SUBADVISORY AGREEMENT
Exhibit (d)(xxvi) |
THIS AGREEMENT is made and entered into effective the day of , 2020, by and among MORNINGSTAR FUNDS TRUST (the “Trust”), a Delaware statutory trust, MORNINGSTAR INVESTMENT MANAGEMENT LLC (the “Adviser”) a Delaware limited liability company registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and BRANDYWINE GLOBAL INVESTMENT MANAGEMENT, LLC, a limited liability company under the laws of the State of Delaware (the “Subadviser”), and also registered under the Advisers Act.
NOW, THEREFORE, the parties do mutually agree and promise as follows with respect to each Fund:
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In the event that the Trust establishes one or more additional series other than the Funds named in Exhibit A with respect to which it desires to retain the Subadviser to assist Adviser in the provision of a continuous investment management program for that portion of such new series’ assets that the Adviser will assign to the Subadviser, the Adviser shall notify the Subadviser. If the Subadviser is willing to render such services under this Agreement, the parties shall cause Exhibit A to be supplemented (or amended) to include such new series, and (subject to such approval as required under the 0000 Xxx) such series shall become a “Fund” hereunder and shall be subject to the provisions of this Agreement to the same extent as the Funds named on Exhibit A (except to the extent that said provisions, including those relating to the compensation payable by the Adviser to the Subadviser, may be modified in writing by the Adviser and the Subadviser at the time).
(b) Delegation of Duties. The Subadviser may also delegate any of its duties and obligations hereunder to any affiliated person, as such term is defined in the 1940 Act, that is eligible to serve as an investment adviser to an investment company registered under the 1940 Act on such terms and conditions as it deems necessary or appropriate, provided that (i) the Adviser and the Board of Trustees of the Trust consent to any such delegation and to the terms and conditions thereof, (ii) such delegation is pursuant to a written contract which receives prior approval by the Adviser and the Board of Trustees of the Trust, which may not be materially amended without prior written approval of the Adviser and the Board of Trustees of the Trust, and which provides for its automatic termination in the event this Subadvisory Agreement is terminated for any reason, and (iii) such delegation is permitted by and in conformity with the 1940 Act. The Subadviser shall be liable to the Adviser and the Fund for any loss or damage arising out of, in connection with, or related to the actions, or omissions to act, of any delegee utilized hereunder as if such delegee were a party hereto. The Subadviser shall be solely responsible for compensating any delegee for services rendered, and neither the Adviser nor the Fund may be held responsible, or otherwise liable for, the payment of any amount due, or which may become due to any delegee.
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The Adviser shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code. In connection with such compliance tests, the Adviser shall inform the Subadviser at least ten (10) business days prior to a calendar quarter end if the Subadviser Assets are out of compliance with the diversification or income requirements under Subchapter M. If the Adviser notifies the Subadviser that the Subadviser Assets are not in compliance with such requirements under Subchapter M, the Subadviser will take prompt action, in accordance with the Adviser’s direction, to bring the Subadviser Assets back into compliance within the time permitted under the Code thereunder. For the avoidance of doubt, the Adviser agrees and acknowledges that the Subadviser is not the tax agent for the Fund.
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The Adviser will provide the Subadviser with reasonable advance notice of any change in the Fund’s investment objectives, policies and restrictions as stated in the Prospectus (the “Prospectus Revisions”), and the Subadviser shall, in the performance of its duties and obligations under this Agreement, manage the Subadviser Assets consistent with such changes, provided that the Subadviser has received prompt notice of the effectiveness of such changes from the Trust or the Adviser. In addition to such notice, the Adviser shall provide to the Subadviser a copy of a modified Prospectus reflecting such changes. For the avoidance of doubt, the Subadviser shall not be liable for the Subadviser Assets becoming non-compliant the Prospectus Revisions until the Subadviser has received notice from the Adviser of such changes. The Adviser acknowledges that the Prospectus Revisions may not be able to be adhered to immediately due to trading limitations, and further acknowledges that the Subadviser will make its commercially reasonable efforts to take prompt action to bring the Subadviser Assets in compliance with Prospectus Revisions. The Adviser acknowledges and will ensure that the Prospectus will at all times be in compliance with all disclosure requirements under all applicable federal and state laws and regulations relating to the Trust or the Fund, including, without limitation, the 1940 Act, and the rules and regulations thereunder, and that the Subadviser shall have no liability in connection therewith, except as to the accuracy of material information furnished in writing by the Subadviser to the Trust or to the Adviser specifically for inclusion in the Prospectus. The Subadviser hereby agrees to provide to the Adviser in a timely manner such information relating to the Subadviser and its relationship to, and actions for, the Trust as may be required to be contained in the Prospectus or in the Trust’s Registration Statement on Form N-1A.
The Subadviser will establish a written procedure for proxy voting in compliance with current applicable rules and regulations, including but not limited to Rule 30b1-4 under the 1940 Act. The Subadviser will provide the Adviser or its designee, a copy of such procedure and will provide for the timely distribution of the Subadviser’s voting record with respect to the Fund’s securities and other information necessary for the Fund to complete information required by federal statutes and regulations (including, for example, Form N-1A under the 1940 Act and Securities Act, Form N-PX under the 1940 Act, and Form N-CSR under the 1940 Act and Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively). The Subadviser shall certify at least annually, or more often as may reasonably be requested by the Adviser, as to the compliance of its proxy voting policies and procedures with applicable federal statutes and regulations.
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The Adviser reserves the right to exercise voting rights on any assets held in the Fund on an individual security or ongoing basis, provided that the Adviser provides the Subadviser sufficient notice of the Adviser’s intention to exercise such voting rights.
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the amount of commission that another Broker would have charged for effecting that transaction if, but only if, the Subadviser determines in good faith that such commission was reasonable in relation to the value of the brokerage and research services provided by such Broker viewed in terms of either that particular transaction or the overall responsibility of the Subadviser with respect to the accounts as to which it exercises investment discretion.
It is recognized that the services provided by such Brokers may be useful to the Subadviser in connection with the Subadviser’s services to other clients. On occasions when the Subadviser deems the purchase or sale of a security to be in the best interests of the Fund with respect to the Subadviser Assets as well as other clients of the Subadviser, the Subadviser, to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be sold or purchased in order to obtain the most favorable price or lower brokerage commissions and efficient execution. In such event, allocation of securities so sold or purchased, as well as the expenses incurred in the transaction, will be made by the Subadviser in the manner the Subadviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to such other clients. It is recognized that in some cases, this procedure may adversely affect the price paid or received by the Fund or the size of the position obtainable for, or disposed of by, the Fund with respect to the Subadviser Assets.
The Subadviser will promptly communicate to the Adviser and to the officers and the Board such information relating to Subadviser Assets as they may reasonably request. The Subadviser shall not, without the prior approval of the Adviser, effect any transactions which would cause the portion of the Subadviser Assets to be out of compliance with any restrictions or policies of the Fund established by the Adviser or set forth in the Fund’s registration statement as currently in effect and in the form provided to the Subadviser. Subadviser shall not consult with any other investment sub-adviser of the Fund concerning transactions for the Fund in securities or other assets.
The Subadviser, on its own behalf and with respect to its Access Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe and comply with Rule 17j-1 and its Code of Ethics (which shall comply in all material respects with Rule 17j-1), as the same may be amended from time to time. On at least an annual basis, the Subadviser will comply with the reporting requirements of Rule 17j-1, which may include either (i) certifying to the Adviser that the Subadviser and its Access Persons have complied with the Subadviser’s Code of Ethics with respect to the Subadviser Assets or (ii) identifying any material violations which have occurred with respect to the Subadviser Assets. The Subadviser will have also submitted its Code of Ethics for its initial approval by the Board of Trustees no later than the date of execution of this agreement and subsequently within six months of any material change thereto.
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Subject to the other provisions of this Agreement and upon the Adviser’s reasonable written request, the Subadviser will also provide such reasonable information or perform such additional acts with respect to the Subadviser Assets as are reasonably required for the Trust or the Adviser to comply with their respective obligations under applicable laws and regulations, including without limitation, requirements of or pertaining to the 1940 Act, the Advisers Act, the Securities Act, the Exchange Act, the CEA, the Code, and any rule or regulation thereunder.
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The Subadviser shall have no liability for the acts or omissions of the authorized custodian(s), unless such act or omission is required by and taken in reliance upon instructions given to the authorized custodian(s) by a representative of the Subadviser properly authorized (pursuant to written instruction by the Adviser) to give such instructions.
In the event the Adviser or custodian engages in securities lending activities, the Subadviser will not be a party to or aware of such lending activities. It is understood that the Subadviser shall not be responsible for settlement delay or failure or any related costs or loss due to such activities.
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Upon request by the Adviser, Subadviser agrees to reimburse the Adviser for reasonable costs associated with certain changes or supplements to the Fund’s disclosure documents (“Supplements”). Such Supplements are those generated due to changes by Subadviser requiring prompt disclosure in the Trust’s prospectus, statement of additional information, and/or information statement and for which, at the time of notification by Subadviser to Adviser of such changes, the Trust is not already generating a supplement or amendment to the Trust’s registration statement for other purposes or for which the Adviser may not be able to reasonably add such changes to a pending supplement. Such changes by Subadviser include, but are not limited to, changes to its structure, to key investment personnel, to investment style or management. Subadviser shall reimburse the Adviser or the Trust, as applicable, for all of the costs associated with generating such Supplements, and/or any required Board and/or proxy expenses related to approving a change in control of the Subadviser provided that to the extent the Trust is already incurring proxy expenses unrelated to the Subadviser and it is possible to include any shareholder proposals related to approving a change in control of the Subadviser in the same proxy statement, proxy expenses shall be reasonably shared between the Trust and the Subadviser. Reimbursable costs may include, but are not limited to, costs of preparation, filing, printing, postage, and/or distribution of such Supplements to all existing Fund shareholders and such other expenses as may be mutually agreed by the parties.
The method of determining the net asset value of the Subadviser Assets for purposes hereof shall be the same as the method of determining net asset value for purposes of establishing the offering and redemption price of the shares of the Trust as described in the Fund’s Prospectus. If this Agreement shall be effective for only a portion of a month with respect to the Fund, the aforesaid fee shall be prorated for the portion of such month during which this Agreement is in effect for the Fund.
(a) The Subadviser is registered as an investment adviser under the Advisers Act;
(b) If the Subadviser Assets contain commodity futures, the Subadviser is registered as a Commodity Trading Advisor under the Commodity Exchange Act, as amended (the “CEA”), with the Commodity Futures Trading Commission (the “CFTC”) and is a member in good standing of the National Futures Association (“NFA”), or is not required to file such registration with the CFTC or to be a member of the NFA;
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(c) The Subadviser is a limited liability company duly organized and properly registered and operating under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted and as proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Subadviser of this Agreement are within the Subadviser’s powers and have been duly authorized by all necessary actions of its directors (or equivalent governing body) or shareholders, and when executed and delivered by Subadviser, this Agreement will be a legal, valid and binding obligation of Subadviser;
(e) The Subadviser is duly registered and/or licensed with all regulatory bodies necessary or appropriate to perform its obligations under this Agreement and no action by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Subadviser for execution, delivery and performance by the Subadviser of this Agreement;
(f) The execution, delivery and performance by the Subadviser of this Agreement do not contravene or constitute a violation of, or a material default under, (i) any provision of applicable law, rule or regulation, (ii) the Subadviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Subadviser, whether arising by contract, operation of law or otherwise; and
(g) The Form ADV of the Subadviser previously provided to the Adviser and the Trust is a true and complete copy of the form, including that part or parts of the Form ADV filed with the SEC, that part or parts maintained in the records of the Adviser, and/or that part or parts provided or offered to clients, in each case as required under the Advisers Act and rules thereunder, and the information contained therein 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.
(a) The Adviser is registered as an investment adviser under the Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule 4.14 under the CEA with the CFTC and the National Futures Association or is not required to file such exemption;
(c) In the event the Fund engages in trading certain derivative contracts subject to CFTC regulation, Adviser represents that, with respect to the Fund: (a) pursuant to CFTC Rule 4.5 (“Rule 4.5”), neither Adviser nor any other party is required to be registered as a “commodity pool operator” under the CEA; (b) a notice of eligibility claiming exclusion from registration has been filed in accordance with Rule 4.5; and (c) during the term of this Agreement, Adviser will ensure that all requirements necessary in order to claim an exclusion from registration under Rule 4.5 are satisfied;
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(d) The Adviser is a limited liability company duly organized and validly existing under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted and as proposed to be conducted hereunder;
(e) The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its directors, shareholders or managing unitholder, and no action by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a violation of, or a material default under, (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser;
(f) The Form ADV of the Adviser previously provided to the Subadviser and the Trust is a true and complete copy of the form, including that part or parts of the Form ADV filed with the SEC, that part or parts maintained in the records of the Adviser, and/or that part or parts provided or offered to clients, in each case as required under the Advisers Act and rules thereunder, and the information contained therein 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;
(g) The Adviser acknowledges that it received a copy of the Subadviser’s Form ADV prior to the execution of this Agreement; and
(h) The Adviser and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Adviser to delegate certain of its duties under the Advisory Agreement to other investment advisers, including without limitation, the appointment of a subadviser with respect to assets of each of the Trust’s mutual fund series, including without limitation the Adviser’s entering into and performing this Agreement.
(a) The Trust is a statutory trust duly formed and validly existing under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted and as proposed to be conducted hereunder;
(b) The Trust is registered as an investment company under the 1940 Act and has elected to qualify and has qualified, or will qualify upon commencement of operations, together with the Fund, as a regulated investment company under the Code, and the Fund’s shares are, or will be prior to commencement of operations, registered under the Securities Act;
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(c) The execution, delivery and performance by the Trust of this Agreement are within the Trust’s powers and have been duly authorized by all necessary action on the part of the Trust and its Board of Trustees, and no action by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Trust for the execution, delivery and performance by the Trust of this Agreement, and the execution, delivery and performance by the Trust of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Trust’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Trust; and
(d) The Trust acknowledges that it received a copy of the Subadviser’s Form ADV prior to the execution of this Agreement.
10. Liability and Indemnification.
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from the Subadviser following such instructions. Notwithstanding any of the forgoing, Subadviser will not be bound to comply with any amendment or instruction to the extent such amendment or instruction violates any applicable laws, rules or regulations.
The Adviser shall indemnify the Subadviser, its Affiliates and its Controlling Persons, for any losses, claims, damages, expenses, litigation or liability, as well as any direct, demonstrable and reasonable expenses, including without limitation, reasonable attorneys’ fees and expenses, which the Subadviser and its respective Affiliates and Controlling Persons may sustain as a result of the Adviser’s willful misfeasance, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the federal and state securities laws or the CEA.
The Trust shall indemnify the Subadviser, its Affiliates and its Controlling Persons, for any losses, claims, damages, expenses, litigation or liability, as well as any direct, demonstrable and reasonable expenses, including without limitation, reasonable attorneys’ fees and expenses, which the Subadviser and its respective Affiliates and Controlling Persons may sustain as a result of the Trust’s willful misfeasance, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the federal and state securities laws or the CEA.
The foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to a party to this Agreement.
The indemnification obligations contained in this Section 10(b) and Section 10(c) shall survive the termination of this Agreement.
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(i) By vote of a majority of the Trust’s Board of Trustees, or by “vote of a majority of the outstanding voting securities” of the Fund (as defined in the 1940 Act), or by the Adviser, in each case, upon not less than 60 days’ written notice to the Subadviser;
(ii) By any party hereto in the event of a material breach of any provision of this Agreement by either of the other parties; provided, however, that the breaching party or parties shall have 10 days after the receipt of notice of such breach from the other party to cure such breach; or
(iii) By the Subadviser upon not less than 60 days’ written notice to the Adviser and the Trust.
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13. References to Adviser and Subadviser.
(a) The Adviser, Trust, Fund or any of their Affiliates or agents shall not make reference to or use the name, trademarks, service xxxx, logo, insignia, or other identifying xxxx of the Subadviser or any of its Affiliates, or disclose information related to the business of the Subadviser or any of its Affiliates in material relating to the Trust, Fund or Adviser in any manner without prior written approval of the Subadviser, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Subadviser hereby approves of all uses of its name and that of its Affiliates which merely refer in accurate terms to the appointment of the Subadviser hereunder or which are required by the SEC, a state securities commission or the Financial Industry Regulatory Authority (“FINRA”).
(b) The Subadviser or any Affiliate or agent of it shall not make reference to or use the name, trademarks, service xxxx, logo, insignia, or other identifying xxxx of the Fund, Trust or Adviser or any of their Affiliates, or disclose information related to the business of the Adviser or any of its Affiliates in material relating to the Subadviser in any manner without prior written approval of the Adviser, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Adviser hereby approves of all uses of its or the Trust’s or Fund’s name and that of their Affiliates which merely refer in accurate terms to the appointment of the Subadviser hereunder or which are required by the SEC, a state securities commission or FINRA.
(c) Materials which have been previously approved by a party, or those that only refer to the name or logo of a party, are not subject to prior approval by the other party, provided that each party shall ensure that such materials are consistent with those which were previously approved by the other party. The Subadviser may disclose the name of Fund, Trust or Adviser to certain third parties, including, without limitation, brokers, dealers, and other financial counterparties, when necessary to effectuate the Subadviser’s trading activities on behalf of the Fund, and for back office support or risk management purposes. The Adviser may disclose the name of the Subadviser to certain third parties, including, without limitation, brokers, dealers, and other financial counterparties, when necessary to effectuate the Adviser’s trading activities and/or supervision of trading activities on behalf of the Fund, and for back office support or risk management purposes.
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(a) It is recognized that the Subadviser and certain of its affiliates now act, and that from time to time hereafter may act, as investment adviser to one or more other investment companies, private funds or other managed accounts and as fiduciary to other managed accounts (collectively, the “Other Accounts”) and that the Adviser and the Trust cannot object to such activities. The Fund, Trust and Adviser each understand and agree that, subject to applicable law and Subadviser’s relevant policies and procedures, Subadviser may give advice, take action, and refrain from acting with respect to Other Accounts that may be similar to, or contrary to, that given to the Fund, in terms of securities, timing, nature of transactions and other factors. The Adviser recognizes and understands that the transactions in a specific security may not be accomplished for all client accounts at the same time or at the same price and may be in opposition to other client transactions, and that the Subadviser shall not be obligated to give the Fund treatment that is more favorable than or preferential to that provided to its Other Accounts.
The Fund, Trust and Adviser acknowledge that the Subadviser may have pecuniary or other ownership interests in such Other Accounts and may receive compensation from such Other Accounts that differs from that paid by the Fund, including some that may compensate the Subadviser based, in whole or in part, on the performance of such account. The Fund, Trust and Adviser also further acknowledge that the Other Accounts, as well as the Subadviser, its employees, affiliates and their family members, may hold and engage in transactions in assets purchased or sold for the Fund or about which Subadviser has given the Fund advice. Nothing in the Agreement shall be deemed to impose upon the Subadviser any obligation to purchase or sell or to recommend for purchase or sale by or for the Fund any security or other property which an officer or employee of the Subadviser may purchase or sell for their own accounts or which the Subadviser may purchase or sell for the account of any other client or customer.
(b) Subadviser may not consult with any other subadvisers for the Fund or other series of the Trust about transactions in securities or other assets of the Fund, except for purposes of complying with the 1940 Act or SEC rules or regulations applicable to the Fund or the Trust. Nothing in this Agreement shall be construed to prevent Subadviser from lawfully giving other entities investment advice about, or trading on their behalf in, shares issued by the Fund or securities or other assets held or to be acquired by the Fund.
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(a) Authorized. The Adviser or the Trust has authorized such disclosure;
(b) Court or Regulatory Authority. Disclosure of such information is expressly required or requested by a court or other tribunal of competent jurisdiction or applicable federal or state regulatory authorities;
(d) Already Known. Such information already was known by the party prior to the date hereof;
(g) Independently Developed. The party independently developed such information.
The obligations in this Section 16 to keep any such information confidential shall continue to apply after the expiry or termination of this Agreement, howsoever terminated.
(a) If to the Subadviser:
Brandywine Global Investment Management, LLC
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
E-mail: xxxx.xxxxxx@xxxxxxxxxxxxxxxx.xxx
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(b) If to the Adviser:
Morningstar Investment Management LLC
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: D. Xxxxx Xxxxxxxxx, CCO
Facsimile: (000) 000-0000
E-mail: xxxxx.xxxxxxxxx@xxxxxxxxxxx.xxx
Copy to:
Xxxxxxxx Ronon Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxx Xxx XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Purple
Facsimile: (000) 000-0000
E-mail: xxxx.xxxxxx@xxxxxxxx.xxx
(c) If to the Trust:
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: D. Xxxxx Xxxxxxxxx,
CCO Facsimile: (312) 696 - 6001
E-mail: xxxxx.xxxxxxxxx@xxxxxxxxxxx.xxx
Copy to:
Xxxxxxxx Ronon Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxx Xxx XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Purple
Facsimile: (000) 000-0000
E-mail: xxxx.xxxxxx@xxxxxxxx.xxx
18. Governing Law. This Agreement shall be governed by and construed in accordance with substantive laws of the State of Delaware without reference to conflicts of law principles and in accordance with the 1940 Act. In the case of any conflict, the 1940 Act shall control.
19. Jurisdiction. Each of the parties hereto irrevocably and unconditionally confirms and agrees that it is and shall continue to be (i) subject to the jurisdiction of the state courts of the State of Delaware, and (ii) subject to service of process in the State of Delaware. Unless the parties consent in writing to the selection of an alternative forum, the exclusive jurisdiction for any
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actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated by this Agreement shall be the state and federal courts located in the State of Delaware (the “Delaware Courts”). Each party hereto hereby irrevocably and unconditionally (a) agrees not to commence any litigation relating thereto except in the Delaware Courts and (b) waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court, by way of motion, as a defense, counterclaim or otherwise, that (i) such litigation brought therein has been brought in any inconvenient forum, (ii) it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to lawfully serve process, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(a) Except as otherwise provided in paragraph (b) herein, in the event of any failure, interruption or delay in the performance of the obligations of either party hereto resulting from acts, events or circumstances not reasonably within either party’s control, the Fund, Trust, Adviser and/or Subadviser shall not be liable or have any responsibility for any kind of loss or damage thereby incurred or suffered by the other party. In addition, no party shall be responsible for any failure to perform its duties hereunder if such failure shall be caused by or directly or indirectly due to war, enemy action, the act or regulation of any government or other competent authority, riot, civil commotion, rebellion, xxxxx, xxxxxxx, accident, fire, lock-out or strike to the extent that the same are beyond the reasonable control of the relevant party and provided that the relevant party shall use all reasonable efforts to minimize the effects of the same.
(b) Notwithstanding the foregoing, any such party hereto will remain liable for any kind of loss or damage thereby incurred or suffered by the other party the event of any failure, interruption or delay in the performance of its obligations hereto, if such acts, events or circumstances causing such failure, interruption or delay could have been reasonably prevented through back-up systems and other business continuation and disaster recovery procedures commonly employed by other SEC-registered investment advisers that meet reasonable commercial standards in the investment company industry.
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26. Morningstar Funds Trust and its Trustees. The terms “Morningstar Funds Trust” and the “Trustees of Morningstar Funds Trust” refer respectively to the Trust created and the Trustees, as trustees but not individually or personally, acting from time to time under the Amended and Restated Agreement and Declaration of Trust made and dated as of March 1, 2017, as has been or may be amended and/or restated from time to time, and to which reference is hereby made.
This prohibition does not apply to communications by the Adviser in connection with the Adviser’s (i) overall supervisory responsibility for the general management and investment of the Fund’s assets; (ii) determination of the allocation of assets among the Manager(s), if any; and (iii) investment discretion with respect to the investment of Fund assets not otherwise assigned to a Manager.
TRUST | ||
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Name: |
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Title: |
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ADVISER | ||
MORNINGSTAR INVESTMENT MANAGEMENT LLC | ||
By: |
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Name: |
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Title: |
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SUBADVISER | ||
BRANDYWINE GLOBAL INVESTMENT MANAGEMENT, LLC | ||
By: |
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Name: |
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Title: |
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EXHIBIT A
AMONG
MORNINGSTAR INVESTMENT MANAGEMENT LLC
AND BRANDYWINE GLOBAL INVESTMENT MANAGEMENT, LLC
Effective , 2020*
Funds of the Trust |
Subadvisory Fees | |
Morningstar Unconstrained Allocation Fund |
*As | approved at the Board of Trustees Meeting held on June 25, 2020. |
[The remainder of this page is intentionally left blank.]
TRUST | ||
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By: |
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Name: |
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Title: |
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ADVISER | ||
MORNINGSTAR INVESTMENT MANAGEMENT LLC
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By: |
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Name: |
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Title: |
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SUBADVISER | ||
BRANDYWINE GLOBAL INVESTMENT MANAGEMENT, LLC |
By: |
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Name: |
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Title: |
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