CO-ADMINISTRATION AGREEMENT
This CO-ADMINISTRATION AGREEMENT (the "Agreement") is made as of
December 1, 1998 by and among XXXXXXXX INC. ("Xxxxxxxx"), NATIONSBANC ADVISORS,
INC. ("NBAI") and NATIONS FUND, INC. (the "Company").
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Company desires to retain Xxxxxxxx and NBAI to render
certain administrative services for the investment portfolios of the Company
listed on Schedule I (individually, a "Fund" and collectively, the "Funds"), and
Xxxxxxxx and NBAI are willing to render such services.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed among the parties hereto as follows:
1. Appointment.
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(a) The Company hereby appoints Xxxxxxxx to act as
Co-Administrator of the Funds and Xxxxxxxx hereby accepts such appointment and
agrees to render such services and duties set forth in Paragraph 3, for the
compensation and on the terms herein provided. Absent written notification to
the contrary by the Company, NBAI or Xxxxxxxx, each new investment portfolio
established in the future by the Company shall automatically become a "Fund" for
all purposes hereunder as if listed on Schedule I.
(b) The Company also hereby appoints NBAI to act as
Co-Administrator of the Funds, and NBAI hereby accepts such appointment and
agrees to render such services and duties set forth in Paragraph 4, for the
compensation and on the terms herein provided. Absent written notification to
the contrary by either the Company or NBAI, each new investment portfolio
established in the future by the Company shall automatically become a "Fund" for
all purposes hereunder as if listed on Schedule I.
2. Delivery of Documents. The Company has furnished Xxxxxxxx and NBAI
with copies properly certified or authenticated of each of the following:
(a) The Company's most recent Post-Effective Amendment to its
Registration Statement on Form N-1A (the "Registration Statement") under the
Securities Act of 1933, as amended, and under the 1940 Act (File Nos. 33-4038
and 811-4614), as filed with the Securities and Exchange Commission (the "SEC")
relating to the Funds' shares (the "Shares");
(b) The Funds' most recent Prospectus(es); and
(c) The Funds' most recent Statement(s) of Additional Information.
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The Company will furnish Xxxxxxxx and NBAI from time to time with
copies, properly certified or authenticated, of all amendments of or supplements
to the foregoing. Furthermore, the Company will provide Xxxxxxxx and NBAI with
any other documents that Xxxxxxxx and NBAI may reasonably request and will
notify Xxxxxxxx and NBAI as soon as possible of any matter materially affecting
either Xxxxxxxx' or NBAI's performance of its services under this Agreement.
3. Duties as Co-Administrator. Subject to the supervision and direction
of the Board of Directors of the Company, Xxxxxxxx, as Co-Administrator, will
assist in supervising various aspects of the Company's administrative operations
and undertakes to perform the following specific services from and after the
effective date of this Agreement:
(a) Maintaining office facilities for the Company (which may be in the
offices of Xxxxxxxx or a corporate affiliate);
(b) Furnishing clerical services, internal executive and administrative
services and stationery and office supplies in connection with the foregoing;
(c) Assist in furnishing statistical and research data and data
processing services in connection with the foregoing;
(d) Furnishing corporate secretarial services, including assisting in
the coordination of the preparation and distribution of materials for Board of
Directors meetings;
(e) Providing the services of certain persons who may be appointed as
officers of the Company by the Company's Board of Directors;
(f) Assist in coordinating the provision of legal advice and counsel to
the Company with respect to regulatory matters, including monitoring regulatory
and legislative developments which may affect the Company and assisting in the
strategic response to such developments, counseling and assisting the Company in
routine regulatory examinations or investigations of the Company, and working
closely with outside counsel to the Company in connection with any litigation in
which the Company is involved;
(g) Assist in coordinating the preparation of reports to the Company's
shareholders of record and the SEC including, but not necessarily limited to,
Annual Reports and Semi-Annual Reports to Shareholders and on Form N-SAR and
Notices pursuant to Rule 24f-2 under the 1940 Act;
(h) Coordinating with the Company regarding the jurisdictions in which
the Shares shall be registered or qualified for sale and, in connection
therewith, being responsible for the registration or qualification and the
maintenance of such registration or qualification of Shares for sale under the
securities laws of any state. Payment of share registration fees and any fees
for qualifying or continuing the qualification of the
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Company or any Fund as a dealer or broker shall be made or reimbursed by the
Company or that Fund, respectively;
(i) Assisting in the preparation and filing on a timely basis of
various reports, registration statements and post-effective amendments thereto,
and other documents required by federal, state and other applicable laws and
regulations, other than those filed or required to be filed by NBAI or the
Funds' Sub-Advisers, Transfer Agent, Sub-Transfer Agent or Custodian;
(j) Performing certain compliance procedures for the Company which will
include, among other matters, monitoring compliance with personal trading
guidelines by the Company's Board of Directors; and
(k) Generally assisting in all aspects of the Company's operations.
In performing all services under this Agreement, Xxxxxxxx shall (i) act
in conformity with: the Company's Articles of Incorporation and Bylaws, the 1940
Act and the rules thereunder, and other applicable laws and regulations, as the
same may be amended from time to time, and the Company's Registration Statement,
as such Registration Statement may be amended from time to time; (ii) consult
and coordinate with the Company, as necessary and appropriate; and (iii) advise
and report to the Company, as necessary or appropriate, with respect to any
compliance matters that come to its attention.
Xxxxxxxx represents and warrants to the Company that it will use
reasonable efforts to perform its duties and obligations under this Agreement
without: (a) any failure of its computer systems, or those used by it in the
performance of its duties hereunder, to properly record, store, process,
calculate or present calendar dates falling on and after, and time spans
including, January 1, 2000 as a result of the occurrence of, or use of data
containing, such date; (b) any failure of its computer systems, or those used by
it in the performance of its duties hereunder, to calculate any information
dependent on or relating to dates on or after January 1, 2000; or (c) any loss
of functionality or performance with respect to the maintenance of records or
processing of data containing dates falling on or after January 1, 2000 ((a),
(b), and (c) above shall be referred to as "Y2K Failures"). Notwithstanding the
above, Xxxxxxxx shall not be liable for any Y2K Failures caused by Y2K Failures
in a third party system with which Xxxxxxxx interfaces or from which Xxxxxxxx
receives data in connection with the performance of its duties hereunder.
In performing its services under this Agreement, Xxxxxxxx shall
cooperate and coordinate with NBAI as necessary and appropriate and shall
provide such information as is reasonably necessary or appropriate for NBAI to
perform its responsibilities to the Company.
4. Duties as Co-Administrator. Subject to the supervision and direction
of the Board of Directors of the Company, NBAI, as Co-Administrator, will assist
in supervising various aspects of the Company's administrative operations and
undertakes to perform the following specific services, from and after the
effective date of this Agreement:
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(a) providing accounting and bookkeeping services (including the
maintenance for the periods prescribed by Rule 31a-2 under the 1940 Act of such
accounts, books and records of the Company as may be required by Section 31(a)
of the 1940 Act and the rules thereunder). NBAI further agrees that all such
records which it maintains for the Company are the property of the Company and
further agrees to surrender promptly to the Company any of such records upon the
Company's request;
(b) valuing each Fund's assets and calculating the net asset value and
the net income of the shares of each Fund in accordance with the Company's
current Prospectus(es), applicable pricing procedures and resolutions of the
Company's Board of Directors, provided, that in performing such services, NBAI
shall obtain security market quotes from independent pricing services, or if
such quotes are unavailable, obtain such prices from the Funds' Sub-Advisers;
(c) accumulating information for reports to the Company's shareholders
of record and the SEC including, but not necessarily limited to, Annual Reports
and Semi-Annual Reports to Shareholders and on Form N-SAR and Notices pursuant
to Rule 24f-2 under the 1940 Act;
(d) preparing and filing on a timely basis the Company's tax returns
and other tax filings;
(e) monitoring the development and implementation of certain compliance
procedures for the Company including, but not limited to, monitoring (i) each
Fund's status as a regulated investment company under Sub-Chapter M of the
Internal Revenue Code of 1986, as amended, including performing, on a monthly
basis and based upon information provided by the Fund's Sub-Advisers, the 90%
gross income and asset diversification tests derived from such Sub-Chapter; and
(ii) compliance by each Fund with its investment objective, policies and
restrictions, and applicable laws and regulations;
(f) preparing and furnishing to the Company monthly broker security
transaction summaries and monthly security transaction listings and (at the
Company's request) performance information (including yield and total return
information) calculated in accordance with applicable U.S. securities laws and
reporting to external databases such information as may reasonably be requested;
(g) assisting the Company and its agents in their accumulation and
preparation of materials for the Board of Directors' meetings and for regulatory
examinations and inspections of the Company, to the extent such materials relate
to the services being performed for the Company by NBAI; and
(h) coordinate the provision of services to the Company by other
service providers to the Company, including the transfer agent, sub-transfer
agent and custodian.
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In performing all services under this Agreement, NBAI shall (i) act in
conformity with the Company's Articles of Incorporation and Bylaws; the 1940 Act
and the rules thereunder, and other applicable laws and regulations, as the same
may be amended from time to time; and the Company's Registration Statement, as
such Registration Statement may be amended from time to time, (ii) consult and
coordinate with the Company, as necessary and appropriate, and (iii) advise and
report to the Company, as necessary or appropriate, with respect to any
compliance matters that come to its attention.
NBAI represents and warrants to the Company that it will use reasonable
efforts to perform its duties and obligations under this Agreement without: (a)
any failure of its computer systems to properly record, store, process,
calculate or present calendar dates falling on and after, and time spans
including, January 1, 2000 as a result of the occurrence of, or use of data
containing, such date; (b) any failure of its computer systems to calculate any
information dependent on or relating to dates on or after January 1, 2000; or
(c) any loss of functionality or performance with respect to the maintenance of
records or processing of data containing dates falling on or after January 1,
2000 ((a), (b), and (c) above shall be referred to as "Y2K Failures").
Notwithstanding the above, NBAI shall not be liable for any Y2K Failures caused
by Y2K Failures in a third party system with which NBAI interfaces or from which
NBAI receives data in connection with the performance of its duties hereunder
including, without limitation, the system of any sub-administrator engaged
pursuant to Paragraph 4.
In connection with its duties under this Paragraph 4, it is understood
and agreed that NBAI may, at its own expense, enter into sub-administration
agreements with other service providers and the Fund(s), provided that each such
service provider agrees with NBAI and the Fund(s) to comply with all relevant
provisions of the 1940 Act and applicable rules and regulations thereunder. In
addition, upon notice to the Board of Directors of the Company, the parties
agree that NBAI may from time to time assume some or all of Xxxxxxxx' duties set
forth in Paragraph 3 above.
In performing its responsibilities under this Agreement, NBAI shall
cooperate and coordinate with Xxxxxxxx as necessary and appropriate and shall
provide such information within its possession or control as is reasonably
necessary or appropriate to Xxxxxxxx to enable it to perform its
responsibilities to the Company.
5. Compensation.
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(a) Xxxxxxxx shall bear all expenses in connection with the performance
of its services under this Agreement, except those enumerated in Paragraph
5(a)(2) below.
(1) Xxxxxxxx will from time to time employ or associate with such
person or persons as Xxxxxxxx may believe to be particularly suited to assist it
in performing services under this Agreement. Such person or persons may be
officers and employees of both Xxxxxxxx and the Company. The compensation of
such person or persons shall be paid by Xxxxxxxx and no obligation shall be
incurred on behalf of the Company or NBAI in such respect.
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(2) Xxxxxxxx shall not be required to pay any of the following
expenses incurred by the Company: investment advisory expenses; costs of
printing and mailing stock certificates, prospectuses, reports and notices;
interest on borrowed money; brokerage fees and commissions; taxes and fees
payable to federal, state and other governmental agencies; fees of Directors of
the Company who are not affiliated with Xxxxxxxx; outside auditing expenses;
outside legal expenses; fees of any other service provider to the Company; or
other expenses not specified in this Section 5(a) which may be properly payable
by the Company and which are approved by the Company's President or Treasurer.
(3) The Company will compensate Xxxxxxxx for its services rendered
pursuant to this Agreement in accordance with Schedule A. In addition, the
Company shall reimburse Xxxxxxxx for certain reasonable out-of pocket
distributions made in connection with fulfilling its obligations under the
Agreement. The items eligible for reimbursement are set forth on Schedule A.
(b) NBAI shall bear all expenses in connection with the performance of
its services under this Agreement, except those enumerated in 5(b)(2) below.
(1) NBAI will from time to time employ or associate with such
person or persons as NBAI may believe to be particularly suited to assist it in
performing services under this Agreement. Such person or persons may be officers
and employees of both NBAI and the Company. The compensation of such person or
persons shall be paid by NBAI and no obligation shall be incurred on behalf of
the Company or Xxxxxxxx in such respect.
(2) NBAI shall not be required to pay any of the following expenses
incurred by the Company: investment advisory expenses; costs of printing and
mailing stock certificates, prospectuses, reports and notices; interest on
borrowed money; brokerage fees and commissions; taxes and fees payable to
federal, state and other governmental agencies; fees of Directors of the Company
who are not affiliated with NBAI; outside auditing expenses; outside legal
expenses; fees of independent pricing services utilized by NBAI to value each
Fund's assets; fees of any other service provider to the Company (other than a
sub-administrator engaged pursuant to Paragraph 4); or other expenses not
specified in this Section 5(b) which may be properly payable by the Company and
which are approved by the Company's President or Treasurer.
(3) The Company will compensate NBAI for its services rendered
pursuant to this Agreement in accordance with Schedule A. In addition, the
Company shall reimburse NBAI for certain reasonable out-of pocket distributions
made in connection with fulfilling its obligations under the Agreement. The
items eligible for reimbursement are set forth on Schedule A.
6. Limitation of Liability; Indemnification.
-----------------------------------------
(a) Xxxxxxxx shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Company in connection with the
performance of its
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obligations and duties under this Agreement, except a loss resulting from
Xxxxxxxx' willful misfeasance, bad faith or gross negligence in the performance
of such obligations and duties, or by reason of its reckless disregard thereof.
(b) NBAI shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Company in connection with the performance
of its obligations and duties under this Agreement, except a loss resulting from
NBAI's willful misfeasance, bad faith or gross negligence in the performance of
such obligations and duties, or by reason of its reckless disregard thereof.
(c) The Company, on behalf of each Fund, will indemnify Xxxxxxxx and/or
NBAI against and hold each harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit relating to the particular Fund
and not resulting from the willful misfeasance, bad faith or gross negligence of
Xxxxxxxx and/or NBAI in the performance of such obligations and duties or by
reason of their reckless disregard thereof. Xxxxxxxx and/or NBAI will not
confess any claim or settle or make any compromise in any instance in which the
Company will be asked to provide indemnification, except with the Company's
prior written consent. Any amounts payable by the Company under this Section
6(c) shall be satisfied only against the assets of the Fund involved in the
claim, demand, action or suit and not against the assets of any other investment
portfolio of the Company.
7. Effective Date; Termination of Agreement.
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(a) This Agreement shall become effective, on a Fund by Fund basis,
upon the completion of the transfer of a Fund's accounting function to The Bank
of New York, notice of which shall be provided by the Company to Xxxxxxxx and
NBAI for each Fund. This Agreement shall remain in full force and effect with
respect to such Fund(s) unless terminated pursuant to the provisions of Section
7(c).
(b) The parties agree that the administration arrangements between
Xxxxxxxx and the Company, dated September 1, 1993, and the sub-administration
arrangements between Xxxxxxxx and NBAI, dated November 18, 1997, with respect to
the Funds shall be terminated on a Fund by Fund basis upon the effectiveness of
this Agreement.
(c) This Agreement may be terminated at any time without payment of any
penalty, upon 60 days' written notice, by vote of the Board of Directors of the
Company, by Xxxxxxxx or by NBAI. Xxxxxxxx and NBAI will each cooperate with and
assist the Company, its agents and any successor administrator or administrators
in the substitution/conversion process.
(d) Sections 6 and 9 shall survive this Agreement's termination.
8. Amendments. No provision of this Agreement may be changed,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, discharge or termination is
sought.
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9. Confidentiality. All books, records, information and data pertaining
to the business of the Company, its prior, present or potential shareholders and
NBAI's customers that are exchanged or received pursuant to the performance of
Xxxxxxxx' and/or NBAI's duties under this Agreement shall remain confidential
and shall not be disclosed to any other person, except as specifically
authorized by the Company or as may be required by law, and shall not be used
for any purpose other than performance of NBAI's and Xxxxxxxx' responsibilities
and duties hereunder.
10. Service to Other Companies or Accounts. The Company acknowledges
that both Xxxxxxxx and NBAI now act, will continue to act and may act in the
future as investment adviser to fiduciary and other managed accounts, and as
investment adviser, investment sub-adviser and/or administrator to other
investment companies or series of investment companies, and the Company has no
objection to either Xxxxxxxx or NBAI so acting. The Company further acknowledges
that the persons employed by both Xxxxxxxx and NBAI to assist in the performance
of their duties under this Agreement may not devote their full time to such
service and nothing contained in this Agreement shall be deemed to limit or
restrict the right of Xxxxxxxx or NBAI or any affiliate of either to engage in
and devote time and attention to other businesses or to render services of
whatever kind or nature.
11. Miscellaneous.
--------------
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Company, Xxxxxxxx or NBAI shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Company:
Nations Fund, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Secretary
To Stephens:
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
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To NBAI:
NationsBanc Advisors, Inc.
Xxx Xxxx xx Xxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
(b) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable without the written consent of the
other parties.
(c) This Agreement shall be construed in accordance with the laws of
the State of Maryland.
(d) This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of 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.
(f) This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters described herein.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxx, Xx.
Senior Vice President
NATIONSBANC ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President and Chief Operating
Officer
NATIONS FUND, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------------
Xxxxx X. Xxxxx, Xx.
Assistant Secretary
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SCHEDULE I
1. Nations Prime Fund
2. Nations Treasury Fund
3. Nations Equity Fund
4. Nations Small Company Fund
Last Amended: June 8, 2001
IN WITNESS WHEREOF, the parties hereto have caused this amended
Schedule I to be executed by their duly authorized officers designated below as
of the 8th day of June, 2001.
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx.
Senior Vice President
BANC OF AMERICA ADVISORS, LLC
(formerly NationsBanc Advisors, Inc.)
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx
President
NATIONS FUND, INC.
By: /s/ Xxxxxxx Xxxx
-----------------
Xxxxxxx Xxxx
Assistant Secretary
I-1
SCHEDULE A
For services rendered pursuant to this Agreement, the Company will pay
Xxxxxxxx and NBAI, in the aggregate, an administration fee, computed daily and
payable monthly, based on annual rate of each Fund's daily net assets as
follows:
1. Money Market Funds: 0.10%
2. Fixed Income Funds: 0.22%
3. International Funds: 0.22%
4. Domestic Equity Funds: 0.23%
It is understood and agreed among the parties that the aggregate
administration fee payable hereunder shall be divided by and between Xxxxxxxx
and NBAI, as they may agree from time to time.
In addition to the asset-based fee set forth above, the Company shall
reimburse Xxxxxxxx, NBAI and any sub-administrator engaged pursuant to Paragraph
4 for certain reasonable out-of-pocket expenses incurred by them in connection
with the performance of their respective duties hereunder. Reimbursable
out-of-pocket expenses shall include the following: reasonable costs associated
with postage (including overnight services), telephone, telecommunications
(including facsimiles), duplicating, pricing services, and forms and supplies.
A-1
