Exhibit 99.23(h)(5)
PLACEMENT AGENCY AGREEMENT
NATIONS MASTER INVESTMENT TRUST
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
May 21, 1999
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Nations Master Investment Trust, a
Delaware business trust (the "Master Trust") consisting of the portfolios named
on Schedule 1 hereto, as such Schedule may be revised from time to time (each, a
"Master Portfolio"), has agreed that you shall be, for the period of this
Agreement, the exclusive placement agent for shares of beneficial interest of
each Master Portfolio.
1. You will act as agent for the private placement of interests of
each Master Portfolio covered by, and in accordance with, the registration
statement and prospectus then in effect under the Investment Company Act of
1940, as amended, and will transmit promptly any orders received by you for
purchase or redemption of interests of a Master Portfolio to the Transfer and
Dividend Disbursing Agent for the Master Trust of which the Master Trust has
notified you in writing. All orders from you shall be subject to acceptance and
confirmation by the Master Trust.
2. You shall act as exclusive placement agent for each Master
Portfolios' interests in compliance with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940, as amended, by the
Securities and Exchange Commission or any securities association registered
under the Securities Exchange Act of 1934, as amended.
3. Whenever in their judgment such action is warranted by market,
economic or political conditions, or by abnormal circumstances of any kind, the
Master Trust's officers may decline to accept any orders for, or make any sales
of, any of the Master Portfolios' interests until such time as they deem it
advisable to accept such orders and to make such sales and the Master Trust
shall advise you promptly of such determination.
4. Ownership of Master Portfolio interests sold hereunder shall be
registered in such names and denominations as are specified in writing to the
Master Trust or to its agent designated for the purpose. No certificates for
interests of the Master Portfolios will be issued.
5. The Master Trust agrees to pay all expenses in connection with
maintaining facilities for the issue and transfer of the Master Portfolios'
interests and for supplying information, prices and other data to be furnished
by the Master Trust hereunder, and all expenses in connection with preparing
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and printing the Master Trust's prospectuses and statements of additional
information for regulatory purposes and for distribution to shareholders;
provided, however, that nothing contained herein shall be deemed to require the
Master Trust to pay any of the costs of advertising the sale of the Master
Portfolios' interests. You shall pay all other expenses incurred by you in
connection with the sale of the Master Portfolios' interests as contemplated in
this agreement.
6. All interests offered for sale and sold by you shall be offered for
sale and sold by you to investors at the price per share (the "offering price,"
which is the net asset value per share) specified and determined as provided in
the prospectus relating to the offering of relevant Master Portfolio interests
for sale. If the offering price is not an exact multiple of one cent, it shall
be adjusted to the nearest full cent. The Master Trust shall determine and
furnish promptly to you a statement of the offering price at least once on each
day on which the prospectus states the Master Trust is required to determine the
relevant Master Portfolio's net asset value for the purpose of pricing purchase
orders. Each offering price shall become effective at the time and shall remain
in effect during the period specified in the statement. Each such statement
shall show the basis of its computation. For purposes of establishing the
offering price, the Master Trust shall consider a purchase order to have been
presented to it at the time it was originally entered by you for transmission to
it, provided the original purchase order and your fulfilling order to the Master
Trust are appropriately time stamped or evidenced to show the time of original
entry and that your fulfilling order to the Master Trust is received by the
Master Trust within a time deemed by it to be reasonable after the purchase
order was originally entered. Purchases of interests shall be made for full and
fractional interests, carried to the third decimal place.
7. The Master Trust shall furnish you from time to time, for use in
connection with the sale of the Master Portfolios' interests, such information
with respect to the Master Trust and the Master Portfolios' interests as you may
reasonably request, all of which shall be signed by one or more of the Master
Trust's duly authorized officers; and the Master Trust warrants that the
statements contained in any such information, when so signed by the Master
Trust's officers, shall be true and correct. The Master Trust also shall furnish
you with copies of its reports to shareholders and such additional information
regarding a Master Portfolio's financial condition as you may reasonably request
from time to time.
8. The Master Trust represents to you that all registration statements
and prospectuses filed by the Master Trust with the Securities and Exchange
Commission under the Investment Company Act of 1940, as amended, with respect to
the Master Portfolios' interests have been carefully prepared in conformity with
the requirements of said Act and rules and regulations of the Securities and
Exchange Commission thereunder. As used in this agreement, the terms
"registration statement" and "prospectus" shall mean any registration statement
and prospectus, including the statement of additional information incorporated
by reference therein, filed with the Securities and Exchange Commission and any
amendments and supplements thereto which at any time shall have been filed with
said Commission. The Master Trust represents and warrants to you that any
registration statement and prospectus, when such registration statement becomes
effective, will contain all statements required to be stated therein in
conformity with said Act and the rules and regulations of said Commission; that
all statements of fact contained in any such registration statement and
prospectus will be true and correct when such registration statement becomes
effective; and that neither any registration statement nor any prospectus 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. The Master
Trust may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any prospectus as, in the light of future developments, may, in
the opinion of the Master Trust's counsel, be necessary or advisable. If the
Master Trust shall not propose such amendment or amendments and/or
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supplement or supplements within fifteen days after receipt by the Master Trust
of a written request from you to do so, you may, at your option, terminate this
agreement or decline to make offers of the Master Portfolios' securities until
such amendments are made. The Master Trust shall not file any amendment to any
registration statement or supplement to any prospectus without giving you
reasonable notice thereof in advance; provided, however, that nothing contained
in this agreement shall in any way limit the Master Trust's right to file at any
time such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Master Trust may deem advisable, such
right being in all respects absolute and unconditional.
9. The Master Trust authorizes you to use any prospectus in the form
furnished to you from time to time, in connection with the sale of the Master
Portfolios' interests. The Master Trust agrees to indemnify, defend and hold
you, your several officers and directors, and any person who controls you within
the meaning of Section 15 of the Securities Act of 1933, as amended, 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 you,
your officers and directors, or any such controlling person, may incur under the
Securities Act of 1933, as amended, 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 any prospectus or
arising out of or based upon any omission, or alleged omission, to state a
material fact required to be stated in either any registration statement or any
prospectus or necessary to make the statements in either thereof not misleading;
provided, however, that the Master Trust's agreement to indemnify you, your
officers or 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 prospectus in reliance upon and in conformity with
written information furnished to the Master Trust by you specifically for use in
the preparation thereof. The Master Trust's agreement to indemnify you, your
officers and directors, and any such controlling person, as aforesaid, is
expressly conditioned upon the Master Trust's being notified of any action
brought against you, your officers or directors, or any such controlling person,
such notification to be given by letter or by telegram addressed to the Master
Trust at its office in Charlotte, North Carolina within ten days after the
summons or other first legal process shall have been served. The failure so to
notify the Master Trust of any such action shall not relieve the Master Trust
from any liability which the Master Trust may have to the person against whom
such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of the
Master Trust's indemnity agreement contained in this paragraph 9. The Master
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 Master Trust and approved by
you. In the event the Master Trust elects to assume the defense of any such suit
and retain counsel of good standing approved by you, 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 Master Trust does not elect to assume the
defense of any such suit, or in case you do not approve of counsel chosen by the
Master Trust, the Master Trust will reimburse you, your 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 you or them. The
Master Trust's indemnification agreement contained in this paragraph 9 and the
Master 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 you, your officers and directors, or any controlling person, and
shall survive the delivery of any of the Master Portfolio's interests. This
agreement of indemnity will inure exclusively to your benefit, to the benefit of
your several officers and directors, and their respective estates, and to the
benefit of any controlling persons and their successors. The Master Trust agrees
promptly to notify you of the
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commencement of any litigation or proceedings against the Master Trust or any of
its officers or Trustees in connection with the issue and sale of any of the
Master Portfolio's interests.
10. You agree to indemnify, defend and hold the Master Trust, its
several officers and Trustees, and any person who controls the Master Trust
within the meaning of Section 15 of the Securities Act of 1933, as amended, 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
Master Trust, its officers or Trustees, or any such controlling person, may
incur under the Securities Act of 1933, as amended, or under common law or
otherwise, but only to the extent that such liability or expense incurred by the
Master 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 in writing by you to the Master Trust specifically for use in the
Master Trust's registration statement and used in the answers to any of the
items of the registration statement or in the corresponding statements made in
the prospectus, 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
in writing by you to the Master Trust and required to be stated in such answers
or necessary to make such information not misleading or (b) any act or omission
or alleged act or omission on your part as the Master Trust's agent that has not
been expressly authorized by the Master Trust in writing. Your agreement to
indemnify the Master Trust, its officers and Trustees, and any such controlling
person, as aforesaid, is expressly conditioned upon your being notified of any
action brought against the Master Trust, its officers or Trustees, or any such
controlling person, such notification to be given by letter or telegram
addressed to you at your principal office in Little Rock, Arkansas within ten
days after the summons or other first legal process shall have been served. You
shall have the right to control the defense of such action, with counsel of your
own choosing, satisfactory to the Master Trust, if such action is based solely
upon such alleged misstatement or omission on your part, and in any other event
the Master 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 so to notify you of any such action shall not
relieve you from any liability which you may have to the Master 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, otherwise
than on account of your indemnity agreement contained in this paragraph 10.
11. None of the Master Portfolios' interests shall be offered by
either you or the Master Trust under any of the provisions of this agreement and
no orders for the purchase or sale of such interests hereunder shall be accepted
by the Master 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 Investment Company Act of 1940, as amended;
provided, however, that nothing contained in this paragraph 11 shall in any way
restrict or have an application to or bearing upon the Master Trust's obligation
to repurchase any of the Master Portfolios' interests from any shareholder in
accordance with the provisions of the Master Trust's prospectus or Declaration
of Trust.
12. The Master Trust agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange Commission for
amendments to the registration statement or prospectus then in effect or
for additional information;
(b) in the event of the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of the
registration statement or prospectus then in effect or the initiation of
any proceeding for that purpose;
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(c) of the happening of any event which makes untrue any statement of
a material fact made in the registration statement or prospectus then in
effect or which requires the making of a change in such registration
statement or prospectus in order to make the statements therein not
misleading; and
(d) of all actions of the Securities and Exchange Commission with
respect to any amendments to any registration statement or prospectus which
may from time to time be filed with the Securities and Exchange Commission.
13. Insofar as they concern the Master Trust, the Master Trust shall
comply with all applicable laws, rules and regulations, including, without
limiting the generality of the foregoing, all rules or regulations made or
adopted pursuant to the Investment Company Act of 1940, as amended, or by any
securities association registered under the Securities Exchange Act of 1934, as
amended.
14. You may, if you desire and at your own cost and expense, appoint
or employ agents to assist you in carrying out your obligations under this
agreement, but no such appointment or employment shall relieve you of any of
your responsibilities or obligations to the Master Trust under this agreement.
15. As to each Master Portfolio, subject to the provisions of
Paragraph 8, this agreement shall continue until the date set forth opposite
such Master Portfolio's name on Schedule 1 hereto (the "Reapproval Date"), and
thereafter shall continue automatically for successive annual periods ending on
the day of each year set forth opposite such Master Portfolio's name on Schedule
1 hereto (the "Reapproval Day"), provided such continuance is specifically
approved at least annually by (i) the Master Trust's Board of Trustees or (ii)
vote of a majority (as defined in the Investment Company Act of 1940, as
amended) of the Master Trust's outstanding voting securities, provided that in
either event its continuance also is approved by a majority of the Master
Trust's trustees who are not "interested persons" (as defined in said Act) of
any party to this agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This agreement is terminable without
penalty, on 60 days' notice, by vote of holders of a majority of the Master
Trust's interests, and, as to each Master Portfolio, by the Master Trust's Board
of Trustees or by you. This agreement also will terminate automatically, as to
the relevant Master Portfolio, in the event of its assignment (as defined in
said Act).
16. This agreement has been executed on behalf of the Master Trust by
the undersigned officer of the Master Trust in his capacity as an officer of the
Master Trust. The obligations of this agreement shall only be binding upon the
assets and property of the relevant Master Portfolio, as provided for in the
Master Trust's Declaration of Trust, and shall not be binding upon any Trustee,
officer or shareholder of the Master Trust or a Master Portfolio individually.
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Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding agreement between us.
Very truly yours,
NATIONS MASTER INVESTMENT TRUST
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Secretary
ACCEPTED:
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
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SCHEDULE I
----------
Name of Master Portfolio
------------------------
Nations Intermediate Bond Master Portfolio
Nations Blue Chip Master Portfolio
Nations International Equity Master Portfolio
Nations Xxxxxxx Focused Equities Master Portfolio
Nations Xxxxxxx Growth & Income Master Portfolio
Nations International Value Master Portfolio
Nations High Yield Bond Master Portfolio
Nations Xxxxxxx 21st Century Master Portfolio
Nations Xxxxxxx International Opportunities Master Portfolio
Nations SmallCap Value Master Portfolio
Nations Strategic Growth Master Portfolio
Adopted: December 2, 1998
Last Amended: April 30, 2002
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