Exhibit 99.23(D)(8)
INTERIM INVESTMENT SUB-ADVISORY AGREEMENT
NATIONS MASTER INVESTMENT TRUST
THIS AGREEMENT is made as of this 2nd day of January, 2001, by and
between BANC OF AMERICA ADVISORS, INC., a North Carolina corporation (the
"Adviser"), XXXXXXX CAPITAL MANAGEMENT, LLC, a Delaware limited liability
corporation (the "Sub-Adviser"), and NATIONS MASTER INVESTMENT TRUST, a Delaware
business trust (the "Trust"), on behalf of those series of the Trust now or
hereafter identified on Schedule I (each a "Master Portfolio" and collectively,
the "Master Portfolios").
WHEREAS, the 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, the Sub-Adviser is also registered with the Commission as an
investment adviser under the Advisers Act;
WHEREAS, the Adviser and the Trust have entered into an investment
advisory agreement (the "Investment Advisory Agreement"), pursuant to which the
Adviser manages the investment operations of each Master Portfolio and may
delegate certain duties of the Adviser to one or more investment sub-adviser(s);
and
WHEREAS, the Adviser, with the approval of the Board of Trustees of the
Trust (the "Board"), including a majority of the Trustees who are not
"interested persons" (defined herein) of any party to this Agreement, desires to
delegate to the Sub-Adviser the duty to manage the portfolio investments of the
Master Portfolios;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment of Sub-Adviser. The Adviser hereby appoints the
Sub-Adviser and the Sub-Adviser hereby agrees to manage the portfolio
investments of each Master Portfolio subject to the terms of this Agreement and
subject to the supervision of the Adviser and the Board.
2. Services of Sub-Adviser. The Sub-Adviser shall perform all
services necessary for the management of the portfolio investments of each
Master Portfolio, including but not limited to:
(a) Managing the investment and reinvestment of all
assets, now or hereafter acquired by each Master
Portfolio, including determining what securities and
other investments are to be purchased or sold for
each Master Portfolio and executing transactions
accordingly;
-1-
(b) Transmitting trades to each Master Portfolio's
custodian for settlement in accordance with each
Master Portfolio's procedures and as may be directed
by the Trust;
(c) Assisting in the preparation of all interestholder
communications, including interestholder reports, and
participating in interestholder relations;
(d) Making recommendations, or making determinations
under authority delegated by the Adviser or the
Trust, as to the manner in which voting rights,
rights to consent to Master Portfolio action and any
other rights pertaining to each Master Portfolio's
portfolio securities shall be exercised; provided,
however, that the Sub-Adviser shall be given
reasonable prior notice should the Adviser or the
Trust determine to direct the Sub-Adviser in its
exercise of such rights;
(e) Making recommendations to the Adviser and the Board
with respect to Master Portfolio investment policies
and procedures, and carrying out such investment
policies and procedures as are approved by the Board
or by the Adviser under authority delegated by the
Board to the Adviser;
(f) Supplying reports, evaluations, analyses, statistical
data and information within its possession or control
to the Adviser, the Board or to the Master
Portfolios' officers and other service providers as
the Adviser or the Board may reasonably request from
time to time or as may be necessary or appropriate
for the operation of the 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 Master Portfolio;
(h) Furnishing any and all other services, subject to
review by the Board, that the Adviser from time to
time reasonably determines to be necessary to perform
its obligations under the Investment Advisory
Agreement or as the Board may reasonably request from
time-to-time.
3. Responsibilities of Sub-Adviser. In carrying out its obligations
under this Agreement, the Sub-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 the Trust
or a Master Portfolio issued thereunder;
-2-
(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 Master Portfolio interests;
(d) Place, or arrange for the placement of, all orders
pursuant to its investment determinations for the
Master Portfolios either directly with the issuer or
with any broker or dealer (including any affiliated
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 each Master Portfolio 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 or dealer to
execute a particular transaction, the Sub-Adviser may
also consider whether such broker or dealer furnishes
research and other information or services to the
Sub-Adviser; and
(e) Adhere to the investment objective, strategies,
policies, and procedures of the Trust adopted on
behalf of each Master Portfolio.
4. Confidentiality of Information. Each party agrees that it will
treat confidentially all information provided by another party regarding such
other party's business and operations, including without limitation the
investment activities or holdings of a Master 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. 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 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
Sub-Adviser to be suitable for two or more accounts managed by the Sub-Adviser,
the available securities or investments may be allocated in a manner believed by
the Sub-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 Master
Portfolio or the size of the position obtainable for or disposed of by a Master
Portfolio.
-3-
6. Delivery of Documents. The Trust will provide the Sub-Adviser with
copies, properly certified or authenticated, of each of the following:
(a) the 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) the Trust's Bylaws, if any;
(c) the most recent prospectus(es) and statement(s) of
additional information relating to each Master
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.
The Trust will promptly furnish the Sub-Adviser with copies of any and
all amendments of or additions or supplements to the foregoing.
7. Books and Records. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Sub-Adviser hereby agrees that all records that it
maintains for each Master Portfolio under this Agreement are the property of the
Trust and further agrees to surrender promptly to the Trust or the Adviser any
of such records upon request. 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.
8. Expenses of the Master Portfolios. Except to the extent expressly
assumed by the Sub-Adviser and except to any extent required by law to be paid
or reimbursed by the Sub-Adviser, the Sub-Adviser shall have no duty to pay any
ordinary operating expenses incurred in the organization and operation of the
Master Portfolios. Ordinary operating expenses include, but are not limited to,
brokerage commissions and other transaction charges, taxes, legal, auditing,
printing, or governmental fees, other Master Portfolio 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 interestholder meetings and the cost of preparing and distributing
reports and notices to interestholders. The Sub-Adviser shall pay all other
expenses incurred by it in connection with its services under this Agreement.
9. Compensation. Except as otherwise provided herein and except as
provided in Section 10 of this Agreement, for the services provided to each
Master Portfolio and the expenses assumed pursuant to this Agreement, the
Adviser will pay the Sub-Adviser and the Sub-Adviser will accept as full
compensation therefor a fee determined in accordance with Schedule I attached
hereto. It is understood that the Adviser shall be solely responsible for
compensating the Sub-Adviser for performing any of the duties delegated to the
Sub-Adviser and the Sub-Adviser agrees that it shall have no claim against the
Trust or any Master Portfolio with respect to compensation under this Agreement.
-4-
10. Escrow of Fees. During the period of time commencing on the
effective date of the Agreement, and continuing until the earlier of: (a) such
time as an investment sub-advisory agreement among the Adviser, the Sub-Adviser
and the Trust is approved by a majority of the outstanding voting securities of
the applicable Master Portfolio (the "New Investment Sub-Advisory Agreement");
or (b) the 150th day, or such other time that is granted by the Securities and
Exchange Commission, following the termination of the investment sub-advisory
agreement dated April 7, 2000 among Banc of America Advisors, Inc., Xxxxxxx
Capital Management, LLC and Nations Master Investment Trust (the "Prior
Agreement"), the fees payable to the Sub-Adviser under the Agreement shall be
paid into an interest-bearing escrow account (the "Account") which shall be
maintained by an escrow agent. Such escrow agent shall be the custodian to the
Master Portfolio or another bank that shall not be an affiliated party (as
defined in the 0000 Xxx) of any of the parties hereto. All amounts paid into the
Account (including interest earned on such moneys) may be paid to the
Sub-Adviser only upon the approval, by a majority of the outstanding voting
securities of the Master Portfolio (as defined in the 1940 Act), of the New
Investment Sub-Advisory Agreement. In the event that the interestholders of the
Master Portfolio fail to approve the New Investment Sub-Advisory Agreement prior
to the earlier of the date specified in subpart (b) above, all moneys in the
Account shall be paid to the Master Portfolio less any amounts to be paid to the
Sub-Advisor which shall be the lesser of: (1) any costs incurred in performing
the Agreement (plus interest earned on such amount); or (2) the total amount of
moneys in the Account (plus interest earned). All parties hereto expressly
acknowledge that the escrow agent may release the moneys in the Account only
upon receipt of a certificate from an officer of the Trust (who shall not be an
interested person of the Sub-Adviser (as defined in the 0000 Xxx) stating that
the moneys are to be delivered to the Sub-Adviser and that the New Investment
Sub-Advisory Agreement has been approved by a majority of the outstanding voting
securities of the Master Portfolio (as defined in the 0000 Xxx) or, in the event
that the interestholders of the Master Portfolio failed to approve the New
Investment Sub-Advisory Agreement prior to the earlier of the date specified in
subpart (b) above, that the moneys in the Account are to be delivered to the
Master Portfolio.
11. Liability of Sub-Adviser. The Sub-Adviser shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the Adviser
or the 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, from willful misfeasance, bad faith
or negligence on the part of the Sub-Adviser or any of its officers, directors,
employees or agents, in connection with the performance of their duties under
this Agreement, from reckless disregard by it or its officers, directors,
employees or agents of any of their obligations and duties under this Agreement,
or from any violations of securities laws, rules, regulations, statutes and
codes, whether federal or state, by the Sub-Adviser or any of its officers,
directors, employees or agents.
12. Term and Approval. This Agreement will become effective upon the
termination date of the Prior Agreement and shall continue in effect until the
earlier of: (a) such time as the New Investment Sub-Advisory Agreement is
approved by a majority of the outstanding voting securities of the Master
Portfolio; or (b) the 150th day, or such other time that is granted by the
Securities and Exchange Commission, following the termination of the Prior
Agreement.
-5-
13. Termination. This Agreement may be terminated without payment of
any penalty at any time by:
(a) the Trust with respect to a Master Portfolio, by vote
of the Board or by vote of a majority of a Master
Portfolio's outstanding voting securities, upon ten
(10) calendar days' written notice to the other
parties to this Agreement; or
(b) the Adviser or the Sub-Adviser with respect to a
Master Portfolio, upon sixty (60) days' written
notice to the other parties to this Agreement.
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. Code of Ethics. The Sub-Adviser represents that it has adopted a
written code of ethics complying with the requirements of Rule 17j-1 under the
1940 Act and will provide the Adviser or the Trust with a copy of such code, any
amendments or supplements thereto and its policies and/or procedures implemented
to ensure compliance therewith.
15. Insurance. The Sub-Adviser shall maintain for the term of this
Agreement and provide evidence thereof to the Trust or the Adviser a blanket
bond and professional liability (error and omissions) insurance in an amount
reasonably acceptable to Adviser.
16. Representations and Warranties. Each party to this Agreement
represents and warrants that the execution, delivery and performance of its
obligations under this Agreement are within its powers, have been duly
authorized by all necessary actions and that this Agreement constitutes a legal,
valid and binding obligation enforceable against it in accordance with its
terms. The Sub-Adviser further represents and warrants that it is duly
registered as an investment adviser under the Advisers Act.
17. 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.
-6-
18. 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 the Trust shall be c/o Stephens Inc., 000 Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Secretary, that of the Adviser shall be
Xxx Xxxx xx Xxxxxxx Xxxxx, 00xx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: President, and that of the Sub-Adviser shall be 0000
00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx.
The Sub-Adviser agrees to promptly notify the Adviser and the Trust in writing
of the occurrence of any event which could have a material impact on the
performance of its duties under this Agreement, including but not limited to (i)
the occurrence of any event which could disqualify the Sub-Adviser from serving
as an investment adviser pursuant to Section 9 of the 1940 Act; (ii) any
material change in the Sub-Adviser's business activities; (iii) any event that
would constitute a change in control of the Sub-Adviser; (iv) any change in the
portfolio manager of a Master Portfolio; (v) the existence of any pending or
threatened audit, investigation, examination, complaint or other inquiry (other
than routine audits or regulatory examinations or inspections) relating to any
Master Portfolio; and (vi) any material violation of the Sub-Adviser's code of
ethics.
19. Release. The names "Nations Master Investment Trust" and
"Trustees of Nations Master Investment Trust" refer respectively to the 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 the Trust arising, directly or indirectly, under this
Agreement will be satisfied solely out of the assets of the Trust and that no
Trustee, officer or interestholder shall be personally liable for any such
liabilities. All persons dealing with any Master Portfolio of the Trust must
look solely to the property belonging to such Master Portfolio for the
enforcement of any claims against the Trust.
20. 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.
21. 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.
22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
23. Use of the Name "Marsico". Sub-Adviser hereby consents to and
grants a non-exclusive license for the use by the Trust to the phrase "Xxxxxxx
Capital", the identifying word "Marsico" in the name of the Master Portfolios
and any logo or symbol authorized by the Sub-Adviser. Such consent is
conditioned upon the Trust's employment of Sub-Adviser or its affiliates as
sub-investment adviser to the Master Portfolios. Sub-Adviser may from time to
time use the phrase "Xxxxxxx Capital" or the identifying word "Marsico" or logos
or symbols used by Sub-Adviser in other connections and for other purposes,
including without limitation in the names of other investment companies,
corporations or businesses that it may manage, advise, sponsor or own or in
which it may have a financial interest. Sub-Adviser may require the Trust to
cease using the phrase "Xxxxxxx Capital" or the identifying word "Marsico" in
the name of the Master Portfolios or any logo or symbol authorized by
Sub-Adviser if the Trust ceases to employ Sub-Adviser or an affiliate thereof as
sub-investment adviser.
-7-
24. Use of the Name "Nations Funds". The Sub-Adviser agrees that it
will not use the name "Nations Funds", any derivative thereof, or the name of
the Adviser, the Trust or any Master Portfolio except in accordance with such
policies and procedures as may be mutually agreed to in writing. The parties
hereto agree that the Sub-Adviser shall be permitted to include in its
promotional or marketing literature statements to the effect that it manages the
portfolio investments of any Nations Fund(s) with respect to which it serves as
investment sub-adviser.
-8-
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 Master Portfolios
By: /s/ A. Xxx Xxxxxx
--------------------------------
A. Xxx Xxxxxx
President and Chairman of
the Board of Trustees
BANC OF AMERICA ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXX CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
President and General Counsel
-9-
SCHEDULE I
The Adviser shall pay the Sub-Adviser as, full compensation for
services provided and expenses assumed hereunder, a sub-advisory fee for each
Master Portfolio, computed daily and payable monthly at the annual rates listed
below as a percentage of the average daily net assets of the Master Portfolio:
Rate of
Master Portfolio Compensation Effective Date
---------------- ------------ --------------
Nations Marsico 21st Century Master Portfolio 0.45% 01/02/01
Approved: August 23, 2000
-1-
