INVESTMENT SUB-ADVISORY AGREEMENT
AMONG XXXXX FARGO FUNDS TRUST,
XXXXX FARGO FUNDS MANAGEMENT, LLC, THE ROCK CREEK
GROUP, LP AND XXXXXXX INVESTMENT COMPANY, LLC
This AGREEMENT is made as of this 1st day of April
2014, by and among Xxxxx Fargo Funds Trust (the
Trust), a business trust organized under the laws of
the State of Delaware with its principal place of
business at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxx Fargo Funds
Management, LLC (the Adviser), a limited liability
company organized under the laws of the State of
Delaware with its principal place of business at 000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, The Rock Creek Group, LP, a limited partnership
organized under the laws of the State of Delaware, with
its principal place of business at 0000 Xxxxxxxxxxx
Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000 (the
Sub-Adviser) and Xxxxxxx Investment Company, LLC, a
limited liability company organized under the laws of
Delaware with a principal place of business at 0000 X.
Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000 (the
Manager).
WHEREAS, the Adviser, the Sub-Adviser and the
Manager are each registered investment advisers under
the U.S. Investment Advisers Act of 1940 (the Advisers
Act); and
WHEREAS, the Trust is registered under the U.S.
Investment Company Act of 0000 (xxx 0000 Xxx), as
an open-end, series management investment company;
and
WHEREAS, the Trusts Board of Trustees (the Board)
has engaged the Adviser to perform investment
advisory services for each series of the Trust under the
terms of an investment advisory agreement, dated
August 6, 2003 and as amended and supplemented
from time to time, between the Adviser and the Trust
(the "Advisory Agreement"); and
WHEREAS, the Adviser, acting pursuant to the Advisory
Agreement and with the approval of the Trusts Board,
has retained the Sub-Adviser to provide specified
investment advisory services to each series of the Trust
listed in Appendix A hereto as it may be amended or
supplemented from time to time (the Fund(s) under
the terms of an investment sub-advisory agreement,
dated April 1, 2014 and as amended or supplemented
from time to time, among the Trust, the Adviser and the
Sub-Adviser (the Sub-Advisory Agreement); and
WHEREAS, the Adviser and the Sub-Adviser wish to
retain the Manager, and the Trust's Board has approved
the retention of the Manager, to assist the Adviser and
the Sub-Adviser in the provision of investment advisory
services to the Fund(s), and
WHEREAS, the Manager is willing to provide those
services on the terms and conditions set forth in this
Agreement;
NOW THEREFORE, the Trust, the Adviser, the
Sub-Adviser and the Manager agree as follows:
Section 1. The Trust. The Trust is engaged in
the business of investing and reinvesting its assets in
securities of the type and in accordance with the
limitations specified in its Declaration of Trust, as
amended or supplemented from time to time, By-Laws
(if any) and Registration Statement filed with the U.S.
Securities and Exchange Commission (the
Commission) under the 1940 Act and the U.S.
Securities Act of 1933 (the Securities Act), including
any representations made in the prospectus and
statement of additional information relating to the
Fund(s) contained therein and as may be supplemented
from time to time, all in such manner and to such
extent as may from time to time be authorized by the
Board.
Section 2. Appointment of Manager. Subject to the
direction and control of the Board, the Adviser has been
appointed to manage the investment and reinvestment
of the assets of the Fund(s) and to provide certain
management and related services specified in the
Advisory Agreement with respect to the Fund(s).
Subject to the direction and control of the Board and
the Adviser, the Sub-Adviser has been appointed to
manage the investment and reinvestment of the assets
of the Fund(s) and to provide the management and
related services specified in the Sub-Advisory
Agreement, all in such manner and to such extent as
may be directed from time to time by the Board or the
Adviser.
Subject to the direction and control of the Board, the
Adviser and the Sub-Adviser, and with the oversight of
the Adviser and the Sub-Adviser, the Manager is hereby
appointed and agrees to manage the investment and
reinvestment of that portion of the assets of the Fund(s)
allocated to it from time to time by the Board, the
Adviser or the Sub-Adviser (the "Manager Portion") and
to provide the management and related services
specified herein, all in such manner and to such extent
as may be directed from time to time by the Board, the
Adviser or the Sub-Adviser. Without limiting the
generality of the foregoing, the Board, the Adviser or
the Sub-Adviser may direct the Manager's provision of
management services with respect to the Manager
Portion by delivering written investment guidelines,
investment policies and investment restrictions (as
amended from time to time, the "Investment
Guidelines"), and the Manager shall manage the
investment and reinvestment of the Manager Portion in
accordance with the Investment Guidelines, it being
understood that the Adviser or the Sub-Adviser, as
applicable, will, under normal circumstances, provide
the Manager with an opportunity to review proposed
changes to the Investment Guidelines. The investment
authority granted to the Manager with respect to the
Manager Portion shall include only the authority to
make investment decisions with regard to the
investment, reinvestment and disposition of assets held
by the Fund(s) in the Manager Portion and to exercise
whatever powers the Trust may possess with respect to
any of the assets in the Manager Portion, including, but
not limited to, the power to exercise rights, options,
warrants, conversion privileges, redemption privileges,
and to tender securities pursuant to a tender offer.
The Manager shall have the authority to instruct the
custodian designated by the Trust (the "Custodian"): (i)
to pay cash for securities and other property delivered
to the Custodian, (ii) to deliver securities and other
property against payment for the Trust, and (iii) to
transfer assets and funds to such brokerage accounts as
the Manager may designate, all consistent with the
powers, authorities and limitations set forth herein All
transactions will be consummated by payment to or
delivery by the Custodian, or such depositories or
agents as may be designated by the Custodian in
writing, of all cash and/or securities due to or from the
Manager Portion, and the Manager shall not have
possession or custody thereof.
To the extent that any communication directing the
provision of management services with respect to the
Manager Portion are made or delivered pursuant to this
Agreement by either the Adviser or the Sub-Adviser,
such communications or instruction, unless otherwise
specified, shall be deemed to have been made by both
the Adviser and the Sub-Adviser.
Section 3. Duties and Representations and
Warranties.
(a) The Manager shall make decisions with
respect to all purchases and sales of securities and
other investment assets for the Manager Portion of the
Fund(s). To carry out such decisions, the Manager is
hereby authorized, as agent and attorney-in-fact for the
Trust, for the account of, at the risk of and in the name
of the Trust, to place orders, complete documents, and
issue instructions and take any and all actions the
Manager shall deem advisable with respect to those
transactions of the Fund(s) with respect to the Manager
Portion thereof. In all purchases, sales and other
transactions in securities and other investment assets
for the Manager Portion of the Fund(s), the Manager is
authorized to exercise full discretion and act for the
Trust in the same manner and with the same force and
effect as the Trust might or could do with respect to
such purchases, sales or other transactions, as well as
with respect to all other things necessary or incidental
to the furtherance or conduct of such purchases, sales
or other transactions and without need for further
approval from the Trust, the Adviser or the Sub-Adviser.
To the extent consistent with the Investment
Guidelines, the Manager will determine in its sole
discretion, what portion of the Manager Portions
assets will be invested or held uninvested as cash.
(b) The Manager acknowledges that the
Fund(s) and other mutual funds advised by the Adviser
(collectively, the "fund complex") may engage in
transactions with certain sub-advisers or other
managers in the fund complex (and their affiliated
persons) in reliance on exemptions under Rule 10f-3,
Rule 12d3-1, Rule 17a-10 and Rule 17e-1 under the
1940 Act. Accordingly, the Manager hereby agrees that
it will not consult with any other sub-adviser or
manager of a fund in the fund complex, or an affiliated
person of a sub-adviser or manager, concerning
transactions for a fund in securities or other fund
assets. With respect to a multi-managed Fund(s), the
Manager shall be limited to managing only the Manager
Portion as may be determined from time-to-time by the
Board, the Adviser or the Sub-Adviser, and shall not
consult with another manager as to any other portion of
the Fund(s)' portfolio concerning transactions for the
Fund(s) in securities or other Fund assets.
Notwithstanding the foregoing, nothing herein shall be
deemed to prohibit consultations between (i) a
Manager that is not an affiliated person of the Adviser
or the Sub-Adviser and a sub-adviser or manager that is
an affiliated person of the Adviser or the Sub-Adviser or
(ii) a Manager that is an affiliated person of the Adviser
or Sub-Adviser and any other sub-adviser or manager.
(c) The Manager will report to the Board at
each regular meeting thereof all material changes in the
Manager Portion of the Fund(s) since the prior report,
and will also keep the Board informed of important
developments affecting the Trust, the Manager Portion
of the Fund(s) and the Manager, and on its own
initiative will furnish the Board from time to time with
such information as the Manager may believe
appropriate, whether concerning the individual
companies whose securities are held by the Manager
Portion of the Fund(s), the industries in which they
engage, or the economic, social or political conditions
prevailing in each country in which the Manager Portion
of the Fund(s) maintains investments. At the request of
the Adviser or the Sub-Adviser, the Manager shall
review draft shareholder reports and annual updates to
prospectuses and other documents and provide timely
comments thereon. The Manager will also furnish the
Board with such statistical and analytical information
with respect to securities or other assets in the
Manager Portion of the Fund(s) as the Manager may
believe appropriate or as the Board, the Adviser or the
Sub-Adviser reasonably may request. In making
purchases and sales of securities for the Manager
Portion of the Fund(s), the Manager will comply with
the provisions, policies, restrictions and other
requirements set forth in Section 7 of this Agreement.
(d) The Manager shall promptly notify the
Adviser and the Sub-Adviser (i) of any material changes
regarding the Manager that would impact disclosure in
the Trusts Registration Statement in any material
respect, including, without limitation, any change in the
portfolio manager of the Manager responsible for
making investment decisions for the Fund(s), (ii) upon
the Manager becoming aware of any material violation
of any requirement, provision, policy or restriction that
the Manager is required to comply with under Section 7
of this Agreement, and (iii) upon Manager becoming
aware that it is, or likely may become, subject to any
statutory disqualification pursuant to Section 9 of the
1940 Act or any other event otherwise that prevents
the Manager from performing its duties pursuant to this
Agreement. The Manager shall notify the Adviser and
the Sub-Adviser of any change in control (as such
term in defined in Section 2(a)(9) of the 0000 Xxx) of the
Manager promptly. The Manager shall, within two
business days, notify the Adviser, the Sub-Adviser and
the Trust of any legal process served upon it in
connection with its activities hereunder, including any
legal process served upon it on behalf of the Adviser,
the Sub-Adviser, the Fund(s) or the Trust. The Manager
shall reasonably cooperate with the Fund(s)' Custodian
in the Custodian's processing of class actions or other
legal proceedings relating to the holdings (historical
and/or current) of the Fund(s).
(e) The Manager shall supervise and
monitor the activities of its representatives, personnel
and agents in connection with the execution of its
duties and obligations hereunder. The appropriate
personnel of the Manager will be made available to
consult with the Adviser, the Sub-Adviser, the Trust and
the Board at reasonable times and upon reasonable
notice concerning the Managers performance of
services hereunder. Without limiting the generality of
the foregoing, appropriate personnel of the Manager
will provide reasonable assistance to the Adviser
and/or the Board in the valuation of securities or other
investment assets held within the Manager Portion of
the Fund(s) for which market quotations are not readily
available in accordance with the Trusts Procedures for
the Valuation of Portfolio Securities.
(f) The Manager is not authorized to subcontract
or otherwise delegate any of the services
contemplated hereby to any other person without the
prior written consent of the Trust, the Adviser and the
Sub-Adviser, which consent may be withheld for any
reason. Any attempt to sub-contract or delegate any
such services without such consent shall be invalid.
(g) The Manager represents and warrants
to the Adviser, the Sub-Adviser and the Trust that: (i)
the Manager is registered as an investment adviser
under the Advisers Act and is registered or licensed as
an investment adviser under the laws of all jurisdictions
in which its activities require it to be so registered or
licensed; (ii) the Manager is duly organized and validly
existing and has requisite power and authority to enter
into and perform its obligations under this Agreement;
and (iii) the execution, delivery and performance of this
Agreement by the Manager has been duly authorized by
appropriate action of the Manager.
(h) Each of the Adviser and Sub-Adviser
represents and warrants to the Manager (i) it is
registered as an investment adviser under the Advisers
Act and is registered or licensed as an investment
adviser under the laws of all jurisdictions in which its
activities require it to be so registered or licensed; (ii) it
is duly organized and validly existing and has requisite
power and authority to enter into and perform its
obligations under this Agreement; and (iii) the
execution, delivery and performance of this Agreement
by the Adviser and Sub-Adviser has been duly
authorized by appropriate action of the Adviser and
Sub-Adviser.
Section 4. Delivery of Documents to the Manager. The
Adviser or the Sub-Adviser has furnished the Manager
with true, correct and complete copies of the following
documents:
(a) The Declaration of Trust, as in effect on the
date hereof;
(b) The Registration Statement filed with the
Commission under the 1940 Act, including the
prospectuses related to the Fund(s) included therein;
(c) The Advisory Agreement and the Sub-Advisory
Agreement; and
(d) Written policies and procedures adopted by the
Trust that are applicable to the Manager Portion (such
policies and procedures that are delivered to the
Manager, the "Investment Policies") and the
Investment Guidelines.
The Adviser or the Sub-Adviser will furnish the Manager
with all future amendments and supplements to the
foregoing as soon as practicable after such documents
become available. The Adviser or the Sub-Adviser shall
furnish the Manager with any further documents,
materials or information that the Manager may
reasonably request in connection with the performance
of its duties hereunder.
The Manager shall furnish the Adviser or the Sub-
Adviser with written certifications, in such form as the
Adviser or the Sub-Adviser shall reasonably request,
that it has received and reviewed the most recent
version of the foregoing documents provided by the
Adviser or the Sub-Adviser and that it will comply with
the Investment Policies and the Investment Guidelines
in the performance of its obligations under this
Agreement.
Section 5. Delivery of Documents to the Adviser and
the Sub-Adviser. The Manager has furnished, and in the
future will furnish upon request, the Adviser and the
Sub-Adviser with true, correct and complete copies of
each of the following documents:
(a) The Manager's most recent Form ADV;
(b) The current Code of Ethics of the Manager,
adopted pursuant to Rule 17j-1 under the 1940 Act, and
confirmation of receipt of annual certifications from
employees regarding compliance with such Code; and
(c) Copies of its policies and procedures adopted
pursuant to Rule 206(4)-7 under the Advisers Act, as
amended from time to time, and the report
memorializing the results of the annual review of the
adequacy of such policies and procedures.
In addition, upon request, the Manager will furnish the
Adviser and the Sub-Adviser with a summary of the
results of any examination of the Manager by the
Commission or other regulatory agency with respect to
the Managers investment management activities.
Upon request the Manager will furnish the Adviser and
the Sub-Adviser with updated copies of such documents
to the extent that such documents have been changed
materially. The Manager shall furnish the Adviser and
the Sub-Adviser with any further documents, materials
or information as the Adviser or the Sub-Adviser may
reasonably request in connection with the Managers
performance of its duties under this Agreement,
including, but not limited to, information regarding the
Manager's financial condition, level of insurance
coverage, code of ethics compliance, conflict mitigation
practices, and any certifications or sub-certifications
which are reasonably necessary for the Fund(s)
registration statements, Form N-CSR filings or other
regulatory filings, and in connection with the
consideration of the continuation of this Agreement for
approval as set forth in Section 15 hereof.
Section 6. Control by Board. As is the case
with respect to the Adviser under the Advisory
Agreement, and the Sub-Adviser under the Sub-
Advisory Agreement, any investment activities
undertaken by the Manager pursuant to this
Agreement, as well as any other activities undertaken
by the Manager on behalf of the Fund(s), shall at all
times be subject to the direction and control of the
Trust's Board.
Section 7. Compliance with Applicable
Requirements. In carrying out its obligations under this
Agreement, the Manager shall at all times comply with:
(a) all applicable provisions of the 1940 Act
and the Advisers Act, and any rules and regulations
adopted thereunder;
(b) the Investment Policies;
(c) the Investment Guidelines;
(d) the provisions of the U.S. Internal
Revenue Code of 1986, as amended, applicable to the
Trust or the Fund(s); and
(e) any other applicable provisions of state
or federal law.
For purposes of clarification and without
limiting the foregoing, the parties agree that the
obligations of the Manager with respect to the
foregoing will not require the Manger to comply with
such provisions of law that apply specifically to the
management of the Fund(s) assets or operation of the
Fund(s) as a whole and not individually to the Manager
Portion.
In addition, without limiting the generality of
the foregoing, the Manager agrees that: (i) any code of
ethics adopted by the Manager must comply with Rule
17j-1 under the 1940 Act and Rule 204A-1 under the
Advisers Act, as they may be amended from time to
time, and, if requested by the Trust, the Adviser or the
Sub-Adviser, any practices regarding personal investing
as may be set out in any interpretive release or
guidance issued by the Commission or its staff, (ii) the
Adviser and the Trust may disclose Fund(s) portfolio
holdings information (including with respect to the
Manager Portion) in accordance with the Trusts policies
and procedures governing the disclosure of Fund(s)
portfolio holdings, as amended or supplemented from
time to time, and as required by applicable law or as
otherwise provided hereunder, and (iii) the Manager
will not use, nor will it seek to obtain, material nonpublic
information concerning portfolio companies in
connection with performing its duties hereunder.
Section 8. Proxies. The Adviser shall have responsibility
to vote proxies solicited with respect to issuers of
securities in which assets of the Manager Portion of the
Fund(s) are invested from time to time in accordance
with the Trust's policies on proxy voting. The Manager
will provide, when requested by the Adviser,
information on a particular issuer to assist the Adviser
in the voting of a proxy.
Section 9. Broker-Dealer Relationships. The
Manager is responsible for the purchase and sale of
securities for the Manager Portion of the Fund(s),
broker-dealer selection, and negotiation of brokerage
commission rates. The Managers primary
consideration in effecting a security transaction will be
to obtain the best execution under the circumstances.
In selecting a broker-dealer to execute each particular
transaction for the Manager Portion of the Fund(s), the
Manager will consider such factors it considers to be
relevant to the transaction, which are expected to
include, among other things: the best net price
available, the reliability, integrity and financial condition
of the broker-dealer; the size of and difficulty in
executing the order; and the value of the expected
contribution of the broker-dealer to the Fund(s) on a
continuing basis. Accordingly, the price to the Fund(s)
in any transaction may be less favorable than that
available from another broker-dealer if the Manager
determines in good faith that the difference is
reasonably justified by other aspects of the portfolio
execution services offered. Subject to such policies as
the Board may from time to time determine, the
Manager shall not be deemed to have acted unlawfully
or to have breached any duty created by this
Agreement or otherwise solely by reason of having
caused the Fund(s) with respect to the Manager Portion
to pay a broker or dealer that provides brokerage and
research services to the Manager an amount of
commission for effecting a portfolio investment
transaction in excess of the amount of commission
another broker or dealer would have charged for
effecting that transaction, if the Manager determines in
good faith that such amount of commission was
reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer,
viewed in terms of either that particular transaction or
the overall responsibilities of the Manager with respect
to the Manager Portion of the Fund(s) and to other
clients of the Manager. The Manager is further
authorized to allocate the orders placed by it on behalf
of the Manager Portion of the Fund(s) to brokers and
dealers who provide brokerage and research services
within the meaning of Section 28(e) of the Securities
Exchange Act of 1934 and in compliance therewith.
Such allocation shall be in such amounts and
proportions as the Manager shall determine and the
Manager will report regularly to the Board upon
request, indicating the services provided.
Provided the investment objective of the Fund(s) is
adhered to, the Manager may aggregate sales and
purchase orders of securities for the Manager Portion of
the Fund(s) with similar orders being made at
approximately the same time for other portfolios
managed by the Manager, if, in the Manager's
reasonable judgment, such aggregation is reasonably
expected to result in an overall economic benefit to the
Fund(s). In accounting for such aggregated order, price
and commission shall be averaged on a per bond or
share basis daily. The Trust and the Adviser
acknowledge that the Managers determination of such
economic benefit to the Fund(s) may be based on an
evaluation that the Fund(s) is benefited by relatively
better purchase or sales price, lower commission
expenses and beneficial timing of transactions, the
Managers fiduciary duty to fairly allocate trading
opportunities among its clients, or a combination of
these and other factors. The allocation of securities so
purchased or sold shall be made by the Manager in the
manner that the Manager considers to be most
equitable and consistent with its fiduciary obligations to
the Fund(s) and other clients. The Manager represents
and acknowledges that it is solely responsible for
complying, and agrees that it shall comply, with any and
all applicable pronouncements of the Commission or its
staff with respect to the requirements for aggregating
trades as may be set out in any interpretive release
and/or no-action letters issued by the Commission or its
staff. The Manager shall not be responsible for any acts
or omissions by any broker or dealer, provided that the
Manager did not act with gross negligence or willful
misconduct in the selection of such broker or dealer.
The Manager shall not engage in any transactions for
the Manager Portion of the Fund(s) with or through any
broker-dealer that is an affiliated person of the
Manager or of the Adviser or the Sub-Adviser except in
compliance with all applicable regulations of the
Commission and the applicable policies and procedures
of the Trust governing such transactions. The Adviser
and Sub-Adviser agree to provide the Manager a
written list of any broker-dealers that are affiliated
persons of the Adviser and Sub-Adviser and to update
such list from time to time to ensure that it remains
accurate and complete.
Section 10. Expenses of the Fund(s). All of the
ordinary business expenses incurred in the operations
of the Fund(s) and the offering of their shares shall be
borne by the Fund(s) unless specifically provided
otherwise in this Agreement. These expenses borne by
the Trust include, but are not limited to, brokerage
commissions, taxes, legal, auditing or governmental
fees, the cost of preparing share certificates, custodian,
transfer agent and shareholder service agent costs,
expense of issue, sale, redemption and repurchase of
shares, expenses of registering and qualifying shares for
sale, expenses relating to trustees and shareholder
meetings, the cost of preparing and distributing reports
and notices to shareholders, the fees and other
expenses incurred by the Fund(s) in connection with
membership in investment company organizations and
the cost of printing copies of prospectuses and
statements of additional information distributed to the
Fund(s)' shareholders.
The Manager shall pay its own expenses in
connection with the services to be provided by it
pursuant to this Agreement. In addition, the Manager
shall be responsible for reasonable out-of-pocket costs
and expenses incurred by the Adviser, the Sub-Adviser
or the Trust: (a) to amend the Trust's registration
statement (other than as part of a normal annual
updating of the registration statement) or supplement
the Fund(s) prospectuses and/or statement of
additional information, and circulate the same, solely to
reflect a change in the portfolio manager of the
Manager in relation to the Fund(s); or (b) to obtain
shareholder approval of a new sub-advisory agreement
as a result of a change in control (as such term in
defined in Section 2(a)(9) of the 0000 Xxx) of the
Manager (which may include, without limitation, the
costs of preparing, printing and mailing a proxy
statement for the shareholder meeting and proxy
solicitation services, among others), or to otherwise
comply with the 1940 Act, the Securities Act, or any
other applicable statute, law, rule or regulation, as a
result of such change.
Section 11. Compensation. As compensation
for the sub-advisory services provided under this
Agreement, the Adviser shall pay the Manager fees,
payable monthly, at the annual rates indicated on
Schedule A hereto, as such Schedule may be amended
or supplemented from time to time. It is understood
that the Adviser shall be responsible for the Managers
fee for its services hereunder, and the Manager agrees
that it shall have no claim against the Trust, the Fund(s)
or the Sub-Adviser with respect to compensation under
this Agreement.
Section 12. Standard of Care. The Trust and
Adviser and Sub-Adviser shall expect of the Manager,
and the Manager will give the Trust and the Adviser and
Sub-Adviser the benefit of, the Manager's best
judgment and efforts in rendering its services to the
Trust, and the Manager shall not be liable hereunder for
any mistake in judgment. In the absence of willful
misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part
of the Manager or any of its affiliates, officers, directors,
employees or agents, the Manager shall not be subject
to liability to the Adviser, the Sub-Adviser, the Trust or
to any shareholders in the Trust for any act or omission
in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in
the purchase, holding or sale of any security. The
Manager shall not be liable hereunder to the Adviser,
the Sub-Adviser, the Trust or any shareholders in the
Trust with respect to any portion of the assets of the
Trust not managed by the Manager.
Section 13. Non-Exclusivity. The services of the
Manager to the Sub-Adviser, the Adviser and the Trust
are not to be deemed to be exclusive, and the Manager
shall be free to render investment advisory and
administrative or other services to others (including
other investment companies) and to engage in other
activities. It is understood and agreed that officers or
directors of the Manager are not prohibited from
engaging in any other business activity or from
rendering services to any other person, or from serving
as partners, officers, directors or trustees of any other
firm or trust, including other investment advisory
companies.
Section 14. Records. The Manager shall, with
respect to the placing and allocation of brokerage
orders placed by it for the purchase and sale of portfolio
securities or other investment assets and other
portfolio transactions of the Fund(s) in the Manager
Portion, maintain or arrange for the maintenance of the
documents and records required to be maintained by
the Trust pursuant to Rule 31a-1 under the 1940 Act
and other applicable law or regulation as well as trade
tickets and confirmations of portfolio trades and such
other records as the Adviser or the Fund(s)
Administrator reasonably requests in writing to be
maintained. All such records shall be maintained in a
form acceptable to the Fund(s) and in compliance with
the provisions of Rule 31a-1 or any successor rule or
other applicable law or regulation. The Manager shall
prepare and maintain, or cause to be prepared and
maintained, in such form, for such periods and in such
locations as may be required by applicable law, any and
all other documents and records relating to the services
provided by the Manager pursuant to this Agreement
required to be prepared and maintained by the Trust
pursuant to the rules and regulations of any national,
state, or local government entity with jurisdiction over
the Trust, including the Commission and the Internal
Revenue Service of the U.S. Department of Treasury.
All such records will be the property of the Trust, and
will be available for inspection and use by the Trust and
their authorized representatives (including the Adviser
and the Sub-Adviser) at all times during the Manager's
normal business hours. The Manager shall promptly,
upon the request of the Trust or the Trust's authorized
representatives (including the Adviser and the Sub-
Adviser), surrender and deliver to the Fund(s) those
records which are the property of the Trust or any
Fund(s) (provided that the Manager may also maintain
copies of such records). The Manager will promptly
notify the Fund(s)' Administrator if it experiences any
difficulty in maintaining the records in an accurate and
complete manner.
Section 15. Term and Approval. This
Agreement shall become effective with respect to the
Fund(s) after it is approved by the Board of Trustees of
the Trust, including by a majority of the Trustees who
are not interested persons of the Trust, and executed by
the Trust, Adviser, Sub-Adviser and Manager, and shall
continue in effect for more than two years from its
effective date, provided that the continuation of this
Agreement is approved in accordance with the
requirements of the 1940 Act, which currently requires
that the continuation be approved at least annually:
(a) (i) by the Trust's Board of Trustees or
(ii) by the vote of "a majority of the outstanding voting
securities" of the Fund(s) (as defined in Section 2(a)(42)
of the 1940 Act), and
(b) by the affirmative vote of a majority of
the Trust's Trustees who are not parties to this
Agreement or interested persons (as defined in the
0000 Xxx) of a party to this Agreement (other than as
Trustees of the Trust), by votes cast in person at a
meeting specifically called for such purpose.
Section 16. Termination. As required under the
1940 Act, this Agreement may be terminated with
respect to the Fund(s) at any time, without the payment
of any penalty, by vote of the Trust's Board of Trustees
or by vote of a majority of the Fund(s)' outstanding
voting securities, or by the Adviser, Sub-Adviser or
Manager, on sixty (60) days' written notice to the other
party. The notice provided for herein may be waived by
the party entitled to receipt thereof. This Agreement
shall automatically terminate in the event of its
assignment, the term "assignment" for purposes of this
paragraph having the meaning defined in Section 2(a)(4)
of the 1940 Act, as it may be interpreted by the
Commission or its staff in interpretive releases, or
applied by the Commission staff in no-action letters,
issued under the 1940 Act. This Agreement shall
automatically terminate in the event of the termination
of the Advisory Agreement. This Agreement may also
be terminated immediately by the Adviser, the Sub-
Adviser or the Trust in the event that the Manager
commits a material violation of any governing law or
regulation.
Section 17. Indemnification by the Manager. In
the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties
hereunder on the part of the Trust, the Adviser or the
Sub-Adviser, or any of their respective officers,
directors, employees, affiliates or agents, the Manager
agrees to indemnify and hold the Trust, any Fund(s) of
the Trust, the Adviser and the Sub-Adviser and their
respective officers, directors, employees, affiliates and
agents (severally, but not jointly) harmless from and
against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses, liability, claims,
actions, suits or proceedings at law or in equity whether
brought by a private party or a governmental
department, commission, board, bureau, agency or
instrumentality of any kind, arising out of or
attributable to the willful misfeasance, bad faith, grossly
negligent acts or reckless disregard of obligations or
duties of the Manager or any of its officers, directors,
employees or agents. The Manager shall not be liable
hereunder for any losses or damages resulting from the
Manager's adherence to the written instructions of the
Adviser or the Sub-Adviser.
Section 18. Indemnification by the Trust, the
Adviser and Sub-Adviser. In the absence of willful
misfeasance, bad faith, gross negligence or reckless
disregard of duties hereunder on the part of the
Manager or any of its officers, directors, employees or
agents, the Trust, the Adviser and the Sub-Adviser
hereby agree to indemnify and hold the Manager, its
affiliates and their respective officers, directors,
employees, and agents (severally, but not jointly)
harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses,
liability, claims, actions, suits or proceedings at law or in
equity whether brought by a private party or a
governmental department, commission, board, bureau,
agency or instrumentality of any kind, arising out of or
attributable to: (i) the advertising, solicitation, sale,
purchase or pledge of securities, whether of the Fund(s)
or other securities, undertaken by the Fund(s), their
officers, directors, employees or affiliates, (ii) resulting
from any violations of the securities laws, rules,
regulations, statutes and codes, whether federal or of
any state, by the Fund(s), the Adviser or the Sub-
Adviser, and their respective officers, directors,
employees or affiliates, or (iii) the willful misfeasance,
bad faith, grossly negligent acts or reckless disregard of
obligations or duties hereunder on the part of the
Fund(s), the Adviser or the Sub-Adviser or their
respective officers, directors, employees, affiliates or
agents; ; provided, however, the Sub-Adviser shall have
no obligation to indemnify and hold harmless the
Manager with respect to any of the foregoing matters
to the extent the Sub-Adviser did not commit such
violations, take such actions or act in such manner.
Federal and state securities laws impose liabilities under
certain circumstances on persons who act in good faith,
and nothing herein or in Section 17 shall constitute a
waiver or limitation of any rights which the Fund(s) may
have and which may not be waived under any
applicable federal and state securities laws.
Section 19. Notices. Any notices under this
Agreement shall be in writing addressed and delivered
or mailed postage paid to the other parties at such
address as such other parties may designate for the
receipt of such notice. Until further notice to the other
parties, it is agreed that the address of the Trust shall be
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx Xxxxxxx, and that of the Adviser
shall be 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: C. Xxxxx Xxxxxxx, and that
of the Sub-Adviser shall be 0000 Xxxxxxxxxxx Xxxxxx,
X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxxx Xxxxxxx, and that of the Manager shall be1290
Xxxx Xxxx Xxxxxx 0xx xxxxx Xxxxxxxx, XX 00000,
Attention: General Counsel.
Section 20. Questions of Interpretation. Any
question of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act shall
be resolved by reference to such terms or provision of
the 1940 Act and to interpretations thereof, if any, by
the United States Courts or in the absence of any
controlling decision of any such court, by rules,
regulations or orders of the Commission, or
interpretations of the Commission or its staff, or
Commission staff no-action letters, issued pursuant to
the 1940 Act. In addition, where the effect of a
requirement of the 1940 Act or the Advisers Act
reflected in any provision of this Agreement is revised
by rule, regulation or order of the Commission, such
provision shall be deemed to incorporate the effect of
such rule, regulation or order. The duties and
obligations of the parties under this Agreement shall be
governed by and construed in accordance with the laws
of the State of Delaware to the extent that state law is
not preempted by the provisions of any law of the
United States heretofore or hereafter enacted.
Section 21. Amendment. No provision of this
Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. If
shareholder approval of an amendment is required
under the 1940 Act, no such amendment shall become
effective until approved by a vote of the majority of the
outstanding shares of the affected Fund(s). Otherwise,
a written amendment of this Agreement is effective
upon the approval of the Board, the Adviser, the Sub-
Adviser and the Manager.
Section 22. Xxxxx Fargo Name. The
Manager shall not, without prior written consent of the
Adviser: (i) use in advertising, publicity or otherwise the
name of "Xxxxx Fargo," including the name of Xxxxx
Fargo & Co. or any of its affiliates, nor any trade name,
trademark, trade device, service xxxx, symbol, logo or
any abbreviation, contraction or simulation thereof
owned by Xxxxx Fargo & Co. or any of its affiliates; or (ii)
represent, directly or indirectly, that any product or any
service provided by the Manager has been approved or
endorsed by Xxxxx Fargo & Co. or any of its affiliates.
The Fund(s) and the Adviser shall have
permission to use the Managers name and information
about the Manager as required by applicable law and in
the marketing of the Fund in written materials relating
to the Fund that refer to the Manager and/or the
Managers investment strategy, including without
limitation the Fund's registration statement,
shareholder reports and other offering documents and
marketing materials prepared for distribution to
shareholders of the Fund(s) or the public (such
materials, the "Marketing Materials"). The Fund(s) and
the Adviser agree to furnish such Marketing Materials
to the Manager (via email at an address designated by
the Manager from time to time), for its prior review and
approval (which approval shall not be withheld or
withdrawn as to information required by applicable law
or in response to comments of regulatory or self regulatory
agencies and their staff and shall not in other
respects be otherwise unreasonably withheld or
withdrawn), provided the requirement for prior
approval shall apply solely with respect to the use of the
Managers name and information specifically
concerning the Manager and its investment strategy
and not to any other content of the Marketing
Materials. If, following the furnishing of Marketing
Materials, the Fund(s) or the Adviser do not receive a
written response from the Manager with respect to
such materials within one business day of its submission
for approval, the content of such materials subject to
the Managers approval shall be deemed accepted by
the Manager. The Manager agrees that the Fund(s) and
the Adviser may request that the Manager approve the
use of a type of Marketing Material, and if approved by
the Manager, that the Fund(s) and the Adviser need not
obtain approval for each additional piece of Marketing
Material that is of substantially the same type or form,
unless such consent is withdrawn in writing by the
Manager.
Section 23. Confidentiality. Subject to the
provisions of the last paragraph of Section 7 hereof and
this Section 23, the following shall be treated as
confidential ("Confidential Information"): (i) any
information or recommendations supplied by the
Manager or which the Trust, the Adviser or the Sub-
Adviser has access to in connection with the
performance of its obligations and duties hereunder,
including without limitation portfolio holdings in the
Manager Portion, financial information or other
information relating to the Manager; and (ii) any
records and other information relative to the Trust, the
Fund(s), the Adviser and the Sub-Adviser which the
Manager receives or has access to in the performance
of its duties in connection with the performance of its
obligations and duties hereunder, including without
limitation, prior, present or potential shareholders and
clients, the list of Fund(s) portfolio securities,
instruments and assets and liabilities of the Fund(s).
Except as may be required by applicable law or rule or
as requested by regulatory authorities, Confidential
Information may be disclosed to or used only as
necessary to carry out the purposes of this Agreement
(including, without limitation, the disclosure of
Confidential Information to, or the use of the same by,
the Fund(s)' Custodian and fund accountant and other
service providers supporting the operation of the
Fund(s), the Fund(s)' auditors, legal advisors to any
party, and such other persons as the Fund(s), the
Adviser and the Sub-Adviser may designate in
connection with the operation and management of the
Manager Portion). The Manager shall not use its
knowledge of Confidential Information regarding the
Fund(s)' portfolio as a basis to place or recommend any
securities or other transactions for its own benefit or
the benefit of others or to the detriment of the Fund(s),
it being understood and agreed that the foregoing shall
not prohibit the Manager's use of Confidential
Information consisting of Fund(s) portfolio securities
and instruments described in Section 23(ii) above in the
course of Manager's management of the Manager
Portion and any of its other client accounts following
similar strategies in accordance with the terms of this
Agreement.
Without limiting the foregoing, each of the
Trust, the Adviser, the Sub-Adviser, agrees that neither
it nor any of its respective affiliates shall use its
knowledge of Confidential Information relating to the
investment program of the Manager Portion of the
Fund(s) and/or the Manager's research,
recommendations or portfolio transactions as a basis to
place or recommend any securities or other
transactions for its own benefit or the benefit of others
(e.g., other clients of the Adviser or the Sub-Adviser).
The Manager hereby authorizes the
Fund(s), the Adviser and the Sub-Adviser to use all
related evaluation material, analyses and information
regarding the Manager and the investment program of
the Manager Portion of the Fund(s), including
information about portfolio holdings and positions, in
connection with: (i) marketing the Fund(s), (ii) providing
ongoing information to existing Fund(s) shareholders,
and (iii) providing any required regulatory disclosures.
The confidentiality provisions of this
Section 23 will not apply to any information that: (i) is
or subsequently becomes publicly available without
breach of any obligation owed to another party; (ii)
became known to a party from a source other than
another party, and without breach of an obligation of
confidentiality owed to another party; (iii) is
independently developed by any party without
reference to the information required by this
Agreement to be treated confidentially; or (iv) is used
by any party in order to enforce any of its rights, claims
or defenses under, or as otherwise contemplated in,
this Agreement. Nothing in this Section 23 will be
deemed to prevent a party from disclosing any
information received hereunder pursuant to any
applicable law or in response to a request from a
regulatory or judicial authority.
Section 24. Severability. If any provision of this
Agreement is held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this
Agreement shall not be effected thereby.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed in duplicate by their
respective officers on the day and year first written
above.
XXXXX FARGO FUNDS TRUST
on behalf of the Fund(s)
By:
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
Xxxxxx Xxxx
Executive Vice President
THE ROCK CREEK GROUP, LP
By:
Name:
Title:
XXXXXXX INVESTMENT COMPANY, LLC
By:
Name:
Title:
APPENDIX A
XXXXXXX INVESTMEN COMPANY, LLC
SUB-ADVISORY AGREEMENT
XXXXX FARGO FUNDS TRUST
Xxxxx Fargo Advantage Alternative Strategies Fund
Approval by the Board of Trustees: February 20, 2014
SCHEDULE A
XXXXXXX INVESTMENT COMPANY, LLC
INVESTMENT SUB-ADVISORY AGREEMENT
FEE AGREEMENT
XXXXX FARGO FUNDS TRUST
This fee agreement is made as of the 1st day of April
2014, by and among Xxxxx Fargo Funds Trust, Xxxxx
Fargo Funds Management, LLC (the "Adviser"), and
Xxxxxxx Investment Company, LLC (the "Manager"); and
WHEREAS, the parties and Xxxxx Fargo Funds
Trust (the "Trust") have entered into an Investment
Sub-Advisory Agreement ("Manager Sub-Advisory
Agreement") whereby the Manager provides
investment management with respect to each series of
the Trust listed in Appendix A to the Manager Sub-
Advisory Agreement (the "Fund(s)").
WHEREAS, the Manager Sub-Advisory
Agreement provides that the fees to be paid by the
Adviser to the Manager are to be as agreed upon in
writing by the parties.
NOW THEREFORE, the parties agree that the
fees to be paid by the Adviser to the Manager under the
Manager Sub-Advisory Agreement shall be calculated as
follows on a monthly basis by applying the annual rates
indicated below to the average daily net assets of the
Manager Portion (as defined in the Manager Sub-
Advisory Agreement) of the Fund(s) throughout the
month:
SUB-ADVISORY FEE AS % OF AVG.
FUND NAME
DAILY NET ASSETS
-----------------------------------------------------------------------
Xxxxx Fargo Advantage Alternative 1.00
Strategies Fund
-----------------------------------------------------------------------
If the Manager shall provide management and
other services for less than the whole of a month, the
foregoing compensation shall be prorated based on the
number of days in the month that such Manager
provided management and other services to the
Fund(s).
The foregoing fee schedule is agreed to as of this 1st
day of April 2014, and shall remain in effect until agreed
and changed in writing by the parties.
XXXXX FARGO FUNDS TRUST
on behalf of the Fund(s)
By:
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
Xxxxxx Xxxx
Executive Vice President
XXXXXXX INVESTMENT COMPANY, LLC
By:
Name:
Title:
