SUB-ADVISORY AGREEMENT
AMONG XXXXX FARGO MASTER TRUST,
XXXXX FARGO FUNDS MANAGEMENT, LLC AND
PHOCAS FINANCIAL CORPORATION
This AGREEMENT is made as of this 29th day of August,
2011, among Xxxxx Fargo Master 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 Phocas Financial Corporation (the "Sub-
Adviser"), a corporation organized under the laws of the State of
California, with its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, the Adviser and the Sub-Adviser are
registered investment advisers under the Investment Advisers Act
of 1940, as amended (the "Advisers Act"); and
WHEREAS, the Trust is engaged in business as an openend
investment company with one or more series of shares and is
registered under the Investment Company Act of 1940, as amended
(the "1940 Act"); 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, between the Adviser
and the Trust (the "Advisory Agreement"); and
WHEREAS, the Adviser, acting pursuant to the Advisory
Agreement, wishes to retain the Sub-Adviser, and the Trust's
Board has approved the retention of the Sub-Adviser, to provide
investment advisory services to each series of the Trust listed in
Appendix A hereto as it may be amended from time to time (each a
"Fund" and collectively the "Funds"), and 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 Sub-
Adviser agree as follows:
Section 1. Appointment of Sub-Adviser. 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, including any representations
made in Part A and Part B relating to the Fund contained therein
and as may be amended or supplemented from time to time, all in
such manner and to such extent as may from time to time be
authorized by the Board.
Subject to the direction and control of the Board, the
Adviser manages the investment and reinvestment of the assets of
the Fund and provides for certain management and other services
as specified in the Advisory Agreement.
Subject to the direction and control of the Board and the
Adviser, the Sub-Adviser shall manage the investment and
reinvestment of the assets of the Fund as contemplated in this
Agreement, and without limiting the generality of the foregoing,
shall provide the management and other services specified below
in Section 2(a), all in such manner and to such extent as may be
directed from time to time by the Adviser. Notwithstanding
anything in this Agreement to the contrary, the Adviser shall be
responsible for compliance with any statute, rule, regulation,
guideline or investment restriction that applies to the Fund's
investment portfolio as a whole and the Sub-Adviser's
responsibility shall be limited to following any instruction the Sub-
Adviser might receive from the Adviser.
The investment authority granted to the Sub-Adviser shall
include the authority to exercise whatever powers the Trust may
possess with respect to any of its assets held by the Fund,
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 Sub-Adviser shall
not, however, be responsible for voting proxies, for participating in
class actions and/or other legal proceedings on behalf of the Fund,
but will provide such assistance as is reasonably requested by the
Adviser.
Section 2. Duties and Representations and Warranties
of the Sub-Adviser.
(a) The Sub-Adviser shall make decisions with respect
to all purchases and sales of securities and other investment assets
for the Fund. 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 those transactions of
the Fund. In all purchases, sales and other transactions in
securities and other assets for the Fund, the Sub-Adviser is
authorized to exercise full discretion and act for the Trust and
instruct the Fund's custodian (the "Custodian") 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.
The Sub-Adviser acknowledges that the Fund and other
mutual funds advised by the Adviser (collectively, the "fund
complex") may engage in transactions with certain sub-advisers 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 Sub-Adviser hereby
agrees that it will not consult with any other sub-adviser of a fund
in the fund complex, or an affiliated person of a sub-adviser,
concerning transactions for a fund in securities or other fund
assets. With respect to a multi-managed Fund, the Sub-Adviser
shall be limited to managing only the discrete portion of the Fund's
portfolio as may be determined from time-to-time by the Board or
the Adviser, and shall not consult with the sub-adviser as to any
other portion of the Fund's portfolio concerning transactions for
the Fund in securities or other Fund assets.
(b) Following the close of each calendar quarter, the Sub-
Adviser will report to the Board regarding the investment performance
of the Fund since the prior report, and will also keep the Board
informed of important developments known by it to affect the Trust,
the Fund and the Sub-Adviser, and on its own initiative will furnish
the Board and the Adviser from time to time with such information as
the Sub-Adviser may believe appropriate, whether concerning the
individual companies whose securities are held by a Fund, the
industries in which they engage, or the economic, social or political
conditions prevailing in each country in which the Fund maintains
investments. The Sub-Adviser will also furnish the Board and the
Adviser with such statistical and analytical information with respect to
securities held by the Fund as the Sub-Adviser may believe
appropriate or as the Board or the Adviser reasonably request.
The Sub-Adviser shall promptly notify the Adviser of (i) any
changes regarding the Sub-Adviser that would impact disclosure in the
Trust's Registration Statement, or (ii) any violation of any
requirement, provision, policy or restriction that the Sub-Adviser is
required to comply with under Section 6 of this Agreement. The Sub-
Adviser shall, within two business days, notify both 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 or the Trust. The Sub-Adviser shall
reasonably cooperate with the Custodian in the Custodian's processing
of class actions or other legal proceedings relating to the holdings
(historical and/or current) of the Fund.
(c) The Sub-Adviser may from time to time employ or
sub-contract the services of certain persons as the Sub-Adviser
believes to be appropriate or necessary to assist in the execution of
the Sub-Adviser's duties hereunder; provided, however, that the
employment of or sub-contracting to any such person shall not
relieve the Sub-Adviser of its responsibilities or liabilities hereunder.
The cost of performance of such duties shall be borne and paid by
the Sub-Adviser. No obligation may be imposed on the Trust in any
such respect.
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 business of the Trust.
(d) The Sub-Adviser shall maintain records relating to
portfolio transactions and the placing and allocation of brokerage
orders as are required to be maintained by the Trust under the 1940
Act. 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, all 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. The books and
records pertaining to the Trust which are in possession of the Sub-
Adviser shall be the property of the Trust. The Trust, or the Trust's
authorized representatives (including the Adviser), shall have access
to such books and records at all times during the Sub-Adviser's
normal business hours. Upon the reasonable request of the Trust,
copies of any such books and records shall be provided promptly by
the Sub-Adviser to the Trust or the Trust's authorized
representatives.
(e) The Sub-Adviser represents and warrants to the
Adviser and the Trust that: (i) the retention of the Sub-Adviser as
contemplated by this Agreement is authorized by the Sub-Adviser's
governing documents; (ii) the execution, delivery and performance
of this Agreement does not violate any obligation by which the Sub-
Adviser or its property is bound, whether arising by contract,
operation of law or otherwise; and (iii) this Agreement has been duly
authorized by appropriate action of the Sub- Adviser and when
executed and delivered by the Sub-Adviser will be the legal, valid
and binding obligation of the Sub-Adviser, enforceable against the
Sub-Adviser in accordance with the terms hereof, subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a
proceeding in equity or law).
Section 3. 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 Declaration of Trust, as in effect on the date hereof;
b) The Registration Statement filed with the Commission under
the 1940 Act;
c) The Advisory Agreement; and
d) Written guidelines, policies and procedures adopted by the
Trust.
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.
Sub-Adviser shall not be responsible for compliance with
any document, materials, instruction or other information not
provided to Sub-Adviser until a reasonable time after receipt of
same by Sub-Adviser.
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.
Section 4. 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; and
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.
In addition, the Sub-Adviser will furnish the Adviser with
(i) a summary of the results of any future examination of the Sub-
Adviser by the Commission or other regulatory agency with
respect to the Sub-Adviser's activities hereunder; and (ii) copies of
its policies and procedures adopted pursuant to Rule 206(4)-7
under the Advisers Act.
The Sub-Adviser will furnish the Adviser with all such
documents 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 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 and any certifications or sub-certifications
which may reasonably be requested in connection with Fund
registration statements, Form N-CSR filings or other regulatory
filings, and which are appropriately limited to Sub-Adviser's
responsibilities under this Agreement.
Section 5. 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, shall at all times be subject to the
direction and control of the Trust's Board.
Section 6. Compliance with Applicable Requirements.
In carrying out its obligations under this Agreement, the Sub-
Adviser shall at all times comply with:
(a) investment guidelines, policies and restrictions established
by the Board that have been communicated in writing to the Sub-
Adviser;
(b) all applicable provisions of the 1940 Act and the Advisers
Act, and any rules and regulations adopted thereunder;
(c) the Registration Statement of the Trust, as it may be
amended from time to time, filed with the Commission under the
1940 Act and delivered to the Sub-Adviser;
(d) the provisions of the Declaration of Trust of the Trust, as it
may be amended or supplemented from time to time and delivered
to the Sub-Adviser;
(e) the provisions of the Internal Revenue Code of 1986, as
amended, applicable to the Trust or the Fund, and any rules and
regulations adopted thereunder; and
(f) any other applicable provisions of state or federal law, and
any rules and regulations adopted thereunder.
Section 7. Proxies. The Adviser shall have responsibility
to vote proxies solicited with respect to issuers of securities in
which assets of the Fund are invested from time to time in
accordance with the Trust's policies on proxy voting. The Sub-
Adviser will provide, when requested by the Adviser, information
on a particular issuer to assist the Adviser in the voting of a proxy.
Section 8. Expenses. All of the ordinary business
expenses incurred in the operations of the Fund and the offering of
its shares shall be borne by the Fund unless specifically provided
otherwise in this Agreement. The expenses borne by the Fund
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 Board and shareholder meetings, the cost of preparing
and distributing reports and notices to shareholders, the fees and
other expenses incurred by the Fund in connection with
membership in investment company organizations and the cost of
printing copies of Part A and Part B of its registration statement
distributed to the Fund's interestholders.
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 shall be responsible for reasonable
out-of-pocket costs and expenses incurred by the 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 Part A of its registration statement, 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; 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, or to otherwise comply with the 1940 Act, the
Securities Act of 1933, or any other applicable statute, law, rule or
regulation, as a result of such change.
Section 9. Compensation. As compensation for the subadvisory
services provided under this Agreement, the Adviser shall
pay the Sub-Adviser fees, payable monthly, at the annual rates
indicated on Appendix B hereto, as such Schedule may be
amended or supplemented as agreed to in writing by the parties
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 or the Fund with respect to compensation under this
Agreement.
Section 10. Standard of Care. The Trust and the Adviser
will 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 Adviser, 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.
Nothing in this Agreement (including Sections 10, 15 or
16) shall be construed to relieve either the Sub-Adviser or the
Adviser of any claims or liability arising under federal securities
laws or any non-waivable provisions of any other federal or state
laws.
Section 11. Exclusivity. The Sub-Adviser hereby agrees
that, for the duration of this Agreement between it and the Adviser,
it shall not provide investment advisory, subadvisory or similar
services to any Comparable Registered Investment Company
utilizing the Sub-Adviser's Large Cap Value Equity investment
style and processes benchmarked to the Xxxxxxx 1000 Value Index,
or any other substantially similar U.S. large capitalization value
index, substantially as presented to the Board on November 7,
2007 (the "Large Cap Value Equity Style"). For purposes of this
Section 11, a "Comparable Registered Investment Company"
means any investment company registered under the 1940 Act
other than any such company that is engaged in a multi-manager
investment program.
The provisions of the foregoing paragraph shall not prevent
the Sub-Adviser from providing investment advisory, sub-advisory
or similar services to: (a) privately managed institutional accounts
or any other type of investment account that is not a Comparable
Registered Investment Company; or (b) any type of client or
account, including any Comparable Registered Investment
Company, using an investment strategy other than the Large Cap
Value Equity Style (collectively, the "Non-Exclusive Services").
Solely with respect to any Non-Exclusive Services, 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 companies.
It is understood that in compliance with the requirements of
this Section 11 the Sub-Adviser performs investment advisory
services for various clients, including accounts of clients in which
the Sub-Adviser or associated persons have a beneficial interest.
In that regard, and subject to the exclusivity provisions of this
Section 11, the Sub-Adviser may give advice and take action in the
performance of its duties with respect to any of its other clients,
which may differ from the advice given, or the timing or nature of
action taken, with respect to the assets of the Fund. Nothing in this
Agreement shall be deemed to impose upon the Sub-Adviser any
obligation to purchase or sell for the Fund any security or other
property that the Sub-Adviser purchases or sells for its own
accounts or for the account of any other client.
Any information or recommendations supplied by the Sub-
Adviser to the Adviser or the Trust in connection with the
performance of its obligations hereunder shall be treated as
confidential and for use by the Adviser, the Trust or such persons
as they may designate, solely in connection with the Fund, except
as required by applicable law or as otherwise provided hereunder,
it being understood and agreed that the Adviser and the Trust may
disclose Fund portfolio holdings information in accordance with
the Trust's policies and procedures governing the disclosure of
Fund portfolio holdings, as amended or supplemented from time to
time. Information supplied by the Adviser or the Trust to the Sub-
Adviser in connection with performing its obligations under this
Agreement shall be treated by the Sub-Adviser as confidential and
for use by the Sub-Adviser solely in connection with the Fund and
the performance of the Sub-Adviser's obligations hereunder.
Section 12. Records. The Sub-Adviser shall, with respect
to orders the Sub-Adviser places for the purchase and sale of
portfolio securities of the Fund, maintain or arrange for the
maintenance of the documents and records required pursuant to
Rule 31a-1 under the 1940 Act, as well as trade tickets and
confirmations of portfolio trades, and such other records as the
Adviser reasonably requests to be maintained. All such records
shall be maintained in a form reasonably acceptable to the Adviser
and the Trust and in compliance with the provisions of Rule 31a-1
or any successor rule. All such records will be the property of the
Trust, and will be made available for inspection by the Trust and
its authorized representatives (including the Adviser). The Sub-
Adviser shall promptly, upon the Trust's request, surrender to the
Trust those records that are the property of the Trust or the Fund;
provided, however, that the Sub-Adviser may make and retain
copies of any and all such records.
Section 13. Term and Approval. This Agreement shall
become effective with respect to the Fund after it is approved in
accordance with the express requirements of the 1940 Act, and
executed by the Trust, Adviser and Sub-Adviser, for an initial twoyear
term, and shall thereafter continue from year to year, provided
that the continuation of the Agreement is approved in accordance
with the requirements of the 1940 Act, which currently requires
that the continuation be approved at least once 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 (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 14. Termination. This Agreement may be
terminated with respect to the Fund at any time, without the
payment of any penalty, by vote of the Board or by vote of a
majority of the Fund's outstanding voting securities, or by the
Adviser or Sub-Adviser upon 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 may also be terminated immediately by the
Adviser, the Sub-Adviser or the Trust in the event that a respective
party: (i) breaches a material term of this Agreement; or (ii)
commits a material violation of any governing law or regulation; or
(iii) engages in conduct that would have a material adverse effect
upon the reputation or business prospects of a respective party.
Section 15. 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 and the
Adviser, respectively, shall not be responsible for, and the Sub-
Adviser hereby agrees to indemnify and hold harmless the Trust
and the Adviser and their respective officers, directors, employees,
affiliates and agents (severally, but not jointly) against any and all
losses, damages, costs, charges, reasonable 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 hereunder or the breach of representation
and warranty hereunder on the part of the Sub-Adviser or any of its
officers, directors, employees affiliates or agents. Notwithstanding
the foregoing, the Sub-Adviser shall not be liable hereunder for
any losses or damages resulting from the Sub-Adviser's adherence
to the Adviser's written instructions, or for any action or inaction
by the Sub-Adviser consistent with the Standard of Care described
in Section 10 of this Agreement.
Section 16. Indemnification by the Trust and the
Adviser. Provided that the conduct of the Sub-Adviser, its
partners, employees, affiliates and agents is consistent with the
Standard of Care described in Section 10 of this Agreement, the
Sub-Adviser shall not be responsible for, and the Trust and the
Adviser (severally, but not jointly) hereby agree to indemnify and
hold harmless the Sub-Adviser, its partners, employees, affiliates
and agents against any and all losses, damages, costs, charges,
reasonable 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 conduct of the party from whom such
indemnification is sought and relating to: (i) the advertising,
solicitation, sale, purchase or pledge of securities, whether of the
Fund or other securities, undertaken by the Fund, its officers,
directors, employees, affiliates or agents; (ii) any violations of the
securities laws, rules, regulations, statutes and codes, whether
federal or of any state, by the Fund or the Adviser, respectively, or
their respective officers, directors, employees, affiliates or agents;
or (iii) the willful misfeasance, bad faith, grossly negligent acts or
reckless disregard of obligations or duties hereunder on the part of
the Fund or the Adviser, respectively, or their respective officers,
directors, employees, affiliates or agents.
Section 17. Notices. Any notices under this Agreement
shall be in writing, addressed and delivered or mailed postage paid
to the other party at such address as such other party may designate
for the receipt of such notice. Until further notice to the other
party, it is agreed that the address of the Trust shall be 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx X. 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 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxxxxx
Xxxxxx.
Section 18. 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 19. 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
Fund. Otherwise, a written amendment of this Agreement is
effective upon the approval of the Board, the Adviser and the Sub-
Adviser.
Section 20. Xxxxx Fargo Name. The Sub-Adviser and the
Trust each agree that the name "Xxxxx Fargo," which comprises a
component of the Trust's name, is a property right of the parent of
the Adviser. The Trust agrees and consents that: (i) it will use the
words "Xxxxx Fargo" as a component of its corporate name, the
name of any series or class, or all of the above, and for no other
purpose; (ii) it will not grant to any third party the right to use the
name "Xxxxx Fargo" for any purpose; (iii) the Adviser or any
corporate affiliate of the Adviser may use or grant to others the
right to use the words "Xxxxx Fargo," or any combination or
abbreviation thereof, as all or a portion of a corporate or business
name or for any commercial purpose, other than a grant of such
right to another registered investment company not advised by the
Adviser or one of its affiliates; and (iv) in the event that the
Adviser or an affiliate thereof is no longer acting as investment
adviser to the Fund, the Trust shall, upon request by the Adviser,
promptly take such action as may be necessary to change its
corporate name to one not containing the words "Xxxxx Fargo" and
following such change, shall not use the words "Xxxxx Fargo," or
any combination thereof, as a part of its corporate name or for any
other commercial purpose, and shall use its best efforts to cause its
trustees, officers and shareholders to take any and all actions that
the Adviser may request to effect the foregoing and to reconvey to
the Adviser any and all rights to such words. The Sub-Adviser
may include the Xxxxx Fargo Funds in its representative client list.
Section 21. Risk Acknowledgement. The Sub-Adviser
does not guarantee the future performance of the Fund, the success
of any investment decision or strategy that the Sub-Adviser may
use, or the success of the Sub-Adviser's overall management of the
Fund. Each of the Trust and the Adviser understand that
investment decisions made for the Fund by the Sub-Adviser are
subject to various market, currency, economic and business risks,
and that those investment decisions will not always be profitable.
The Sub-Adviser will only be responsible for providing the
advisory services specified in Section 2(a) above.
Section 22. Authority to Execute Agreement. Each of
the individuals whose signature appears below represents and
warrants that he or she has full authority to execute this Agreement
on behalf of the party on whose behalf he or she has affixed his or
her signature to this Agreement. The Trust and the Adviser will
deliver to the Sub-Adviser such evidence of its authority with
respect to this Agreement as Sub-Adviser may reasonably require.
The Sub-Adviser will deliver to the Trust and the Adviser such
evidence of its authority with respect to this Agreement as the
Trust or the Adviser may reasonably require.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed in triplicate by their respective
officers on the day and year first written above.
XXXXX FARGO MASTER TRUST
on behalf of the Fund
By:
---------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
---------------------------
Xxxxxx Xxxx
Executive Vice President
PHOCAS FINANCIAL CORPORATION
By:
---------------------------
Xxxxxxx Xxxxxx
CEO and President
APPENDIX A
PHOCAS FINANCIAL CORPORATION
SUB-ADVISORY AGREEMENT
XXXXX FARGO MASTER TRUST
Xxxxx Fargo Advantage Large Company Value Portfolio
(formerly, Xxxxx Fargo Advantage Disciplined Value Portfolio)
Approved by the Board of Trustees: May 18, 0000
XXXXXXXX X
PHOCAS FINANCIAL CORPORATION
SUB-ADVISORY AGREEMENT
FEE AGREEMENT
XXXXX FARGO MASTER TRUST
This fee agreement is effective as of the 29th day of August,
2011, by and among Xxxxx Fargo Master Trust (the "Trust"), Xxxxx
Fargo Funds Management, LLC (the "Adviser") and Phocas
Financial Corporation (the "Sub-Adviser").
WHEREAS, the parties have entered into an Investment
Sub-Advisory Agreement ("Sub-Advisory Agreement") whereby
the Sub-Adviser provides management and other services to the
series of the Trust listed in Appendix A to the Sub-Advisory
Agreement (the "Fund"); and
WHEREAS, the Sub-Advisory Agreement provides that
the fees to be paid to the Sub-Adviser are to be as indicated on this
Appendix B;
NOW THEREFORE, the parties agree that the fees to be
paid to the Sub-Adviser under the Sub-Advisory Agreement shall
be calculated and paid on a monthly basis by applying the annual
rates indicated below to the average daily net assets of the Fund
throughout the month:
Fund Name Sub-Advisory Rate
Xxxxx Fargo Advantage Large First $100M 0.29%
Company Value Portfolio Next $150M 0.26%
Next $750M 0.23%
Over $1B 0.20%
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.
The foregoing fee schedule is agreed to as of this 29th day
of August, 2011, and shall remain in effect until agreed and
changed in writing by the parties.
XXXXX FARGO MASTER TRUST
on behalf of the Fund
By:
---------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
---------------------------
Xxxxxx Xxxx
Executive Vice President
PHOCAS FINANCIAL CORPORATION
By:
---------------------------
Xxxxxxx Xxxxxx
CEO and President
