Exhibit 99.23(d)(6)
SUB-ADVISORY AGREEMENT
NATIONS MASTER INVESTMENT TRUST
THIS AGREEMENT is made as of April 30, 2002, by and between BANC OF AMERICA
ADVISORS, LLC, a North Carolina limited liability company (the "Adviser"), BANC
OF AMERICA CAPITAL MANAGEMENT, LLC, a North Carolina limited liability company
(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 "Fund" and collectively, the "Funds").
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
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and other investments are to be purchased or sold for each
Master Portfolio and executing transactions accordingly;
(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 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;
(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 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 determines to be
necessary or useful 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;
(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;
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(c) Not make loans to any person for the purpose of purchasing or
carrying Master Portfolio shares;
(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;
(e) Adhere to the investment objective, strategies and policies and
procedures of the Trust adopted on behalf of each Master
Portfolio;
(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 Master Portfolio, the Sub-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 a
Master 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 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
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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. Nothing in this Agreement
shall limit or restrict the right of any of the Sub-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 Sub-Adviser's right to
engage in any other business or to render services of any kind to any other
corporation, firm, individual or association.
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 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
(c) 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
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and qualifying shares for sale, expenses relating to Board and interestholder
meetings, and the cost of preparing and distributing reports and notices to
interestholders.
9. Compensation. Except as otherwise provided herein, 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. The Adviser and the Sub-Adviser may, from time to time, agree to
reduce, limit or waive the amounts payable hereunder with respect to one or more
Master Portfolios for such period or periods they deem appropriate.
10. 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, or a loss resulting from willful
misfeasance, bad faith or negligence on the part of the Sub-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.
11. 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 Master Portfolio as of the date set forth on Schedule
I when each such Master Portfolio is added thereto. The Agreement shall continue
in effect for a Master 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
Master Portfolio at least annually:
(a)(i) by the Board or (ii) by the vote of "a majority of the
outstanding voting securities" of the Master Portfolio (as
defined in Section 2(a)(42) of the 0000 Xxx); and
(b) by the affirmative vote of a majority of the Trustees of the
Trust who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of a party to this
Agreement (other than as Trustees of the Trust), by votes cast
in person at a meeting specifically called for such purpose.
12. 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,
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upon sixty (60) 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. 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 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 Xxx
Xxxx xx Xxxxxxx Xxxxx, 00xx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: President.
16. 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.
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 Master Portfolios
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx.
Secretary
BANC OF AMERICA ADVISORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
President
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
President
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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:
Effective
Rate of ---------
Master Portfolio Compensation Date
---------------- ------------ ----
Nations SmallCap Value Master Portfolio 0.35% 04/30/02
Nations Strategic Growth Master Portfolio 0.25% 05/10/02
Approved: October 10, 2001
Last Amended: May 10, 2002
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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 10th day of May, 2002.
NATIONS MASTER INVESTMENT TRUST
on behalf of the Master Portfolios
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx.
Secretary
BANC OF AMERICA ADVISORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
President
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
President
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