INVESTMENT SUB-ADVISORY AGREEMENT
AMONG XXXXX FARGO FUNDS TRUST,
XXXXX FARGO FUNDS MANAGEMENT, LLC AND
THE ROCK CREEK GROUP, LP
This AGREEMENT is made as of this 1st day of April
2014, by and among Xxxxx Fargo Funds Trust (the
"Trust"), a statutory 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, and 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").
WHEREAS, the Adviser and the Sub-Adviser are
each registered investment advisers under the
Investment Advisers Act of 1940 (the "Advisers Act");
and
WHEREAS, the Trust is registered under the Investment
Company Act of 1940 (the "1940 Act"), as an open-end,
series management investment company; and
WHEREAS, the Trust's 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 Trust's Board,
wishes to retain the Sub-Adviser to provide specified
investment sub-advisory services to one or more series
of the Trust listed in Appendix A hereto as it may be
amended or supplemented from time to time (the
"Fund(s)"); and
WHEREAS, the Sub-Adviser is willing to provide those
services on the terms and conditions set forth in this
Agreement;
NOW THEREFORE, the Trust, the Adviser and
the Sub-Adviser 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
Securities and Exchange Commission (the
"Commission") under the 1940 Act and the 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 Sub-Adviser.
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, and with the oversight of the
Adviser, the Sub-Adviser is hereby appointed and agrees
to manage the investment and reinvestment of the
assets of the Fund(s) by providing 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 or the Adviser. Without limiting the
generality of the foregoing, the Board or the Adviser
may direct the Sub-Adviser's provision of management
and related services with respect to the Fund(s) by
delivering investment guidelines, investment policies
and investment restrictions (as amended from time to
time, the "Investment Guidelines"), and the Sub-Adviser
shall manage the investment and reinvestment of the
Fund(s) as set forth in this Agreement, in accordance
with the Investment Guidelines. The authority granted
to the Sub-Adviser shall include the authority to make
investment decisions with regard to the investment,
reinvestment and disposition of assets held by the
Fund(s) (subject to the limitations and restrictions set
forth herein)and to exercise whatever powers the Trust
may possess with respect to any of the assets in the
Fund(s), 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.
Section 3. Duties and Representations and
Warranties of the Sub-Adviser.
(a) The Sub-Adviser will be responsible for
recommending Managers (as defined below) to the
Adviser (for the Adviser's consideration for
recommendation to the Board) to be engaged pursuant
to separate subadvisory agreements to make decisions
with respect to purchase and sales of securities and
other investment assets with respect to their respective
Manager's Portion (as defined below). In connection
therewith, the Sub-Adviser will be responsible for: (i)
identifying, screening and conducting appropriate
diligence on Manager candidates; (ii) recommending to
the Adviser Manager candidates (for the Adviser's
consideration for recommendation to the Board) who
are suited to making decisions about purchases and
sales of securities and other investment assets for the
Fund(s) consistent with the investment objectives,
policies and restrictions and any Investment Guidelines
applicable to the Fund(s); (iii) allocating and reallocating
Fund(s) assets to Managers, including to the Sub-
Adviser for its own management; (iv) recommending
Manager changes when and as appropriate from time
to time; and (v) monitoring, supervising, reporting on,
and overseeing the investment activities of each
Manager.
(b) The Sub-Adviser shall make decisions with
respect to purchases and sales of securities and other
investment assets for any Manager's Portion allocated
to it pursuant to Section 3(e) hereof. To carry out such
decisions, the Sub-Adviser 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 and issue instructions with respect to
transactions of the Fund(s). In all purchases, sales and
other transactions in securities and other investment
assets for the Fund(s), the Sub-Adviser 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.
(c) The Sub-Adviser will report to the Board
at each regular meeting thereof all material changes in
the Fund(s) since the prior report, and will also keep the
Board informed of important developments it becomes
aware of affecting the Trust, the Fund(s),the Sub-
Adviser and each of the Managers, and on its own
initiative will furnish the Board from time to time with
such information as the Sub-Adviser may believe
appropriate, whether concerning the Managers, the
individual companies whose securities are held by the
Fund(s), the industries in which they engage, the
economic, social or political conditions prevailing in
each country in which the Fund(s) maintains
investments, or any other matters. At the request of
the Adviser, the Sub-Adviser shall review, and
coordinate the Managers' review of, draft shareholder
reports and annual updates to prospectuses and other
documents and provide timely comments thereon. The
Sub-Adviser will also furnish the Board with such
statistical and analytical information with respect to
each Manager and securities or other assets in the
Fund(s), as the Sub-Adviser may believe appropriate or
as the Board or the Adviser reasonably may request. In
overseeing or making purchases and sales of securities
for the Fund(s), the Sub-Adviser will be responsible for
ensuring its compliance with the provisions, policies,
restrictions and other requirements set forth in Section
7 of this Agreement, and the investment objectives,
policies and restrictions of the Fund(s).
(d) The Sub-Adviser shall promptly notify
the Adviser (i) of any changes it becomes aware of
regarding the Sub-Adviser or a Manager that would
impact disclosure in the Trust's Registration Statement,
including, without limitation, any change in the
personnel of the Sub-Adviser or a Manager responsible
for making investment decisions for the Fund(s), (ii) of
any known violation of any requirement, provision,
policy or restriction that the Sub-Adviser is responsible
for ensuring compliance with under Section 7 of this
Agreement, and (iii) upon the Sub-Adviser becoming
aware that it or a Manager is, or likely may become,
subject to any statutory disqualification pursuant to
Section 9 of the 1940 Act or of any other event
otherwise that would prevent the Sub-Adviser or a
Manager from performing its duties pursuant to this
Agreement. The Sub-Adviser shall notify the Adviser of
any change in "control" (as such term in defined in
Section 2(a)(9) of the 0000 Xxx) of the Sub-Adviser or a
Manager promptly after the reasonable possibility of
such event becomes known to Sub-Adviser. The Sub-
Adviser shall, within two business days, notify the
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 Fund(s) or the Trust. The Sub-Adviser shall
reasonably cooperate with, and shall endeavor to
coordinate, as necessary and required under their
respective agreements with the Fund(s), the Managers'
cooperation with, the Fund(s)' custodian ("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 Sub-Adviser, in its discretion, shall
make recommendations for the Fund(s) and the Adviser
to employ or sub-contract the services of certain
investment advisers the Sub-Adviser believes to be
appropriate or necessary to manage the assets of the
Fund(s) (each, a "Manager" and collectively, the
"Managers") (where the Sub-Adviser is managing a
portion of a Fund(s)' assets, it shall be deemed a
Manager for purposes of such Manager's Portion);
provided, however, that the employment or subcontracting
with any Manager shall not relieve the SubAdviser
of its responsibilities or liabilities hereunder and
provided further that the Sub-Adviser shall not have the
authority to sub-contract investment sub-advisory
responsibilities to a Manager without the consent of the
Adviser and the Trust and otherwise in accordance with
applicable requirements of the 1940 Act and the rules
thereunder. The fees for the performance of duties
delegated to a Manager will be borne and paid by the
Adviser as set forth in the agreement with a Manager
(each, a "Manager Sub-Advisory Agreement"). No such
fees may be imposed on the Trust.
With respect to Fund(s) for which investment subadvisory
services of one or more Managers is employed
or sub-contracted, the Sub-Adviser, under the oversight
of the Adviser, shall oversee the provision of services to
the Fund(s) by each Manager and shall assist the
Adviser in its oversight of the same, in such manner as
the Adviser and the Sub-Adviser shall from time to time
agree. In this regard, the responsibilities of the Sub-
Adviser shall include, without limitation, the following:
(i) based on the Fund(s)' investment objective, policies
and strategies, the Sub-Adviser shall determine, from
time to time, the portion of Fund(s) assets, if any, that a
Manager shall invest and reinvest (the "Manager
Portion"), and allocate and re-allocate Fund(s) assets
accordingly; (ii) the Sub-Adviser shall formulate and
deliver to the Manager, from time to time, investment
guidelines, investment policies and investment
restrictions ("Manager Investment Guidelines"), which
shall in all respects be consistent with the investment
objectives, policies and restrictions and any Investment
Guidelines applicable to the Fund(s), and which shall
govern management by the Manager of the Manager
Portion allocated to it; and (iii) the Sub-Adviser shall
monitor each Manager's investments in the
corresponding Manager Portion for compliance with the
applicable Manager Investment Guidelines, the Fund(s)'
investment objective, policies and strategies, any
Investment Guidelines applicable to the Fund(s) and the
Manager's portfolio management duties set forth in
Section 2 of its Manager Sub-Advisory Agreement. The
Sub-Adviser's performance of the foregoing across all
Manager Portions in total (including any Manager
Portion managed directly by the Sub-Adviser) shall be
conducted in compliance with the provisions, policies,
restrictions and other requirements set forth in Section
7 of this Agreement, provided that the Sub-Adviser shall
not be responsible for overseeing the adherence, by the
Fund(s) in total, with the diversification and income
tests required by Subchapter M of the Internal Revenue
Code of 1986, as amended, except as otherwise agreed
solely between the Adviser and the Sub-Adviser from
time to time.
(f) The Sub-Adviser 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 Sub-Adviser will be made available to
consult with the Adviser, the Trust and the Board at
reasonable times and upon reasonable notice
concerning the Sub-Adviser's performance of services
hereunder or any other aspect of the business of the
Trust and the Fund(s). Without limiting the generality
of the foregoing, although the Sub-Adviser does not
maintain responsibility for valuing the portfolio,
appropriate personnel of the Sub-Adviser will provide
reasonable assistance to the Adviser and/or the Board
in the valuation of securities or other investment assets
held within the Fund(s) for which market quotations are
not readily available in accordance with the Trust's
Procedures for the Valuation of Portfolio Securities.
(g) The Sub-Adviser represents and
warrants to the Adviser and the Trust that: (i) the Sub-
Adviser 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 Sub-Adviser 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 Sub-Adviser has
been duly authorized by appropriate action of the Sub-
Adviser.
Section 4. Delivery of Documents to the Sub-Adviser.
The Adviser has furnished the Sub-Adviser with true,
correct and complete copies of the following
documents:
(a) The Registration Statement of the Trust filed
with the Commission under the 1940 Act, including the
prospectuses and statements of additional information
related to the Fund(s) included therein;
(b) The Advisory Agreement; and
(c) Written guidelines, policies and procedures
adopted by the Trust that are applicable to the Fund(s),
and the Investment Guidelines, if any.
The Adviser will furnish the Sub-Adviser with all future
amendments and supplements to the foregoing as soon
as practicable after such documents become available.
The Adviser shall furnish the Sub-Adviser with any
further documents, materials or information that the
Sub-Adviser may reasonably request in connection with
the performance of its duties hereunder.
The Sub-Adviser shall furnish the Adviser with written
certifications, in such form as the Adviser shall
reasonably request, that it has received and reviewed
the most recent version of the foregoing documents
provided by the Adviser and that it will comply with
such documents in the performance of its obligations
under this Agreement to the extent applicable to, and
consistent with, its obligations set forth herein.
Section 5. Delivery of Documents to the Adviser. The
Sub-Adviser has furnished, and in the future will furnish,
the Adviser with true, correct and complete copies of
each of the following documents:
(a) The Sub-Adviser's most recent Form ADV;
(b) The Sub-Adviser's most recent balance sheet;
(c) The current Code of Ethics of the Sub-Adviser,
adopted pursuant to Rule 17j-1 under the 1940 Act, and
annual certifications regarding compliance with such
Code; and
(d) Copies of the Sub-Adviser's 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 most recent
annual review of the adequacy of such policies and
procedures.
In addition, the Sub-Adviser will furnish the Adviser with
a summary of the results of any regular, sweep and/or
other examination of the books and records of the Sub-
Adviser by the Commission or other regulatory agency
with respect to the Sub-Adviser's investment
management activities.
The Sub-Adviser will furnish the Adviser with the
documents described in Sections 5(a), 5(c), 5(d) and in
the paragraph immediately above as soon as practicable
after such documents become available, to the extent
that such documents have been changed materially.
The Sub-Adviser shall furnish the Adviser with any
further documents, materials or information as the
Adviser may reasonably request in connection with the
Sub-Adviser's performance of its duties under this
Agreement, including, but not limited to, information
regarding the Sub-Adviser's financial condition, level of
insurance coverage, code of ethics compliance, conflict
mitigation practices, and any certifications or subcertifications
which may reasonably be requested in
connection with 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 (including the document described in Sections
5(b) for the relevant period).
Section 6. Control by Board. As is the case
with respect to the Adviser under the Advisory
Agreement, any investment activities undertaken by the
Sub-Adviser pursuant to this Agreement, as well as any
other activities undertaken by the Sub-Adviser 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 Sub-Adviser shall at all times comply in
all material respects with:
(a) all applicable provisions of the 1940 Act
and the Advisers Act, and any rules and regulations
adopted thereunder;
(b) the applicable provisions of the
registration statement of the Trust, as it may be
amended or supplemented from time to time, under
the Securities Act and the 1940 Act;
(c) the resolutions of the Board as may be adopted
from time to time, the applicable provisions of written
guidelines, policies and procedures adopted by the
Trust or the Board, and the Investment Guidelines (in all
cases, only to the extent not inconsistent with the
services required to be provided by the Sub-Adviser
under this Agreement (except as to the provisions of
this Section 7(c)); provided that the Sub-Adviser shall
not be required to comply with any such resolutions or
documents until delivered to the Sub-Adviser; and
(d) any other applicable provisions of state
or federal law.
In addition, without limiting the generality of
the foregoing, the Sub-Adviser agrees that: (i) any code
of ethics adopted by the Sub-Adviser 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 or the 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 in
accordance with the Trust's 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 Sub-Adviser will not use, nor will
it seek to obtain, material non-public 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 Fund(s) are invested
from time to time in accordance with the Trust's
policies on proxy voting. The Sub-Adviser will provide,
when reasonably requested by the Adviser, information
it has or can obtain without unreasonable burden or
expense from the responsible Manager(s) on a
particular issuer to assist the Adviser in the voting of a
proxy.
Section 9. Broker-Dealer Relationships. The
Managers are responsible for the purchase and sale of
securities for the Fund(s), broker-dealer selection, and
negotiation of brokerage commission rates. The parties
hereto shall ensure that each Manager Sub-Advisory
Agreement shall provide that the Manager's primary
consideration in effecting a security transaction will be
to obtain the best price and execution under the
circumstances. In selecting a broker-dealer to execute
each particular transaction for the Fund(s), the parties
hereto shall ensure that each Manager Sub-Advisory
Agreement shall provide that 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 brokerdealer
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,
a 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) 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 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 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 Sub-Adviser will report on said
allocations regularly to the Board, indicating the brokers
to whom such allocations have been made and the basis
therefor. With respect to any Manager Portion as to
which the Sub-Adviser is acting as the Manager, the
Sub-Adviser shall be directly responsible for compliance
with all requirements of this Section 9. With respect to
any Manager Portion allocated to another Manager, the
Sub-Adviser shall be responsible for monitoring,
overseeing and reporting on compliance with all
requirements of this Section 9.
Provided the investment objective of the Fund(s) is
adhered to, the Sub-Adviser when acting as a Manager
may aggregate sales and purchase orders of securities
for the Fund(s) with similar orders being made at
approximately the same time for other portfolios
managed by the Sub-Adviser, if, in the Sub-Adviser's
reasonable judgment, such aggregation will 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 Sub-
Adviser's 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 Sub-Adviser's 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
Sub-Adviser when acting as a Manager in the manner
that the Sub-Adviser considers to be most equitable and
consistent with its fiduciary obligations to the Fund(s)
and other clients. The Sub-Adviser when acting as a
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 Sub-Adviser
shall not be responsible for any acts or omissions by any
broker or dealer, provided that the Sub-Adviser did not
act with gross negligence or willful misconduct in the
selection of such broker or dealer.
The Sub-Adviser shall not engage in any transactions for
the Fund(s) with or through any broker-dealer that is an
affiliated person of the Sub-Adviser or of the Adviser
except in compliance with all applicable regulations of
the Commission and the applicable policies and
procedures of the Trust governing such transactions.
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 Fund(s) 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 Sub-Adviser shall pay its own expenses in
connection with the services to be provided by it
pursuant to this Agreement. In addition, the Sub-
Adviser (and not any other party to this Agreement)
shall be responsible for reasonable out-of-pocket costs
and expenses incurred by it 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 personnel of the
Sub-Adviser responsible for making investment
decisions 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 Sub-
Adviser (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 Sub-Adviser 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 Sub-
Adviser's fee for its services hereunder, and the Sub-
Adviser 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 the
Adviser shall expect of the Sub-Adviser, and the Sub-
Adviser will give the Trust and the Adviser the benefit
of, the Sub-Adviser's best judgment and efforts in
rendering its services to the Trust, and the Sub-Adviser
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 Sub-
Adviser or any of its officers, directors, employees or
agents, the Sub-Adviser shall not be subject to liability
to 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. Notwithstanding anything else in this
Agreement, and for avoidance of doubt, in the absence
of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on
the part of the Sub-Adviser or any of its officers,
directors, employees or agents (which shall not be
deemed to include any Manager), the Sub-Adviser shall
not be in violation of its standard of care under this
Agreement or be deemed to not have performed its
obligations hereunder solely by reason of a Manager's
non-performance, or violation of, any provision of its
Manager Sub Adviser Agreement, or by reason of the
Manager's violation of any applicable law or violation.
Section 13. Non-Exclusivity. The services of the
Sub-Adviser to the Adviser and the Trust are not to be
deemed to be exclusive, and the Sub-Adviser 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
Sub-Adviser 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 firms.
Section 14. Records. The Sub-Adviser when
acting as a 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), 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 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 Sub-Adviser 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 Sub-Adviser 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 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 its authorized representatives (including the
Adviser) at all times during the Sub-Adviser's normal
business hours. The Sub-Adviser shall promptly, upon
the request of the Trust or the Trust's authorized
representatives (including the Adviser), surrender and
deliver to the Fund(s) those records which are the
property of the Trust or any Fund(s). The Sub-Adviser
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 and Sub-Adviser, and shall continue in
effect for more than two years from its effective date,
provided that the continuation of this Agreement
thereafter 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 or the Sub-Adviser,
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 or the Trust in the event
that the Sub-Adviser commits a material violation of any
governing law or regulation. This Agreement may be
terminated immediately by the Sub-Adviser if the
Adviser or the Trust commits a material violation of law
or regulation.
Section 17. Indemnification by the Sub-Adviser.
In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties
hereunder on the part of the Trust or the Adviser, or
any of their respective officers, directors, employees,
affiliates or agents, the Trust, any Fund(s) of the Trust
and the Adviser shall not be responsible for, and the
Sub-Adviser agrees to indemnify and hold the Trust, any
Fund(s) of the Trust and the 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, except for special, punitive
and indirect damages, arising out of or attributable to
the willful misfeasance, bad faith, grossly negligent acts
or reckless disregard of obligations or duties of the Sub-
Adviser or any of its officers, directors, employees or
agents,. The Sub-Adviser shall not be liable hereunder
for any losses or damages resulting from the Sub-
Adviser's adherence to the written instructions of the
Adviser.
Section 18. Indemnification by the Trust. In the
absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of duties hereunder on
the part of the Sub-Adviser (including where the Sub-
Adviser acts as a Manager) or any of its officers,
directors, employees or agents, the Trust hereby agrees
to indemnify and hold harmless the Sub-Adviser 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, except for special, punitive
and indirect damages, arising from: (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), their
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), or their respective officers,
directors, employees or affiliates. 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.
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 and the
Sub-Adviser.
Section 22. Xxxxx Fargo and Rock Creek
Name. The Sub-Adviser 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 Sub-
Adviser 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 Sub-Adviser's name and
information about the Sub-Adviser as required by
applicable law and in the marketing of the Fund(s) in
written materials relating to the Fund(s) that refer to
the Sub-Adviser and/or the Sub-Adviser's 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 Sub-Adviser (via email at an address
designated by the Sub-Adviser 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 Sub-Adviser's name and
information specifically concerning the Sub-Adviser 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 Sub-Adviser with
respect to such materials within one business day of its
submission for approval, the content of such materials
subject to the Sub-Adviser's approval shall be deemed
accepted by the Sub-Adviser. The Sub-Adviser agrees
that the Fund(s) and the Adviser may request that the
Sub-Adviser approve the use of a type of Marketing
Material, and if approved by the Sub-Adviser, that the
Fund(s) and the Sub-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 Sub-Adviser.
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 Sub-
Adviser in connection with the performance of its
obligations and duties hereunder, including without
limitation portfolio holdings, financial information or
other information relating to the Sub-Adviser; and (ii)
any records and other information relative to the Trust,
the Fund(s) and the Adviser which the Sub-Adviser
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) and the
Adviser may designate in connection with the operation
and management of the Fund(s)). The Sub-Adviser 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).
The Sub-Adviser hereby authorizes the
Fund(s) and the Adviser, to the extent not inconsistent
with each Manager's Manager Sub-Advisory
Agreement, to use all related evaluation material,
analyses and information regarding the Sub-Adviser and
the investment program of the Fund(s), including
information about Managers, 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.
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:
APPENDIX A
THE ROCK CREEK GROUP, LP
SUB-ADVISORY AGREEMENT
XXXXX FARGO FUNDS TRUST
Xxxxx Fargo Advantage Alternative Strategies Fund
Approval by the Board of Trustees: February 20, 2014
SCHEDULE A
THE ROCK CREEK GROUP, LP
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 (the
"Trust"), a statutory trust organized under the laws of
the State of Delaware, Xxxxx Fargo Funds Management,
LLC (the "Adviser"), a limited liability company
organized under the laws of the State of Delaware, and
The Rock Creek Group, LP (the "Sub-Adviser"), a limited
partnership organized under the laws of the State of
Delaware.
WHEREAS, the parties and the Trust have
entered into an Investment Sub-Advisory Agreement
("Sub-Advisory Agreement") whereby the Sub-Adviser
provides specified investment management services
with respect to each series of the Trust listed in
Appendix A to the Sub-Advisory Agreement (the
"Fund(s)").
WHEREAS, the Sub-Advisory Agreement
provides that the fees to be paid by the Adviser to the
Sub-Adviser are to be as indicated on Schedule A
thereto, as such Schedule may be amended or
supplemented from time to time.
NOW THEREFORE, the parties agree that the
fees to be paid by the Adviser to the Sub-Adviser under
the 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
Fund(s) throughout the month:
FUND NAME SUB-ADVISORY FEE
-----------------------------------------------------------------------
Xxxxx Fargo Advantage Alternative First 750M 0.72
Strategies Fund Next 750M 0.62
Over 1.5B 0.60
-----------------------------------------------------------------------
If the Sub-Adviser 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 Sub-Adviser
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
THE ROCK CREEK GROUP, LP
By:
Name:
Title:
