SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (the "Agreement") made as of this 28th day of April, 2008
by and between Frost Investment Advisors, LLC a Delaware limited liability
company with its principal place of business at 000 Xxxx Xxxxxxx Street, 00xx
Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx (the "Adviser"), and Xxxxxxxxx Investment
Management, Inc., a Delaware company with its principal place of business at 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xx, Xxx Xxxxxx (the "Sub-Adviser").
W I T N E S S E T H
WHEREAS, pursuant to authority granted to the Adviser by the Board of
Trustees (the "Board") of THE ADVISORS' INNER CIRCLE FUND II (the "Trust") on
behalf of the series set forth on Schedule A (the "Fund") to this agreement and
pursuant to the provisions of the Investment Advisory Agreement dated as of
April 28, 2008 between the Adviser and the Fund (the "Management Agreement"),
the Adviser has selected the Sub-Adviser to act as sub-investment adviser of the
Fund and to provide certain related services, as more fully set forth below, and
to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Adviser and the Sub-Adviser do hereby agree as follows:
1. THE SUB-ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Sub-Adviser
shall act as sub-investment adviser with respect to the Fund. In such
capacity, the Sub-Adviser shall, subject to the supervision of the
Adviser and the Board, regularly provide the Fund with investment
research, advice and supervision and shall furnish continuously an
investment program for such Fund assets as may be allocated by the
Adviser to the Sub-Adviser for purposes of investing Fund assets
consistent with the investment objectives and policies of the Fund. The
Sub-Adviser shall determine, from time to time, what investments shall
be purchased for the Fund and what such securities shall be held or
sold by the Fund, subject always to the provisions of the Trust's
Agreement and Declaration of Trust, By-Laws and its registration
statement on Form N-1A (the "Registration Statement") under the
Investment Company Act of 1940, as amended (the "1940 Act"), and under
the Securities Act of 1933, as amended (the "1933 Act"), covering Fund
shares, as filed with the Securities and Exchange Commission (the
"Commission"), and to the investment objectives, policies and
restrictions of the Fund, as each of the same shall be from time to
time in effect. To carry out such obligations, the Sub-Adviser shall
exercise full discretion and act for the Fund in the same manner and
with the same force and effect as the Fund itself might or could do
with respect to purchases, sales or other transactions. Notwithstanding
the foregoing, the Sub-Adviser shall, upon written instructions from
the Adviser, effect such portfolio transactions for the Fund as the
Adviser may from time to time direct; provided however, that the
Sub-Adviser shall not be responsible for any such portfolio
transactions effected upon written instructions from the Adviser. No
reference in this Agreement to the Sub-Adviser having full
discretionary
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authority over the Fund's investments shall in any way limit the right
of the Adviser, in its sole discretion, to establish or revise policies
in connection with the management of the Fund's assets or to otherwise
exercise its right to control the overall management of the Fund's
assets.
(b) COMPLIANCE. The Sub-Adviser agrees to comply with the
requirements of the 1940 Act, the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), the 1933 Act, the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the Commodity Exchange Act and
the respective rules and regulations thereunder, as applicable, as well
as with all other applicable federal and state laws, rules, regulations
and case law that relate to the services and relationships described
hereunder and to the conduct of its business as a registered investment
adviser. The Sub-Adviser also agrees to comply with the objectives,
policies and restrictions set forth in the Registration Statement, as
amended or supplemented, of the Funds, and with any policies,
guidelines, instructions and procedures approved by the Board or the
Adviser and provided to the Sub-Adviser. In selecting each Fund's
portfolio securities and performing the Sub-Adviser's obligations
hereunder, the Sub-Adviser shall cause the Funds to comply with the
diversification and source of income requirements of Subchapter M of
the Internal Revenue Code of 1986, as amended (the "Code"), for
qualification as a regulated investment company. The Sub-Adviser has
adopted and implemented, and will maintain, written compliance policies
and procedures that it believes are reasonably designed to prevent
violations by the Sub-Adviser and its "supervised persons" (as defined
in the Adviser's Act) of the Advisers Act and the rules thereunder, and
that it reasonably believes are adequate to ensure compliance with the
other laws and regulations referred to in this paragraph (b). The
Sub-Adviser will review, no less frequently than annually, the adequacy
of its policies and procedures and the effectiveness of their
implementation. The Sub-Adviser has designated a Chief Compliance
Officer responsible for administering its policies and procedures. No
supervisory activity undertaken by the Adviser shall limit the
Sub-Adviser's full responsibility for any of the foregoing.
(c) PROXY VOTING. Pursuant to Board authority, the Adviser has the
authority to determine how proxies with respect to securities that are
held by the Fund shall be voted, and the Adviser has determined to
delegate the authority and responsibility to vote proxies for the
Fund's securities to the Sub-Adviser. So long as proxy voting authority
for the Fund has been delegated to the Sub-Adviser, the Sub-Adviser
shall provide such assistance to the Adviser with respect to the
reporting of proxies for the Fund as the Adviser may from time to time
reasonably request, and the Sub-Adviser shall promptly forward to the
Adviser any information or documents necessary for the Adviser to
exercise its proxy voting responsibilities. The Sub-Adviser has adopted
and implemented, and will maintain, written policies and procedures
that it believes are reasonably designed to ensure that it votes the
Fund's securities in the best interests of that Fund, including
procedures to address material conflicts that may arise between the
interests of the Sub-Adviser and those of the Fund. The Sub-Adviser
shall carry out such responsibility in accordance with its proxy voting
policy and any instructions that the Board or the Adviser shall provide
from time to time and shall provide such reports and keep such
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records relating to proxy voting as the Board may reasonably request or
as may be necessary for the Fund to comply with the 1940 Act and other
applicable law. Any such delegation of proxy voting responsibility to
the Sub-Adviser may be revoked or modified by the Board or the Adviser
at any time.
(d) RECORDKEEPING. The Sub-Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the
Fund, except as otherwise provided herein or as may be necessary for
the Sub-Adviser to supply to the Adviser, the Fund or its Board the
information required to be supplied under this Agreement.
The Sub-Adviser shall maintain separate books and detailed records
of all matters pertaining to the Fund's assets advised by the
Sub-Adviser required by Rule 31a-1 under the 1940 Act (other than those
records being maintained by the Advisor, custodian or transfer agent
appointed by the Fund) relating to its responsibilities provided
hereunder with respect to the Fund, and shall preserve such records for
the periods and in a manner prescribed therefore by Rule 31a-2 under
the 1940 Act (the "Fund Books and Records"). The Fund Books and Records
shall be available to the Adviser and the Board at any time upon
request shall be delivered to the Fund upon the termination of this
Agreement and shall be available for telecopying without delay during
any day the Fund are open for business.
(e) HOLDINGS INFORMATION AND PRICING. The Sub-Adviser shall provide
regular reports regarding the Fund's holdings, and shall, on its own
initiative, furnish the Fund and the Adviser from time to time with
whatever information the Sub-Adviser believes is appropriate for this
purpose. The Sub-Adviser agrees to immediately notify the Adviser if
the Sub-Adviser reasonably believes that the value of any security held
by the Fund may not reflect fair value. The Sub-Adviser agrees to
provide any pricing information of which the Sub-Adviser is aware to
the Adviser and/or the Fund pricing agent to assist in the
determination of the fair value of the Fund holdings for which market
quotations are not readily available or as otherwise required in
accordance with the 1940 Act or the Fund valuation procedures for the
purpose of calculating the Fund's net asset value in accordance with
procedures and methods established by the Board.
(f) COOPERATION WITH AGENTS OF THE ADVISER AND THE FUND. The
Sub-Adviser agrees to cooperate with and provide reasonable assistance
to the Adviser, the Fund and the Fund's custodian and foreign
sub-custodians, the Fund's pricing agents and all other agents and
representatives of the Fund and the Adviser, such information with
respect to the Fund as such entities may reasonably request from time
to time in the performance of their obligations, provide prompt
responses to reasonable requests made by such persons and establish
appropriate interfaces with each so as to promote the efficient
exchange of information and compliance with applicable laws and
regulations. Sub-Adviser will not be liable for any act of or breach of
duty by the Fund's custodian, foreign custodian, or any other agents or
representatives of the Fund or the Adviser.
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2. CODE OF ETHICS. The Sub-Adviser has adopted a written code of
ethics that it reasonably believes complies with the requirements of Rule 17j-1
under the 1940 Act, which it will provide to the Adviser and the Fund. The
Sub-Adviser shall ensure that its Access Persons (as defined in the
Sub-Adviser's Code of Ethics) comply in all material respects with the
Sub-Adviser's Code of Ethics, as in effect from time to time. Upon request, the
Sub-Adviser shall provide the Fund with (i) a copy of the Sub-Adviser's current
Code of Ethics, as in effect from time to time, and (ii) a certification that it
has adopted procedures reasonably necessary to prevent Access Persons from
engaging in any conduct prohibited by the Sub-Adviser's Code of Ethics.
Annually, the Sub-Adviser shall furnish a written report, which complies with
the requirements of Rule 17j-1, concerning the Sub-Adviser's Code of Ethics to
the Fund and the Adviser. The Sub-Adviser shall respond to requests for
information from the Adviser as to violations of the Code by Access Persons and
the sanctions imposed by the Sub-Adviser. The Sub-Adviser shall immediately
notify the Adviser of any material violation of the Code, whether or not such
violation relates to a security held by the Fund.
3. INFORMATION AND REPORTING. The Sub-Adviser shall provide the Fund,
the Adviser, and their respective officers with such periodic reports concerning
the obligations the Sub-Adviser has assumed under this Agreement as the Fund and
the Adviser may from time to time reasonably request.
(a) NOTIFICATION OF BREACH / COMPLIANCE REPORTS. The Sub-Adviser
shall notify the Trust's Chief Compliance Officer and Adviser
immediately upon detection of (i) any material failure to manage the
Fund in accordance with its investment objectives and policies or any
applicable law; or (ii) any material breach of any of the Fund's or the
Adviser's policies, guidelines or procedures which have been
communicated to Sub-Adviser in accordance with this Agreement. The
Trust or the Adviser will immediately notify the Sub-Adviser of any
changes to the investment objectives, guidelines, policies or
procedures of the Fund. The Adviser will immediately notify the
Sub-Adviser of any changes to the investment objectives, guidelines,
policies or procedures of the Adviser. In addition, the Sub-Adviser
shall provide a quarterly report regarding the Fund's compliance with
its investment objectives and policies and applicable law, including,
but not limited to the 1940 Act and Subchapter M of the Code, and the
Fund's and the Adviser's policies, guidelines or procedures as
applicable to the Sub-Adviser's obligations under this Agreement. The
Sub-Adviser acknowledges and agrees that the Adviser may, in its
discretion, provide such quarterly compliance certifications to the
Board. The Sub-Adviser agrees to correct any such failure promptly and
to take any action that the Board and/or the Adviser may reasonably
request in connection with any such breach. The Sub-Adviser shall also
provide the officers of the Trust with supporting certifications in
connection with such certifications of Fund financial statements and
disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act, as the Trust
may reasonably request. The Sub-Adviser will promptly notify the Trust,
unless such notification is inconsistent with applicable law,
regulation, order or other court public board or body instruction, in
the event (i) the Sub-Adviser is served or otherwise receives notice of
any action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board, or body, involving the
affairs of the Trust (excluding class action
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suits in which the Fund is a member of the plaintiff class by reason of
the Fund's ownership of shares in the defendant) or the compliance by
the Sub-Adviser with the federal or state securities laws or (ii) the
controlling stockholder of the Sub-Adviser changes or an actual change
in control resulting in an "assignment" (as defined in the 1940 Act)
has occurred or is otherwise proposed to occur.
(b) INSPECTION. Upon reasonable request, the Sub-Adviser agrees to
make its records and premises (including the availability of the
Sub-Adviser's employees for interviews) to the extent that they relate
to the conduct of services provided to the Fund or the Sub- Adviser's
conduct of its business as an investment adviser reasonably available
for compliance audits by the Adviser or the Fund's employees,
accountants or counsel; in this regard, the Fund and the Adviser
acknowledge that the Sub-Adviser shall have no obligations to make
available proprietary information unrelated to the services provided to
the Fund or any information related to other clients of the
Sub-Adviser, except to the extent necessary for the Adviser to confirm
the absence of any conflict of interest and compliance with any laws,
rules or regulations in the management of the Fund.
(c) BOARD AND FILINGS INFORMATION. The Sub-Adviser will also
provide the Adviser with any information reasonably requested regarding
its management of the Fund required for any meeting of the Board, or
for any shareholder report, amended registration statement, proxy
statement, or prospectus supplement to be filed by the Fund with the
Commission. The Sub-Adviser will make its officers and employees
available to meet with the Board from time to time on due notice to
review its investment management services to the Fund in light of
current and prospective economic and market conditions and shall
furnish to the Board such information as may reasonably be necessary in
order for the Board to evaluate this Agreement or any proposed
amendments thereto.
(d) TRANSACTION INFORMATION. The Sub-Adviser shall furnish to the
Adviser such information concerning portfolio transactions as may be
necessary to enable the Adviser to perform such compliance testing on
the Fund and the Sub-Adviser's services as the Adviser may, in its sole
discretion, determine to be appropriate. The provision of such
information by the Sub-Adviser in no way relieves the Sub-Adviser of
its own responsibilities under this Agreement.
4. BROKERAGE.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales
of securities for the account of the Fund, neither the Sub-Adviser nor
any of its directors, officers or employees will act as a principal or
agent or receive any commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Sub-Adviser shall arrange for the
placing of all orders for the purchase and sale of securities for the
Fund's account with brokers or dealers selected by the Sub-Adviser. In
the selection of such brokers or dealers and the placing of such
orders, the Sub-Adviser is directed at all times to seek for the Fund
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the most favorable execution and net price available under the
circumstances. It is also understood that it is desirable for the Fund
that the Sub-Adviser have access to brokerage and research services
provided by brokers who may execute brokerage transactions at a higher
cost to the Fund than may result when allocating brokerage to other
brokers, consistent with section 28(e) of the 1934 Act and any
Commission staff interpretations thereof. Therefore, the Sub-Adviser is
authorized to place orders for the purchase and sale of securities for
the Fund with such brokers, subject to review by the Adviser and the
Board from time to time with respect to the extent and continuation of
this practice. It is understood that the services provided by such
brokers may be useful to the Sub-Adviser in connection with its or its
affiliates' services to other clients.
(c) AGGREGATED TRANSACTIONS. On occasions when the Sub-Adviser
deems the purchase or sale of a security to be in the best interest of
the Fund as well as other clients of the Sub-Adviser, the Sub-Adviser
may, to the extent permitted by applicable law and regulations,
aggregate the order for securities to be sold or purchased. In such
event, the Sub-Adviser will allocate securities or futures contracts so
purchased or sold, as well as the expenses incurred in the transaction,
in the manner the Sub-Adviser reasonably considers to be equitable and
consistent with its fiduciary obligations to the Fund and to such other
clients under the circumstances.
(d) AFFILIATED BROKERS. The Sub-Adviser or any of its affiliates
may act as broker in connection with the purchase or sale of securities
or other investments for the Fund, subject to: (a) the requirement that
the Sub-Adviser seek to obtain best execution and price within the
policy guidelines determined by the Board and set forth in the Fund's
current prospectus and SAI; (b) the provisions of the 1940 Act; (c) the
provisions of the 1934 Act; and (d) other provisions of applicable law.
These brokerage services are not within the scope of the duties of the
Sub-Adviser under this Agreement. Subject to the requirements of
applicable law and any procedures adopted by the Board, the Sub-Adviser
or its affiliates may receive brokerage commissions, fees or other
remuneration from the Fund for these services in addition to the
Sub-Adviser's fees for services under this Agreement.
5. CUSTODY. Nothing in this Agreement shall permit the Sub-Adviser to
take or receive physical possession of cash, securities or other investments of
the Fund.
6. ALLOCATION OF CHARGES AND EXPENSES. The Sub-Adviser will bear its
own costs of providing services hereunder. Other than as herein specifically
indicated, the Sub-Adviser shall not be responsible for the Fund's or the
Adviser's expenses, including brokerage and other expenses incurred in placing
orders for the purchase and sale of securities and other investment instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) PROPERLY REGISTERED. The Sub-Adviser is registered as an
investment adviser under the Advisers Act, and will remain so
registered for the duration of this Agreement. The Sub-Adviser is not
prohibited by the Advisers Act or the 1940 Act from
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performing the services contemplated by this Agreement, and to the best
knowledge of the Sub-Adviser, there is no proceeding or investigation
that is reasonably likely to result in the Sub-Adviser being prohibited
from performing the services contemplated by this Agreement. The
Sub-Adviser agrees to promptly notify the Trust of the occurrence of
any event that would disqualify the Sub-Adviser from serving as an
investment adviser to an investment company. The Sub-Adviser is in
compliance in all material respects with all applicable federal and
state law in connection with its investment management operations.
(b) ADV DISCLOSURE. The Sub-Adviser has provided the Trust with a
copy of Part I of its Form ADV as most recently filed with the SEC and
Part II as most recently updated and will, promptly after filing any
amendment to its Form ADV with the SEC or updating its Part II, furnish
a copy of such amendments and updates to the Trust. The information
contained in the Adviser's Form ADV is accurate and complete in all
material respects and does not omit to state any material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(c) FUND DISCLOSURE DOCUMENTS. The Sub-Adviser has reviewed and
will in the future review, the Registration Statement, and any
amendments or supplements thereto, the annual or semi-annual reports to
shareholders, other reports filed with the Commission and any marketing
material of the Fund (collectively the "Disclosure Documents") that
have been provided to or created by the Sub-Adviser and represents and
warrants that with respect to disclosure about the Sub-Adviser, the
manner in which the Sub-Adviser manages the Fund or information
relating directly or indirectly to the Sub-Adviser, such Disclosure
Documents contain or will contain, as of the date thereof, no untrue
statement of any material fact and does not omit any statement of
material fact which was required to be stated therein or necessary to
make the statements contained therein not misleading.
(d) INSURANCE. The Sub-Adviser maintains errors and omissions
insurance coverage in an appropriate amount and shall provide prior
written notice to the Trust (i) of any material changes in its
insurance policies or insurance coverage; or (ii) if any material
claims will be made on its insurance policies. Furthermore, the
Sub-Adviser shall, upon reasonable request, provide the Trust with any
information it may reasonably require concerning the amount of or scope
of such insurance.
(e) NO DETRIMENTAL AGREEMENT. The Sub-Adviser represents and
warrants that it has no arrangement or understanding with any party,
other than the Trust, that would influence the decision of the
Sub-Adviser to the detriment of the Fund or its shareholders with
respect to its selection of securities for the Fund, and that all
selections shall be done in accordance with what is in the best
interest of the Fund.
(f) CONFLICTS. The Sub-Adviser shall act honestly, in good faith
and in the best interests of the Trust including requiring any of its
personnel with knowledge of
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Fund activities to place the interest of the Fund first, ahead of their
own interests, in all personal trading scenarios that may involve a
conflict of interest with the Fund, consistent with its fiduciary
duties under applicable law.
(g) REPRESENTATIONS. The representations and warranties in this
Section 7 shall be deemed to be made on the date this Agreement is
executed and at the time of delivery of the quarterly compliance report
required by Section 3(a), whether or not specifically referenced in
such report.
(h) SERVICES NOT EXCLUSIVE. The services furnished by the
Sub-Adviser hereunder are not to be deemed exclusive and the
Sub-Adviser shall be free to furnish similar services to others so long
as its allocation of investment opportunities and its trading
procedures are fair and equitable to the Fund and the Trust.
8. SUB-ADVISER'S COMPENSATION. The Adviser shall pay to the
Sub-Adviser, as compensation for the Sub-Adviser's services hereunder, a fee,
determined as described in Schedule A that is attached hereto and made a part
hereof. Such fee shall be computed daily and paid monthly in arrears by the
Adviser. The Fund shall have no responsibility for any fee payable to the
Sub-Adviser.
The Sub-Adviser will be compensated based on the portion of Fund assets
allocated to the Sub-Adviser by the Adviser. In the event of termination of this
Agreement, the fee provided in this Section shall be computed on the basis of
the period ending on the last business day on which this Agreement is in effect
subject to a pro rata adjustment based on the number of days elapsed in the
current month as a percentage of the total number of days in such month.
9. INDEPENDENT CONTRACTOR. In the performance of its duties hereunder,
the Sub-Adviser is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Fund or the Adviser in any way or
otherwise be deemed to be an agent of the Fund or the Adviser. If any occasion
should arise in which the Sub-Adviser gives any advice to its clients concerning
the shares of the Fund, the Sub-Adviser will act solely as investment counsel
for such clients and not in any way on behalf of the Fund.
10. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, (i) in the event of its
assignment (as defined in section 2(a)(4) of the 0000 Xxx) or (ii) in the event
of the termination of the Management Agreement; provided that such termination
shall not relieve the Adviser or the Sub-Adviser of any liability incurred
hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
11. DURATION AND TERMINATION.
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(a) This Agreement shall become effective as of the date executed
and shall remain in full force and effect continually thereafter,
subject to renewal as provided in Section 12(c) and unless terminated
automatically as set forth in Section 11 hereof or until terminated as
follows:
(b) The Adviser may at any time terminate this Agreement by not
more than sixty (60) days' nor less than thirty (30) days' written
notice delivered or mailed by registered mail, postage prepaid, to the
Sub-Adviser. In addition, the Fund may cause this Agreement to
terminate either (i) by vote of its Board or (ii) upon the affirmative
vote of a majority of the outstanding voting securities of the Fund; or
(c) The Sub-Adviser may at any time terminate this Agreement by not
more than sixty (60) days' nor less than thirty (30) days' written
notice delivered or mailed by registered mail, postage prepaid, to the
Adviser; or
(d) This Agreement shall automatically terminate two years from the
date of its execution unless its renewal is specifically approved at
least annually thereafter by (i) a majority vote of the Trustees,
including a majority vote of such Trustees who are not interested
persons of the Fund, the Adviser or the Sub-Adviser, at a meeting
called for the purpose of voting on such approval; or (ii) the vote of
a majority of the outstanding voting securities of the Fund; provided,
however, that if the continuance of this Agreement is submitted to the
shareholders of the Fund for their approval and such shareholders fail
to approve such continuance of this Agreement as provided herein, the
Sub-Adviser may continue to serve hereunder as to the Fund in a manner
consistent with the 1940 Act and the rules and regulations thereunder;
and
(e) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the
Sub-Adviser shall, immediately upon notice of termination or on such
later date as may be specified in such notice, cease all activity on
behalf of the Fund and with respect to the Fund assets, except as
expressly directed by the Adviser or as otherwise required by any
fiduciary duties of the Sub-Adviser under applicable law. In addition,
the Sub-Adviser shall deliver the Fund's Books and Records to the
Adviser by such means and in accordance with such schedule as the
Adviser shall direct and shall otherwise cooperate, as reasonably
directed by the Adviser, in the transition of portfolio asset
management to any successor of the Sub-Adviser, including the Adviser.
12. CERTAIN DEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:
(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" shall have the meaning as set forth in the 1940
Act, subject, however, to such exemptions as may be granted by the
Commission under the 1940 Act or any interpretations of the Commission
staff.
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(b) "Interested persons" and "Assignment" shall have their
respective meanings as set forth in the 1940 Act, subject, however, to
such exemptions as may be granted by the Commission under the 1940 Act
or any interpretations of the Commission staff.
13. LIABILITY OF THE SUB-ADVISER. The Sub-Adviser shall indemnify and
hold harmless the Trust and all affiliated persons thereof (within the meaning
of Section 2(a)(3) of the 0000 Xxx) and all their respective controlling persons
(as described in Section 15 of the 1933 Act) (collectively, the "Sub-Adviser
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) by reason of or
arising out of: (a) the Sub-Adviser being in material violation of any
applicable federal or state law, rule or regulation or any investment policy or
restriction set forth in the Fund's Registration Statement or any written
guidelines or instruction provided in writing by the Board, (b) the Fund's
failure to satisfy the diversification or source of income requirements of
Subchapter M of the Code generally in the performance of its duties or
obligations as specifically stated in this Agreement, or (c) the Sub-Adviser's
willful misfeasance, bad faith or negligence generally in the performance of its
duties hereunder or its reckless disregard of its obligations and duties under
this Agreement; provided that such losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) are not the result of
any act of or breach of duty by the Fund's, the Trust, and/or the Adviser..
14. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
15. LIMITATION OF LIABILITY. The parties to this Agreement acknowledge
and agree that all litigation arising hereunder, whether direct or indirect, and
of any and every nature whatsoever resulting in any liability on the part of the
Fund or Trust shall be satisfied solely out of the assets of the affected Fund
and that no Trustee, officer or holder of shares of beneficial interest of the
Fund shall be personally liable for any of the foregoing liabilities. The
Trust's Certificate of Trust, as amended from time to time, is on file in the
Office of the Secretary of State of the Commonwealth of Massachusetts. Such
Certificate of Trust and the Trust's Agreement and Declaration of Trust describe
in detail the respective responsibilities and limitations on liability of the
Trustees, officers, and holders of shares of beneficial interest.
16. CHANGE IN THE ADVISER'S OWNERSHIP. The Sub-Adviser agrees that it
shall notify the Trust of any anticipated or otherwise reasonably foreseeable
change in the ownership of the Sub-Adviser within a reasonable time prior to
such change being effected.
17. JURISDICTION. This Agreement shall be governed by and construed in
accordance with the substantive laws of The Commonwealth of Massachusetts and
the Sub-Adviser consents to the jurisdiction of courts, both state and federal,
in Massachusetts, with respect to any dispute under this Agreement.
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18. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
19. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their duly authorized officers as of the date first
above written.
ATTEST: XXXXXXXXX INVESTMENT MANAGEMENT, INC.
/S/ ILLEGIBLE SIGNATURE By: /S/ XXXXX XXXXXXXXX
-------------------------------- --------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
ATTEST: FROST INVESTMENT ADVISORS, LLC
/S/ ILLEGIBLE SIGNATURE By: /S/ XXX X. XXXXXXXXXXXX
-------------------------------- ---------------------------------
Name: Xxx X. Xxxxxxxxxxxx
Title: President
Accepted and Agreed to as of the day and year first above written.
11
SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
DATED APRIL 28, 2008 BETWEEN
FROST INVESTMENT ADVISORS, LLC
AND
XXXXXXXXX INVESTMENT MANAGEMENT, INC.
The Adviser will pay to the Sub-Adviser as compensation for the Sub-Adviser's
services rendered, a fee, computed daily at an annual rate based on the average
daily net assets of the respective Fund as may be allocated by the Adviser to
the Sub-Adviser from time to time under the following fee schedule:
FUND RATE
---- ----
Frost International Equity Fund 0.60% on the first $150 million of
the Fund's average daily net assets
0.55% of the Fund's average daily
assets in excess of $150 million
A-1
