INVESTMENT SUB-ADVISORY AGREEMENT
CNI CHARTER HIGH YIELD BOND FUND
AGREEMENT made this 31st day of August, 2005, between City
National Asset Management, Inc. (the "Adviser"), a corporation organized under
the laws of the State of California and a wholly-owned subsidiary of City
National Bank, a federally chartered bank, and HSBC Halbis Partners (USA), Inc.
(the "Sub-Adviser"), a corporation organized under the laws of the State of New
York.
WHEREAS, CNI Charter Funds, a Delaware statutory trust (the
"Trust") is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser has entered into an Investment Management
Agreement dated April 1, 1999 (the "Advisory Agreement") with the Trust,
pursuant to which the Adviser will act as investment adviser to the CNI Charter
High Yield Bond Fund (the "Fund"), which is a series of the Trust; and
WHEREAS, the Adviser, with the approval of the Trust, desires
to retain the Sub-Adviser to provide discretionary investment advisory services
to the Adviser in connection with the management of the Fund, and the
Sub-Adviser is willing to render such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES OF THE SUB-ADVISER. Subject to general supervision by
the Adviser and the Trust's Board of Trustees, the Sub-Adviser shall manage the
investment of all of the securities and other assets of the Fund entrusted to it
hereunder (the "Assets") including the purchase, retention and disposition of
the Assets, in accordance with the Fund's investment objectives, policies and
restrictions as stated in the Fund's prospectus and statement of additional
information, as currently in effect and as amended or supplemented from time to
time (referred to collectively as the "Prospectus"), and subject to the
following:
(a) The Sub-Adviser shall, in consultation with and subject to
the direction, if any, of the Adviser, determine from time to time what Assets
will be purchased, retained or sold by the Fund, and what portion of the Assets
will be invested or held uninvested in cash.
(b) In the performance of its duties and obligations under
this Agreement, the Sub-Adviser shall act in conformity with the investment
objectives, policies and restrictions with respect to the Fund set forth in the
Trust's Declaration of Trust (as defined herein) and the Prospectus and with
applicable instructions and directions of the Adviser and of the Board of
Trustees of the Trust and will conform to and comply with the requirements of
the 1940 Act, the Internal Revenue Code of 1986, and all other applicable laws
and regulations, as each is amended from time to time.
(c) The Sub-Adviser shall determine the Assets to be purchased
or sold by the Fund as provided in subparagraph (a) and will place orders with
or through such persons, brokers or dealers, including the Sub-Adviser or
affiliates thereof, in accordance with the policy with
respect to brokerage set forth in the Fund's Prospectus or as the Trust's Board
of Trustees or the Adviser may direct from time to time, in conformity with
federal securities laws. In executing Fund transactions and selecting brokers or
dealers, the Sub-Adviser will seek on behalf of the Fund the best overall terms
available. In assessing the best overall terms available for any transaction,
the Sub-Adviser shall consider all factors that it reasonably 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-dealer to execute a particular transaction, the Sub-Adviser may also
consider the brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund
and/or other accounts over which the Sub-Adviser or an affiliate of the
Sub-Adviser may exercise investment discretion. In accordance with Section
28(e), the Sub-Adviser is authorized to pay to a broker or dealer who provides
such brokerage and research services a commission for executing a portfolio
transaction for the Fund which is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if, but only
if, the Sub-Adviser determines in good faith that such commission was reasonable
in relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of that particular transaction or in terms of
the overall responsibilities of the Sub-Adviser to the Fund and the other
accounts as to which the Sub-Adviser exercises investment discretion. It is
recognized that the services provided by such brokers or dealers may be useful
to the Sub-Adviser in connection with the Sub-Adviser's services to other
clients. In no instance, however, will any of the Fund's Assets be purchased
from or sold to the Adviser, the Sub-Adviser, the Trust's principal underwriter,
or any affiliated person of either the Trust, the Adviser, the Sub-Adviser or
the principal underwriter, acting as principal in the transaction, except to the
extent permitted by the Securities and Exchange Commission (the "SEC") and the
1940 Act.
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 customers, the Sub-Adviser
may, to the extent permitted by applicable laws and regulations, but shall not
be obligated to, aggregate the securities to be sold or purchased in order to
obtain the best execution and lower brokerage commissions, if any. In such
event, allocation of the securities so purchased or sold, as well as expenses
incurred in the transaction, will be made by the Sub-Adviser in a manner it
reasonably considers to be fair and equitable and consistent with its fiduciary
obligation to the Fund, and, if applicable, to other customers.
The Adviser acknowledges that, in order to comply with federal securities laws
and related regulatory requirements, there may be periods when the Sub-Adviser
will not be permitted to initiate or recommend certain types of transactions in
the securities of issuers for which affiliates of the Sub-Adviser are performing
investment banking services, and neither the Trust nor the Adviser will be
advised of that fact. For example, during certain periods when affiliates of the
Sub-Adviser are engaged in an underwriting or other distribution of a company's
securities, the Sub-Adviser may be prohibited from purchasing or recommending
the purchase of certain securities of that company for its clients. Similarly,
the Sub-Adviser may on occasion be prohibited from selling or recommending the
sale of securities of a company for which affiliates are providing investment
banking services.
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(d) The Sub-Adviser shall maintain all books and records with
respect to transactions involving the Assets required by subparagraphs (b)(5),
(6), (7), (9), (10) and (11) and paragraph (f) of Rule 31a-1 under the 1940 Act
and shall render to the Adviser or the Trust's Board of Trustees such periodic
and special reports as the Adviser or the Trust's Board of Trustees may
reasonably request.
The Sub-Adviser shall keep the books and records relating to the Assets required
to be maintained by the Sub-Adviser under this Agreement and shall timely
furnish to the Adviser all information relating to the Sub-Adviser's services
under this Agreement needed by the Adviser to keep the other books and records
of the Fund required by Rule 3la-1 under the 1940 Act. The Sub-Adviser shall
also furnish to the Adviser any other information relating to the Assets that is
required to be filed by the Adviser or the Trust with the SEC or sent to
shareholders under the 1940 Act (including the rules adopted thereunder) or any
exemptive or other relief that the Adviser or the Trust obtains from the SEC.
The Sub-Adviser agrees that all records that it maintains on behalf of the Fund
are property of the Fund and the Sub-Adviser will surrender promptly to the Fund
any of such records upon the Fund's request; provided, however, that the
Sub-Adviser may retain a copy of such records. In addition, for the duration of
this Agreement, the Sub-Adviser shall preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any such records as are required to be maintained
by it pursuant to this Agreement, and shall transfer said records to any
successor sub-adviser upon the termination of this Agreement (or, if there is no
successor sub-adviser, to the Adviser).
The Sub-Adviser shall keep confidential all records and other information
relating to the Trust that are maintained by the Sub-Adviser, and will not use
such records or information for purposes other than the performance of its
duties hereunder. The Sub-Adviser will not disclose any of such records or other
information without the consent of the Adviser or the Trust, unless such
disclosure is required for the performance of the Sub-Adviser's duties hereunder
or is required by applicable law. The Sub-Adviser acknowledges that the names
"CNI Charter" and "CNI Charter Funds" are the property of City National Bank.
(e) The Sub-Adviser shall provide the Fund's custodian on each
business day with information relating to all transactions concerning the Assets
and shall provide the Adviser with such information upon request of the Adviser.
(f) The investment management services provided by the
Sub-Adviser under this Agreement are not to be deemed exclusive and the
Sub-Adviser shall be free to render similar services to other clients, as long
as such services do not impair the services rendered to the Adviser or the
Trust. The Sub-Adviser may give advice, and take action, with respect to any of
its other clients that may differ from the advice given, or the timing or nature
of actions taken, with respect to the Fund. The Sub-Adviser shall have no
obligation to purchase or sell for the Fund, or to recommend for purchase or
sale by the Fund, any securities that the Sub-Adviser, its principals,
affiliates or employees may purchase or sell for themselves or for any other
clients.
(g) The Sub-Adviser shall promptly notify the Adviser of any
financial or other condition that is likely to impair the Sub-Adviser's ability
to fulfill its commitment under this Agreement.
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(h) The Sub-Adviser shall not consult with any other
sub-adviser of any other series of the Trust concerning transactions of the Fund
or any other series of the Trust in which (a) the Sub-Adviser of any of its
affiliated persons serves as principal underwriter, or (b) such other
sub-adviser or any of its affiliated persons serves as principal underwriter.
2. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Sub-Adviser's performance of
its duties under this Agreement; provided, however, that in connection with its
management of the Assets, nothing herein shall be construed to relieve the
Sub-Adviser of responsibility for compliance, with respect to the Fund, with the
Trust's Declaration of Trust (as defined herein), the Prospectus, the
instructions and directions of the Board of Trustees of the Trust, the
requirements of the 1940 Act, the Internal Revenue Code of 1986, and all other
applicable laws and regulations, as each is amended from time to time.
3. DELIVERY OF DOCUMENTS. The Adviser has furnished the
Sub-Adviser with copies properly certified or authenticated of each of the
following documents:
(a) the Trust's Agreement and Declaration of Trust, as filed
with the Secretary of State of the State of Delaware (such Agreement and
Declaration of Trust, as in effect on the date of this Agreement and as amended
from time to time, herein called the "Declaration of Trust");
(b) the By-Laws of the Trust (such By-Laws, as in effect on
the date of this Agreement and as amended from time to time, are herein called
the "By-Laws");
(c) the Prospectus(es) of the Fund.
Copies of any amendments or supplements to any of the above documents will be
furnished promptly to the Sub-Adviser.
4. COMPENSATION TO THE SUB-ADVISER. For the services to be
provided by the Sub-Adviser pursuant to this Agreement, the Adviser will pay the
Sub-Adviser, and the Sub-Adviser agrees to accept as full compensation therefor,
a sub-advisory fee at the rate specified in the Schedule which is attached
hereto and made a part of this Agreement. The fee will be calculated based on
the average daily net asset value of the Assets under the Sub-Adviser's
management and will be paid to the Sub-Adviser monthly.
5. LIMITATION OF LIABILITY OF THE SUB-ADVISER. The Sub-Adviser
shall not be liable for any error of judgment or for any loss suffered by the
Adviser in connection with the performance of its obligations under this
Agreement, except a loss resulting from a breach of fiduciary duty with respect
to the receipt of compensation for services (in which case any award of damages
shall be limited to the period and the amount set forth in Section 36(b)(3) of
the 0000 Xxx); or a loss resulting from willful misfeasance, bad faith or
negligence on the Sub-Adviser's part in the performance of its duties or from
reckless disregard of its obligations and duties under this Agreement.
The Sub-Adviser shall not be responsible for any loss incurred by reason of any
act or omission of any broker-dealer; provided, however, that the Sub-Adviser
shall use reasonable care in its
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selection and use of broker-dealers in effecting transactions for the Fund. The
Sub-Adviser shall have no obligation to seek to obtain any material non-public
("inside") information about any issuer of securities, nor to purchase or sell,
or to recommend for purchase or sale, for the Fund the securities of any issuer
on the basis of any such information as may come into its possession.
The Adviser acknowledges and agrees that the Sub-Adviser makes no representation
or warranty, express or implied, that any level of performance or investment
results will be achieved by the Fund or that the Fund will perform comparably
with any standard or index, including other clients of the Sub-Adviser.
6. REPORTS. During the term of this Agreement, the Adviser agrees
to furnish the Sub-Adviser at its principal office (addressed to the attention
of the Xxxxx Xxxxxxx-Xxxxx, HSBC Investments (USA) Inc., 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 10018) all prospectuses, proxy statements, reports to
stockholders, sales literature or other materials prepared for distribution to
stockholders of the Fund, the Trust or the public that refer to the Sub-Adviser
or its clients in any way prior to use thereof and not to use such material if
the Sub-Adviser reasonably objects in writing within five business days (or such
other period as may be mutually agreed) after receipt thereof. The Sub-Adviser's
right to object to such materials is limited to the portions of such materials
that expressly relate to the Sub-Adviser, its services and its clients. The
Adviser agrees to use its best efforts to ensure that materials prepared by its
agents or its affiliates that refer to the Sub-Adviser or its clients in any way
are consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph.
7. PORTFOLIO COMPOSITION. The Adviser shall provide (or cause the
Trust's custodian to provide) timely information to the Sub-Adviser regarding
such matters as the composition of the Assets and cash available for investment
in the Fund and cash requirements (with respect to the redemption of Fund
shares) and such other information as the parties may reasonably agree upon.
8. EXPENSES. The Sub-Adviser shall bear its own expenses incurred
in connection with its duties hereunder, including payment for compensation of
and office space for its officers and employees engaged in providing services
hereunder, but shall not be responsible for any expenses of the Adviser or the
Trust.
9. CUSTODY. The cash and assets of the Fund shall be held by
Wachovia Bank, N.A. (the "Custodian"), which the Adviser hereby represents has
agreed to act as custodian for the Fund. The custodian of the Fund may change
from time to time. The Sub-Adviser shall at no time have custody or physical
control of the Assets in the Fund. In addition, the Sub-Adviser shall not be
liable for any act or omission of the Custodian. The Sub-Adviser shall give
instructions to the Custodian in writing or orally (at the discretion of the
Custodian) and confirmed in writing as soon as practicable thereafter. The
Adviser shall instruct the Custodian to provide the SubAdviser with such
periodic reports concerning the status of the Fund as the Sub-Adviser and the
Adviser may agree from time to time. The Adviser shall provide the Sub-Adviser
with a copy of the Fund's agreement with the Custodian and any modification
thereto and will notify the Sub-Adviser in advance of a change in the Custodian.
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10. REPRESENTATIONS AND WARRANTIES. The Adviser represents and
warrants to the Sub-Adviser that (a) the Adviser has the authority to act on
behalf of the Trust and has and will continue to convey to the Sub-Adviser all
relevant information regarding the Trust and the Fund including, but not limited
to, any relevant investment restrictions of the Trust and the Fund; (b) this
Agreement has been duly authorized, executed and delivered by the Adviser and
constitutes its valid and binding obligation, enforceable in accordance with its
terms; (c) no governmental authorizations, approvals, consents or filings are
required in connection with the execution; delivery or performance of this
Agreement by the Adviser, other than those that have been obtained or made; (d)
the execution, delivery and performance of this Agreement by the Adviser will
not violate or result in any default under the Adviser's constituent documents,
any contract or other agreement to which the Adviser is a party or by which its
assets may be bound or any statute or any rule, regulation or order of any
government agency or body; (e) the Assets of the Fund do not and will not
constitute assets of any employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974 or Section 4975(e)
of the Internal Revenue Code of 1986 and this Agreement and the transactions
contemplated hereby will not constitute an investment by a "benefit plan
investor" within the meaning of DOL Reg. Section 2510.3-101; and (f) the Adviser
has received a copy of Part II of the Sub-Adviser's current Form ADV as filed
with the SEC.
The Sub-Adviser represents and warrants to the Adviser that (a) this Agreement
has been duly authorized, executed and delivered by the Sub-Adviser and
constitutes its valid and binding obligation, enforceable in accordance with its
terms; (b) the Sub-Adviser is duly registered with the SEC as an investment
adviser under the Investment Advisers Act of 1940, and no other governmental
authorizations, approvals, consents or filings are required in connection with
the execution, delivery or performance of this Agreement by the Sub-Adviser; and
(c) the execution, delivery and performance of this Agreement by the Sub-Adviser
will not violate or result in any default under the Sub-Adviser's constituent
documents, any contract or other agreement to which the Sub-Adviser is a party
or by which its assets may be bound or any statute or any rule, regulation or
order of any government agency or body.
11. DIRECTIONS TO SUB-ADVISER. All directions by or on behalf of
the Adviser to the Sub-Adviser shall be in writing signed by a director, officer
or other duly authorized agent of the Adviser. The Sub-Adviser shall be fully
protected in relying upon any direction signed in the appropriate manner with
respect to any instruction, direction or approval of the Adviser.
The Sub-Adviser shall also be fully protected when acting upon any instrument,
certificate or paper that the Sub-Adviser reasonably believes to be genuine and
to be signed or presented by the proper person or persons. The Sub-Adviser shall
be under no duty to make any investigation or inquiry as to any statement
contained in any such writing and may accept the same as conclusive evidence of
the truth and accuracy of the statements therein contained.
12. PROXIES, TENDER OFFERS, CLASS ACTIONS, ETC. Subject to any
other written instructions of the Adviser, the Sub-Adviser is hereby appointed
the Adviser's agent and attorney-in-fact on behalf of the Fund in its discretion
to vote, tender or convert any of the Assets; to execute proxies, waivers,
consents, account documentation, agreements, contracts, and other instruments
with respect to the Assets; to endorse, transfer or deliver the Assets and to
participate in or consent to any class action, plan of reorganization, merger,
combination,
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consolidation, liquidation or similar plan with reference to the Assets.
Notwithstanding the provisions of this Section 12, if the Sub-Adviser determines
that it, or any of its affiliates, has an adverse or potentially adverse
interest with respect to the vote or other requested action; the Sub-Adviser
shall timely so inform the Adviser, which shall thereupon become responsible for
the determination on such vote or other action.
13. INDEMNIFICATION.
(a) The Adviser shall indemnify, defend and hold harmless the
Sub-Adviser, its officers, directors, employees, agents and each person, if any,
who controls the Sub-Adviser within the meaning of Section 15 of the Securities
Act of 1933 (the "1933 Act") (each such person referred to as a "Sub-Adviser
Indemnified Party"), against any and all actual or alleged claims, losses,
liabilities or damages (including reasonable attorney's fees and other related
expenses) howsoever arising from or in connection with this Agreement or the
performance by the Adviser of its duties hereunder, provided, however, that the
Adviser shall not be required to indemnify or otherwise hold any particular
Sub-Adviser Indemnified Party harmless under this Section 13 where the claim
against, or the loss, liability or damage experienced by the Sub-Adviser
Indemnified Party is caused by or is otherwise directly related to such
Sub-Adviser Indemnified Party's own willful misfeasance, bad faith or
negligence, or to the reckless disregard of its duties under this Agreement.
(b) The Sub-Adviser shall indemnify, defend and hold harmless
the Adviser, its officers, directors, employees, agents and each person, if any,
who controls the Adviser within the meaning of Section 15 of the 1933 Act (each
such person referred to as a "Adviser Indemnified Party") from and against any
and all actual or alleged claims, losses, liabilities or damages (including
reasonable attorney's fees and other related expenses) howsoever arising from or
in connection with this Agreement or the performance by the Sub-Adviser of its
duties hereunder; provided, however, that the Sub-Adviser shall not be required
to indemnify or otherwise hold any particular Adviser Indemnified Party harmless
under this Section 13 where the claim against, or the loss, liability or damage
experienced by the Adviser Indemnified Party, is caused by or is otherwise
directly related to such Adviser Indemnified Party's own willful misfeasance,
bad faith or negligence, or to the reckless disregard of its duties under this
Agreement.
(c) Neither the Adviser nor the Sub-Adviser shall be liable
for any incidental, indirect, special or consequential damages of any nature
whatsoever, including, but not limited to, lost or anticipated profits,
occasioned by a breach of any provision of this Agreement even if apprised of
the possibility of such damages.
14. DURATION AND TERMINATION. This Agreement shall become
effective as of the date hereof.
This Agreement shall continue in effect for a period of two years from the date
hereof, and thereafter shall continue in effect for successive annual periods
provided that such continuance is specifically approved at least annually in
conformance with the requirements of the 1940 Act. Notwithstanding the
foregoing, this Agreement may be terminated with respect to the Fund (a) by the
Fund at any time, without the payment of any penalty, by the vote of a majority
of
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Trustees of the Trust or by the vote of a majority of the outstanding voting
securities of the Fund, (b) by the Adviser at any time, without the payment of
any penalty, on not less than 60 days' written notice to the Sub-Adviser, or (c)
by the Sub-Adviser at any time, without the payment of any penalty, on not less
than 60 days' written notice to the Adviser. This Agreement shall terminate
automatically and immediately in the event of its assignment, or in the event of
a termination of the Advisory Agreement between the Adviser and the Trust with
respect to the Fund. As used in this Section 14, the terms "assignment" and
"vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in the 1940 Act and the rules and regulations
thereunder, subject to such exceptions as may be granted by the SEC under the
1940 Act.
15. GOVERNING LAW. This Agreement shall be governed by the
internal laws of the State of California, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed as being
inconsistent with the 1940 Act.
16. SEVERABILITY. Should any part of this Agreement be held
invalid by a court decision, statute, Rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors.
17. NOTICE. Any notice, advice or report to be given pursuant to
this Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight mail, postage prepaid addressed by the party giving
notice to the other party at the address set forth below, or at such other
address as may be specified by the other party from time to time:
To the Adviser at: City National Asset Management, Inc.
000 Xxxxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Division Manager, City National
Investments
To the Sub-Adviser at: HSBC Halbis Partners (USA), Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
18. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this Agreement's subject matter.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
Where the effect of a requirement of the 1940 Act reflected in any provision of
this Agreement is altered by a rule, regulation or order of the SEC, whether of
special or general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first written
above.
CITY NATIONAL ASSET MANAGEMENT, INC. HSBC HALBIS PARTNERS (USA), INC.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxxx Xxxx Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President Title: Chief Executive Officer
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SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
CITY NATIONAL ASSET MANAGEMENT
AND
HSBC HALBIS PARTNERS (USA), INC.
Pursuant to Article 4, the Adviser shall pay the Sub-Adviser compensation at the
following annual rates:
Sub-Advisory Fee
(per annum)
-----------
On the first $35 million 0.50%
On the next $35 million 0.40%
On amounts over $70 million 0.35%
