financial condition and execution capability of the broker or dealer, and
the reasonableness of the commission, if any, both for the specific transaction
and on a continuing basis. In evaluating the best overall terms available, and
in selecting the broker-dealer to execute a particular transaction, the
Sub-Adviser may also consider the brokerage and research services (as those
terms are defined in Section 28(e) of the Securities Exchange Act of 1934)
provided to the Series and other accounts over which the Sub-Adviser or an
affiliate of the Sub-Adviser exercises investment discretion. The Sub-Adviser is
authorized, subject to the prior approval of the Adviser and the Fund's Board of
Trustees, to pay to a broker or dealer who provides such brokerage and research
services a commission for executing a portfolio transaction for any of the
Series which is in excess of the amount of commission another broker or dealer
would have charged
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for effecting that transaction if, but only if, the Sub-Adviser determines in
good faith that such commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer as viewed in
terms of that particular transaction or in terms of the overall responsibilities
of the Sub-Adviser to the Series. In addition, the Sub-Adviser is authorized to
take into account the sale of the Fund's shares in allocating purchase and sale
orders for portfolio securities to brokers or dealers (including brokers and
dealers that are affiliated with the Adviser, Sub-Adviser or the Fund's
principal underwriter), provided that the Sub-Adviser believes that the quality
of the execution and the commission are comparable to what they would be with
other qualified firms. In no instance, however, will portfolio securities be
purchased from or sold to the Adviser, Sub-Adviser, the Fund's principal
underwriter or any affiliated person of any of the Fund, the Adviser,
Sub-Adviser, or the principal underwriter, acting as principal in the
transaction, except to the extent permitted by the Securities and Exchange
Commission and other applicable federal and state laws and regulations;
(e) maintain historical tax lots for each portfolio security held by
the Series;
(f) transmit trades to the Fund's custodian for proper settlement;
and
(g) prepare a quarterly broker security transaction summary and
monthly security transaction listing for each Series.
4. Services Not Exclusive.
The services furnished by the Sub-Adviser hereunder are deemed not to be
exclusive, and the Sub-Adviser shall be free to furnish similar services to
others so long as its services under this Agreement are not impaired thereby. To
the extent that the purchase or sale of securities or other investments of the
same issuer may be deemed by the Sub-Adviser to be suitable for two or more
Series, investment companies or accounts managed by the Sub-Adviser, the
available securities or investments will be allocated in a manner believed by
the Sub-Adviser to be equitable to each of them. It is recognized and
acknowledged by the Adviser that in some cases this procedure may adversely
affect the price paid or received by the Series or the size of the position
obtained for or disposed of by series.
5. Books and Records.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Adviser hereby agrees that all records which it maintains for the Series are
the property of the Fund and further agrees to surrender promptly to the Fund
any of such records upon the request of the Fund of the Adviser. The Sub-Adviser
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.
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6. Expenses.
Except as otherwise stated in this Section 6, the Sub-Adviser shall pay
all expenses incurred by it in performing its services and duties as
sub-investment adviser. The Adviser hereby agrees that all other expenses to be
incurred in the operation of the Fund shall not be borne by the Sub-Adviser. The
Adviser and the Fund have agreed that such other expenses will be borne by the
Fund, except to the extent specifically assumed by others. The expenses to be
borne by the Fund include, without limitation, the following: organizational
costs, taxes, interest, brokerage fees and commissions, if any, fees of Trustees
who are not officers, directors, employees or holders of 5% or more of the
outstanding voting securities of the Adviser, Sub-Adviser or the Administrator,
or any of their affiliates, Securities and Exchange commission fees, state Blue
Sky qualification fees, advisory and administration fees, charges of custodians,
transfer and dividend disbursing agents' fees, certain insurance premiums,
industry association fees, auditing and legal expenses, costs of maintaining
corporate existence, costs of independent pricing services, costs attributable
to investor services (including, without limitation, telephone and personnel
expenses), costs of calculating the net asset value of the Series' shares, costs
of shareholders, reports and corporate meetings, costs of preparing and printing
certain prospectuses and statements of additional information, and any
extraordinary expenses.
7. Compensation.
In consideration of services rendered pursuant to this Agreement, the
Adviser will pay the Sub-Adviser on the first business day of each month the fee
at the annual rate set forth opposite the Series, name on Schedule 1 attached
hereto, based on the value' of such Series, average daily net assets for the
previous month. The Sub-Adviser agrees to accept such fee from the Adviser as
full compensation for the services provided and expenses assumed by it pursuant
to this Agreement, and acknowledges that it shall not be entitled to any further
compensation from any other person in respect of the same.
Net asset value shall be computed on such days and at such time or times
as described in the Fund's current Prospectus for the Series. The fee for the
period from the date of the commencement of the initial public sale of the
Series' shares to the end of the month during which such sale shall have been
commenced shall be pro-rated according to the proportion which such period bears
to the full monthly period, and upon any termination of this Agreement before
the end of any month, the fee for such part of a month shall be pro-rated
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 the Sub-Adviser, the value
of the Series, net assets shall be computed in the manner specified in the
Fund's Charter for the computation of the value of the Series' net assets.
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8. Limitation of Liability.
The Sub-Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund or the Adviser in connection with
the matters to which this Agreement relates, except that the Sub-Adviser shall
be liable to the Fund for any loss resulting from willful misfeasance, bad faith
or gross negligence on its part in the performance of the Sub-Adviser's duties
or from its reckless disregard of its obligations and duties under this
Agreement. Any person, even though also an officer, director, partner, employee
or agent of the Sub-Adviser, who may be or become an officer, Trustee, employee
or agent of the Fund, shall be deemed, when rendering services to the Fund or to
the Series, or acting on any business of the Fund or of the Series (other than
services or business in connection with the Sub-Adviser's duties as
sub-investment adviser hereunder) to be rendering such services to or acting
solely for the Fund or the Series and not as an officer, director, partner,
employee or agent or one under the control or direction of the Sub-Adviser even
though paid by the Sub-Adviser.
9. Term.
As to each Series, this Agreement shall continue until the date set forth
opposite such Series' name on Schedule 1 attached hereto (the "Reapproval
Date"), and thereafter shall continue automatically for successive annual
periods ending on the day of each year set forth opposite the Series' name on
Schedule 1 attached hereto (the "Reapproval Day"), provided such continuance is
specifically approved as to a Series at least annually by (a) the Fund's Board
of Trustees or (b) vote of a majority (as defined in the 0000 Xxx) of such
Series' outstanding voting securities, provided that in either event its
continuance also is approved by a majority of the Fund's Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. As to each Series, this Agreement may be terminated without
penalty (i) by the Fund's Board of Trustees or by vote of the holders of a
majority of such Series, shares, upon written notice to the Sub-Adviser, (ii) by
the Adviser (but only upon the approval of the Fund's Board of Trustees) upon 60
days' written notice to the Sub-Adviser (which notice may be waived in writing
by the Sub-Adviser), or (iii) by the Sub-Adviser upon not less than 90 days,
written notice to the Fund and the Adviser (which notice may be waived in
writing by the Fund and the Adviser). This-Agreement also will terminate
automatically, as to the relevant Series, in the event of its assignment (as
defined in the 1940 Act). In addition, notwithstanding anything herein to the
contrary, if the Investment Advisory Agreement is terminated for any reason
(whether by the Fund, by the Adviser or by operation of law), this Agreement
shall terminate with respect to the Series upon the effective date of such
termination of the Investment Advisory Agreement.
10. Miscellaneous.
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(a) Amendments. No provision of this Agreement may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party or parties against whom an enforcement of the change, waiver,
discharge or termination is sought.
(b) Construction. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. Subject to the provisions of Section 10 hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and shall be governed by New York law; provided,
however, that nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or regulation of the Securities and Exchange Commission
thereunder.
(c) Notice. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be effective upon
actual receipt by the Fund, or on the fourth day after the postmark if such
notice or other instrument is mailed via first class postage prepaid, at its
office at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000-0000, Attention: Compliance
Officer, or at such other place as the Fund may from time to time designate in
writing. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Adviser or Sub-Adviser, as the case may be,
shall be effective upon actual receipt by the Adviser or Sub-Adviser, as the
case may be, or on the fourth day after the postmark if such notice or other
instrument is mailed via first class postage prepaid, at its office at the
address first above written, or at such other place as the Adviser or
Sub-Adviser, as the case may be, may from time to time designate in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
AMSOUTH BANK
By:______________________________________
Attest:____________________________
XXXXXXX XXXXXXXX MANAGEMENT, LLC
By:______________________________________
Attest:____________________________
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SCHEDULE 1
Annual Fee As
a Percentage
of Average
Name of Daily Net
Series Assets Reapproval Date Reapproval Day
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AmSouth Mid * July 31, 2001 July 31
Cap Fund
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* .75% on the first $25 million of average aggregate daily net assets; .625%
on the next $50 million of such assets; and .50% on assets in excess of
$75 million.
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