DISTRIBUTION AGREEMENT
NATIONS FUND TRUST
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Nations Fund Trust (the "Trust"), a Massachusetts
business trust, has agreed that Xxxxxxxx Inc. (the "Distributor") shall be, for
the period of this Agreement, the exclusive distributor of the units of
beneficial interest in all classes of shares ("Shares") of the investment
portfolios of the Trust listed on Schedule I (individually, a "Fund" and
collectively the "Funds"). Absent written notification to the contrary by either
the Trust or the Distributor, each new investment portfolio established in the
future shall automatically become a "Fund" for all purposes hereunder and shares
of each new class established in the future shall automatically become "Shares"
for all purposes hereunder as if set forth on Schedule I.
1. Services as Distributor.
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1.1. The Distributor will act as agent for the distribution of Shares
in accordance with the instructions of the Trust's Board of Trustees and the
Trust's registration statement and prospectus then in effect under the
Securities Act of 1933, as amended, and will transmit promptly any orders
received by it for the purchase or redemption of Shares to the Trust or its
transfer agent.
1.2. The Distributor 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 Trust
understands that the Distributor is and may in the future be the distributor of
shares of other investment Company portfolios ("Portfolios") including
Portfolios having investment objectives
similar to those of the Funds. The Trust further understands that existing and
future investors in the Funds may invest in shares of such other Portfolios. The
Trust agrees that the Distributor'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 Distributor 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 shareholders, and the printing and mailing of
sales literature. The Distributor shall be responsible for reviewing and
providing advice and counsel on all sales literature (e.g., advertisements,
brochures and shareholder communications) with respect to each of the Funds. In
addition, the Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Funds.
1.4. All activities by the Distributor and its agents and employees as
distributor of Shares shall comply 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 ("1940 Act") by the
Securities and Exchange Commission (the "SEC") or any securities association
registered under the Securities Exchange Act of 1934.
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 agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the registration or
qualification of Shares for sale in such states as the Distributor may designate
to the Trust and the Trust may
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approve, and the Trust shall pay all fees and other expenses incurred in
connection with such registration or qualification.
1.7. The Trust shall furnish from time to time, for use in connection
with the sale of Shares, such information with respect to the Funds and Shares
as the Distributor 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 Distributor
upon request with: (a) audited annual and unaudited semi-annual statements of
the Trust's books and accounts with respect to each Fund, and, (b) from time to
time such additional information regarding the Funds' financial condition as the
Distribution may reasonably request.
1.8. The Distributor may be reimbursed for all or a portion of the
expenses described above to the extent permitted by a distribution plan adopted
by the Trust on behalf of a Fund pursuant to Rule 12b-1 under the 1940 Act. No
provision of this Agreement shall be deemed to prohibit any payments by a Fund
to the Distributor or by a Fund or the Distributor to investment dealers, banks
or other financial institutions through whom shares of the Fund are sold where
such payments are made under a distribution plan adopted by the Trust on behalf
of such Fund pursuant to Rule 12b-1 under the 1940 Act. In addition, the Trust
shall pay to the Distributor the proceeds from any contingent deferred sales
charge imposed on the redemption of the shares as specified in the Fund's
Registration Statement.
1.9. The Distributor will execute and deliver agreements with
broker/dealers, financial institutions and other industry professionals based on
the forms attached hereto or based on the additional forms of agreement approved
from time to time by the Trust's Board of Trustees with respect to the various
classes of shares of the Funds, including but not limited to forms of sales
support agreements and shareholder servicing agreements approved in connection
with a distribution and/or servicing plan approved in accordance with Rule 12b-1
under the 1940 Act.
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2. Representations; Indemnification.
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2.1. The Trust represents to the Distributor that all registration
statements and prospectuses filed by the Trust with the SEC under the Securities
Act of 1933, as amended ("Act"), with respect to Shares have been prepared in
conformity with the requirements of the said Act and rules and regulations of
the SEC thereunder. As used in this Agreement, the terms "registration
statement" and "prospectus" shall mean any registration statement and 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
therewith. The Trust represents and warrants to the Distributor that any
registration statement and prospectus, when such registration statement becomes
effective, will contain all statements required to be stated therein in
conformity with the said Act and the rules and regulations of the SEC; that all
statements of fact contained in any such registration statement and prospectus
will be true and correct when such registration statement and prospectus become
effective; and that neither any registration statement nor any prospectus when
any 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 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 which in light of future developments, may, in
the opinion of the Trust's counsel, be necessary or advisable. The Trust shall
promptly notify the Distributor of any advice given to it by the Trust's counsel
regarding the necessity or advisability so to amend or supplement such
registration statement or prospectus. If the Trust shall not propose such
amendment or amendments and/or supplement or supplements within fifteen days
after receipt by the Trust of a written request from the Distributor to do so,
the Distributor may, at its option, terminate this Agreement. The Trust shall
not file any amendment to any registration statement or supplement to any
prospectus without giving the Distributor reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any way
limit the Trust's right to file at any time such amendments to any registration
statement and/or supplements to
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any prospectus, of whatever character, as the Trust may deem advisable, such
right being in all respects absolute and unconditional.
2.2. The Trust authorizes the Distributor and dealers to use any
prospectus 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. The Trust agrees to indemnify, defend and hold the Distributor, its
several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 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 Distributor, its officers and
directors, or any such controlling person, may incur under the 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 any prospectus 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 prospectus or necessary to make any statement in such
documents not misleading; provided, however, that the Trust's agreement to
indemnify the Distributor, its 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 or in any
financial or other statements in reliance upon and in conformity with any
information furnished to the Trust by the Distributor or any affiliate thereof
and used in the preparation thereof; and further provided that the Trust's
agreement to indemnify the Distributor and the Trust's representations and
warranties herein set forth shall not be deemed to cover any liability to the
Trust or its shareholders to which the Distributor would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties, or by reason of the Distributor's reckless disregard of its
obligations and duties under this Agreement. The Trust's agreement to indemnify
the Distributor, 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 Distributor, its officers or directors, or any such
controlling person, such notification to be given by letter or by
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telegram addressed to the Trust at its principal office and sent to the Trust 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
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 Distributor, 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
Distributor, 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
Distributor reasonably does not approve of counsel chosen by the Trust, the
Trust will reimburse the Distributor, 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 Distributor 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 Distributor, its officers and directors, or any controlling
person, and shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the Distributor'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 Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or directors in connection
with the issue and sale of any Shares.
2.3. The Distributor 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 Act free and harmless from and against any and
all claims, demands, liabilities and expenses (including the costs of
investigation or defending such claims,
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demands or liabilities and any counsel fees incurred in connection therewith)
which the Trust, its officers or trustees or any such controlling person, may
incur under the 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 any untrue, or alleged untrue, statement of a material
fact contained in information furnished by the Distributor or any affiliate
thereof to the Trust or its counsel and used in the Trust's registration
statement or 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 by the Distributor 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. The Distributor's
agreement to indemnify the Trust, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the
Distributor's being notified of any action brought against the Trust, its
officers or directors, or any such controlling person, such notification to be
given by letter or telegram addressed to the Distributor at its principal office
in Little Rock, Arkansas and sent to the Distributor 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 Distributor shall have the
right to control the defense of such action, with counsel of its own choosing,
satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on the Distributor's part or any affiliate thereof, and
in any other event the Trust, its officers or directors 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 the Distributor of any
such action shall not relieve the Distributor or any affiliate thereof from any
liability which the Distributor or any affiliate thereof may have to the Trust,
its officers or directors, 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 the Distributor's indemnity agreement contained in this
paragraph 2.3.
2.4. No Shares shall be offered by either the Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase or
sale of
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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 Act, or
if and so long as a current prospectus, as required by Section 10(b) of said
Act, as amended, is not on file with the SEC; 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 shareholder in accordance with the provisions of the Trust's prospectus or
Articles of Incorporation.
2.5. The Trust agrees to advise the Distributor as soon as reasonably
practical:
(a) of any request by the SEC for amendments to the registration
statement or prospectus then in effect;
(b) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or prospectus then in effect or of
the initiation of any proceeding for that purpose;
(c) of the happening of any event that 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;
(d) of all actions of the SEC with respect to any amendment to any
registration statement or prospectus which may from time to time be filed with
the SEC; and
(e) if a current prospectus is not on file with the SEC.
For purposes of this section, informal requests by or acts of the Staff
of the SEC shall not be deemed actions of or requests by the SEC.
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3. Confidentiality.
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The Distributor 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 Funds and/or the Trust and its prior, present or
potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except 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
Distributor may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust.
4. Limitations of Liability.
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4.1. Except as provided in paragraph 2.3, the Distributor shall not be
liable for any error of judgment or mistake or law or for any loss suffered by
the Trust or any Fund 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.
4.2. The names "Nations Fund Trust" and "Trustees of Nations Fund
Trust" refer respectively to the Trust created and the Trustees, as trustees but
not individually or personally, acting from time to time under a Declaration of
Trust dated May 6, 1985, which is xxxxxx referred to and a copy of which is on
file at the office of the state Secretary of the Commonwealth of Massachusetts
and at the principal office of the Trust. The obligations of "Nations Fund
Trust" entered into the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the Trustees, Shareholders, or representatives of
the Trust personally, but bind only the Trust Property, and all persons dealing
with any class of Shares of the Trust must look solely to the Trust Property
belonging to such class for the enforcement of any claims against the Trust.
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5. Term.
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This agreement shall become effective on the date of its execution and,
unless sooner terminated as provided herein, shall continue thereafter with
respect to each Fund for successive annual periods, provided such continuance is
specifically approved at least annually by (i) the Trust's Board of Trustees or
(ii) by a vote of a majority (as defined in the 1940 Act) of the outstanding
voting securities of the Fund, 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 1940 Act) 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 Fund, without penalty, on not less than sixty days' notice, by the Trust's
Board of Trustees, by vote of a majority (as defined in the 1940 Act) of the
outstanding voting securities of such Fund, or by the Distributor. This
agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
6. Miscellaneous.
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6.1. 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.
6.2. This agreement shall be governed by the laws of the State of
Arkansas.
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Please confirm that the foregoing is in accordance with your understanding
by indicating your acceptance hereof at the place indicated below, whereupon it
shall become a binding agreement between us.
Yours very truly,
NATIONS FUND TRUST
By: /s/Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx.
Secretary
Accepted:
XXXXXXXX INC.
By: /s/ X. Xxxx Xxxxxx
------------------
X. Xxxx Xxxxxx
Senior Vice President
Dated as of September 1, 1993
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SCHEDULE I
Nations Fund Trust:
1. Nations Government Money Market Fund
2. Nations Tax Exempt Fund
3. Nations Value Fund
4. Nations Capital Growth Fund
5. Nations MidCap Growth Fund
6. Nations LargeCap Index Fund
7. Nations Managed Index Fund
8. Nations SmallCap Index Fund
9. Nations Aggressive Growth Fund
10. Nations Short-Intermediate Government Fund
11. Nations Short-Term Income Fund
12. Nations Strategic Income Fund
13. Nations Bond Fund
14. Nations Strategic Growth Fund
15. Nations Municipal Income Fund
16. Nations Short-Term Municipal Income Fund
17. Nations Intermediate Municipal Bond Fund
18. Nations Florida Intermediate Municipal Bond Fund
19. Nations Florida Municipal Bond Fund
20. Nations Georgia Intermediate Municipal Bond Fund
21. Nations Georgia Municipal Bond Fund
22. Nations Maryland Intermediate Municipal Bond Fund
23. Nations Maryland Municipal Bond Fund
24. Nations North Carolina Intermediate Municipal Bond Fund
25. Nations North Carolina Municipal Bond Fund
26. Nations South Carolina Intermediate Municipal Bond Fund
27. Nations South Carolina Municipal Bond Fund
28. Nations Tennessee Intermediate Municipal Bond Fund
29. Nations Tennessee Municipal Bond Fund
30. Nations Texas Intermediate Municipal Bond Fund
31. Nations Texas Municipal Bond Fund
32. Nations Virginia Intermediate Municipal Bond Fund
33. Nations Virginia Municipal Bond Fund
Last Amended: June 8, 2001
