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Exhibit g(2)
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, made as of January 19, 2001, between Whitney Holdings LLC (the
"Investment Adviser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital LLC ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ has been retained by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital
Entrepreneurs Fund (the "Fund"), a Delaware business trust registered as a
closed-end investment management company under the Investment Company Act of
1940, as amended (the "1940 Act"), to provide investment management services to
the Fund pursuant to an Investment Management Agreement dated January 19, 2001
("Investment Management Agreement");
WHEREAS, the Fund's Board of Trustees, including a majority of the trustees
who are not "interested persons," as defined in the Investment Company Act of
1940 ("1940 Act"), of the Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or the Investment Adviser, and
the Fund's shareholders have approved the appointment of the Investment Adviser
to perform certain investment advisory services for the Fund pursuant to this
Agreement, and the Investment Adviser is willing to perform such services for
the Fund; and
WHEREAS, the Investment Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
NOW THEREFORE, in consideration of the mutual covenants herein contained,
it is agreed between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Investment Adviser as follows:
1. APPOINTMENT. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby appoints the Investment Adviser to
perform investment advisory services for the Fund for the periods and on the
terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to furnish the services herein set forth, for the
compensation herein provided. The Investment Adviser will be an independent
contractor and will have no authority to act for or represent the Fund or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in any way or otherwise be deemed an agent of the Fund or ▇▇▇▇▇▇▇
▇▇▇▇▇▇ except as expressly authorized in this Agreement or another writing by
the Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Investment Adviser.
2. INVESTMENT ADVISORY DUTIES. Subject to the supervision of the Fund's
Board of Trustees and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Investment Adviser will, in
coordination with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: (i) provide a program of continuous investment
management for the Fund in accordance with the Fund's investment objective,
policies and limitations as stated in the Fund's Registration Statement on Form
N-2 as filed with the Securities and Exchange Commission ("SEC"), as may be
amended from time to time ("Registration Statement"), a copy of which shall be
provided to the Investment Adviser by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and in accordance with any
other investment guidelines or instructions received in writing by the
Investment Adviser from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; (ii) make investment decisions for the
Fund; and (iii) place orders to purchase and sell securities
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for the Fund. In particular, the Investment Adviser will be responsible for the
market timing of purchases and sales and for strategies used in managing the
Fund's investment portfolio.
In performing its investment advisory services for the Fund hereunder, the
Investment Adviser will provide the Fund with ongoing investment guidance and
policy direction, including oral and written research, analysis, advice,
statistical and economic data and judgments regarding individual investments,
general economic conditions and trends and long-range investment policy. The
Investment Adviser will determine the securities, private equity and debt
interests, instruments, repurchase agreements, options, futures and other
investments and techniques that the Fund will purchase, sell, enter into or use,
and will provide an ongoing evaluation of the Fund's portfolio. The Investment
Adviser will determine what portion of the Fund's portfolio shall be invested in
securities and other assets.
The Investment Adviser represents that it has reviewed the Registration
Statement and represents and warrants that with respect to disclosure about the
Investment Adviser or information relating to the Investment Adviser or the
investment program conducted by the Investment Adviser for the Fund or that
otherwise relates directly or indirectly to the Investment Adviser's activities
in connection with the Fund (such disclosure and information being hereinafter
collectively referred to as "Investment Adviser Information"), such Registration
Statement contains, as of the date of this Agreement, no untrue statement of any
material fact and does not omit any statement of material fact that was required
to be stated therein or necessary to make the statements contained therein not
misleading; it being understood that the Investment Adviser shall have no
responsibility for any other portion of the Registration Statement. The
Investment Adviser further represents and warrants that it is an investment
adviser registered under the Advisers Act and has made all required adviser
notice filings under the laws of all jurisdictions in which the conduct of its
business hereunder requires such filings.
The Investment Adviser further agrees that, in performing its duties
hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code") and all
other applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Fund's Board of Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M of the
Code and regulations issued thereunder, although the Investment Adviser may rely
upon the accuracy of information the Fund's administrator, custodian, or other
service provider, (including, but not limited to, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇) provides to
it, and will not be liable for any losses of the Fund or its shareholders due to
the Investment Adviser's use of incorrect or incomplete information supplied by
the administrator;
(c) place orders pursuant to its investment determinations for the Fund
directly with the issuer, or with any broker or dealer, in accordance with
applicable policies expressed in the Registration Statement and in accordance
with applicable legal requirements. Without limiting
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the foregoing, the Investment Adviser shall use its best efforts to obtain for
the Fund the most favorable price and best execution available, considering all
of the circumstances, and shall maintain records adequate to demonstrate
compliance with this requirement. In placing orders for the purchase or sale of
portfolio securities on behalf of the Fund and other clients of the Investment
Adviser, the Investment Adviser shall act in accordance with the securities
allocation and aggregation policies approved by the Fund's Board of Trustees and
in accordance with applicable legal requirements. Subject to the appropriate
policies and procedures approved by the Board of Trustees, the Investment
Adviser may, to the extent authorized by Section 28(e) of the Securities
Exchange Act of 1934, cause the Fund to pay a broker or dealer that provides
brokerage or research services to the Investment Adviser or the Fund an amount
of commission for effecting a portfolio transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction if the Investment Adviser determines, in good faith, that such
amount of commission is reasonable in relation to the value of such brokerage or
research services provided viewed in terms of that particular transaction or the
Investment Adviser's overall responsibilities to the Fund or its other advisory
clients. To the extent authorized by said Section 28(e) and the Fund's Board of
Trustees, the Investment Adviser shall not be deemed to have acted unlawfully or
to have breached any duty created by this Agreement or otherwise solely by
reason of such action;
(d) regularly report to the Board of Trustees and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ with
respect to the implementation of the Fund's investment program and furnish to
the Fund whatever statistical information and reports as the Board of Trustees
may reasonably request with respect to the Fund's assets or contemplated
investments. In addition, the Investment Adviser will keep the Fund and the
Board of Trustees informed of developments materially affecting the Fund's
portfolio and shall, on the Investment Adviser's own initiative, furnish to the
Fund from time to time whatever information the Investment Adviser believes
appropriate for this purpose;
(e) make available to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Fund, and the Fund's
administrator, custodian or other agent as directed by the Fund (the "Agent")
promptly upon their request, such copies of its investment records and ledgers
with respect to the Fund as may be required to assist ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Agent
and the Fund in their compliance with applicable laws and regulations. The
Investment Adviser will furnish the Trustees with such periodic and special
reports regarding the Fund as they may reasonably request;
(f) immediately notify ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Fund in the event that the
Investment Adviser or any of its affiliates: (i) becomes aware that it is
subject to a statutory disqualification that prevents the Investment Adviser
from serving as an investment adviser pursuant to this Agreement; or (ii)
becomes aware that it is the subject of an administrative proceeding or
enforcement action by the SEC or other regulatory authority. The Investment
Adviser agrees to notify the Fund and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ immediately of any material
fact known to the Investment Adviser respecting or relating to the Investment
Adviser that is not contained in the Registration Statement, or any amendment or
supplement thereto, but that is required to be disclosed therein, and of any
statement contained therein that becomes untrue in any material respect. The
Investment Adviser further agrees to notify the Fund and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
immediately if the
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chief executive officer or controlling shareholder of the Investment Adviser or
the portfolio manager of the Fund changes or there is otherwise an actual change
in control or management of the Investment Adviser;
(g) provide determinations of the fair value of certain portfolio
securities when market quotations are not readily available for the purpose of
calculating the Fund's net asset value, in accordance with the procedures and
methods established by the Fund's Board of Trustees.
3. ALLOCATION OF CHARGES AND EXPENSES. Except as otherwise specifically
provided in this Section 3, the Investment Adviser shall pay the expense of all
necessary services it provides under this Agreement, including the compensation
and expenses of all its directors, officers and employees who serve as trustees,
officers or employees of the Fund (including the Fund's share of payroll taxes,
if any), and the Investment Adviser shall make available, without expense to the
Fund, the service of its directors, officers and employees who may be duly
elected trustees, officers or employees of the Fund, subject to their individual
consent to serve and to any limitations imposed by law.
The Investment Adviser shall not be required to pay any expenses of the
Fund other than those specifically allocated to the Investment Adviser in this
Section 3. In particular, but without limiting the generality of the foregoing,
the Investment Adviser shall not be responsible, except to the extent of the
reasonable compensation of such of the Fund's trustees, officers or employees as
are directors, officers or employees of the Investment Adviser whose services
may be involved, for the following expenses of the Fund: organization and
offering expenses of the Fund (including out-of-pocket expenses, but not
including the Investment Adviser's overhead and employee costs); fees payable to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to the Investment Adviser and to any other Fund advisers or
consultants, including an advisory board if applicable; legal expenses; auditing
and accounting expenses; interest expenses; telephone, telex, facsimile, postage
and other communications expenses; taxes and governmental fees; fees and
expenses incurred by or with respect to the Fund in connection with membership
in investment company trade organizations; cost of insurance relating to
fidelity coverage for the Fund's officers and employees; fees and expenses of
the Fund's administrator or of any custodian, subcustodian, transfer agent,
registrar, or dividend disbursing agent of the Fund; payments to an agent for
maintaining the Fund's financial books and records and calculating the net asset
value of the Fund's shares; other payments for portfolio pricing or valuation
services to pricing agents, accountants, bankers and other specialists, if any;
expenses of preparing share certificates and, except as provided below in this
Section 3, other expenses in connection with the issuance, offering,
distribution or sale of securities issued by the Fund; expenses relating to
investor and public relations; expenses of registering and qualifying shares of
the Fund for sale; freight, insurance and other charges in connection with the
shipment of the portfolio securities of the Fund; brokerage commissions or other
costs of acquiring or disposing of any portfolio securities or other assets of
the Fund, or of entering into other transactions or engaging in any investment
practices with respect to the Fund; expenses of printing and distributing
prospectuses, Statements of Additional Information, reports, notices and
dividends to shareholders; costs of stationery; litigation expenses; costs of
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shareholders' and other meetings; and the compensation and all expenses
(specifically including travel expenses relating to the Fund's business) of
officers, trustees and employees of the Fund who are not interested persons of
the Investment Adviser. The Investment Adviser shall be reimbursed for any of
the foregoing expenses it incurs on behalf of the Fund.
4. COMPENSATION. (a) As compensation for the services provided and
expenses assumed by the Investment Adviser under this Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
will pay the Investment Adviser monthly in arrears a fee, calculated on each day
during such month at the annual rate of 1.00% of the Fund's average daily net
assets. For this purpose, average daily net assets will reflect the liability
accrued for the incentive fee payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to paragraph
5(b) of the Investment Management Agreement. The value of the net assets of the
Fund shall be determined pursuant to the applicable provisions of the
Declaration of Trust, By-Laws and Registration Statement of the Fund, each as
amended from time to time. If, pursuant to such provisions, the determination of
net asset value is not determined or is suspended for any particular business
day, then for the purposes of this Section 4, the value of the net assets of the
Fund as last determined shall be deemed to be the value of its net assets as of
the close of regular trading on the New York Stock Exchange, or as of such other
time as the value of the net assets of the Fund's portfolio may lawfully be
determined, on that day. If the determination of the net asset value of the
shares of the Fund has been so suspended or has not been determined for a period
including any month-end when the Investment Adviser's compensation is payable
pursuant to this Section, then the Investment Adviser's compensation payable
with respect to such month shall be computed on the basis of the value of the
net assets of the Fund as last determined (whether during or prior to such
month). If the Fund determines the value of the net assets of its portfolio more
than once on any day, then the last such determination thereof on that day shall
be deemed to be the sole determination thereof on that day for the purposes of
this Section 4.
(b) As additional compensation for the services provided and expenses
assumed by the Investment Adviser under this Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ will pay
the Investment Adviser an annual incentive fee equal to 100% of the incentive
fee, if any, received by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ from the Fund pursuant to paragraph 5(b)
of the Investment Management Agreement.
5. BOOKS AND RECORDS. The Investment Adviser agrees to maintain such
books and records with respect to its services to the Fund as are required by
Section 31 under the 1940 Act, and rules adopted thereunder, and by other
applicable legal provisions, and to preserve such records for the periods and in
the manner required by that Section, and those rules and legal provisions. The
Investment Adviser also agrees that records it maintains and preserves pursuant
to Rules 31a-1 and Rule 31a-2 under the 1940 Act and otherwise in connection
with its services hereunder are the property of the Fund and will be surrendered
promptly to the Fund upon its request. The Investment Adviser further agrees
that it will furnish to regulatory authorities having the requisite authority
any information or reports in connection with its services hereunder which may
be requested in order to determine whether the operations of the Fund are being
conducted in accordance with applicable laws and regulations. The Investment
Adviser shall keep confidential any information obtained in connection with its
duties hereunder and
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disclose such information only if the Fund has authorized such disclosure or if
such disclosure is expressly required or requested by applicable federal or
state regulatory authorities.
6. STANDARD OF CARE AND LIMITATION OF LIABILITY. The Investment Adviser
shall give the Fund the benefit of its best efforts and judgment in rendering
the services provided by the Investment Adviser under this Agreement. The
Investment Adviser shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund or the holders of the Fund's shares in
connection with the matters to which this Agreement relates or due to its use of
incomplete or incorrect information supplied to it by the Fund's custodian,
administrator, or other service provider (including, but not limited to, ▇▇▇▇▇▇▇
▇▇▇▇▇▇), provided that nothing in this Agreement shall be deemed to protect or
purport to protect the Investment Adviser against any liability to the Fund or
to holders of the Fund's shares to which the Investment Adviser would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence on
its part in the performance of its duties or by reason of the Investment
Adviser's reckless disregard of its obligations and duties under this Agreement.
As used in this Section 6, the term "Investment Adviser" shall include any
officers, directors, employees or other affiliates of the Investment Adviser
performing services for the Fund.
7. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Investment Adviser are not exclusive, and that nothing in this Agreement shall
prevent the Investment Adviser from providing similar services to other
investment companies (whether or not their investment objectives and policies
are similar to those of the Fund) or from engaging in other activities, provided
such other services and activities do not, during the term of this Agreement,
interfere in a material manner with the Investment Adviser's ability to meet its
obligations to the Fund hereunder. In connection with purchases or sales of
portfolio securities for the account of the Fund, neither the Investment Adviser
nor any of its directors, officers or employees shall act as a principal or
agent or receive any commission except to the extent permitted by applicable law
and regulation and as authorized by the Fund's Board of Trustees. If the
Investment Adviser provides any advice to its clients concerning the shares of
the Fund, the Investment Adviser shall act solely as investment counsel for such
clients and not in any way on behalf of the Fund. Nothing in this Agreement
shall be implied to prevent ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ from engaging other sub-advisers to
provide investment advice and other services in relation to the Fund for which
the Investment Adviser does not provide such services, or to prevent ▇▇▇▇▇▇▇
▇▇▇▇▇▇ from providing such services itself in relation to the Fund.
8. DURATION AND TERMINATION. (a) This Agreement shall continue until the
date that is two years from the day first written above, unless sooner
terminated as provided herein. Notwithstanding the foregoing, this Agreement may
be terminated: (i) at any time, without penalty by the Fund, upon the vote of a
majority of the Fund's Trustees or by vote of the majority of the Fund's
outstanding voting securities (as defined in the 1940 Act), upon sixty (60)
days' written notice to the Investment Adviser; or (ii) by the Investment
Adviser upon sixty (60) days' written notice to the Fund. This Agreement will
also terminate automatically in the event of its assignment (as defined in the
▇▇▇▇ ▇▇▇) or the assignment or termination of the Investment Management
Agreement.
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(b) If the Investment Adviser shall serve hereunder for a period less than
a full month, the compensation provided for in Section 4(a) shall be prorated
according to the proportion which such period bears to the full month and shall
be payable within ten (10) business days after termination of this Agreement. If
the Investment Adviser shall serve hereunder for a period terminating prior to
the end of a calendar year, the Investment Adviser shall not be entitled
hereunder to receive a pro rata or other portion of any incentive fee
compensation provided for in Section 4(b) paid by the Fund to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
that relates to such period or any subsequent period.
9. AMENDMENTS. 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 an affirmative vote of (i) a majority of the outstanding
voting securities of the Fund (as defined in the 1940 Act), and (ii) a majority
of the Fund's Trustees, including a majority of Trustees 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; provided, however, that this Agreement may be amended upon
approval by an affirmative vote of a majority of the Fund's Trustees without
shareholder approval to the extent consistent with applicable law, as may be
modified by any exemptive order or interpretation received from the SEC.
10. USE OF NAMES. The Investment Adviser shall have no right to use the
name, trade name, trademarks, service marks, logos or other indicia of identity
or origin of the Fund or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any other affiliate of or investment
company managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (each, a "▇▇▇▇") for any commercial purposes,
including, without limitation, in or on any advertising or promotional
materials, press releases or web sites, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ may ▇▇▇▇▇ in its discretion and withdraw
upon ten (10) days' notice to the Investment Adviser. Notwithstanding the
foregoing, the Investment Adviser may include the name of the Fund on any list
of clients it publicly distributed during such time as this Agreement remains in
effect. At such time as this Agreement shall no longer be in effect between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Investment Adviser, or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ no longer is a
licensee of a ▇▇▇▇, the Investment Adviser shall (to the extent that, and as
soon as, it lawfully can) cease to use the Marks. In no event shall the
Investment Adviser use a ▇▇▇▇ or any other name or ▇▇▇▇ confusingly similar
thereto (including, but not limited to, any name or ▇▇▇▇ that includes the name
"▇▇▇▇▇▇▇" or "▇▇▇▇▇▇") if this Agreement is terminated.
11. INDEMNIFICATION. (a) The Investment Adviser agrees to indemnify and
hold harmless ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, any affiliated person within the meaning of
Section 2(a)(3) of the 1940 Act ("affiliated person") of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (which
shall not be deemed to include the Fund) and each person, if any who, within the
meaning of Section 15 of the Securities Act of 1933, as amended (the "1933
Act"), controls ("controlling person") ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses), to which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or such affiliated person or
controlling person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or
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otherwise, arising out of the Investment Adviser's responsibilities as portfolio
manager of the Fund: (i) to the extent of and as a result of the willful
misfeasance, bad faith, or gross negligence by the Investment Adviser, any of
the Investment Adviser's employees or representatives or any affiliate of or any
person acting on behalf of the Investment Adviser; (ii) as a result of the
reckless disregard by the Investment Adviser of its duties hereunder; (iii) as a
result of any untrue statement or alleged untrue statement of a material fact
contained in Investment Adviser Information set forth in a prospectus or
statement of additional information contained in the Registration Statement of
the Fund or any amendment thereof or any supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading; (iv) as a result of a
breach of any term of this Agreement or of applicable law; or (v) without
limiting the generality of the foregoing, to the extent, and as a result, of the
failure of the Investment Adviser to execute, or cause to be executed, portfolio
transactions according to the standards and requirements set forth in the 1940
Act; PROVIDED, HOWEVER, that in no case is the Investment Adviser's indemnity in
favor of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any affiliated person or controlling person of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ deemed to protect such person against any liability to which any
such person would otherwise be subject by reason of willful misconduct, bad
faith or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees to indemnify and hold harmless the Investment
Adviser, any affiliated person within the meaning of Section 2(a)(3) of the 1940
Act ("affiliated person") of the Investment Adviser and each person, if any who,
within the meaning of Section 15 of the 1933 Act, controls ("controlling
person") the Investment Adviser, against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses), to
which the Investment Adviser or such affiliated person or controlling person may
become subject under the 1933 Act, the 1940 Act, the Advisers Act, under any
other statute, at common law or otherwise, arising out of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇'▇
responsibilities as investment manager of the Fund: (i) to the extent and as a
result of the willful misfeasance, bad faith, or gross negligence by ▇▇▇▇▇▇▇
▇▇▇▇▇▇, any of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ employees or representatives or any affiliate of
or any person acting on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; (ii) as a result of the
reckless disregard by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of its duties hereunder; (iii) as a result
of any untrue statement or alleged untrue statement of a material fact
(excluding Investment Adviser Information) set forth in a prospectus or
statement of additional information contained in the Registration Statement of
the Fund or any amendment thereof or any supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading; or (iv) as a result
of a breach of any term of this Agreement or of applicable law.
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12. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State of Delaware,
without giving effect to the conflicts of laws principles thereof, provided that
nothing herein shall be construed in a manner inconsistent with the 1940 Act,
the Advisers Act, or rules or orders of the SEC thereunder. 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 term 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 SEC validly issued pursuant to the 1940 Act. In addition, where the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
(b) The captions of this Agreement are included for convenience only and
in no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
(c) 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 hereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
(d) Any notice, instruction or other communication required or
contemplated by the Agreement shall be in writing. All such communications shall
be addressed to the recipient at the address set forth below, provided that
either party may, by notice, designate a different address for such party:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital LLC
▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel
Investment Adviser:
Whitney Holdings LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
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10
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the date first written above.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CAPITAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
WHITNEY HOLDINGS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
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