AMENDED AND RESTATED
SUB-ADVISORY AGREEMENT
AMONG XXXXX FARGO VARIABLE TRUST,
XXXXX FARGO FUNDS MANAGEMENT, LLC AND
METROPOLITAN WEST CAPITAL MANAGEMENT, LLC
This AMENDED AND RESTATED AGREEMENT is made as of this 6th day of July,
2010, as amended and restated as of November 7, 2012, by and among Xxxxx
Fargo Variable 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 Metropolitan West
Capital Management, LLC (the "Sub-Adviser"), a limited liability company
organized under the laws of the State of California, with its principal place of
business at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 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 open-end 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 the series of the Trust
listed in Appendix A hereto as it may be amended from time to time (the "Fund"),
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 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 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 specified in this Agreement, and 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 in writing 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 and liability shall be limited to following any
written instruction the Sub-Adviser receives 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 in writing by the Adviser.
SECTION 2. DUTIES, 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 that is not an
affiliated person (as that term is defined in the 1940 Act) of Xxxxx Fargo &
Company ("Xxxxx Fargo"), or an affiliated person of such 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 any
Sub-adviser that is not an affiliated person of Xxxxx Fargo 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, in its sole discretion, believes 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, in its sole discretion, believes appropriate or as the
Board or the Adviser may reasonably request in writing.
The Sub-Adviser shall promptly notify the Adviser of (i) any material
changes regarding the Sub-Adviser that would impact disclosure in the Trust's
Registration Statement, or (ii) any material 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, upon
the written request of the Custodian, 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 federal
securities laws, the Internal Revenue Code of 1986, as amended, and Employee
Retirement Income Security Act of 1974, as amended, including the rules and
regulations thereunder, 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. 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 written 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; (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);
(iv) if Sub-Adviser furnishes to Adviser or the Trust the Sub-Adviser's
composite performance record for inclusion in Fund documents, (A) the composite
performance record of the Sub-Adviser's executive officers furnished to the
Adviser and the Trust in writing prior to the date hereof (the "Data") is true
and correct, and has been prepared in accordance with applicable laws, rules,
regulations, interpretations and in accordance with industry guidelines and
standards with respect to standardized performance information; (B) there is no
information material to an understanding of the Data which the Sub-Adviser has
not provided in writing to the Adviser prior to the date hereof; (C) the
accounts included in the Data include all fully discretionary accounts managed
by the Sub- Adviser's executive officers designated to act as portfolio managers
of the Fund over the period covered that have investment objectives, policies
and strategies that are substantially similar to those that will be followed by
the Fund as approved by the Board; (D) the Sub-Adviser has the right, free from
any legal or contractual restrictions thereon, to the use, reproduction, and
incorporation of the Data in the public disclosure or marketing materials of the
Fund, including the prospectus and the statement of additional information and
proxy statements (the "Public Disclosure"); and (E) the Sub-Adviser is legally
entitled to grant, and hereby grants, such rights to the Adviser and/or the
Trust with respect to the use of the Data in the Public Disclosure, including
with respect to any Public Disclosure filed with the Commission prior to the
date hereof.
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, including the form of prospectus related to the Fund
included therein;
(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 in a
timely manner 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 in writing, 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 Sub-Adviser, 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 Securities Act and 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 in writing 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 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
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 prospectus, 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 is
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, or any other applicable statute,
law, rule or regulation, as a result of such change.
SECTION 9. 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 Appendix B hereto, as such
Appendix 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. Notwithstanding the
foregoing, the Sub-Adviser shall be responsible for the accuracy and
completeness (and liability for the lack thereof) of the statements and any Data
(only if Sub-Adviser furnishes to Adviser or the Trust any such Data for
inclusion in Fund documents) furnished by the Sub-Adviser for use by the Adviser
in the Fund's offering materials (including the prospectus, the statement of
additional information, advertising and sales materials) and any proxy
statements that pertain to the Sub-Adviser, the portfolio managers of the Fund
and the investment of the Fund's assets.
Nothing in this Agreement (including Sections 10, 15 or 16 of this
Agreement) 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. 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
companies.
It is understood that 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. 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 written request, surrender to the Trust those
records that are the property of the Trust or the Fund; provided, however, that
the Sub-Adviser may retain copies of such records.
SECTION 13. TERM AND APPROVAL. This Agreement shall become effective with
respect to a Fund after it is approved in accordance with the express
requirements of the 1940 Act, and executed by the Trust, Adviser and Sub-Adviser
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
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 any 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 and expenses, 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, relating to the
Sub-Adviser's act(s) or omission(s) 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, or 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 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx
Xxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, President.
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 Fund
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 VARIABLE TRUST
on behalf of the Fund
By:
-------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
-------------------------------------
Xxxxxx Xxxx
Executive Vice President
METROPOLITAN WEST CAPITAL MANAGEMENT, LLC
By:
-------------------------------------
APPENDIX A
METROPOLITAN WEST CAPITAL MANAGEMENT, LLC SUB-
ADVISORY AGREEMENT
XXXXX FARGO VARIABLE TRUST
Xxxxx Fargo Advantage VT Intrinsic Value Fund
Most recent annual approval by the Board of Trustees: March 29, 2012
Approved by the Board of Trustees: May 26, 0000
XXXXXXXX X
METROPOLITAN WEST CAPITAL MANAGEMENT, LLC SUB-
ADVISORY AGREEMENT
FEE AGREEMENT
XXXXX FARGO VARIABLE TRUST
This fee agreement is effective as of the 6th day of July, 2010, and is
amended as of the 1st day of April, 2011, by and between Xxxxx Fargo Variable
Trust (the "Trust"), Xxxxx Fargo Funds Management, LLC (the "Adviser") and
Metropolitan West Capital Management, LLC (the "Sub-Adviser").
WHEREAS, the parties have entered into a 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 Fee
--------- -------------------
VT Intrinsic Value Fund First 250M 0.35%
Next 250M 0.325%
Next 2B 0.30%
Next 2B 0.275%
Over 4.5B 0.25%
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 1st day of April, 2011,
and shall remain in effect until agreed and changed in writing by the parties.
XXXXX FARGO VARIABLE TRUST
on behalf of the Fund
By:
-------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
-------------------------------------
Xxxxxx Xxxx
Executive Vice President
METROPOLITAN WEST CAPITAL MANAGEMENT, LLC
By:
-------------------------------------
Xxxx X. Xxxxxxxx
President
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