PLACEMENT AGENCY 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 (the "Trust") on behalf of
each series of the Trust now or hereafter identified on Schedule I (each, a
"Master Portfolio" and collectively, the "Master Portfolios"), and BACAP
DISTRIBUTORS, LLC, a North Carolina limited liability company (the "Placement
Agent"). Absent written notification to the contrary by either the Trust or the
Placement Agent, each new investment portfolio established in the future shall
automatically become a "Master Portfolio" for all purposes hereunder and shares
of beneficial interest established in the future shall automatically become
"Shares" for all purposes hereunder as if set forth on Schedule I.
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust desires to retain the Placement Agent as the
exclusive Placement Agent of the units of beneficial interest ("Shares") of the
Master Portfolios, and the Placement Agent is willing to render such services;
and
WHEREAS, the Placement Agent is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and is a member of
the National Association of Securities Dealers, Inc. (the "NASD").
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. SERVICES AS PLACEMENT AGENT.
1.1. The Placement Agent will act as agent for the private
placement of Shares in accordance with any instructions of the Trust's Board of
Trustees and with the Trust's registration statement then in effect under the
1940 Act, and will transmit promptly any orders properly received by it for the
purchase or redemption of Shares to the Trust or the transfer and dividend
disbursing agent for the Master Trust of which the Master Trust has notified the
Placement Agent in writing, or their designated agents. As used in this
Agreement, the term "registration statement" shall mean any registration
statement, specifically including, among other items, any then-current
prospectus together with any related then-current statement of additional
information, filed with the SEC with respect to Shares, and any amendments and
supplements thereto which at any time shall have been filed.
1.2. The Placement Agent agrees to use appropriate efforts
to solicit orders for the sale of Shares and will undertake such advertising and
promotion, as it believes appropriate in connection with such solicitation. The
Placement Agent agrees to offer and sell Shares at the applicable offering price
which is the net asset value next determined after an order is received. The
Trust understands that the Placement Agent is and may in the future be the
Placement Agent
1
of shares of other investment company portfolios including portfolios having
investment objectives similar to those of the Master Portfolios. The Trust
further understands that existing and future investors in the Master Portfolios
may invest in shares of such other portfolios. The Trust agrees that the
Placement Agent's duties to such portfolios shall not be deemed in conflict with
its duties to the Trust under this paragraph 1.2.
1.3. The Placement Agent shall, at its own expense,
finance such activities as it deems reasonable and which are primarily intended
to result in the sale of Shares, including, but not limited to, advertising,
compensation of underwriters, dealers and sales personnel, the printing and
mailing of prospectuses to other than current interestholders, and the printing
and mailing of sales literature. The Placement Agent shall be responsible for
reviewing and providing advice on all sales literature (e.g., advertisements,
brochures and interestholder communications) with respect to each of the Master
Portfolios, and shall file with the NASD or the appropriate regulators all such
materials as are required to be filed under applicable laws and regulations in
compliance with such laws and regulations. In addition, the Placement Agent will
provide sufficient personnel, during normal business hours, reasonably necessary
to respond to telephone questions with respect to the Master Portfolios.
1.4. In connection with all matters relating to this
Agreement, the Placement Agent agrees to comply with all applicable laws, rules
and regulations, including, without limitation, all rules and regulations made
or adopted pursuant to the Securities Act of 1933, as amended (the "1933 Act"),
the 1934 Act, the 1940 Act, the regulations of the NASD and all other applicable
federal and state laws, rules and regulations.
1.5. Whenever in their judgment such action is warranted
by unusual market, economic or political conditions, or by other circumstances
of any kind, the Trust's officers may decline to accept any orders for, or make
any sales of Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.6. The Trust shall furnish from time to time, for use in
connection with the sale of Shares, such information with respect to the Master
Portfolios and Shares as the Placement Agent may reasonably request and the
Trust warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. The Trust shall
also furnish the Placement Agent upon request with: (a) audited annual and
unaudited semi-annual statements of the Trust's books and accounts with respect
to each Master Portfolio, and (b) from time to time such additional information
regarding the Master Portfolios' financial condition as the Placement Agent may
reasonably request.
1.7. The Placement Agent shall prepare reports for the
Board of Trustees of the Trust regarding its activities under this Agreement as
from time to time shall be reasonably requested by the Board, including reports
regarding the use of Rule 12b-1 payments received by the Placement Agent, if
any.
1.8. The Placement Agent may, at its own cost and expense,
appoint or employ agents to assist in carrying out its obligations under this
Agreement, but no such appointment or
2
employment shall relieve the Placement Agent of its responsibilities or
obligations to the Master Trust under this Agreement.
2. REPRESENTATIONS; INDEMNIFICATION.
2.1. The Trust represents to the Placement Agent that all
registration statements filed by the Trust with the SEC under the 1940 Act, with
respect to Shares have been prepared in conformity with the requirements of the
1940 Act and rules and regulations of the SEC thereunder.
The Trust represents and warrants to the Placement Agent that
any registration statement, when such registration statement becomes effective,
will contain all statements required to be stated therein in conformity with the
1940 Act and the rules and regulations of the SEC; that all statements of fact
contained in any such registration statement will be true and correct when such
registration statement becomes effective; and that no registration statement,
when such registration statement becomes effective, will include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading to a
purchaser of Shares. The Trust authorizes the Placement Agent to use any
prospectus or statement of additional information in the form furnished from
time to time in connection with the sale of Shares and represented by the Trust
as being the then-current form of prospectus or then-current form of statement
of additional information.
2.2. The Trust agrees to indemnify, defend and hold the
Placement Agent, its several officers and directors, and any person who controls
the Placement Agent within the meaning of Section 15 of the 1933 Act free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Placement Agent, its officers and directors, or any such controlling person, may
incur under the 1933 Act or under common law or otherwise, arising out of or
based upon any untrue statement, or alleged untrue statement, of a material fact
contained in any registration statement or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
any registration statement or necessary to make any statement in such documents
not misleading; provided, however, that the Trust's agreement to indemnify the
Placement Agent, its officers and directors, and any such controlling person
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of any untrue statement or alleged untrue statement or omission or
alleged omission made in any registration statement or in any financial or other
statements in reliance upon and in conformity with any information furnished to
the Trust by the Placement Agent or any affiliate thereof and used in the
preparation thereof; and further provided that the Trust's agreement to
indemnify the Placement Agent, its officers and directors, and any such
controlling person shall not be deemed to cover any liability to the Trust or
its interestholders to which the Placement Agent, its officers and directors, or
any such controlling person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of the Placement
Agent's, its officer's or director's, or any such controlling person's duties,
or by reason of the Placement Agent's, its officer's or director's, or any such
controlling person's reckless disregard of its obligations and duties under this
Agreement.
3
Notwithstanding the foregoing, this indemnity agreement, to
the extent that it might require indemnity of any person who is an officer or
director of the Placement Agent or any person who controls the Placement Agent
and who is also an officer or Trustee of the Trust, shall not inure to the
benefit of such officer, director or controlling person unless a court of
competent jurisdiction shall determine, or it shall have been determined by
controlling precedent, that such result would not be against public policy as
expressed in the 1933 Act or the 1940 Act.
The Trust's agreement to indemnify the Placement Agent, its
officers and directors, and any such controlling person, as aforesaid, is
expressly conditioned upon the Trust's being notified of any action brought
against the Placement Agent, its officers or directors, or any such controlling
person, such notification to be given in writing and to be transmitted by
personal delivery, first class mail, overnight courier, facsimile or other
electronic means to the address or facsimile number contained in paragraph 9 of
this Agreement, or to such other addresses or facsimile numbers as the parties
hereto may specify from time to time in writing and such notification to be sent
to the Trust within a reasonable period of time after the summons or other first
legal process shall have been served. The failure to so notify the Trust of any
such action shall not relieve the Trust from any liability which the Trust may
have to the person against whom such action is brought by reason of any such
untrue, or allegedly untrue, statement or omission, or alleged omission,
otherwise than on account of the Trust's indemnity agreement contained in this
paragraph 2.2. The Trust will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, such
defense shall be conducted by counsel of good standing chosen by the Trust and
approved by the Placement Agent, which approval shall not unreasonably be
withheld. In the event the Trust elects to assume the defense of any such suit
and retain counsel of good standing approved by the Placement Agent, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Trust does not elect
to assume the defense of any such suit, or in case the Placement Agent
reasonably does not approve of counsel chosen by the Trust, the Trust will
reimburse the Placement Agent, its officers and directors, or the controlling
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by the Placement Agent or them.
The Trust's indemnification agreement contained in this
paragraph 2.2 and the Trust's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Placement Agent, its officers or
directors, or any controlling person, and shall survive the delivery of any
Shares. This agreement of indemnity will inure exclusively to the Placement
Agent's benefit, to the benefit of its several officers and directors, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Trust agrees promptly to notify the Placement Agent of the
commencement of any litigation or proceedings against the Trust or any of its
officers or Trustees in connection with the issue and sale of any Shares.
2.3. The Placement Agent agrees to indemnify, defend and
hold the Trust, its several officers and Trustees, and any person who controls
the Trust within the meaning of Section 15 of the 1933 Act free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the costs of investigation or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Trust, its officers
4
or Trustees or any such controlling person, may incur under the 1933 Act or
under common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers or Trustees, or such controlling
person resulting from such claims or demands, shall arise out of or be based
upon (a) any untrue, or alleged untrue, statement of a material fact contained
in information furnished by the Placement Agent or any affiliate thereof to the
Trust or its counsel and used in the Trust's registration statement, or shall
arise out of or be based upon any omission, or alleged omission, to state a
material fact in connection with such information furnished by the Placement
Agent or any affiliate thereof to the Trust or its counsel required to be stated
in such answers or necessary to make such information not misleading or (b) any
alleged willful misfeasance, bad faith or gross negligence in the performance of
the Placement Agent's obligations and duties under the Agreement or by reason of
its alleged reckless disregard thereof. The Placement Agent's agreement to
indemnify the Trust, its officers and Trustees, and any such controlling person,
as aforesaid, is expressly conditioned upon the Placement Agent's being notified
of any action brought against the Trust, its officers or Trustees, or any such
controlling person, such notification to be given in writing and to be
transmitted by personal delivery, first class mail, overnight courier, facsimile
or other electronic means to the address or facsimile number contained in
paragraph 9 of this Agreement, or to such other addresses or facsimile numbers
as the parties hereto may specify from time to time in writing and such
notification to be sent to the Placement Agent by the person against whom such
action is brought, within a reasonable period of time after the summons or other
first legal process shall have been served. The Placement Agent shall have the
right to control the defense of such action, with counsel of good standing of
its own choosing, approved by the Board of Trustees of the Trust, if such action
is based solely upon such alleged misstatement or omission on the Placement
Agent's part or any affiliate thereof, and in any other event the Trust, its
officers or Trustees or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure to so notify the Placement Agent of any such action shall not relieve
the Placement Agent or any affiliate thereof from any liability which the
Placement Agent or any affiliate thereof may have to the Trust, its officers or
Trustees, or to such controlling person by reason of any such untrue or alleged
untrue statement, or omission or alleged omission, or other conduct covered by
this indemnity agreement, otherwise than on account of the Placement Agent's
indemnity agreement contained in this paragraph 2.3.
2.4. No Shares shall be offered by either the Placement
Agent or the Trust under any of the provisions of this Agreement and no orders
for the purchase or sale of Shares hereunder shall be accepted by the Trust if
and so long as the effectiveness of the registration statement then in effect or
any necessary amendments thereto shall be suspended under any of the provisions
of the 1940 Act; provided, however, that nothing contained in this paragraph 2.4
shall in any way restrict or have any application to or bearing upon the Trust's
obligation to repurchase Shares from any interestholder in accordance with the
provisions of the Trust's prospectus or Declaration of Trust.
2.5. The Trust agrees to advise the Placement Agent as
soon as reasonably practicable of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement then in effect or of
the initiation of any proceeding for that purpose.
5
3. CONFIDENTIALITY.
The Placement Agent agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Master Portfolios and/or the
Trust and its prior, present or potential interestholders, and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except when so requested by the Trust or
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 Placement
Agent may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities.
In accordance with Regulation S-P, the Placement Agent and its
affiliates will not disclose any non-public personal information, as defined in
Regulation S-P, received from the Trust or any Master Portfolio regarding any
interestholder; provided, however, that the Placement Agent and its affiliates
may disclose such information to any party as necessary in the ordinary course
of business to carry out the purposes for which such information was disclosed
to the Placement Agent and its affiliates, or as may be permitted by law. The
Placement Agent agrees to use reasonable precautions to protect and prevent the
unintentional disclosure of such non-public personal information.
4. ANTI-MONEY LAUNDERING PROGRAM.
The Placement Agent represents and warrants that it (a) has
adopted an anti-money laundering compliance program ("AML Program") that
satisfies the requirements of all applicable laws and regulations; and (b) will
notify the Trust promptly if an inspection by the appropriate regulatory
authorities of its AML Program identifies any material deficiency, and will
promptly remedy any material deficiency of which it learns.
5. LIMITATIONS OF LIABILITY.
Except as provided in paragraph 2.3, the Placement Agent shall
not be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust or any Master Portfolio in connection with matters to
which this Agreement relates, except a loss resulting from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard of its obligations and duties under this Agreement.
6. TERM.
This Agreement shall become effective on the date of its
execution and, unless sooner terminated as provided herein, shall continue in
effect for a period of two years from the date written above. This Agreement
shall thereafter continue from year to year, provided such continuance is
specifically approved at least annually by (i) the Trust's Board of Trustees, or
(ii) a vote of a majority (as defined in the
6
1940 Act) of the outstanding voting securities of the Master Portfolio, provided
that in either event the continuance is also approved by the majority of the
Trust's Trustees who are not parties to this Agreement or interested persons (as
defined in the 0000 Xxx) of any such party, by vote cast in person at a meeting
called for the purpose of voting on such approval. This Agreement is not
assignable and is terminable with respect to a Master Portfolio, without
penalty, on not less than sixty (60) days' written notice, by the Trust's Board
of Trustees, by vote of a majority (as defined in the 0000 Xxx) of the
outstanding voting securities of such Master Portfolio, or by the Placement
Agent. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
7. 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.
8. MISCELLANEOUS.
8.1. 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 an enforcement of the change,
waiver, discharge or termination is sought.
8.2 This Agreement shall be governed by the laws of the
State of Delaware.
9. 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 Xxx Xxxx xx Xxxxxxx Xxxxx, 00xx Xxxxx,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Secretary,
and that of the Placement Agent shall be Xxx Xxxx xx Xxxxxxx Xxxxx, 00xx Xxxxx,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Senior Vice
President.
10. COUNTERPARTS.
10.1 This Agreement may be executed in any manner of
counterparts, each of which shall be deemed an original.
7
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/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
President
BACAP DISTRIBUTORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
Chief Operating Officer
8
SCHEDULE I
NATIONS MASTER INVESTMENT TRUST:
1. Nations High Yield Bond Master Portfolio
2. Nations Intermediate Bond Master Portfolio
3. Nations International Equity Master Portfolio
4. Nations International Value Master Portfolio
5. Nations Xxxxxxx Focused Equities Master Portfolio
6. Nations Xxxxxxx Growth Master Portfolio
7. Nations Xxxxxxx International Opportunities Master Portfolio
8. Nations Xxxxxxx 21st Century Master Portfolio
9. Nations SmallCap Value Master Portfolio
10. Nations Strategic Growth Master Portfolio
Approved: October 8, 2002
9
