XXXXX NEW YORK VENTURE FUND, INC.
SUB-ADVISORY AGREEMENT
JANUARY 1, 2001
This is to confirm that Xxxxx Selected Advisers, L.P. (the "Adviser") is
retaining Xxxxx Selected Advisers - NY, Inc. ("DSA-NY") as investment
sub-adviser for the portfolio of Xxxxx New York Venture Fund, Inc. (the "Fund").
The terms and conditions of your retention are as follows:
1. Service as Sub-Adviser. DSA-NY shall act as an investment sub-adviser for
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the Fund and will provide such investment management and research services
as the Adviser shall request subject to the general supervision of the
Board of Directors of the Fund, the Adviser and to any applicable
provisions as in effect from time to time of (a) the Articles of
Incorporation and Bylaws of the Fund, (b) the prospectus, statement of
additional information and other information set forth in the Fund's
registration documents under the Securities Act of 1933 and the Investment
Company Act of 1940 ("1940 Act"), including any supplements thereto, (c)
the Investment Advisory Agreement between the Adviser and the Fund (the
"Investment Advisory Agreement"), the Adviser's and the Fund's Code of
Ethics and (d) any additional policies or guidelines established by the
Fund's Board of Directors or the Adviser. DSA-NY acknowledges receipt of
copies of the above documents as in effect on the date of acceptance of
this letter. The Adviser agrees that it will promptly deliver to DSA-NY any
amendments, changes or additions of or to these documents.
2. Conform to Guidelines. DSA-NY agrees that all securities transactions will
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conform to (a) the stated objectives and policies of the Fund, (b) the
brokerage policies set forth in the Investment Advisory Agreement (which
are hereby incorporated by reference herein) and the registration
documents, and (c) those investment and brokerage policies or guidelines
directed by the Board of Directors of the Fund, any committee thereof and
the Adviser.
3. Independent Contractor. DSA-NY shall be an independent contractor. Unless
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otherwise expressly provided or authorized hereunder, or by the Board of
Directors of the Fund, DSA-NY shall have no authority to represent the Fund
or the Adviser in any way or otherwise be an agent of the Adviser or the
Fund, except with regard to the execution of securities transactions on
behalf of the Fund with registered broker/dealers, including broker/dealers
affiliated with the Adviser, provided transactions with affiliated
broker/dealers comply with Rule 17e-1 of the 1940 Act.
4. Reports and Documentation. DSA-NY shall provide the Adviser with any
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reports, analyses or other documentation the Adviser requests including
those related to placement of security transactions, its administrative
responsibilities and its responsibility to monitor compliance with stated
investment objectives, policies and limitations and the investment
performance of the Fund. DSA-NY agrees, directly or through an agent, to
provide daily information in respect to any portfolio transactions of the
Fund to the Adviser. DSA-NY agrees to provide all documentation reasonably
required by the Adviser to maintain the Fund's accounting records in
accordance with the 1940 Act and the Investment Advisers Act of 1940 and
the regulations issued thereunder, and to preserve copies of all documents
and records related to asset transactions, positions and valuations related
to the Fund in the manner and for the periods prescribed by such
regulations. DSA-NY further agrees that all documents and records it
maintains relating to the Fund, are the property of the Fund and will be
surrendered to the Adviser or the Fund upon the request of either. DSA-NY
agrees to provide information and to allow inspection of such documents and
records at reasonable times by any authorized representative of the
Adviser, the Fund's Board of Directors or any committee thereof, the Fund's
independent public accountants or appropriate regulatory authorities.
DSA-NY shall provide to the Adviser a copy of its Form ADV as filed with
the SEC and as amended from time to time and a written list of persons
DSA-NY has authorized to give written and/or oral instructions to the
Adviser and the Fund custodian.
5. Access to Personnel. DSA-NY agrees to make its personnel who are engaged in
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activities on behalf of the Fund available at reasonable times for
consultations with the Adviser's personnel and the Fund's Board of
Directors or any committee thereof, including attendance at their meetings,
wherever situated. In addition, personnel of DSA-NY, at the request of the
Adviser, will attend other meetings to be scheduled at mutually convenient
times.
6. Facilities, Equipment, and Personnel. DSA-NY agrees to provide all office
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facilities, equipment and personnel needed for carrying out its duties
hereunder at its own expense. In addition, DSA-NY shall, if requested by
the Adviser or the Fund, employ at its own expense and subject to the prior
written approval of the Adviser which approval shall not be unreasonably
withheld (i) a public auditing firm, (ii) attorneys and (iii) such other
professional staff as in the sole discretion of the Adviser are necessary
to assure the fulfillment of the terms and conditions of this agreement.
7. Non-Exclusive. It is agreed that DSA-NY's services are not to be deemed
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exclusive and DSA-NY shall be free to render similar services or other
services to others provided that (i) its services hereunder are not
impaired and are not in violation of federal or state securities laws and
(ii) that it shall not provide services to any registered investment
company other than the Fund or other investment companies managed by the
Adviser without the Adviser's prior express written permission.
8. Liability. In the absence of willful misfeasance, bad faith, gross
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negligence or reckless disregard of its obligations or duties hereunder,
DSA-NY, its officers, directors and employees shall not be subject to
liability for any act or omission in the cause of, or connected with,
rendering services hereunder or for any losses that may be sustained in the
purchase, holding or sale of any security. In the event of any claim,
arbitration, suit, or administrative proceedings in which DSA-NY or the
Adviser is a party and in which it is finally determined that there is
liability or wrongdoing by only one of us, the party liable or found to be
the wrongdoer shall pay for all liability and expenses of such claim or
proceeding including reasonable attorneys' fees. If it is determined that
there is liability or wrongdoing by both or none of us, then each shall pay
their own liability and expenses. In the event of any settlement of any
such claim, arbitration, suit or proceeding before final determination by a
court or arbitrator(s), the liability and expenses shall be assumed as
agreed between the parties, but if there is no agreement within thirty (30)
days of such settlement, then the assumption of liability and expenses
shall be settled by arbitration, in accordance with the then applicable
rules of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator shall be final and binding and may be entered in
any court having jurisdiction. The parties shall pay for their own costs
and expenses in respect to any such arbitration and such costs may be
included in the arbitrator's award.
9. Compliance with Applicable Law. As investment sub-adviser, DSA-NY
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understands that it will be responsible for complying with all provisions
of applicable law, including the 1940 Act, the Investment Advisers Act of
1940, and the Xxxxxxx Xxxxxxx and Securities Fraud Enforcement Act of 1988
and all rules and regulations thereunder. DSA-NY agrees to adopt and comply
with the "Code of Ethics of and for Xxxxx Selected Advisers, L.P. and the
Companies For Which It Acts As Investment Adviser" as in effect from time
to time and to keep in effect a policy and supervisory procedures designed
to prevent xxxxxxx xxxxxxx.
10. Common Control, Fees. The parties acknowledge that DSA-NY is controlled by
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or under common control with the Adviser. The Adviser shall pay DSA-NY all
reasonable direct and indirect costs associated with the maintenance of an
office and the performance of the terms of this Agreement. The Adviser
shall also reimburse expenses expressly approved for reimbursement by the
Adviser. Payment for DSA-NY's services and reimbursement of expenses
approved by the Adviser shall be made monthly, in arrears, by the 15th day
of the following month.
11. Term. This Agreement shall become effective on the later of January 1, 2001
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or the first business day after the date this Agreement is approved in
accordance with the 1940 Act (provided that it is reflected in an effective
post-effective amendment under the Securities Act of 1933 and the 1940
Act). Unless sooner terminated as
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hereunder provided, it shall initially remain in effect for a period not
exceeding two years. Thereafter, subject to the termination provisions
herein, this Agreement shall continue in force from year to year
thereafter, but only as long as such continuance is specifically approved
at least annually in the manner required by the 1940 Act; provided,
however, that if the continuation of this Agreement is not approved, DSA-NY
may continue to serve in the manner and to the extent permitted by the 1940
Act and the rules and regulations thereunder.
12. Termination. This Agreement shall automatically terminate immediately in
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the event of its assignment (except as otherwise permitted by the 1940 Act
or rules thereunder) or in the event of the termination of the Investment
Advisory Agreement. This Agreement may be terminated without payment of any
penalty at any time (a) upon sixty (60) days' written notice to DSA-NY by
the Adviser or upon such sixty (60) days' written notice to DSA-NY by the
Fund pursuant to action by its Board of Directors or by the vote of a
majority of the outstanding voting securities of the Fund, or (b) upon
sixty (60) days' written notice by DSA-NY to the Adviser. The terms
"assignment" and "vote of a majority of the outstanding voting securities"
shall have the meaning set forth in the 1940 Act and the rules and
regulations thereunder. Termination of this Agreement shall not affect
DSA-NY's right to receive payments on any unpaid balance of the
compensation earned and reimbursable expenses incurred prior to such
termination. Upon receipt of notification of termination as provided above
DSA-NY shall immediately cease all activities in connection with the Fund
except as otherwise directed by the Adviser.
13. Use of Names. DSA-NY agrees that it shall abide by the terms of the
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agreement of the Adviser with the Fund as to the names of the Fund and the
Adviser and shall not use the name of the Adviser or the Fund without the
prior written consent of the Adviser or the Fund.
14. Severability. If any provisions of this Agreement shall be held or made
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invalid by a court decision, statute or rule or otherwise, the remainder
shall not be thereby effected.
15. Choice of Law. This Agreement shall be construed according to the laws of
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the State of New Mexico. It may be executed in counterparts each of which
shall be deemed an original and all of which together shall constitute one
and the same agreement.
If the foregoing terms and conditions are acceptable to you, please acknowledge
in the space provided. Upon your acceptance, the retention and the mutual
obligations in respect thereto shall be effective as provided herein.
Sincerely,
Xxxxx Selected Advisers, L.P.
By Xxxxx Investments, LLC,
General Partner
By :
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Its:
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Accepted and Approved this 1st day of January, 2001
Xxxxx Selected Advisers - NY, Inc.
By :
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Its:
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