EXHIBIT 23(d)(3)
NEW RIVER FUNDS
FORM OF SUB-ADVISORY AGREEMENT
THIS SUB-ADVISORY AGREEMENT (the "Agreement") made this __ day of
_________, 2003, by and between New River Funds (the "Trust"), a Delaware
statutory trust, New River Advisers, LLC, a limited liability company organized
and existing under the laws of the Commonwealth of Virginia (the "Manager"), and
Xxxxxxx X. Xxxx Asset Management, Inc. (doing business as Xxxx Xxxxx Xxxxxx) , a
corporation organized and existing under the laws of the State of Tennessee (the
"Sub-Adviser").
WITNESSETH:
WHEREAS, the Manager and the Sub-Adviser are registered investment
advisers under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and engage in the business of providing investment management services;
and
WHEREAS, the Manager has been retained to act as investment manager
pursuant to an Investment Management Agreement dated _____, 2003 (the
"Investment Management Agreement") with the Trust, which is registered with the
U.S. Securities and Exchange Commission (the "SEC") as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), currently consisting of several separate series of shares, each
having its own investment objectives and policies and which is authorized to
create more series; and
WHEREAS, Section 2 of the Investment Management Agreement permits the
Manager, subject to the supervision and direction of the Trust's Board of
Trustees, to delegate certain of its duties under the Investment Management
Agreement to other investment advisers, subject to the requirements of the 1940
Act; and
WHEREAS, the Manager desires to retain Sub-Adviser to assist it in
the provision of a continuous investment program for one or more of the series
(each a "Fund") of the Trust and the Sub-Adviser is willing to render such
services subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and the mutual
premises hereinafter set forth, the parties hereto, intending to be legally
bound hereby, mutually agree as follows:
1. APPOINTMENT AS SUB-ADVISER. The Manager hereby retains the
Sub-Adviser to act as investment adviser for, and to manage the assets of the
series listed in Schedule A of this Agreement, as that schedule may be amended
from time to time subject to the supervision of the Manager and the Board of
Trustees of the Trust and subject to the terms of this Agreement; and the
Sub-Adviser hereby accepts such employment. In such capacity, the Sub-Adviser
shall be responsible for the investment management of the assets of such series.
The Sub-Adviser agrees to exercise the same skill and care in performing its
services under this Agreement as the Sub-Adviser exercises in performing similar
services with respect to other fiduciary accounts for which the Sub-Adviser has
investment responsibilities.
2. DUTIES OF SUB-ADVISER.
(a) INVESTMENTS. The Sub-Adviser is hereby authorized and directed
and hereby agrees, subject to the stated investment objectives, policies and
restrictions of each Fund as set forth in such Fund's prospectus and statement
of additional information as currently in effect and as supplemented or amended
from time to time (collectively referred to as the "Prospectus") and subject to
the directions of the Manager and the Trust's Board of Trustees, to cause this
Fund to purchase, hold and sell investments and to monitor on a continuous basis
the performance of the Fund's investments. In providing these services, the
Sub-Adviser will conduct a continual program of investment, evaluation and, if
appropriate, sale and reinvestment of the Sub-Adviser Assets. The Manager agrees
to provide the Sub-Adviser all relevant information concerning a Fund, its
assets available or to become available for investment, and generally as to the
conditions of a Fund's or the Trust's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING
DOCUMENTS. In the performance of its duties and
obligations under this Agreement, the Sub-Adviser shall with respect to
Sub-Adviser Assets, act in conformity with the Trust's Declaration of Trust and
By-Laws, the Prospectus(es), and with the instructions and directions received
in writing from the Manager or the Trustees of the Trust and will conform to and
comply with the requirements of the 1940 Act, the Advisers Act, the Internal
Revenue Code of 1986, as amended (the "Code"), and all other applicable federal
and state laws and regulations. The Manager will provide the Sub-Adviser with a
copy of the minutes of the meetings of the Board of Trustees of the Trust to the
extent they may affect a Fund or the duties of the Sub-Adviser, and with the
copies of any financial statements or reports made by a Fund to its
shareholders, and any further materials or information which the Sub-Adviser may
reasonably request to enable it to perform its functions under this Agreement.
The Manager will provide the Sub-Adviser with reasonable advance
notice of any change in a Fund's investment objectives, policies and
restrictions as stated in the Prospectus, and the Sub-Adviser shall, in the
performance of its duties and obligations under this Agreement, manage the
Sub-Adviser Assets consistent with such changes, provided the Sub-Adviser has
received prior notice of the effectiveness of such changes from the Trust or the
Manager. In addition to such notice, the Manager shall provide to the
Sub-Adviser a copy of a modified Prospectus reflecting such changes. The
Sub-Adviser will at all times be in compliance with all disclosure requirements
under all applicable federal and state laws and regulations relating to the
Trust or a Fund with respect to the Sub-Adviser Assets, but shall have no
liability in connection therewith, except as to the accuracy of material
information furnished in writing by the Sub-Adviser to the Trust, to the Fund or
to the Manager specifically for inclusion in the Prospectus. The Sub-Adviser
hereby agrees to provide to the Manager in a timely manner such information
relating to the Sub-Adviser and its relationship to, and actions for, a Fund as
may be required to be contained in the Prospectus or in the Trust's registration
statement on Form N-1A.
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(c) VOTING OF PROXIES. The Sub-Adviser shall have the power
to vote pursuant to proxy voting policies
and procedures that meet the requirements of the Advisers Act, either in person
or by proxy, all securities in which the Sub-Adviser Assets may be invested from
time to time, and shall not be required to seek or take instructions from the
Manager, the Trust or a Fund or take any action with respect thereto. At the
request of the Fund, the Sub-Adviser shall provide the Fund with its
recommendations as to the voting of such proxies.
(d) BROKERAGE. The Sub-Adviser will place orders pursuant
to the Sub-Adviser's investment determinations for a Fund either directly with
the issuer or with any broker or dealer. In executing portfolio transactions and
selecting brokers or dealers, the Sub-Adviser will use its best efforts to seek
on behalf of a Fund the best overall execution available. In assessing the best
overall terms available for any transaction, the Sub-Adviser shall consider all
factors that it deems relevant, including the breadth of the market in the
security, the price of the security, the financial condition and execution
capability of the broker or dealer, and the reasonableness of the commission, if
any, both for the specific transaction and on a continuing basis. In evaluating
the best overall terms available, and in selecting the broker-dealer to execute
a particular transaction the Sub-Adviser may also consider the brokerage and
research services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended) provided to the Sub-Adviser when managing a
Fund and/or other accounts over which the Sub-Adviser may exercise investment
discretion. The Sub-Adviser is authorized, subject to the prior approval of the
Trust's Board of Trustees, to pay to a broker or dealer who provides such
brokerage and research services a commission for executing a portfolio
transaction for any of the Funds that is in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction if,
but only if, the Sub-Adviser determines in good faith that such commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer - - viewed in terms of that particular
transaction or in terms of the overall responsibilities of the Sub-Adviser to a
Fund. In addition, the Sub-Adviser is authorized to allocate purchase and sale
orders for portfolio securities to brokers or dealers (including brokers and
dealers that are affiliated with the Manager, the Sub-Adviser, or the Trust's
principal underwriter) to take into account the sale of shares of the Trust if
the Sub-Adviser believes that the quality of the transaction and the commission
are comparable to what they would be with other qualified firms.
(e) CODE OF ETHICS. The Sub-Adviser, including its Access
Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act), agrees
to observe and comply with Rule 17j-1 and its Code of Ethics (which shall comply
in all material respects with Rule 17j-1), as the same may be amended from time
to time. On at least an annual basis, the Sub-Adviser will comply with the
reporting requirements of Rule 17j-1, which may include either (i) certifying to
the Manager that the Sub-Adviser and its Access Persons have complied with the
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Sub-Adviser's Code of Ethics with respect to the Sub-Adviser Assets, or (ii)
identifying any violations which have occurred with respect to the Sub-Adviser
Assets or (iii) certifying that it has adopted procedures reasonably necessary
to prevent Access Persons from violating the Sub-Adviser's Code of Ethics. The
Sub-Adviser will also submit its Code of Ethics for its initial approval by the
Board of Trustees and subsequently within six months of any material change of
thereto.
(f) BOOKS AND RECORDS. The Sub-Adviser shall maintain
separate detailed records of all matters pertaining to the Sub-Adviser Assets,
including, without limitation, brokerage and other records of all securities
transactions. Any records required to be maintained and preserved pursuant to
the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act which
are prepared or maintained by the Sub-Adviser on behalf of the Trust are the
property of the Trust and will be surrendered promptly to the Trust on request.
The Sub-Adviser further agrees to preserve for the periods prescribed in Rule
31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1
under the 1940 Act.
(g) INFORMATION CONCERNING SUB-ADVISER ASSETS AND THE
SUB-ADVISER. From time to time as the Manager or the Trust may request, the
Sub-Adviser will furnish the requesting party reports on portfolio transactions
and reports on Sub-Adviser Assets held in the portfolio, all in such detail as
the Manager or the Trust may reasonably request. The Sub-Adviser also will
inform the Manager in a timely manner of material changes in portfolio managers
responsible for Sub-Adviser Assets, any changes in the ownership or management
of the Sub-Adviser, or of material changes in the control of the Sub-Adviser.
Upon reasonable request, the Sub-Adviser will make available its officers and
employees to meet with the Trust's Board of Trustees to review the Sub-Adviser
Assets.
The Sub-Adviser also will provide such information or perform such
additional acts as are customarily performed by a Sub-Adviser and may be
required for a Fund or the Manager to comply with their respective obligations
under applicable laws, including, without limitation, the Code, the 1940 Act,
the Advisers Act, the Securities Act of 1933, as amended (the "Securities Act")
and any federal or state securities laws, and any rule or regulation thereunder.
(h) CUSTODY ARRANGEMENTS. The Sub-Adviser shall on each
business day provide the Manager and the Trust's custodian such information as
the Manager and the Trust's custodian may reasonably request relating to all
transactions concerning the Sub-Adviser Assets.
(i) HISTORICAL PERFORMANCE INFORMATION. To the extent
agreed upon by the parties, the Sub-Adviser will provide the Trust with
historical performance information on similarly managed investment companies or
for other accounts to be included in the Prospectus or for any other uses
permitted by applicable law.
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3. INDEPENDENT CONTRACTOR. In the performance of its duties
hereunder, the Sub-Adviser is and shall be an independent contractor and unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent a Fund, the Trust or the Manager in
any way or otherwise be deemed an agent of a Fund, the Trust or the Manager.
4. EXPENSES. Other than those expressly stated to be payable by the
Sub-Adviser hereunder or by the Manager under the Investment Management
Agreement, the Fund is responsible for and has assumed the obligation for
payment of all of its expenses, including but not limited to: fees and expenses
incurred in connection with the issuance, registration and transfer of its
shares; brokerage and commission expenses; all expenses of transfer, receipt,
safekeeping, servicing and accounting for the cash, securities and other
property of the Trust for the benefit of the Funds including all fees and
expenses of its custodian, shareholder services agent and accounting services
agent; interest charges on any borrowings; costs and expenses of pricing and
calculating its daily net asset value and of maintaining its books of account
required under the 1940 Act; taxes, if any; expenditures in connection with
meetings of each Fund's shareholders and Board of Trustees that are properly
payable by the Fund; salaries and expenses of officers and fees and expenses of
members of the Board of Trustees or members of any advisory board or committee
who are not members of, affiliated with or interested persons of the Manager;
insurance premiums on property or personnel of each Fund which inure to its
benefit, including liability and fidelity bond insurance; the cost of preparing
and printing reports, proxy statements, prospectuses and statements of
additional information of the Fund or other communications for distribution to
existing shareholders; legal, auditing and accounting fees; trade association
dues; fees and expenses (including legal fees) of obtaining and maintaining any
required registration or notification for its shares for sale under federal and
applicable state and foreign securities laws; all expenses of maintaining and
servicing shareholder accounts, including all charges for transfer, shareholder
recordkeeping, dividend disbursing, redemption, and other agents for the benefit
of the Funds, if any; and all other charges and costs of its operation plus any
extraordinary and non-recurring expenses, except as herein otherwise prescribed.
During the term of this Agreement, Sub-Adviser will pay all expenses
incurred by it in connection with its activities under this Agreement other than
the cost of securities, commodities and other investments (including brokerage
commissions and other transaction charges, if any) purchased for a Fund. The
Sub-Adviser shall, at its sole expense, employ or associate itself with such
persons as it believes to be particularly fitted to assist it in the execution
of its duties under this Agreement. The Trust or the Manager, as the case may
be, shall reimburse the Sub-Adviser for any expenses as may be reasonably
incurred by the Sub-Adviser, at the request of and on behalf of a Fund or the
Manager. The Sub-Adviser shall keep and supply to the Trust and the Manager
reasonable records of all such expenses.
5. COMPENSATION. For the services provided and the expenses assumed
with respect to a Fund pursuant to this Agreement, the Manager agrees to pay the
Sub-Adviser a monthly fee equal to 80% of the monthly management fee rate that
the Fund is obligated to pay the Manager under its Management Agreement with the
Manager.
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If this Agreement is terminated prior to the end of any calendar
month, the fee shall be prorated for the portion of any month in which this
Agreement is in effect according to the proportion which the number of calendar
days, during which this Agreement is in effect, bears to the number of calendar
days in the month, and shall be payable within 10 days after the date of
termination.
6. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADVISER. The Sub-Adviser
represents and warrants to the Manager and the Trust as follows:
(a) The Sub-Adviser is registered as an investment adviser
under the Advisers Act;
(b) The Sub-Adviser is a corporation duly organized and
validly existing under the laws of the State of New York with the power to own
and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the
Sub-Adviser of this Agreement are within the Sub-Adviser's powers and have been
duly authorized by all necessary action on the part of its Board of Directors
and no action by or in respect of, or filing with, any governmental body, agency
or official is required on the part of the Sub-Adviser for the execution,
delivery and performance by the Sub-Adviser of this Agreement, and the
execution, delivery and performance by the Sub-Adviser of this Agreement do not
contravene or constitute a default under (i) any provision of applicable law,
rule or regulation, (ii) the Sub-Adviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Sub-Adviser; and
(d) The Form ADV of the Sub-Adviser previously provided to
the Manager is a true and complete copy of the form and all relevant portions
thereof have been filed with the SEC and the information contained therein is
accurate and complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. The Sub-Adviser will
promptly provide the Manager and the Trust with a complete copy of all
subsequent amendments to its Form ADV.
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7. REPRESENTATIONS AND WARRANTIES OF THE MANAGER. The Manager
represents and warrants to the Sub-Adviser and the Trust as follows:
(a) The Manager is registered as an investment adviser
under the Advisers Act;
(b) The Manager is a corporation duly organized and validly
existing under the laws of the Commonwealth of Virginia with the power to own
and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Manager
of this Agreement are within the Manager's powers and have been duly authorized
by all necessary action, and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the Manager for
the execution, delivery and performance by the Manager of this Agreement, and
the execution, delivery and performance by the Manager of this Agreement do not
contravene or constitute a default under (i) any provision of applicable law,
rule or regulation, (ii) the Manager's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Manager;
(d) The Form ADV of the Manager as provided to the
Sub-Adviser is a true and complete copy of the form and all relevant portions
thereof, have filed with the SEC and the information contained therein is
accurate and complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading;
(e) The Manager and the Trust have duly entered into the
Investment Management Agreement pursuant to which the Trust authorized the
Manager to utilize subadvisers, provided appropriate approvals by the Board of
Trustees and shareholders are obtained.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Sub-Adviser and the
Manager pursuant to Sections 6 and 7, respectively, shall survive for the
duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
9. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. The duties of the Sub-Adviser shall be
confined to those expressly set forth herein, with respect to the Sub-Adviser's
Assets. The Sub-Adviser shall not be liable for any loss arising out of any
investment hereunder, except a loss resulting from willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder, except as may
otherwise be provided under provisions of applicable state law which cannot be
waived or modified hereby. (As used in this Section 9, the term "Sub-Adviser"
shall include directors, officers, employees and other corporate agents of the
Sub-Adviser as well as that corporation itself).
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(b) INDEMNIFICATION. The Sub-Adviser shall indemnify the
Manager, the Trust and each Fund, and their respective affiliates and
controlling persons for any liability and expenses, including reasonable
attorneys' fees, which the Manager, the Trust or a Fund and their respective
affiliates and controlling persons may sustain as a result of the Sub-Adviser's
willful misfeasance, bad faith, gross negligence, reckless disregard of its
duties hereunder or violation of applicable law, including, without limitation,
the federal and state securities laws. Notwithstanding any other provision in
this Agreement, the Sub-Adviser will indemnify the Manager, the Trust and each
Fund, and their respective affiliates and controlling persons for any liability
and expenses, including reasonable attorneys' fees, to which they may be
subjected as a result of their reliance upon and use of the historical
performance calculations provided by the Sub-Adviser concerning the
Sub-Adviser's composite account data or historical performance information on
similarly managed investment companies or accounts, except that the Manager, the
Trust and each Fund and their respective affiliates and controlling persons
shall not be indemnified for a loss or expense resulting from their negligence
or willful misconduct in using such numbers, or for their failure to conduct
reasonable due diligence with respect to such information.
The Manager shall indemnify the Sub-Adviser, its affiliates and its
controlling persons, for any liability and expenses, including reasonable
attorneys' fees, howsoever arising from, or in connection with, the Manager's
breach of this provision or its representations and warranties herein; provided,
however, that the Sub-Adviser shall not be indemnified for any liability or
expenses which may be sustained as a result of the Sub-Adviser's willful
misfeasance, bad faith, gross negligence, reckless disregard of its duties
hereunder or violation of applicable law, including, without limitation, the
federal and state securities laws.
10. DURATION AND TERMINATION.
(a) DURATION. This Agreement, unless sooner terminated as
provided herein, shall for the Fund(s) listed on Exhibit A attached hereto
remain in effect from the date of execution or, if later, the date the initial
capital of a series of the Trust is first managed according to its investment
objective(the "Effective Date."), until two years from the Effective Date, and
thereafter, for periods of one year so long as such continuance thereafter is
specifically approved at least annually (a) by the vote of a majority of those
Trustees of the Trust who are not interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Trustees of the Trust, or by the vote of a majority of
the outstanding voting securities of each Fund (except as such vote may be
unnecessary pursuant to relief granted by an exemptive order from the SEC). The
foregoing requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with the
1940 Act and the rules and regulations thereunder.
(b) TERMINATION. This Agreement may be terminated as to any
Fund at any time, without the payment of any penalty by: (1) the vote of a
majority of the Trustees of the Trust or by the Manager, in each case, on not
less than 30 days nor more than 60 days written notice to the Sub-Adviser, or
(2) by any party hereto immediately upon written notice to the other parties in
the event of a breach of any provision to this Agreement by any of the parties,
or (3) by the Sub-Adviser at any time without the payment of any penalty, on not
less than 30 days nor more than 60 days written notice to the Manager and the
Trust.
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This Agreement shall terminate automatically in the event of its
assignment or upon the termination of the Investment Management Agreement.
This Agreement shall extend to and bind the heirs, executors,
administrators and successors of the parties hereto.
11. AMENDMENT. This Agreement may be amended by mutual consent of the
parties, provided that the terms of any material amendment shall be approved by:
(a) the Trust's Board of Trustees and (b) the vote of a majority of those
Trustees of the Trust who are not interested persons of any party to this
Agreement cast in person at a meeting called for the purpose of voting on such
approval, if such approval is required by applicable law, and unless otherwise
permitted pursuant to exemptive relief granted by the SEC, by a vote of the
majority of a Fund's outstanding voting securities.
12. CONFIDENTIALITY. Subject to the duties of the Manager, the Trust
(and each Fund), and the Sub-Adviser to comply with applicable law, including
any demand of any regulatory or taxing authority having jurisdiction, the
parties hereto shall treat as confidential all information pertaining to a Fund
and the actions of the Sub-Adviser, the Manager, the Trust, and a Fund in
respect thereof. In accordance with Section 248.11 of Regulation S-P ( 17 CFR
248.1-248.30), Sub-Adviser will not directly, or indirectly through an
affiliate, disclose any non-public personal information, except as permitted or
required by law, as defined in Regulation S-P, received from the Trust or the
Manager, regarding any shareholder, to any person that is not affiliated with
the Trust or with Sub-Adviser, and, provided that, any such information
disclosed to an affiliate of Sub-Adviser shall be under the same limitations on
non-disclosure.
13. NOTICE. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight mail, postage prepaid addressed by the party giving
notice to the other party at the last address furnished by the other party:
(a) If to the Manager:
Xxxxxxx X. Xxxx Asset Management,
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
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(b) If to the Sub-Adviser:
Xxxx and Xxxxxxx, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
14. GOVERNING LAW. This Agreement shall be governed by the internal
laws of the Delaware without regard to conflict of law principles; provided,
however that nothing herein shall be construed as being inconsistent with the
1940 Act. Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
15. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this Agreement's subject matter. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
16. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
17. CERTAIN DEFINITIONS. For the purposes of this Agreement and
except as otherwise provided herein, "interested person," "affiliated person,"
"affiliates," "controlling persons" and "assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions as
may be granted by the SEC, and the term "Fund" or "Funds" shall refer to those
Fund(s) for which the Sub-Adviser provides investment management services and as
are listed on Exhibit A to this Agreement.
18. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
19. ANTI-MONEY LAUNDERING COMPLIANCE. The Sub-Adviser acknowledges
that, in compliance with the Bank Secrecy Act, as amended, and implementing
regulations ("BSA"), the Funds have adopted an Anti-Money Laundering Policy. The
Sub-Adviser agrees to comply with the Funds' Anti-Money Laundering Policy and
the BSA, as the same may apply to the Sub-Adviser, now and in the future. The
Sub-Adviser further agrees to provide to the Funds and/or the Trust such
reports, certifications and contractual assurances as may be requested by the
Funds or the Trust.
20. CERTIFICATIONS; DISCLOSURE CONTROLS AND PROCEDURES. The
Sub-Adviser acknowledges that, in compliance with the Xxxxxxxx-Xxxxx Act of
2002, and the implementing regulations promulgated thereunder, the Funds are
required to make certain certifications and have adopted disclosure controls and
procedures. To the extent reasonably requested by the Trust or the Funds, the
Sub-Adviser agrees to use its best efforts to assist the Trust and the Funds in
complying with the Xxxxxxxx-Xxxxx Act and implementing the Funds' disclosure
controls and procedures. The Sub-Adviser agrees to inform the Trust, the Funds,
and the Manager of any material development related to the Trust or the Funds
that the Sub-Adviser believes is relevant to the certification obligations of
the Funds under the Xxxxxxxx-Xxxxx Act.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first written above.
MANAGER
New River Advisers, LLC
By:_________________________________
Name:
Title:
SUB-ADVISER
Xxxxxxx X. Xxxx Asset Management, Inc.
By:_________________________________
Name:
Title:
MUTUAL FUND
New River Funds
By:_________________________________
Name:
Title:
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New River
Small Cap/Mid Cap
Value Fund
