SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made and
entered into as of this __ day of September, 2010, by and among RiverPark
Advisors, LLC, a Delaware limited liability company (the “Adviser”), Gravity
Capital Management LLC, a Delaware limited liability company (the
“Sub-Adviser”), and the RiverPark Funds Trust, a Delaware statutory trust (the
“Trust”) on behalf of its series, RiverPark Gravity Long-Biased Fund (the
“Fund”).
WHEREAS, the Trust, and
therefore the Fund, is registered as an open-end, management investment company
under the Investment Company Act of 1940, as amended (the “1940 Act”);
and
WHEREAS, the Adviser has been
appointed investment advisor to the Trust and the Fund, pursuant to an
Investment Advisory Agreement dated September __, 2010 (the “Advisory
Agreement”), which has been approved by the Trust’s Board of Trustees (the
“Board of Trustees”); and
WHEREAS, the Adviser and the
Trust desire to retain the Sub-Adviser to provide a continuous investment
program for the Fund’s assets and the Sub-Adviser is willing to do so;
and
WHEREAS, the Board of Trustees
has approved this Agreement, and the Sub-Adviser is willing to furnish such
services upon the terms and conditions herein set forth.
NOW, THEREFORE, in
consideration of the premises and mutual covenants herein contained, it is
agreed between the parties hereto as follows:
1. Appointment. The
Adviser and the Trust hereby appoint the Sub-Adviser to serve as sub-advisor to
the Adviser with respect to the Fund. Intending to be legally bound, the
Sub-Adviser accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
2. Advisory Services.
Subject to the supervision of the Board of Trustees and the Adviser, the
Sub-Adviser will provide a continuous investment program for the Fund, including
investment research and management with respect to the securities and
investments and cash equivalents of the Fund. The Sub-Adviser will provide
services under this Agreement in accordance with the Fund’s investment
objective, policies and restrictions as set forth in the Trust’s
(i) registration statement filed with the Securities and Exchange
Commission in effect on the date hereof and as amended or supplemented during
the term of this Agreement and (ii) resolutions of the Board of Trustees
applicable to the Fund. The Fund shall provide the Sub-Adviser with
written notice of any changes to such objective, policies and restrictions no
less than 60 days prior to the effectiveness of any such change.
Without
limiting the generality of the foregoing, the Sub-Adviser further agrees that
it:
(a) will
determine what securities and other investments will be purchased, retained or
sold for the Fund;
(b) will
manage, in consultation with the Adviser, the Fund’s temporary investments in
securities, cash and cash equivalents;
(c) will
place orders pursuant to its investment determinations for the Fund either
directly with the issuer or with any broker or dealer;
(d) will
consult with the Adviser on a continuous basis as to the Fund’s
assets invested by the Sub-Adviser;
(e) will
attend regular business and investment-related meetings with the Board of
Trustees and the Adviser, as requested by the Trust, the Adviser or both;
and
(f) will
maintain books and records with respect to the securities transactions for the
Fund, furnish to the Adviser and the Board of Trustees such periodic and special
reports as they may reasonably request with respect to the Fund, and provide in
advance to the Adviser all reports to the Board of Trustees for examination and
review within a reasonable time prior to the Board of Trustees’
meetings.
3. Covenants by the
Sub-Adviser. The Sub-Adviser agrees with respect to the services provided
to the Fund that it:
(a) as
part of its retention as Sub-Adviser with respect to the investment of the
Fund’s assets, the Sub-Adviser is authorized by its governing documents to enter
into this Agreement and the terms of this Agreement do not violate any
obligation by which the Sub-Adviser is bound, whether arising by contract,
operation of law or otherwise;
(b) will
maintain its status as a Registered Investment Adviser with the Securities and
Exchange Commission;
(c) will
conform with all Rules and Regulations of the Securities and Exchange
Commission;
(d) will
telecopy trade information to the Fund’s designated Fund Accountant no later
than the first business day following the day of the trade and cause broker
confirmations to be sent directly to the Fund’s designated Fund Accountant and
adopt such other trade reporting, settlement and clearance procedures with
respect to the Fund as shall be in accordance with the Fund’s existing
procedures and as mutually agreed by the parties hereto;
(e) will
treat confidentially and as proprietary information of the Fund all records and
other information relative to the Fund and prior, present or potential
shareholders, and will not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder (except i)
after prior written
notification to the Trust, to respond to requests that are a part of
routine regulatory audits or inspections or ii) after prior notification to and
approval in writing by the Trust, which approval shall not be unreasonably
withheld, and may not be withheld and will be deemed granted where the
Sub-Adviser may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust);
(f) will
maintain its own Code of Ethics and report to the Adviser’s Compliance Officer
any violation of such Code that pertains to the management of the Fund, via a
periodic compliance certification; and
(g) will
maintain its own compliance program or manual, pursuant to Rule 206(4) -7 of the
Investment Advisers Act. The Sub-Adviser will provide either the
manual or a summary thereof, including updates thereto, to the Adviser’s
Compliance Officer.
4. Covenants by the Adviser and
the Trust. The Adviser and the Trust agree with respect to the services
provided to the Fund:
(a) that
the Sub-Adviser is authorized by the governing documents relating to the Fund,
and the terms of this Agreement do not violate any obligation by which the Fund
is bound, whether arising by contract, operation of law or otherwise;
and
(b) that
the Sub-Adviser may use the Fund’s name on a representative client
list.
5. Services Not
Exclusive. The services furnished by the Sub-Adviser hereunder are deemed
not to be exclusive, and nothing in this Agreement shall (i) prevent the
Sub-Adviser or any affiliated person (as defined in the 0000 Xxx) of the
Sub-Adviser or any employee, agent, manager or affiliated person of such person
from acting as investment advisor or manager for any other person or persons,
including other management investment companies or investment vehicles or
accounts of any type with investment objectives and policies the same as or
similar to those of the Fund or (ii) limit or restrict the Sub-Adviser or any
such employee, agent, manager or affiliated person from buying, selling or
trading any securities or other investments (including any securities or other
investments which the Fund is eligible to buy) for its or their own accounts or
for the accounts of others for whom it or they may be acting; provided, however,
that the Sub-Adviser agrees that it will not undertake any activities
which, in its reasonable judgment, will adversely affect the performance of its
obligations under this Agreement.
6. Fund Transactions.
Investment decisions for the Fund shall be made by the Sub-Adviser independently
from those for any other investment companies and accounts advised or managed by
the Sub-Adviser. The Fund and such investment companies and accounts may,
however, invest in the same securities. When the Sub-Adviser seeks to purchase
or sell the same security at substantially the same time on behalf of
the Fund and/or another investment company or account, the Sub-Adviser shall, to
the extent permitted by law and to the extent reasonably practicable, aggregate
such orders or otherwise effect such transaction on an average price basis, and
available investments will be allocated as to amount in a manner which the
Sub-Adviser believes to be equitable to the Fund and such other investment
company or account. In some instances, this investment procedure may adversely
affect the price paid or received by the Fund or the size of the position
obtained or sold by the Fund. To the extent permitted by law, the Sub-Adviser
may aggregate the securities to be sold or purchased for the Fund with those to
be sold or purchased for other investment companies or accounts in order to
obtain best execution on an overall basis for all the Sub-Adviser’s
clients.
The
Sub-Adviser may place orders for the purchase and sale of portfolio securities
for the
Fund through the Adviser or may directly solicit broker-dealers to execute
transactions in accordance with the Fund’s policies and restrictions regarding
brokerage allocations. If applicable, the Sub-Adviser shall place orders
pursuant to its investment determinations for the Fund either directly with the
issuer or with any broker or dealer. If it executes portfolio transactions and
selects brokers or dealers, the Sub-Adviser shall use its reasonable best
efforts to seek the most favorable execution of orders, after taking into
account all factors the Sub-Adviser 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.
Consistent with this obligation, the Sub-Adviser may, to the extent permitted by
law, purchase and sell portfolio securities to and from brokers and dealers who
provide brokerage and/or research services (within the meaning of Section 28(e)
of the Securities Exchange Act of 1934) to or for the benefit of the Fund and/or
other accounts over which the Sub-Adviser or any of its affiliates exercises
investment discretion. The Sub-Adviser is authorized to pay to a broker or
dealer who provides such brokerage and/or research services a commission for
executing a portfolio transaction for the Fund which is in excess of the amount
of commission another broker or dealer would have charged for effecting that
transaction if the Sub-Adviser determines in good faith that such commission was
reasonable in relation to the value of the brokerage and/or research services
provided by such broker or dealer, viewed in terms of either that particular
transaction or the Sub-Adviser’s overall responsibilities to the Fund. In no
instance will portfolio securities be purchased from or sold to the Adviser or
the Sub-Adviser or any affiliated person of either thereof; except as permitted
by Rules and Regulations of the Securities and Exchange Commission.
7. Covenants by the
Adviser. The Adviser agrees with respect to the services provided to the
Adviser hereunder that the Advisor will conform to the applicable Rules and
Regulations of the Securities and Exchange Commission.
8. Certain Representations and
Warranties. Each of the parties hereto represents and warrants to the
other that, as of the date hereof; this Agreement has been duly and validly
authorized by all necessary action (corporate, limited liability company or
otherwise) on the part of such party, has been duly executed and delivered by
such party and constitutes the valid and legally binding obligation of such
party, enforceable against such party in accordance with its terms and
conditions.
9. Books and Records. In
compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Adviser hereby agrees that all records which it maintains for the Fund are
the property of the Trust and further agrees to surrender promptly to the Trust
any of such records upon the Trust’s request. The Sub-Adviser further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-1 under the 1940 Act with respect to the
services provided by the Sub-Advisor hereunder.
10. Expenses. During the
term of this Agreement, the Sub-Adviser will pay its own expenses incurred in
connection with the performance of its obligations under this Agreement
including, compensation of and office space for its officers and employees
connected with investment and economic research; trading and investment advisory
services for the Fund. Nothing herein, however, shall be deemed to require the
Sub-Adviser to pay any expenses of the Fund or the Adviser.
11. Compensation. In
consideration of the services rendered pursuant to this Agreement, during the
term of this Agreement the Adviser and not the Fund will pay to the Sub-Adviser,
as compensation for the services provided by the Sub-Adviser under this
Agreement, a monthly fee equal to ____% (on an annualized basis) of the average
net assets of the Fund. The Adviser shall pay the Sub-Adviser as soon as
practical after the last day of each calendar month, but no later than five (5)
business days after the end of each month. In case of termination or expiration
of this Agreement during any calendar month, the fee with respect to such month
shall be reduced proportionately based upon the number of calendar days during
which it is in effect and the fee shall be computed upon the average net assets
of the Fund in accordance
with the Fund’s prospectus. Notwithstanding anything to the contrary
herein, the Sub-Adviser and the Adviser have agreed that pursuant to the terms
of the Expense Limitation Agreement in effect between the Adviser and the Trust,
the Adviser may, from time to time, be required to subsidize certain of the
Fund’s operating expenses and/or waive some or all of its advisory
fee. In the event that in any fiscal year the Adviser has subsidized
expenses or waived some or all of its advisory fee, the Sub-Adviser agrees to
waive some or all of its sub-advisory fee payable to it from the Adviser in
proportion to the total amount being subsidized or waived by the Adviser unless
Adviser and Sub-Adviser have agreed to a sharing of subsidized expenses or some
other basis on which to compensate Adviser for subsidized expenses and waived
advisory fees. To the extent that the Adviser may, during the three
year period after it has subsidized expenses or waived fees, recover some or all
of such amounts from the Fund under the terms of the Expense Limitation
Agreement, the Adviser agrees to share the portion of such recovered
amounts with the Sub-Adviser based on the same proportion that the Sub-Adviser
waived a portion of its compensation due from the Adviser.
12. Standard of Care: Limitation
of Liability: Limited Indemnity. The Sub-Adviser shall
exercise due care and diligence and use the same skill and care in providing its
services hereunder as it uses in providing services to other investment
companies, accounts and customers, but shall not be liable for any action taken
or omitted by the Sub-Adviser in the absence of bad faith, willful misconduct,
gross negligence or reckless disregard of its duties. The Fund further agrees to
indemnify, defend and hold the Sub-Adviser, and its managers, officers,
directors, equityholders, employees and agents (“Related Persons”), harmless
from and against all losses, claims, damages, liabilities, costs and expenses
arising by reason of being or having been Sub-Adviser to the Fund, or in
connection with the past or present performance of services to the Fund in
accordance with this Agreement, except to the extent that the loss, claim,
damage, liability, cost or expense was caused by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties on the part of
the Sub-Adviser in the performance of its duties and obligations under this
Agreement. These losses, claims, damages, liabilities, costs and expenses
include, but are not limited to, amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties, and counsel fees and expenses, incurred in
connection with the defense or disposition of any action, suit, investigation or
other proceeding, whether civil or criminal, before any judicial, arbitral,
administrative or legislative body, in which the indemnitee may be or may have
been involved as a party or otherwise, or with which such indemnitee may be or
may have been threatened, while in office or thereafter. Federal and various
state securities laws may afford the Adviser and/or the Fund certain rights and
remedies under certain circumstances, even in the absence of bad faith, willful
misconduct, gross negligence or reckless disregard by the Sub-Adviser or its
Related Persons, and nothing contained herein shall in any way constitute a
waiver or limitation of any such rights and remedies that the Adviser, the Fund
or both may have under any such federal or state securities
laws.
13. Reference to the
Sub-Adviser. Neither the Adviser nor any affiliate or agent of it shall
make reference to this Agreement or use the name of the Sub-Adviser or any of
its affiliates except with respect to references in regulatory filings and
communications with shareholders concerning the identity of and services
provided by the Sub-Adviser to the Fund, which references shall not differ in
substance from those typically included in a proxy statement or annual report of
the Fund, or the Fund’s registration statement and any advertising or
promotional materials, provided such materials are FINRA
compliant, without the prior approval of the Sub-Adviser.
14. Duration and
Termination. Unless sooner terminated, this Agreement shall be for an
initial period of two years, and thereafter shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually by the Board of Trustees provided that its continuance also is
approved by a majority of the members of the Board of Trustees who are not
“interested persons” (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable at any time without penalty, on
sixty (60) days’ written notice, by the Board of Trustees, by the Adviser or by
the Sub-Adviser or by vote of a majority of the outstanding voting securities of
the Fund. This Agreement will terminate automatically in the event of its
assignment (as defined in the 1940 Act). Termination or expiration of this
Agreement, however caused, shall be without prejudice to any compensation
accrued to the date of termination or expiration and Sections 3(e), 9, 11, 12
and 13 shall survive any termination or expiration.
15. Amendment of this
Agreement. 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, and no amendment of this Agreement shall be effective
until approved by the Board of Trustees, including a majority of the members of
the Board of Trustees who are not interested persons of the Advisor or the
Sub-Adviser, cast in person at a meeting called for the purpose of voting on
such approval.
16. Notice. Any notice,
advice or report to be given pursuant to this Agreement shall be delivered or
mailed:
To the Sub-Advisor
at:
_____________________
_____________________
_____________________
To the Adviser
at:
RiverPark
Advisors, LLC
000 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxx
Xxxxxx
Facsimile: (000)
000-0000
To the Board of Trustees or
the Fund at:
000 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxx
Xxxxxx
Facsimile: (000)
000-0000
with a copy
to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X.
Xxxxxx, Esq.
Facsimile:
(000) 000-0000
The
effective date of any notice shall be (i) the date such notice is sent if such
delivery is effected by hand or facsimile; (ii) one business day after the date
such notice is sent if such delivery is effected by national overnight courier;
or (iii) the fifth (5th)
business day after the date of the mailing thereof.
17. Proxy
Voting. The Sub-Adviser is authorized to vote proxies received
on securities held in the Fund. The Adviser and the Trust represent
that proxy voting authority is not expressly reserved to any other party under
the documents governing the Fund. All proxies will be voted in accordance with
the Adviser’s written policy in effect from time to time, receipt of which the
Sub-Adviser hereby acknowledges. The Adviser and the Trust shall
instruct the Fund’s custodian to forward promptly to the Sub-Adviser receipt of
such communications and to follow the Sub-Adviser’s instructions concerning the
same. The Sub-Adviser shall not be responsible for voting proxies not
timely received by the Sub-Adviser.
18. Legal Proceedings.
The Sub-Adviser will not advise or act for the Adviser of the Fund in any legal
proceedings, including bankruptcies or class actions, involving securities held
or previously held in the Fund or the issuers of these securities, without the
prior written consent of the Advisor.
19. Force
Majeure. In
addition, and without limiting any other provision of this Agreement, the
Sub-Adviser shall not be liable for (i) force
majeure or other events beyond the control of the Sub-Adviser, including without limitation any
failure, default or delay in performance resulting from computer or other
electronic or mechanical equipment failure, unauthorized access, theft, operator
errors, government restrictions, exchange or market rulings or suspension of
trading, strikes, failure of common carrier or utility systems, severe weather
or breakdown in communications not reasonably within the control of the
Sub-Adviser or other causes commonly known as
“acts of god”, whether or not any such cause was reasonably foreseeable, or (ii)
general market conditions rather than a violation of this Agreement by the
Sub-Adviser.
20. Limits on
Obligations. Notwithstanding anything to
the contrary in this Agreement, in no event will the Sub-Adviser be obligated to effect any transaction or
instruction it believes (without verification or inquiry) would violate any law,
rule or regulation; the rules or regulations of any regulatory or
self-regulatory body; or the Sub-Adviser’s legal, regulatory, or operational
policies and procedures; provided, however, that the
Sub-Adviser must provide the Adviser written notice of its decision not to
effect a transaction within one business day of such
decision.
21. Miscellaneous.
Neither the holders of shares of the Fund nor the members of the Board of
Trustees shall be personally liable hereunder. The captions in this Agreement
are included for convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their construction or effect.
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.
22. Entire
Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
writings and understandings relating thereto.
23. Governing Law. This
Agreement constitutes the entire agreement of the parties, shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and shall be governed by New York law in a manner not in conflict
with the provisions of the 1940 Act.
24. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be duly executed by its
authorized officer.
Gravity Capital Management
LLC
By: _____________________________
Name:
Title:
RiverPark
Advisors, LLC
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
