SUB-ADMINISTRATION AGREEMENT
Exhibit 99.(k)(2)
THIS AGREEMENT is made this 24th day of July, Two Thousand and Twenty-Five.
BETWEEN EAGLE POINT ADMINISTRATION LLC, a limited liability company established in and under the laws of Delaware (the "Administrator") of the first part, EP PRIVATE CAPITAL FUND I, a Delaware statutory trust (the “Fund”) of the second part and solely with respect to Clauses 7 and 11.5 hereof, and HARMONIC FUND SERVICES, a company incorporated in and under the laws of the Cayman Islands whose business address is at Cayman Corporate Centre, 4th Floor, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇, Cayman Islands ("Harmonic") of the third part.
WHEREAS the Administrator acts as administrator to the Fund and is responsible for providing various administrative services to the Fund; and
WHEREAS the Administrator wishes to appoint ▇▇▇▇▇▇▇▇ as sub-administrator and Harmonic has agreed to provide the services set out in Appendix 1 to the Administrator with respect to the Fund on the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | In this Agreement and in all amendments hereto, the following words and expressions will, where not inconsistent with the context, have the following meanings: |
“1933 Act” means the Securities Act of 1933, as amended.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1940 Act” means the Investment Company Act of 1940, as amended.
"Affiliate"
| (a) | in relation to any person other than ▇▇▇▇▇▇▇▇, means any other person who directly or indirectly controls, is controlled by or is under common control with, that person; and |
| (b) | in relation to Harmonic, means (i) any other person who directly or indirectly controls Harmonic (such person being a "Holding Company"), (ii) any other person who directly or indirectly is controlled by ▇▇▇▇▇▇▇▇, (iii) any other person who directly or indirectly is under common control with Harmonic, (iv) any other person who directly or indirectly is under common control with the Holding Company (such person being an "Additional Holding Company"), (v) any other person who directly or indirectly controls the Additional Holding Company, and (vi) any other person who directly or indirectly is controlled by the Additional Holding Company. |
For the purposes of parts (a) and (b) of this definition, the terms controls, is controlled by, or under common control with mean (i) the direct or indirect ownership of in excess of 50% of the equity interests (or interests convertible into or otherwise exchangeable for equity interests) in a person, or (ii) the direct or indirect ownership of in excess of 50% of the voting securities of a person or securities carrying the direct or indirect right to elect in excess of 50% of the board of directors or other governing body of a person (whether by securities ownership, contract or otherwise).
"Board of Trustees" means the Board of Trustees of the Fund.
"Code" means the United States Internal Revenue Code of 1986 and the regulations promulgated and rulings issued thereunder.
"Declaration of Trust" means the Declaration of Trust of the Fund for the time being in force.
"ERISA" means the United States Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder.
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"Fee" means the management fee and/or incentive fee to be paid by the Fund to the Manager, as applicable and as set forth in the Fund’s registration statement.
"Fee Calculation" means such Fee calculation as ▇▇▇▇▇▇▇▇ agrees in writing to perform pursuant to the services specified in Appendix 1 and 2 from time to time.
"Gross Negligence" means as such term is interpreted under the laws of the State of Delaware.
"Harmonic Party" means Harmonic, together with its Affiliates, successors, agents and delegates and their respective directors, officers, independent contractors and employees.
"Losses" means all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever.
"Manager" means Eagle Point Credit Management LLC, any successor thereof or any other entity that serves as investment adviser to the Fund pursuant to an investment advisory agreement.
"Net Asset Value" means the net asset value of the Fund calculated in accordance with the terms of the Fund’s registration statement;
"Net Asset Value per Share" means the net asset value per Share of each class of the Fund calculated in accordance with the terms of the Fund’s registration statement;
"Plan" means an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section 4975 (e)(1) of the Code.
"Plan Asset Regulations" means United States Department of Labor Regulation at 29C.F.R. section 2510.3-101.
"Proper Instructions" means instructions from the Board of Trustees or the Administrator in the English language sent by facsimile or email, signed or sent or purporting to be signed or sent by such one or more persons as the Board or Trustees or the Administrator will from time to time authorise to give such instructions. A certified copy of a resolution of the Board or Trustees or the Administrator, or an officer's certificate of the Administrator, will be conclusive evidence of the authority of any such person to act until Harmonic is in receipt of written notice to the contrary.
"Share" means a common share of beneficial interest of any class and (if relevant) series in the Fund.
"Shareholder" means the holder of a Share.
"Subscription Booklet" means the subscription agreement completed by a Shareholder or prospective Shareholder.
| 1.2 | Words importing the singular will include the plural, and vice versa, and words importing the masculine gender will include the feminine and neuter genders, and vice versa, and words importing persons will include partnerships, trusts and bodies corporate, and vice versa. |
| 1.3 | Expressions defined in this Agreement will bear the same meanings in any appendix, annexure or amendment thereto which does not contain a different definition for that expression, unless the context otherwise requires. |
| 1.4 | Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date hereof and as amended and/or re-enacted and/or succeeded and/or replaced from time to time. |
| 1.5 | Any reference to a Clause or Appendix is to the relevant Clause or Appendix of or to this Agreement. Each Appendix forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes each Appendix. |
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| 2. | APPOINTMENT OF HARMONIC |
The Administrator hereby appoints ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ hereby agrees to act as sub-administrator and to perform the services set out in Appendix 1 and Appendix 2 from time to time. The performance of such services shall commence from the date hereof or such later date as shall be agreed between the parties in writing.
| 3. | PROPER INSTRUCTIONS CONFLICTS |
In the event that ▇▇▇▇▇▇▇▇ receives conflicting Proper Instructions from the Board of Trustees and the Administrator, Proper Instructions from the Board of Trustees will prevail to the extent practicable.
| 4. | REMUNERATION OF HARMONIC |
Harmonic will be paid by way of remuneration for its services, pursuant to this Agreement, fees at such rates, at such times, in such currency and in such place, as set forth in Appendix 2, as may be subsequently amended in accordance with Clause 16. Harmonic will also be entitled to receive from the Fund an amount equal to all out-of-pocket pre-approved expenses properly incurred by Harmonic in respect of the services provided pursuant to this Agreement.
| 5. | DUTIES OF THE Administrator |
The Administrator will:
| (a) | with all reasonable expedition supply Harmonic with all such information as Harmonic may require to enable it to perform its services hereunder and for it to comply with applicable laws and regulations; and |
| (b) | promptly approve any Fee Calculation, and any accrual in relation thereto prepared by ▇▇▇▇▇▇▇▇, provided that failure by the Administrator to object to any such Fee Calculation within 30 days after being provided with notice of it will be deemed to constitute approval for the purpose of this Agreement. |
| 6. | RIGHTS OF HARMONIC |
Harmonic may:
| (a) | with prior written consent of the Administrator and the Fund, appoint an agent or delegate (which shall be an Affiliate) to perform all or any of its duties hereunder (including in such appointment powers of sub-delegation) provided that such Affiliate shall be monitored by ▇▇▇▇▇▇▇▇. The fees and other remuneration of such agent or delegate will be paid by ▇▇▇▇▇▇▇▇; |
| (b) | use the name of the Fund solely in the performance of its duties hereunder; |
| (c) | [reserved]; |
| (d) | provide non-executive directors, a registered office or company secretary, or act as administrator or sub-administrator, registrar or subscription, withdrawal, transfer, accounting or valuation agent, or in any other capacity for any other company, corporation, partnership or body of persons on such terms as may be arranged with such company, corporation, partnership or body of persons, and will not be deemed to be affected with notice of, or to be under any duty to disclose to the Administrator, the Fund or the Manager, any fact or thing which may come to the knowledge of Harmonic or any agent or delegate of Harmonic in the course of so doing, or in any manner whatever otherwise than in the course of carrying out the duties of sub-administrator hereunder; and |
| (e) | contract or enter into any financial, banking or other transaction with the Fund or any Shareholder or any company or body whose securities are held by, or for the account of, the Fund or any other person. Harmonic may likewise be interested in any such contract or transaction provided it is on normal commercial terms negotiated at arm’s length. |
| 7. | LIABILITY OF HARMONIC AND INDEMNITIES |
| 7.1 | No Harmonic Party will incur liability by refusing in good faith to perform any duty or obligation herein which, in its reasonable judgment, is improper or unauthorised, provided that in performing its duties and obligations hereunder no Harmonic Party will be required to do, or procure the doing of, anything contrary to, or in breach of, or which constitutes any offence against, any applicable law or regulation. |
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| 7.2 | No Harmonic Party will be liable for any Losses the Fund or the Administrator may sustain as a result of the performance or non-performance of the services provided under this Agreement other than to the extent directly caused by the actual fraud, Gross Negligence or wilful default of any Harmonic Party. |
| 7.3 | The Fund will indemnify (on a full indemnity basis) and hold harmless each Harmonic Party from and against any and all Losses (other than Losses arising out of or in any way relating to, from or through the actual fraud, Gross Negligence or wilful default on the part of a Harmonic Party) which may be imposed on, incurred by or asserted against a Harmonic Party in performing its obligations or duties hereunder. Harmonic will indemnify and hold harmless the Fund, the Manager, the Administrator and their Affiliates from and against any and all Losses resulting from the actual fraud, Gross Negligence, or wilful default on the part of a Harmonic Party in the performance or non-performance of its obligations and duties under this Agreement. |
| 7.4 | In performing any Fee Calculation and any accrual in relation thereto, no Harmonic Party will be liable for any Losses suffered by the Fund, the Administrator or the Manager by reason of the method of calculation agreed with the Administrator, or by reason of a Harmonic Party acting upon Proper Instructions. Approval by the Administrator of any Fee Calculation, and any accrual in relation thereto, will be conclusive evidence of the fact that the Fee Calculation or accrual has been determined in accordance with the requirements of the Administrator for the purpose of this Agreement, and no Harmonic Party (in the absence of actual fraud, Gross Negligence or wilful default on the part of a Harmonic Party) will be liable for any Losses suffered by the Fund, the Administrator or the Manager as a result of such Fee Calculation. |
| 7.5 | In calculating the Net Asset Value, each Harmonic Party may rely upon such automatic pricing services as it will determine, and will not be liable for any Losses suffered by the Fund by reason of any error in calculation resulting from any inaccuracy in the information provided. |
| 7.6 | In calculating the Net Asset Value each Harmonic Party may use pricing information supplied by the Administrator or any Affiliate thereof (including an Affiliate which is a broker, market maker or other intermediary), and will not be liable for any Losses suffered by the Fund by reason of any error in calculation resulting from any inaccuracy in the information. |
| 7.7 | In calculating the Net Asset Value, each Harmonic Party may use particular pricing services, brokers, market makers or other intermediaries, and no Harmonic Party will be liable for any Losses suffered by the Fund by reason of any error in calculation resulting from any inaccuracy in the information provided. |
| 7.8 | No Harmonic Party will be liable for any Losses suffered by the Fund, whether caused by delays or otherwise, resulting from illegible or unclear communications from, or on behalf of, the Administrator, the Fund, the Manager, Shareholders, prospective Shareholders or any agents thereof, provided always that such Harmonic Party will, where practicable, make reasonable efforts to contact such person and clarify such communication. |
| 7.9 | No Harmonic Party will be liable for the failure by the Fund, the Administrator or the Manager to adhere to any investment objective, investment policy, investment restrictions or borrowing restrictions for, or imposed upon, the Fund, except to the extent directly caused by the actual fraud, Gross Negligence or wilful default on the part of a Harmonic Party in performing its duties hereunder. |
| 7.10 | No Harmonic Party will be responsible for the loss of, or damage to, any documents or other property of the Fund, or for any failure to fulfil its duties hereunder if loss, damage or failure is caused by, or directly or indirectly due to, war, terrorism, enemy action, the act of government or other competent authority, or any investment exchange or clearing house, riot, civil disturbance, rebellion, ▇▇▇▇▇, ▇▇▇▇▇▇▇, accident, fire, strike, explosion, lock-out or the breakdown, failure or malfunction of any telecommunications or computer service, or any occurrence or event (whether similar or not) beyond the reasonable control of Harmonic. |
| 7.11 | Appendix 4 sets out ▇▇▇▇▇▇▇▇’s policy for acceptance of (i) documents or Proper Instructions sent by electronic transmission, and (ii) documents signed electronically. |
| 7.12 | A person who is not a party to this Agreement may not, in its own right or otherwise, enforce any term of this Agreement except that each Harmonic Party that is not a party to this Agreement may in its own right enforce Clause 7 (and its sub-clauses) subject to and in accordance with the provisions of the Contracts (Rights of Third Parties) Act 2014, as amended, modified, re-enacted or replaced. Notwithstanding any other term of this Agreement, the consent of any person who is not a party to this Agreement (including without limitation any Harmonic Party who is not also a party) is not required for any amendment to, or variation, release, rescission or termination of this Agreement. |
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| 7.13 | Notwithstanding anything to the contrary contained in this Agreement or elsewhere, and for the avoidance of doubt, it is specifically agreed that under no circumstances will either party be liable for any indirect or consequential loss or loss of profit whatsoever of the other party or any other person. |
| 7.14 | Harmonic shall not be required to take any legal action on behalf of the Fund unless expressly agreed in writing. In no circumstances will Harmonic take any such action unless the Harmonic Parties are fully indemnified to ▇▇▇▇▇▇▇▇'s satisfaction for all reasonable and documented costs and liabilities which are incurred in connection with such action. |
| 7.15 | It is hereby acknowledged that certain investments and the cash of the Fund may be held by custodians, brokers and banks from time to time appointed by the Fund ("Custody Entity"). Harmonic has no control over such investments and/or cash and will have no responsibility or liability for any Losses or damage which the Fund or any Shareholder may sustain or suffer as a result of the acts, omissions, liquidation, bankruptcy or insolvency of any Custody Entity. |
| 7.16 | Harmonic may refer any legal question to its own external legal advisers for the time being, on any matter of difficulty arising in connection with this Agreement, and may reasonably act on any opinion given by such legal advisers without being responsible for the correctness thereof or for any result which may follow from so doing. |
| 7.17 | Each Harmonic Party shall be entitled, for all purposes, to rely on Proper Instructions and the authenticity and accuracy of all information and communications of whatever nature received by Harmonic in good faith in connection with the performance of their respective duties pursuant to this Agreement. No Harmonic Party shall be responsible or liable to any person for any Losses arising by virtue of any actions taken, or omitted to be taken, by it in consequence of any Proper Instructions, and/or any such information or communication not being authentic and/or accurate and/or from the apparent author and/or sender provided such Harmonic Party has acted in good faith. |
| 7.18 | Notwithstanding any other provision in this Agreement, in no event shall the liability of any Harmonic Party, whether based on a claim in contract, tort, breach of statutory duty or otherwise arising out of, or in relation to, providing the services set out in this Agreement ("Harmonic Party Maximum Aggregate Liability") exceed an amount equal to (i) (if this Agreement has been in force for the prior 12-month period at the date of claim) four times the prior 12-month annualized fee amount actually received by Harmonic in respect of the fees payable to Harmonic as set out in Appendix 3 or (ii) (if this Agreement has not been in force for the prior 12-month period at the date of claim) four times the amount actually received by Harmonic in respect of the fees payable to Harmonic as set out in Appendix 2 for the period from commencement date of the Agreement until date of claim; provided that the foregoing shall not serve as a cap on liability for losses directly attributable to a Harmonic Party’s actual fraud, wilful default or Gross Negligence. |
| 7.19 | No person shall be found to have committed actual fraud, wilful default or Gross Negligence under this Agreement unless or until a court of competent jurisdiction has reached a determination to the effect. |
| 7.20 | Harmonic will have no responsibility for making any independent determination as to whether a Shareholder is eligible to invest in the Fund, but will be entitled to rely exclusively on the truthfulness of the representations, warranties and information of the Shareholder in the Subscription Booklet and the determinations and instructions of the Administrator. Harmonic will have no responsibility for compliance by the Fund, the Administrator or the Manager with any applicable securities laws or regulations in any jurisdiction. Harmonic will not be liable for any actions taken by the Fund, the Administrator or the Manager that would cause the Fund to violate any applicable securities laws or regulations in any jurisdiction and, in particular, Harmonic will not be liable for ensuring that the Fund’s registration statement and/or the Subscription Booklet (as amended from time to time) comply with any applicable securities laws or regulations in any jurisdiction. |
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| 7.21 | No Harmonic Party will be liable for any Losses incurred as a result of an act or omission of any person providing services with respect to the Fund (including but not limited to any person acting as administrator or sub-administrator of the Fund) prior to the date of the appointment of Harmonic ("Appointment Date"). Harmonic will be entitled to rely upon the completeness and accuracy of all data and documentation provided to Harmonic and relating to any period up to the Appointment Date, including but not limited to valuations, audited or unaudited accounts and reports, financial books, records and registers ("Historic Data"). The Fund will indemnify and hold harmless each Harmonic Party from and against any and all Losses which may be imposed on, incurred by or asserted against a Harmonic Party by a third party by reason of it reasonably relying on such Historic Data in performing its obligations or duties hereunder and Harmonic is expressly relieved from any duty or obligation to verify the accuracy or completeness of Historic Data. |
| 8. | ERISA |
| 8.1 | Notwithstanding any other provisions contained in this Agreement, the Administrator acknowledges that the services to be provided with respect to the Fund by each Harmonic Party, pursuant to the terms of this Agreement, do not constitute fiduciary advice to the Fund or the Manager or their Affiliates; no Harmonic Party exercises any discretion or control with respect to the management or disposition of the assets of the Fund; and no Harmonic Party will, in any circumstances, be required to undertake any action that could possibly characterise such Harmonic Party as a fiduciary, as defined in Section 3(21) of ERISA, of the Fund or any Plan whose assets are invested in the Fund. |
| 8.2 | Notwithstanding any other provisions contained in this Agreement, the Administrator and the Fund agree to indemnify (on a full indemnity basis) and hold harmless each Harmonic Party from and against any and all Losses (other than Losses directly resulting from the actual fraud, Gross Negligence or wilful default on the part of a Harmonic Party) which may be imposed on any Harmonic Party as a result of the assets of the Fund being deemed to constitute the assets of any Plan, within the meaning of the Plan Asset Regulations. The provisions of this Clause will remain in effect and will be enforceable by Harmonic after the termination of this Agreement. |
| 9. | CONFIDENTIALITY AND DATA PROTECTION |
| 9.1 | No party will, unless compelled by any relevant statute, person empowered by statute, regulatory authority or court of competent jurisdiction, either before or after the termination of this Agreement, disclose to any person (other than its legal advisor, Affiliate and any agent or delegate appointed pursuant to Clause 6(a)) any information relating to the other parties or to the affairs of such parties without the consent of those other parties. |
| 9.2 | The obligations of each of the parties contained in Clause 9.1 above will continue without time limit but will cease to apply to any information which is in the public domain (otherwise than by breach by any party of its obligations herein) or which the disclosing party developed independently without reference to any confidential information of the other party or which was disclosed by a third party without breach of this Agreement. |
| 9.3 | Notwithstanding anything herein to the contrary, the Administrator and/or the Fund shall be permitted to disclose the identity of Harmonic as a service provider, redacted copies of this Agreement, and such other information as may be required for and in the Fund’s registration statement, filings with regulatory authorities and agencies, and communications with Shareholders, prospective shareholders (including in connection with due diligence requests) and the Fund’s other service providers, or as may otherwise be required by applicable law, rule, or regulation. |
| 9.4 | Notwithstanding anything to the contrary contained in this Clause, ▇▇▇▇▇▇▇▇ will be entitled to use the name of the Fund solely to the extent set out in Clause 6(b) above. |
| 9.5 | No party will, either before or after the termination of this Agreement, do or commit any act or matter or thing which would or might prejudice or bring into disrepute the business or reputation of the other party or any of its directors, partners and/or members. |
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| 9.6 | The Administrator acknowledges and agrees that Harmonic, subject always to the confidentiality obligations to the Administrator and the Fund under the confidentiality provisions of this Clause, by itself or through an agent or delegate, may generate, collect, receive, transfer, disclose, process and store materials, data, information and content relating to the Administrator, the Fund and/or the business of the Fund, or its principals, affiliates, Shareholders, beneficial owners, directors, officers, employees and agents ("Data") whether confidential or not, either in original format, on servers maintained by Harmonic, or its agent or delegate, or by third party service providers on Harmonic's behalf, within or outside of the Cayman Islands and/or in any other jurisdictions whether or not Harmonic or its agent or delegate has a presence in such jurisdictions, including jurisdictions which may not have equivalent data protection requirements to the Cayman Islands. In this regard, subject to applicable law, the Administrator explicitly consents to the transfer of all Data into and out of any such jurisdiction. The Administrator further acknowledges and agrees that ▇▇▇▇▇▇▇▇ may be obliged to retain such Data for a period of time after the termination of this Agreement and may be requested, required or compelled to disclose such Data to third parties as set out in the confidentiality provisions of this Clause. |
| 9.7 | Certain data received by ▇▇▇▇▇▇▇▇ in the course of performing services hereunder may be "Personal Data" in scope of Regulation (EU) 2016/679 (known as the European Union General Data Protection Regulation). Appendix 5 sets out Harmonic’s particular obligations in relation to such Personal Data. |
| 9.8 | Certain information received by ▇▇▇▇▇▇▇▇ in the course of performing services hereunder may be "Personal Information" as defined by ▇▇▇. Civ. Code §§ 1798.100–1798.199 (known as the California Consumer Privacy Act of 2018). Appendix 6 sets out Harmonic’s particular obligations in relation to such Personal Information. |
| 9.9 | Harmonic shall promptly notify the Administrator and the Fund in writing of any breach of security, misuse or misappropriation of, or unauthorised access to, (in each case, whether actual or alleged) any Data, systems utilised by Harmonic in its provision of services to the Fund, ▇▇▇▇▇▇▇▇’s cybersecurity systems, or any other confidential information. |
| 10. | WARRANTIES |
| 10.1 | Each of the Administrator and Harmonic hereby represents and warrants that, as at the date hereof and for the duration of this Agreement: |
| (a) | it is a duly established legal entity in its jurisdiction of incorporation or formation, and all necessary approvals, permits, authorisations and licences from the authorities required by it under the laws and regulations of its jurisdiction of incorporation or formation to enter into and perform this Agreement have been obtained, and all actions have been taken by it to comply with all legal and other requirements necessary to ensure that by entering into this Agreement and performing its obligations hereunder, it would not infringe any laws or regulations applicable to it or the terms of any such approval, permit, authorisation or licence; |
| (b) | all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents), in order to enable it lawfully to enter into, exercise its rights, and perform and comply with its obligations under this Agreement, and ensure that those obligations are valid, legally binding and enforceable, have been taken, fulfilled and done; |
| (c) | it has the necessary power and authority to enter into this Agreement, and to exercise its rights, and observe and perform its obligations hereunder, and the execution of this Agreement by it has been duly authorised so that upon execution, this Agreement will constitute valid and binding obligations of it in accordance with its terms; and |
| (d) | its entry into, exercise of its rights, and/or performance of or compliance with its obligations under this Agreement do not, and will not, contravene or constitute a default under its constitutional documents or under any other agreement, contract, instrument or other form of commitment binding upon it. |
| 10.2 | The Administrator represents and warrants that, as at the date hereof and for the duration of this Agreement it has provided and will provide Harmonic with all information necessary to enable Harmonic to perform its services and duties hereunder. |
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| 11. | TERMINATION |
| 11.1 | This Agreement shall continue in force until terminated by a party, giving to the other parties not less than 60 days’ notice in writing (or such shorter notice as the parties may agree), expiring at any time provided that a party may terminate this Agreement forthwith by notice in writing taking immediate or subsequent effect if: |
| (a) | any party has committed a material breach or is in persistent breach of any of the terms of this Agreement (including the representations and warranties) and has not remedied such breach within 15 days after service of notice by the other parties requiring it to be remedied; or |
| (b) | Harmonic or the Administrator (as the case may be) goes into liquidation (except a voluntary liquidation for the purposes of reconstruction, amalgamation or merger on terms previously approved in writing by the other parties) or has a receiver or its equivalent in any jurisdiction appointed over all or any of its assets. |
| 11.2 | Termination of this Agreement will be without prejudice to any claims or rights which any of the parties may have by reason of any breach of another party’s obligations and, without prejudice to the generality of the foregoing, any indemnity provisions and provisions limiting liability will survive termination of this Agreement. |
| 11.3 | Upon termination, the Administrator will arrange for, if required, notification to the Shareholders and, if applicable, for the Fund’s registration statement, Subscription Booklet and any advertising or sales material which refers to Harmonic to be promptly amended. |
| 11.4 | Upon termination of this Agreement, Harmonic will, subject to compliance with applicable law, hand over to the Administrator and the Fund, or to such person as it may direct, all documents belonging to the Administrator and the Fund that are in the possession of Harmonic. |
| 11.5 | In the event that, in connection with termination, a successor to any of Harmonic’s duties or responsibilities hereunder is designated by the Administrator by written notice to Harmonic, ▇▇▇▇▇▇▇▇ will promptly, upon such termination, except in the case of a material breach by ▇▇▇▇▇▇▇▇, in which case all expenses should be borne by ▇▇▇▇▇▇▇▇, and at the expense of the Fund, transfer to such successor all relevant books, records, correspondence, and other data established or maintained by Harmonic under this Agreement in a form reasonably acceptable to the Administrator (if such form differs from the form in which Harmonic has maintained the same, the Fund (or Harmonic, in the event of termination following its material breach of this Agreement) shall pay any reasonable and documented expenses associated with transferring the data to such form), and will cooperate in the transfer of such duties and responsibilities, including provision for assistance from Harmonic’s personnel in the establishment of books, records, and other data by such successor. The Fund or Administrator shall be entitled to request, and Harmonic shall furnish in response to such request, the services contemplated herein for six (6) months following the termination of the agreement at the rates provided herein in order to allow for a smooth transition, except if the agreement is terminated by Harmonic upon the breach of the Administrator of any material term of this Agreement. |
| 12. | NOTICES |
| 12.1 | With the exception of Proper Instructions (which will be forwarded to such address or email address as may be notified in writing by Harmonic to the Administrator from time to time) each of the parties chooses as its email address ("notice address") for the purposes of the giving of any notice, the serving of any process, and for any other purpose arising from this Agreement, its respective email address set forth below. The parties agree to use reasonable best efforts to communicate primarily through email for all matters related to this Agreement. Notices and other formal communications should be sent to the email addresses specified below. If email communication is not feasible or effective, such as in cases of sustained electronic disruptions or formal legal notices where delivery confirmation is essential, physical mail may be used as an alternative method of delivery. |
Administrator and the Fund:
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Harmonic:
Attention: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇
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| 12.2 | Each of the parties will be entitled from time to time, by written notice to the others, to change its notice address. |
| 12.3 | Any notice given by one party to the others ("the addressee") which: |
| (a) | is delivered by hand during the normal business hours of the addressee at the addressee’s notice address for the time being will be presumed (until the contrary is proved by the addressee) to have been received by the addressee at the time of delivery; or |
| (b) | is posted by registered post to the addressee’s notice address for the time being will be presumed (until the contrary is proved by the addressee) to have been received by the addressee on the tenth day after the date of posting; or |
| (c) | [reserved]; or |
| (d) | is delivered by email during the normal business hours of the addressee will be presumed (until the contrary is proved by the recipient) to have been received immediately upon confirmation of delivery. |
| 13. | RECORDS |
Harmonic is authorised to maintain all accounts, corporate books, records or other documents relating to the Administrator, the Fund or their affairs on computer records, and to produce at any time during the course of legal proceedings, copies or reproductions of these documents made by photographic, photostatic or data processing procedures as juridical proof thereof.
Harmonic shall keep records relating to the services to be performed hereunder in the form and manner, and for such period, as it may deem advisable and is agreeable to the Administrator, but not inconsistent with the rules and regulations of appropriate government authorities, in particular, Section 31 of the 1940 Act and the rules thereunder. Harmonic agrees that all such records prepared or maintained by Harmonic relating to the services to be performed by ▇▇▇▇▇▇▇▇ hereunder are the property of the Administrator and/or the Fund, as applicable, and will be preserved, maintained, and made available in accordance with such applicable sections and rules of the 1940 Act and will be promptly surrendered to the Administrator and/or the Fund on and in accordance with its request. Harmonic agrees to provide any records to the Administrator necessary for the Fund to comply with its disclosure controls and procedures and internal control over financial reporting adopted in accordance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. Notwithstanding the foregoing, Harmonic may retain such copies of such records in such form as may be required to comply with any applicable law, rule, regulation, or order of any governmental, regulatory, or judicial authority of competent jurisdiction.
| 14. | TELEPHONE RECORDING |
Subject to compliance with applicable laws Harmonic may record all telephone conversations between it and the Administrator and any person acting on behalf of or at the direction of the Administrator, or it and any Shareholder, and any such tape recordings may be submitted in evidence in any proceedings relating to this Agreement.
| 15. | UPDATES TO AND APPROVAL OF FUND DOCUMENTS |
The Administrator hereby represents and warrants to Harmonic that it will comply with the specific duties and obligations set out in Appendix 3.
| 16. | ASSIGNMENT AND AMENDMENT |
This Agreement may not be assigned or amended by any party hereto without the prior written consent of the other parties provided that no consent shall be required for any assignment by Harmonic of its rights and obligations pursuant to this Agreement to a suitably licensed Harmonic Affiliate.
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| 17. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, and by the parties hereto on separate counterparts, each of which when executed and delivered will constitute an original, and all such counterparts together constituting but one and the same agreement.
| 18. | SEVERANCE |
If any provision will be determined to be void or unenforceable, in whole or in part, for any reason whatsoever, such invalidity or unenforceability will not affect the remaining provisions or any part thereof contained within the Agreement, and such void or unenforceable provisions will be deemed to be severable from any other provision or part thereof.
| 19. | ENTIRE AGREEMENT |
This Agreement cancels and supersedes all prior negotiations and agreements entered into between the parties relating to the matters set forth herein and, save in the event of actual fraud or fraudulent misrepresentation, no party will be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
| 20. | WAIVER |
No concession, privilege or additional benefit which a party (the "Grantor") may at any time grant to the other parties will be deemed to constitute a novation or an amendment of this Agreement, or a waiver of the rights of the Grantor hereunder, and no provision of this Agreement may be waived otherwise than by an instrument in writing signed by all parties.
| 21. | PROPER LAW AND JURISDICTION |
This Agreement will be governed by, and construed in accordance with, the laws of the Cayman Islands and the courts of the Cayman Islands will have exclusive jurisdiction to resolve any disputes relating to the terms of this Agreement.
| 22. | INSURANCE |
Harmonic shall maintain commercial general liability insurance and professional liability (including cyber liability and technology errors and omissions) insurance in commercially reasonable amounts.
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IN WITNESS WHEREOF this Agreement has been executed on the day and year first above written.
| SIGNED by: | ) | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| for and on behalf of the Administrator | ) | Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| SIGNED by: | ) | /s/ ▇▇▇▇ ▇▇▇▇▇▇ |
| for and on behalf of the Fund, | ||
| solely with respect to Clauses 7 and 11.5 | ) | Name: ▇▇▇▇ ▇▇▇▇▇▇ |
| hereof | ||
| SIGNED by: | ) | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| for and on behalf of Harmonic | ) | Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| ) | Title: Director |
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APPENDIX 1
Services
Harmonic will:
| (a) | determine, in accordance with the method of calculation agreed upon by the Administrator and pursuant to Proper Instructions, any Fee payable and any accrual in relation thereto, and determine as of each valuation point, the Net Asset Value and Net Asset Value per Share, in accordance with the Fund’s valuation policies and procedures as in effect from time to time and in accordance with the information supplied to it by or on behalf of the Administrator and any Custody Entity; | |
| (b) | conduct daily cash, position and trade reconciliations, and supervise the maintenance of the Fund’s general ▇▇▇▇▇▇, including oversight of expense payments and of the declaration and payment of distributions to Shareholders; | |
| (c) | keep the accounts of the Fund and maintain the books and records of the Fund as required under Rule 31a-3 of the 1940 Act and otherwise, for the proper conduct of the financial affairs of the Fund, all in accordance with the information supplied to it by or on behalf of the Administrator and any Custody Entity; | |
| (d) | assist the Administrator with preparing the annual and quarterly financial statements of the Fund for inclusion in Form 10-Q, Form 10-K and Form 8-K filings, as applicable, in accordance with the information supplied to it by or on behalf of the Administrator and assist and liaise with the auditor in respect thereof, provided that Harmonic shall be afforded a reasonable opportunity to review a final draft of the annual financial statements prior to finalisation; | |
| (e) | promptly deliver, or procure the delivery of, the Net Asset Value and Net Asset Value per Share to the Administrator or to any other person as may reasonably be requested by the Administrator; | |
| (f) | assist the Administrator with the preparation of required tax or information returns; | |
| (g) | provide the Administrator’s personnel upon request with information about the Fund’s performance and administration, including the Fund’s total return, expense ratio and portfolio turnover rate; | |
| (h) | arrange for a representative of Harmonic to attend at telephone board meetings and telephone general meetings of the Shareholders when so required by the Administrator; | |
| (i) | act as liaison among all Fund service providers, including, but not limited to, custodians, depositaries, transfer agents and dividend reinvestment plan administrators; | |
| (j) | monitor arrangements under distribution and/or shareholder services or similar plans, and review calculations, prepared by the Fund’s transfer agent, of fees due to distributors, custodians and other service providers pursuant to such plans; | |
| (k) | process dividend reinvestment plan transactions in accordance with terms and conditions of any dividend reinvestment plan and facilitate all payments required thereunder; | |
| (l) | calculate and facilitate dividend payments to shareholders; | |
| (m) | distribute annual dividend income report (Form 1099) to shareholders, as authorized and directed by the Administrator; | |
| (n) | monitor and communicate activity under share repurchase or tender offer programs; | |
| (o) | keep the Fund’s governing documents, including its Declaration of Trust, bylaws and minute books, but only to the extent such documents are provided to Harmonic by the Administrator, the Fund or its representatives for safe-keeping; | |
| (p) | assist the Administrator with preparing various compliance reports and tests applicable to the Fund, including: |
| a. | Section 12(d)(1) of the 1940 Act – Investment Companies | |
| b. | Section 12(d)(2) of the 1940 Act – Insurance Companies | |
| c. | Section 12(d)(3) of the 1940 Act – Securities-Related Businesses | |
| d. | Section 18 of the 1940 Act – Asset Coverage Requirement | |
| e. | Section 35(d)(1) of the 1940 Act – Names Rule test |
| (q) | maintain awareness of operational service issues; |
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| (r) | assist the Administrator with monitoring Fund compliance with the policies and investment limitations as set forth in its registration statement; | |
| (s) | perform its duties hereunder in compliance with all applicable laws and regulations and provide any sub-certifications in the form reasonably advised and requested by the Administrator in connection with: (i) any certification required of the Fund pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “SOX Act”) or any rules or regulations promulgated by the SEC thereunder, and (ii) the operation of Harmonic’s compliance program as it relates to the Fund, provided the same shall not be deemed to change Harmonic’s standard of care as set forth herein; | |
| (t) | in order to assist the Fund in satisfying the requirements of Rule 38a-1 under the 1940 Act (“Rule 38a-1”), Harmonic will provide the Fund’s Chief Compliance Officer with reasonable access to Harmonic’s records relating to the services provided by it under this Agreement, and will provide quarterly compliance reports and related certifications in the form advised by the Administrator from time to time regarding any Material Compliance Matter (as defined in Rule 38a-1) involving Harmonic that affect or could affect the Fund; | |
| (u) | assist the Administrator with preparing reports and other documents required by the SEC and any U.S. stock exchanges on which the Fund’s shares may be listed; | |
| (v) | assist in producing materials requested by the SEC and other regulatory bodies (as applicable); | |
| (w) | maintain records of all materials produced pursuant to the services provided under this Agreement as requested by the SEC and other regulatory bodies (as applicable); | |
| (x) | assist the Administrator with the preparation of financial data for inclusion in the Fund’s registration statement(s) filed under the 1933 Act and/or the 1934 Act; | |
| (y) | provide supporting financial and portfolio information, as required, to facilitate the Fund’s monthly publishing of Net Asset Value, distributions to Shareholders, status of the Fund’s offering and portfolio updates; | |
| (z) | assist the Fund’s Chief Executive Officer and Chief Financial Officer in connection with establishing and maintaining internal control over financial reporting (as defined in Rules 13a-15(f) and 15-d(f) under the 1934 Act) for the Fund; | |
| (aa) | supervise the maintenance of the Fund’s general ▇▇▇▇▇▇ and the preparation of the Fund’s financial statements, including oversight of expense payments, of the determination of net asset value of the Fund’s shares, and of the declaration and payment of dividends and other distributions to shareholders; | |
| (bb) | compute the total return (based on both net asset value and market value, to the extent applicable) and expense ratio of the Fund and, to the extent applicable, the Fund’s portfolio turnover rate; | |
| (cc) | assist the Administrator with preparing quarterly and annual financial statements, which include without limitation the following items: |
| a. | Schedule of Investments; | |
| b. | Consolidated Balance Sheet; | |
| c. | Statement of Operations; | |
| d. | Statement of Changes in Net Assets; | |
| e. | Statement of Cash Flows; | |
| f. | Notes to the quarterly and annual financial statements; | |
| g. | Financial highlights; |
| (dd) | assist the Administrator with preparing Form 1099 Miscellaneous, 1042 or 1042-S for payments to trustees and other service providers; | |
| (ee) | assist the Administrator with the preparation of tax schedules, which include without limitation, the following items: |
| a. | Fiscal Distribution Schedule (including recorded ROSCOP journal entry to general ledger); | |
| b. | Excise Distribution Schedule; |
| (ff) | provide the Fund’s management and Fund’s independent accountant with tax reporting information pertaining to the Fund and available to Harmonic as required in a timely manner; and | |
| (gg) | assist the Administrator with preparing Fund financial statement tax footnote disclosures for the review and approval of Fund management and/or the Fund’s independent accountant. |
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For the avoidance of doubt, it is acknowledged and agreed by the Fund and the Administrator that Harmonic shall not be responsible for:
| (a) | performing such anti-money laundering, anti-terrorism financing and anti-proliferation financing duties in relation to the Fund and each Shareholder as are required under applicable laws and regulations (including provision of Money Laundering Reporting Officer and Money Laundering Compliance Officer for the Fund); or | |
| (b) | providing the Fund with certain reports and information about Shareholders, or effecting regulatory filings, to enable the Fund to discharge its obligations related to “Automatic Exchange of Information” under applicable laws and regulations. |
Such duties in (a) and (b) immediately above shall be performed by a separate service provider appointed by the Fund.