EXHIBIT 99.23(D)(2)
INVESTMENT ADVISORY AGREEMENT
NATIONS MASTER INVESTMENT TRUST
THIS AGREEMENT is made as of February 14, 2000, by and between NATIONS
MASTER INVESTMENT TRUST, a Delaware business trust (the "Master Trust"), and
BANC OF AMERICA ADVISORS, INC., a North Carolina corporation (the "Adviser"), on
behalf of those series of the Master Trust now or hereafter identified on
Schedule I (each, a "Master Portfolio" and collectively, the "Master
Portfolios").
WHEREAS, the Master Trust is registered with the Securities and Exchange
Commission (the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser is registered with the Commission as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act");
WHEREAS, the Master Trust desires that the Adviser manage the investment
operations of the Master Portfolios and the Adviser desires to manage said
operations; and
WHEREAS, the Board of Trustees of the Master Trust (the "Board"),
including a majority of the Trustees who are not "interested persons" (as
defined herein) of any party to this Agreement, have approved this arrangement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment of Adviser. The Master Trust hereby appoints the Adviser and the
Adviser hereby agrees to manage the investment operations of each Master
Portfolio subject to the terms of this Agreement and subject to the supervision
of the Board. The Master Trust and the Adviser contemplate that certain duties
of the Adviser under this Agreement may be delegated to one or more investment
sub-adviser(s) (the "Sub-Adviser(s)") pursuant to separate investment
sub-advisory agreement(s) (the "Sub-Advisory Agreement(s)"). The Adviser may, in
its discretion, provide services under this Agreement through its own employees
or through one or more affiliated companies that are qualified to act as
investment advisers under applicable law and are under common control of Bank of
America Corporation.
2. Services of Adviser. The Adviser shall perform, or arrange for the
performance of, the management services necessary for the investment operations
of each 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;
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(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 Master Trust;
(c) Assisting in the preparation of all shareholder communications,
including shareholder reports, and participating in shareholder
relations;
(d) Making recommendations as to the manner in which voting rights, rights
to consent to Master Portfolio action and any other rights pertaining
to each Master Portfolio's portfolio securities shall be exercised;
(e) Making recommendations to the Board with respect to Master Portfolio
investment policies and procedures, and carrying out such investment
policies and procedures as are adopted by the Board;
(f) Supplying reports, evaluations, analyses, statistical data and
information to the Board or to the Master Portfolios' officers and
other service providers as the Board may reasonably request from time
to time or as may be necessary or appropriate for the operation of the
Master Trust as an open-end investment company or as necessary to
comply with Section 3(a) of this Agreement;
(g) Maintaining all required books and records with respect to the
investment decisions and securities transactions for each 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 this Agreement or as the Board may
reasonably request from time to time.
3. Responsibilities of Adviser. In carrying out its obligations under
this Agreement, the Adviser agrees that it will:
(a) Comply with all applicable law, including but not limited to the 1940
Act and the Advisers Act, the rules and regulations of the Commission
thereunder, and the conditions of any order affecting the Master 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;
(c) Not make loans to any person for the purpose of purchasing or carrying
Master Portfolio shares;
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(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 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
Adviser shall consider all factors that it deems relevant, including
the breadth of the market in the security, the price of the security,
the financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, both for the
specific transaction and on a continuing basis. In evaluating the best
overall terms available, and in selecting the broker or dealer to
execute a particular transaction, the Adviser may also consider whether
such broker or dealer furnishes research and other information or
services to the Adviser;
(e) Adhere to the investment objective, strategies and policies and
procedures of the Master Trust adopted on behalf of each Master
Portfolio; and
(f) Maintain a policy and practice of conducting its investment advisory
services hereunder independently of the commercial banking operations
of its affiliates. In making investment recommendations for a Master
Portfolio, the Adviser's investment advisory personnel will not inquire
or take into consideration whether the issuers (or related supporting
institutions) of securities proposed for purchase or sale for the
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 the other 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. Delegation of Duties. Subject to the approval of the Board and, if
required, the shareholders of the Master Portfolios, the Adviser may delegate to
one or more Sub-Adviser(s) any or all of its duties hereunder, provided that the
Adviser shall continue to supervise and monitor the performance of the duties
delegated to the Sub-Adviser(s) and any such delegation shall not relieve the
Adviser of its duties and obligations under this Agreement. The Adviser shall be
solely responsible for compensating the Sub-Adviser(s) for performing any of the
duties delegated to them. The Adviser may request that the Master Trust pay
directly to the Sub-Adviser(s) the portion of the Adviser's compensation that
the Adviser is obligated to pay to the Sub-Adviser(s). If the Master Trust
agrees to such request, it will pay such portion to the Sub-Adviser(s) on behalf
of the Adviser, thereby reducing the compensation paid to the Adviser by the
amount paid directly to the Sub-Adviser(s). However, such an arrangement will
not relieve the Adviser of its responsibility for compensating the
Sub-Adviser(s). In the event that any Sub-Adviser appointed hereunder is
terminated, the Adviser may provide investment advisory services pursuant to
this Agreement through its own employees or through one or more affiliated
companies that are qualified to act as investment advisers under applicable law
and are under common control of Bank of America Corporation or through other
Sub-Adviser(s) as approved by the Master Trust in accordance with applicable
law.
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6. Services Not Exclusive. The services furnished by the Adviser hereunder
are deemed not to be exclusive, and the Adviser shall be free to furnish similar
services to others so long as its provision of services under this Agreement is
not impaired thereby. To the extent that the purchase or sale of securities or
other investments of the same issuer may be deemed by the Adviser to be suitable
for two or more accounts managed by the Adviser, the available securities or
investments may be allocated in a manner believed by the Adviser to be equitable
to each account. It is recognized that in some cases this procedure may
adversely affect the price paid or received by a 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 Adviser's
partners, officers or employees to engage in any other business or to devote his
or her time and attention in part to the management or other aspects of any
business, whether of a similar or dissimilar nature, nor limit or restrict the
Adviser's right to engage in any other business or to render services of any
kind to any other corporation, firm, individual or association.
7. Delivery of Documents. The Master Trust has furnished the Adviser with
copies, properly certified or authenticated, of each of the following:
(a) the Master Trust's Certificate of Trust, as filed with the
Secretary of State of Delaware, and Declaration of Trust (such
Declaration of Trust, as presently in effect and as from time to
time amended, is herein called the "Declaration of Trust");
(b) The Master 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 Master Trust will promptly furnish the Adviser with copies of any
and all amendments of or additions or supplements to the foregoing.
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8. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Adviser hereby agrees that all records that it maintains
for each Master Portfolio under this Agreement are the property of the Master
Trust and further agrees to surrender promptly to the Master Trust any of such
records upon request. The Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
9. Expenses of the Master Portfolios. Except to the extent expressly
assumed by the Adviser and except to any extent required by law to be paid or
reimbursed by the Adviser, the Adviser shall have no duty to pay any ordinary
operating expenses incurred in the organization and operation of the 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 service providers' fees and expenses,
expenses of issue, sale, redemption and repurchase of shares, expenses of
registering and qualifying shares for sale, expenses relating to Board and
shareholder meetings, the cost of preparing and distributing reports and notices
to shareholders and interest payments and other fees or charges associated with
any credit facilities established by or on behalf of the Master Portfolios.
10. Compensation. Except as otherwise provided herein, for the services
provided to each Master Portfolio and the expenses assumed pursuant to this
Agreement, the Master Trust will pay the Adviser and the Adviser will accept as
full compensation therefor a fee determined in accordance with Schedule I
attached hereto; provided, however, that the compensation paid to the Adviser
shall be reduced by any amount paid by the Master Trust directly to the
Sub-Advisor(s) pursuant to Section 5 of this Agreement. In addition, BAAI or its
affiliated persons may receive compensation or reimbursement of recordkeeping,
bookkeeping, accounting, administrative and transactional fees or charges
incurred in connection with any credit facilities established by or on behalf of
the Master Portfolios. The fees or charges attributable to each Master Portfolio
shall be a separate charge to such Master Portfolio and shall be the several
(and not joint or joint and several) obligation of each such Master Portfolio.
The Master Trust and the 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 advisable.
11. Liability of Adviser. The Adviser shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Master Trust in
connection with the performance of its duties under this Agreement, except a
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services, or a loss resulting from willful misfeasance, bad
faith or negligence on the part of the Adviser or any of its officers,
directors, employees or agents, in the performance of their duties under this
Agreement, or from reckless disregard by it or obligations and duties under this
Agreement.
12. Term and Approval. This Agreement will become effective as of the date
set forth herein above, and shall continue in effect until the second
anniversary of its effective date. This Agreement will become effective with
respect to each additional 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:
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(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 1940 Act); and
(b) by the affirmative vote of a majority of the Trustees of the Master
Trust who are not parties to this Agreement or "interested persons"
(as defined in the 1940 Act) of a party to this Agreement (other
than as Trustees of the Master Trust), by votes cast in person at a
meeting specifically called for such purpose.
13. Termination. This Agreement may be terminated without payment of any
penalty at any time by:
(a) the Master 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 sixty (60) days' written notice to the
Adviser; or
(b) the Adviser with respect to a Master Portfolio, upon sixty (60)
days' written notice to the Master Trust.
Any party entitled to notice may waive the notice provided for herein.
This Agreement shall automatically terminate in the event of its assignment,
unless an order is issued by the Commission conditionally or unconditionally
exempting such assignment from the provisions of Section 15(a) of the 1940 Act,
in which event this Agreement shall remain in full force and effect subject to
the terms of such order. For the purposes of this paragraph, the definitions
contained in Section 2(a) of the 1940 Act and the applicable rules under the
1940 Act shall apply.
14. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, except by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
15. Notices. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to such address as may be
designated for the receipt of such notice. Until further notice, it is agreed
that the address of the Master Trust shall be c/o Stephens Inc., 111 Center
Street, Little Rock, Arkansas 72201, Attention: Secretary, and that of the
Adviser shall be One Bank of America Plaza, 33rd Floor, 101 South Tryon Street,
Charlotte, North Carolina 28255, Attention: President.
16. Release. The names "Nations Master Investment Trust" and "Trustees of
Nations Master Investment Trust" refer respectively to the Master Trust created
by the Declaration of Trust and the Trustees as Trustees but not individually or
personally. All parties hereto acknowledge and agree that any and all
liabilities of the Master Trust arising, directly or indirectly, under this
Agreement will be satisfied solely out of the assets of the Master Trust and
that no Trustee, officer or shareholder shall be personally liable for any such
liabilities. All persons dealing with any Master Portfolio of the Master Trust
must look solely to the property belonging to such Master Portfolio for the
enforcement of any claims against the Master Trust.
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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/ A. Max Walker
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A. Max Walker
President and Chairman of the
Board of Master Trustees
BANC OF AMERICA ADVISORS, INC.
By: /s/ Robert H. Gordon
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Robert H. Gordon
President
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SCHEDULE I
The Master Trust shall pay the Adviser, as full compensation for
services provided and expenses assumed hereunder, an 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:
<TABLE>
<CAPTION>
<S> <C> <C>
Rate of
Master Portfolio Compensation Effective Date
---------------- ------------ --------------
Nations High Yield Bond Master Portfolio 0.55% 2/14/00
Nations Marsico 21st Century Master Portfolio 0.75% 4/7/00
Nations Marsico International Opportunities Master Portfolio 0.80% 8/1/00
</TABLE>
Approved: December 9, 1999
Last Amended: August 1, 2000
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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 1st day of August, 2000.
NATIONS MASTER INVESTMENT TRUST
By: /s/ Richard H. Blank, Jr.
-----------------------------
Richard H. Blank, Jr.
Secretary
BANC OF AMERICA ADVISORS, INC.
By: /s/ Robert H. Gordon
-----------------------------
Robert H. Gordon
President
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