Exhibit (d)(1)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of October 15, 2002, and amended and restated as of
October 1, 2003 between AMSOUTH FUNDS, a Massachusetts business trust (herein
called the "Trust"), and AMSOUTH ASSET MANAGEMENT INC., an Alabama corporation,
(herein called the "Investment Advisor").
WHEREAS, the Trust is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940, as amended ("1940
Act"); and
WHEREAS, the AmSouth Investment Management Company, LLC (AIMCO), is a
separate, wholly-owned subsidiary of AmSouth Bank, which formerly served as
investment advisor to the Trust;
WHEREAS, the Investment Advisor is a separate, wholly-owned subsidiary of
AmSouth Bank;
WHEREAS, AmSouth Bank reorganized its investment advisory subsidiaries so
that management and investment advisory personnel that formerly provided
investment management services as personnel of AIMCO now do so as the personnel
of the Investment Advisor;
WHEREAS, the reorganization of the investment advisory subsidiaries of
AmSouth Bank does not effect an actual change in management or control of the
investment advisor within the meaning of Rule 2a-6 under the 1940 Act, and,
therefore, did not constitute an assignment of this Agreement for purposes of
Section 15(a)(4) of the 1940 Act;
WHEREAS, the Trust desires to retain the Investment Advisor to furnish
investment advisory services in connection with such portfolios of the Trust as
now or hereafter may be identified on Schedule A hereto as such Schedule may be
amended form time to time with the consent of the parties hereto (each herein
called a "Fund");
WHEREAS, the Board of Trustees of the Trust has duly approved this
Agreement upon consideration of the Trust's existing contractual arrangements
and applicable law; and
WHEREAS, the Investment Advisor represents that it is willing and
possesses legal authority to so furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints the Investment Advisor to act as
investment advisor to the Funds identified on Schedule A hereto for the period
and on the terms set forth in this Agreement. The Investment Advisor accepts
such appointment and agrees to furnish the services herein set forth for the
compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Trust has furnished the Investment Advisor
with copies properly certified or authenticated of each of the following:
(a) the Trust's Amended and Restated Declaration of Trust dated as of
March 19, 2003, and all amendments thereto or restatements thereof (such
Declaration, as presently in effect and as it shall from time to time be amended
or restated, is herein called the "Declaration of Trust");
(b) the Trust's By-laws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing the
appointment of the Investment Advisor and approving this Agreement;
(d) the Trust's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission on May 4, 1988 and
all amendments thereto;
(e) the Trust's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended ("1933 Act"), (File No. 33-21660) and under
the 1940 Act as filed with the Securities and Exchange Commission and all
amendments thereto; and
(f) the Funds' most recent prospectuses and Statement of Additional
Information (such prospectus and Statement of Additional Information, as
presently in effect, and all amendments and supplements thereto are herein
collectively called the "Prospectus").
The Trust will furnish the Investment Advisor from time to time with
copies of all amendments of or supplements to the foregoing.
3. MANAGEMENT. Subject to the supervision of the Trust's Board of
Trustees, the Investment Advisor will provide a continuous investment program
for each Fund, including investment research and management with respect to all
securities and investments and cash equivalents in said Funds. The Investment
Advisor will determine from time to time what securities and other investments
will be purchased, retained or sold by the Trust with respect to the Funds. The
Investment Advisor will provide the services under this Agreement in accordance
with each Fund's investment objective, policies, and restrictions as stated in
the Prospectus and resolutions of the Trust's Board of Trustees. The Investment
Advisor further agrees that it:
(a) will 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;
(b) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission and in addition will conduct its activities
under this Agreement in accordance with any applicable regulations of any
governmental authority pertaining to the investment advisory activities of the
Investment Advisor;
(c) will not make loans to any person to purchase or carry units of
beneficial interest in the Trust or make loans to the Trust;
(d) will place orders pursuant to its investment determinations for
the Trust either directly with the issuer or with any broker or dealer. In
placing orders with brokers and dealers, the Investment Advisor will attempt to
obtain prompt execution of orders in an effective manner at the most favorable
price. Consistent with this obligation, when the execution and price offered by
two or more brokers or dealers are comparable, the Investment Advisor may, in
its discretion, purchase and sell portfolio securities to and from brokers and
dealers who provide the Investment Advisor with research advice and other
services. In no instance will portfolio securities be purchased from or sold to
BISYS Fund Services, Inc., AmSouth Investment Management Company, or any
affiliated person of either the Trust, BISYS Fund Services, Inc. or AmSouth
Investment Management Company;
(e) will maintain all books and records with respect to the Trust's
securities transactions and will furnish the Trust's Board of Trustees such
periodic and special reports as the Board may request;
(f) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and prior,
present, or potential interestholders, and will not 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 the Investment Advisor 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;
and
(g) will maintain its policy and practice of conducting its fiduciary
functions independently. In making investment recommendations for the Trust, the
Investment Advisor's personnel will not inquire or take into consideration
whether the issuers of securities proposed for purchase or sale for the Trust's
account are customers of the Investment Advisor or of its parent or its
subsidiaries or affiliates. In dealing with such customers, the Investment
Advisor and its parent, subsidiaries, and affiliates will not inquire or take
into consideration whether securities of those customers are held by the Trust.
4. SERVICES NOT EXCLUSIVE. The investment management services furnished by
the Investment Advisor hereunder are not to be deemed exclusive, and the
Investment Advisor shall be free to furnish similar services to others so long
as its services under this Agreement are not impaired thereby.
5. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Advisor 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.
The Investment Advisor 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.
6. EXPENSES. During the term of this Agreement, the Investment Advisor
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities (including brokerage
commissions, if any) purchased for the Trust.
7. COMPENSATION. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Investment Advisor
and the Investment Advisor will accept as full compensation therefor a fee
computed daily and paid monthly at the applicable annual rate set forth on
Schedule A hereto. Each Fund's obligation to pay the above-described fee to the
Investment Advisor will begin as of the date of the initial public sale of
shares in that Fund.
If in any fiscal year the aggregate expenses of any of the Funds (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, the Investment
Advisor will reimburse the Fund for a portion of such excess expenses equal to
such excess times the ratio of the fees otherwise payable by the Fund to the
Investment Advisor hereunder to the aggregate fees otherwise payable by the Fund
to the Investment Advisor hereunder and to BISYS Fund Services, Inc. under the
Administration Agreement between BISYS Fund Services, Inc. and the Trust. The
obligation of the Investment Advisor to reimburse the Funds hereunder is limited
in any fiscal year to the amount of its fee hereunder for such fiscal year,
PROVIDED, HOWEVER, that notwithstanding the foregoing, the Investment Advisor
shall reimburse the Funds 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.
8. LIMITATION OF LIABILITY. The Investment Advisor shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the Funds in
connection with the performance of this Agreement, except a loss resulting from
a breach of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Advisor in the performance of its
duties or from reckless disregard by it of its obligations and duties under this
Agreement.
9. DURATION AND TERMINATION. This Agreement will become effective as to a
particular Fund as of the date first written above, provided that it shall have
been approved by vote of a majority of the outstanding voting securities of such
Fund, in accordance with the requirements under the 1940 Act. Unless sooner
terminated, this Agreement shall continue in effect until December 31, 2004 and
thereafter shall continue in effect for successive periods of one year each
ending on December 31st of each year, PROVIDED such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Trust's Board of Trustees who are not parties to this Agreement or interested
persons of any party to this Agreement, cast in person at a meeting called for
the purpose of voting on such approval, and (b) by the vote of a majority of the
Trust's Board of Trustees or by the vote of a majority of all votes attributable
to the outstanding Shares of such Fund. Notwithstanding the foregoing, this
Agreement may be terminated at any time on sixty days' written notice, without
the payment of any penalty, by the Trust (by vote of the Trust's Board of
Trustees or by vote of a majority of the outstanding voting securities of such
Fund) or by the Investment Advisor. This Agreement will immediately terminate in
the event of its assignment. (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested persons" and "assignment" shall
have the same meaning of such terms in the 1940 Act.)
10. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
11. DELEGATION OF THE INVESTMENT ADVISOR'S DUTIES AS INVESTMENT ADVISOR.
Any of the foregoing Investment Advisor's duties specified in Paragraphs 1 and 3
of this Agreement as investment advisor to any or all Series may be delegated by
the Investment Advisor, at the Investment Advisor's expense, to another
appropriate party (including an affiliated party), provided that such party is
bound by all the corresponding duties and conditions to which the Investment
Advisor is subject by Paragraphs 1, 2 and 3 of this Agreement and further
provided that any agreement between the Investment Advisor and such party meets
all requirements of the 1940 Act and rules thereunder. Furthermore, to the
extent consistent with the regulations and orders of the Securities and Exchange
Commission, the appointment and engagement of any sub-advisor and delegation to
it of duties hereunder by the Investment Advisor shall be subject only to the
approval of the Board of Trustees. The Investment Advisor shall oversee the
performance of delegated functions by any such party and shall furnish to the
Trust with quarterly evaluations and analyses concerning the performance of
delegated responsibilities by those parties.
12. MISCELLANEOUS. 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. 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 the law of The Commonwealth of Massachusetts.
The names "AmSouth Funds" and "Trustees of AmSouth Funds" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated as of March 19, 2003 to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
State 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 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, interestholders or
representatives of the Trust personally, but bind only the assets of the Trust,
and all persons dealing with any Fund must look solely to the assets of the
Trust belonging to such Fund for the enforcement of any claims against the
Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
AMSOUTH FUNDS
Seal By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
Title: President
AMSOUTH ASSET MANAGEMENT INC.
Seal By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Title: Chairman
DATED: OCTOBER 1, 2003
SCHEDULE A
TO THE INVESTMENT ADVISORY AGREEMENT
DATED AS OF OCTOBER 1, 2003 BETWEEN
AMSOUTH FUNDS AND
AMSOUTH ASSET MANAGEMENT INC.
NAME OF FUND
------------
AmSouth Funds Annual rate of forty one-hundredths of one
Prime Money Market Fund percent (.40%) of AmSouth Funds Prime Money
Market Fund's average daily net assets.
AmSouth Funds Annual rate of eighty one-hundredths of one
Value Fund percent (.80%) of AmSouth Funds Value Fund's
average daily net assets.
AmSouth Funds Annual rate of forty one-hundredths of one
U.S. Treasury Money Market Fund percent (.40%) of AmSouth Funds U.S. Treasury
Fund's average daily net assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Tax-Exempt Money Market Fund percent (.20%) of AmSouth Funds Tax-Exempt
Money Market Fund's average daily net assets.
AmSouth Funds Annual rate of fifty one-hundredths of one
Bond Fund percent (.50%) of AmSouth Funds Bond Fund's
average daily net assets.
AmSouth Funds Annual rate of eighty one-hundredths of one
Balanced Fund percent (.80%) of AmSouth Funds Balanced
Fund's average daily net assets.
AmSouth Funds Annual rate of forty one-hundredths of one
Municipal Bond Fund percent (.40%) of AmSouth Funds Municipal Bond
Fund's average daily net assets.
AmSouth Funds Annual rate of thirty one-hundredths of one
Government Income Fund percent (.30%) of AmSouth Funds Government
Income Fund's average daily net assets.
AmSouth Funds Annual rate of thirty one-hundredths of one
Florida Tax-Exempt Fund percent (.30%) of AmSouth Funds Florida
Tax-Exempt Fund's average daily net assets.
AmSouth Funds Annual rate of one hundred twenty
Small Cap Fund one-hundredths of one percent (1.20%) of
AmSouth Funds Small Cap Fund's average daily
net assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Institutional Prime Obligations percent (.20%) of the AmSouth Funds
Fund Institutional Prime Obligations Fund's average
daily net assets.
AmSouth Funds Annual rate of forty-five one-hundredths of
Enhanced Market Fund one percent (.45%) of AmSouth Funds Enhanced
Market Fund's average daily net assets.
AmSouth Funds Annual rate of eighty one-hundredths of one
Select Equity Fund percent (.80%) of AmSouth Funds Select Equity
Fund's average daily net assets.
AmSouth Funds Annual rate of one hundred twenty-five
International Equity Fund one-hundredths of one percent (1.25%) of
AmSouth Funds International Equity Fund's
average daily net assets.
AmSouth Funds Annual rate of one hundred one hundredths of
Mid Cap Fund one percent (1.00%) of AmSouth Funds Mid-Cap
Fund's average daily net assets.
NAME OF FUND
------------
AmSouth Funds Annual rate of eighty one-hundredths of one
Capital Growth Fund percent (.80%) of AmSouth Funds Capital Growth
Fund's average daily net assets.
AmSouth Funds Annual rate of eighty one-hundredths of one
Large Cap percent (.80%) of AmSouth Funds Large Cap
Fund's average daily net assets.
AmSouth Funds Annual rate of sixty-five one-hundredths of
Tennessee Tax-Exempt Fund one percent (.65%) of AmSouth Funds Tennessee
Tax-Exempt Fund's average daily net assets.
AmSouth Funds Annual rate of sixty-five one-hundredths of
Limited Term Bond Fund one percent (.65%) of AmSouth Funds Limited
Term Bond Fund's average daily net assets.
AmSouth Funds Annual rate of forty one-hundredths of one
Treasury Reserve Money Market percent (.40%) of AmSouth Funds Treasury
Fund Reserve Money Market Fund's average daily net
assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Strategic Portfolios: percent (.20%) of AmSouth Funds Strategic
Aggressive Growth Portfolio Portfolios: Aggressive Growth Portfolio's
average daily net assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Strategic Portfolios: Growth percent (.20%) of AmSouth Funds Strategic
Portfolio Portfolios: Growth Portfolio's average daily
net assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Strategic Portfolios: Growth percent (.20%) of AmSouth Funds Strategic
and Income Portfolio Portfolios: Growth and Income Portfolio's
average daily net assets.
AmSouth Funds Annual rate of twenty one-hundredths of one
Strategic Portfolios: Moderate percent (.20%) of AmSouth Funds Strategic
Growth and Income Portfolio Portfolios: Moderate Growth and Income
Portfolio's average daily net assets.
AMSOUTH ASSET AMSOUTH FUNDS
MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
Title: Chairman Title: President
