INVESTMENT ADVISORY AGREEMENT
NATIONS MASTER INVESTMENT TRUST
THIS AGREEMENT is made as of January 1, 2003, by and between NATIONS
MASTER INVESTMENT TRUST, a Delaware statutory trust ("Master Trust"), and BANC
OF AMERICA CAPITAL MANAGEMENT, LLC, a North Carolina limited liability company
(the "Adviser"), on behalf of those series of Master Trust now or hereafter
identified on Schedule I (each a "Portfolio" and collectively, the
"Portfolios").
WHEREAS, Master Trust is registered with the Securities and Exchange
Commission (the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser is registered with the Commission as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act");
WHEREAS, Master Trust desires that the Adviser manage the investment
operations of the Portfolios and the Adviser desires to manage said operations;
and
WHEREAS, the Board of Trustees of Master Trust (the "Board"), including
a majority of the Trustees who are not "interested persons" (as defined herein)
of any party to this Agreement, have approved this arrangement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT OF ADVISER. Master Trust hereby appoints the
Adviser and the Adviser hereby agrees to manage the investment operations of
each Portfolio subject to the terms of this Agreement and subject to the
supervision of the Board. Master Trust and the Adviser contemplate that certain
duties of the Adviser under this Agreement may be delegated to one or more
investment sub-adviser(s) (the "Sub-Adviser(s)") pursuant to separate investment
sub-advisory agreement(s) (the "Sub-Advisory Agreement(s)"). The Adviser may, in
its discretion, provide services under this Agreement through its own employees
or through one or more affiliated companies that are qualified to act as
investment advisers under applicable law and are under common control of Bank of
America Corporation.
2. SERVICES OF ADVISER. The Adviser shall perform, or arrange for
the performance of, the management services necessary for the investment
operations of each Portfolio, including but not limited to:
(a) Managing the investment and reinvestment of all
assets, now or hereafter acquired by each Portfolio,
including determining what securities and other
investments are to be purchased or sold for each
Portfolio and executing transactions accordingly;
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(b) Transmitting trades to each Portfolio's custodian for
settlement in accordance with each Portfolio's
procedures and as may be directed by Master Trust;
(c) Assisting in the preparation of all shareholder
communications, including shareholder reports, and
participating in shareholder relations;
(d) Making recommendations as to the manner in which
voting rights, rights to consent to Portfolio action
and any other rights pertaining to each Portfolio's
portfolio securities shall be exercised;
(e) Making recommendations to the Board with respect to
Portfolio investment policies and procedures, and
carrying out such investment policies and procedures
as are adopted by the Board;
(f) Supplying reports, evaluations, analyses, statistical
data and information to the Board or to the
Portfolios' officers and other service providers as
the Board may reasonably request from time to time or
as may be necessary or appropriate for the operation
of Master Trust as an open-end investment company or
as necessary to comply with Section 3(a) of this
Agreement;
(g) Maintaining all required books and records with
respect to the investment decisions and securities
transactions for each Portfolio;
(h) Furnishing any and all other services, subject to
review by the Board, that the Adviser from time to
time determines to be necessary or useful to perform
its obligations under this Agreement or as the Board
may reasonably request from time to time.
3. RESPONSIBILITIES OF ADVISER. In carrying out its obligations
under this Agreement, the Adviser agrees that it will:
(a) Comply with all applicable law, including but not
limited to the 1940 Act and the Advisers Act, the
rules and regulations of the Commission thereunder,
and the conditions of any order affecting Master
Trust or a Portfolio issued thereunder;
(b) Use the same skill and care in providing such
services as it uses in providing services to other
fiduciary accounts for which it has investment
responsibilities;
(c) Not make loans to any person for the purpose of
purchasing or carrying Portfolio shares;
(d) Place, or arrange for the placement of, all orders
pursuant to its investment determinations for the
Portfolios either directly with the issuer or with
any broker or dealer (including any affiliated broker
or dealer). In executing
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portfolio transactions and selecting brokers or
dealers, the Adviser will use its best efforts to
seek on behalf of each Portfolio the best overall
terms available. In assessing the best overall terms
available for any transaction, the 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 or dealer to
execute a particular transaction, the Adviser may
also consider whether such broker or dealer furnishes
research and other information or services to the
Adviser;
(e) Adhere to the investment objective, strategies and
policies and procedures of Master Trust adopted on
behalf of each Portfolio; and
(f) Maintain a policy and practice of conducting its
investment advisory services hereunder independently
of the commercial banking operations of its
affiliates. In making investment recommendations for
a Portfolio, the Adviser's investment advisory
personnel will not inquire or take into consideration
whether the issuers (or related supporting
institutions) of securities proposed for purchase or
sale for the Portfolio's account are customers of the
commercial departments of its affiliates. In dealing
with commercial customers, such commercial
departments will not inquire or take into
consideration whether securities of those customers
are held by the Portfolio.
4. CONFIDENTIALITY OF INFORMATION. Each party agrees that it will
treat confidentially all information provided by the other party regarding such
other party's business and operations, including without limitation the
investment activities or holdings of a Portfolio. All confidential information
provided by a party hereto shall not be disclosed to any unaffiliated third
party without the prior consent of the providing party. The foregoing shall not
apply to any information that is public when provided or thereafter becomes
public or which is required to be disclosed by any regulatory authority in the
lawful and appropriate exercise of its jurisdiction over a party, by any auditor
of the parties hereto, by judicial or administrative process or otherwise by
applicable law or regulation.
5. DELEGATION OF DUTIES. Subject to the approval of the Board
and, if required, the shareholders of the Portfolios, the Adviser may delegate
to one or more Sub-Adviser(s) any or all of its duties hereunder, provided that
the Adviser shall continue to supervise and monitor the performance of the
duties delegated to the Sub-Adviser(s) and any such delegation shall not relieve
the Adviser of its duties and obligations under this Agreement. The Adviser
shall be solely responsible for compensating the Sub-Adviser(s) for performing
any of the duties delegated to them. The Adviser may request that Master Trust
pay directly to the Sub-Adviser(s) the portion of the Adviser's compensation
that the Adviser is obligated to pay to the Sub-Adviser(s). If Master Trust
agrees to such request, it will pay such portion to the Sub-Adviser(s) on behalf
of the Adviser, thereby reducing the compensation paid to the Adviser by the
amount
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paid directly to the Sub-Adviser(s). However, such an arrangement will not
relieve the Adviser of its responsibility for compensating the Sub-Adviser(s).
In the event that any Sub-Adviser appointed hereunder is terminated, the Adviser
may provide investment advisory services pursuant to this Agreement through its
own employees or through one or more affiliated companies that are qualified to
act as investment advisers under applicable law and are under common control of
Bank of America Corporation or through other Sub-Adviser(s) as approved by
Master Trust in accordance with applicable law.
6. SERVICES NOT EXCLUSIVE. The services furnished by the Adviser
hereunder are deemed not to be exclusive, and the Adviser shall be free to
furnish similar services to others so long as its provision of services under
this Agreement is 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
Adviser to be suitable for two or more accounts managed by the Adviser, the
available securities or investments may be allocated in a manner believed by the
Adviser to be equitable to each account. It is recognized that in some cases
this procedure may adversely affect the price paid or received by a Portfolio or
the size of the position obtainable for or disposed of by a Portfolio. Nothing
in this Agreement shall limit or restrict the right of any of the Adviser's
partners, officers or employees to engage in any other business or to devote his
or her time and attention in part to the management or other aspects of any
business, whether of a similar or dissimilar nature, nor limit or restrict the
Adviser's right to engage in any other business or to render services of any
kind to any other corporation, firm, individual or association.
7. DELIVERY OF DOCUMENTS. Master Trust has furnished the Adviser
with copies, properly certified or authenticated, of each of the following:
(a) Master Trust's Certificate of Trust, as filed with
the Secretary of State of Delaware, and Declaration
of Trust (such Declaration of Trust, as presently in
effect and as from time to time amended, is herein
called the "Declaration of Trust");
(b) Master Trust's Bylaws, if any;
(c) the most recent prospectus(es) and statement(s) of
additional information relating to each Portfolio
(such prospectus(es) together with the related
statement(s) of additional information, as presently
in effect and all amendments and supplements thereto,
are herein called the "Prospectus"); and
(d) any and all applicable policies and procedures
approved by the Board.
Master Trust will promptly furnish the Adviser with copies of any and
all amendments of or additions or supplements to the foregoing.
8. BOOKS AND RECORDS. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Adviser hereby agrees that all records that it
maintains for each Portfolio under this Agreement are the property of Master
Trust and further agrees to surrender promptly to
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Master Trust any of such records upon request. The 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.
9. EXPENSES OF THE PORTFOLIOS. Except to the extent expressly
assumed by the Adviser and except to any extent required by law to be paid or
reimbursed by the Adviser, the Adviser shall have no duty to pay any ordinary
operating expenses incurred in the organization and operation of the Portfolios.
Ordinary operating expenses include, but are not limited to, brokerage
commissions and other transaction charges, taxes, legal, auditing, printing, or
governmental fees, other service providers' fees and expenses, expenses of
issue, sale, redemption and repurchase of shares, expenses of registering and
qualifying shares for sale, expenses relating to Board and shareholder meetings,
the cost of preparing and distributing reports and notices to shareholders and
interest payments and other fees or charges associated with any credit
facilities established by or on behalf of the Portfolios.
10. COMPENSATION. The Adviser shall perform its services pursuant
to this Agreement at no charge to the Portfolios.
11. LIABILITY OF ADVISER. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by Master Trust in
connection with the performance of its duties under 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 negligence on the part of the Adviser or any of its officers,
directors, employees or agents, in the performance of their duties under this
Agreement, or from reckless disregard by it of obligations and duties under this
Agreement.
12. TERM AND APPROVAL. This Agreement will become effective as of
the date set forth herein above, and shall continue in effect until the second
anniversary of its effective date. This Agreement will become effective with
respect to each additional Portfolio as of the date set forth on Schedule I when
each such Portfolio is added thereto. The Agreement shall continue in effect for
a Portfolio after the second anniversary of the effective date for successive
annual periods ending on each anniversary of such date, provided that the
continuation of the Agreement is specifically approved for the Portfolio at
least annually:
(a)(i) by the Board or (ii) by the vote of "a majority of
the outstanding voting securities" of the Portfolio
(as defined in Section 2(a)(42) of the ▇▇▇▇ ▇▇▇); and
(b) by the affirmative vote of a majority of the Trustees
of Master Trust who are not parties to this Agreement
or "interested persons" (as defined in the ▇▇▇▇ ▇▇▇)
of a party to this Agreement (other than as Trustees
of Master Trust), by votes cast in person at a
meeting specifically called for such purpose.
13. TERMINATION. This Agreement may be terminated without payment
of any penalty at any time by:
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(a) Master Trust with respect to a Portfolio, by vote of
the Board or by vote of a majority of a Portfolio's
outstanding voting securities, upon sixty (60) days'
written notice to the Adviser; or
(b) the Adviser with respect to a Portfolio, upon sixty
(60) days' written notice to Master Trust.
Any party entitled to notice may waive the notice provided for herein.
This Agreement shall automatically terminate in the event of its assignment,
unless an order is issued by the Commission conditionally or unconditionally
exempting such assignment from the provisions of Section 15(a) of the 1940 Act,
in which event this Agreement shall remain in full force and effect subject to
the terms of such order. For the purposes of this paragraph, the definitions
contained in Section 2(a) of the 1940 Act and the applicable rules under the
1940 Act shall apply.
14. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement
may be changed, waived, discharged or terminated orally, except by an instrument
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
15. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to such address as may be
designated for the receipt of such notice. Until further notice, it is agreed
that the address of Master Trust shall be One Bank of America Plaza, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary, and that of
the Adviser shall be One Bank of America Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President.
16. RELEASE. The names "Nations Master Investment Trust" and
"Trustees of Nations Master Investment Trust" refer respectively to Master Trust
created by the Declaration of Trust and the Trustees as Trustees but not
individually or personally. All parties hereto acknowledge and agree that any
and all liabilities of Master Trust arising, directly or indirectly, under this
Agreement will be satisfied solely out of the assets of Master Trust and that no
Trustee, officer or shareholder shall be personally liable for any such
liabilities. All persons dealing with any Portfolio of Master Trust must look
solely to the property belonging to such Portfolio for the enforcement of any
claims against Master Trust.
17. MISCELLANEOUS. This Agreement contains the entire
understanding of the parties hereto. Each provision of this Agreement is
intended to be severable. 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.
18. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, Delaware law and the federal securities laws,
including the 1940 Act and the Advisers Act.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
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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.
NATIONS MASTER INVESTMENT TRUST
on behalf of the Portfolios
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
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SCHEDULE I
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PORTFOLIO EFFECTIVE DATE
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High Yield Portfolio 04/16/01
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Approved: November 21, 2002
Last Amended: March 27, 2003
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IN WITNESS WHEREOF, the parties hereto have caused this amended
Schedule I to be executed by their officers designated below as of the 27th day
of March, 2003.
NATIONS MASTER INVESTMENT TRUST
on behalf of the Portfolio
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Administrative Officer,
Senior Vice President and Treasurer
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