ex102-venturelendingleas






GDSVF&H\2111492.6   INVESTMENT MANAGEMENT AGREEMENT      THIS INVESTMENT MANAGEMENT AGREEMENT (this “Agreement”) is made as of  August 3, 2015, between VENTURE LENDING & LEASING VIII, INC., a Maryland corporation  (the “Fund”), and WESTECH INVESTMENT ADVISORS LLC, a California limited liability  company (“Westech Advisors”). Westech Advisors is sometimes referred to herein as the  “Manager”.    WHEREAS, the Fund is a newly organized, non-diversified closed-end management  investment company that has elected status as a business development company (“BDC”) under the  Investment Company Act of 1940 (“1940 Act”), whose sole shareholder is Venture Lending &  Leasing VIII, LLC, a Delaware limited liability company (the “LLC”);    WHEREAS, the Manager is an investment adviser registered as such under the Investment  Advisers Act of 1940 (“Advisers Act”); and    WHEREAS, the Fund desires to retain the Manager to furnish certain investment advisory,  portfolio management and administrative services to the Fund, and the Manager is willing to furnish  such services.    NOW, THEREFORE, in consideration of the premises and mutual covenants herein  contained, it is agreed between the parties as follows:    1. Appointment.   The Fund hereby appoints Westech Advisors as Investment Manager  for the period and on the terms set forth in this Agreement. Westech Advisors accepts such  appointment and agrees to render the services herein set forth, for the compensation herein provided.    2. Investment Duties. Subject to the supervision of the Fund’s Board of Directors (the  “Board”), the Manager will provide a continuous investment program for the Fund and will  determine from time to time what securities and other investments will be purchased, retained or sold  by the Fund.   Subject to investment policies and guidelines established by the Board, the Manager  will identify, evaluate, structure and close the investments to be made by the Fund, provide portfolio  management and servicing of loans held in the Fund’s portfolio, and administer the Fund’s day-to-  day affairs.   The Manager will also arrange and recommend debt financing for the Fund, provided  that no such debt may be incurred without the prior approval of the Board.    3. Administrative Duties. The Manager will administer the affairs of the Fund under the  supervision of the Board and subject to the following:    (a) The Manager will supervise all aspects of the operations of the Fund, including  oversight of transfer agency, custodial and accounting services; provided, however, that nothing  contained herein shall be deemed to relieve or deprive the Board of its responsibility for and control  of the conduct of the affairs of the Fund.    (b) The Manager will arrange, but not pay, for the periodic preparation, updating,  filing and dissemination (as required) of the Fund’s registration statement under the Securities  Exchange Act of 1934, proxy material, tax returns and required reports to the Fund’s shareholders  





 






GDSVF&H\2111492.6 2   and the Securities and Exchange Commission (“SEC”) and other appropriate federal or state  regulatory authorities.    (c) The Manager will oversee the computation of the net asset value and the net  income of the Fund in accordance with procedures adopted by the Board.    (d) The Manager will maintain or oversee the maintenance of all books and  records with respect to the Fund, and will furnish the Board with such periodic and special reports as  the Board reasonably may request.   In compliance with the requirements of Rule 31a-3 under the  1940 Act, the Manager hereby agrees that all records that it maintains for the Fund are the property of  the Fund, agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any records  that it maintains for the Fund and that are required to be maintained by Rule 31a-1 under the 1940  Act, and further agrees, upon request by the Fund, to surrender promptly to the Fund any records that  it maintains for the Fund.    (e) All cash, securities and other assets of the Fund will be maintained in the  custody of one or more banks in accordance with the provisions of Section 17(f) of the 1940 Act and  the rules thereunder; the authority of the Manager to instruct the Fund’s custodian(s) to deliver and  receive such cash, securities and other assets on behalf of the Fund will be governed by a custodian  agreement between the Fund and each such custodian, and by resolution of the Board.    (f) The Manager will arrange for the Fund, at the Fund’s expense, to obtain (i)  annual audited financial statements and cause such financial statements to be distributed to the  Fund’s shareholders within 120 days of the end of the Fund’s fiscal year, and (ii) audited financial  statements upon the Fund’s liquidation, and cause such financial statements to be distributed to the  Fund’s shareholders promptly after the completion of such audit. All such financial statements shall  be prepared in accordance with generally accepted accounting principles and audited by an  independent public accountant that is registered with, and subject to regular inspection as of the  commencement of the professional engagement period, and as of each calendar year-end, by, the  Public Company Accounting Oversight Board in accordance with its rules.    4. Further Duties. In all matters relating to the performance of this Agreement, the  Manager will act in conformity with the Articles of Incorporation and Bylaws of the Fund and with  the instructions and directions of the Board and will comply with the requirements of the 1940 Act,  the rules thereunder, and all other applicable federal and state laws and regulations.    5. Services Not Exclusive.    (a) The services furnished by the Manager hereunder are not to be deemed  exclusive and the Manager, except as otherwise expressly provided in this Section 5, shall be free to  furnish similar services to others so long as its services under this Agreement are not impaired  thereby. Except as otherwise expressly provided in this Section 5, nothing in this Agreement shall  limit or restrict the right of any director, officer or employee of the Manager, who may also be a  director, officer or employee of the Fund, to engage in any other business or to devote his or her time  and attention in part to the management or other aspects of any other business, whether of a similar or  dissimilar nature.  





 






GDSVF&H\2111492.6 3   (b) Until the earlier of (i) the termination of the Investment Period (as defined  below) and (ii) such time as the LLC has called capital and either the LLC and/or the Fund has  invested at least 75% of the total amounts subscribed for by the investors in the LLC, except as  provided below, neither the Manager nor any “Controlled Person” of the Manager will, without the  consent of the LLC, call down capital from any pooled investment vehicle other than VLLI Holdings  II, LLC, Venture Lending & Leasing III, LLC, Venture Lending & Leasing IV, LLC, Venture  Lending & Leasing V, LLC, Venture Lending & Leasing VI, Inc., Venture Lending & Leasing VI,  LLC, Venture Lending & Leasing VII, Inc., Venture Lending & Leasing VII, LLC (such entities,  collectively, the “Prior Debt Fund Entities”), the LLC or the Fund, or act as investment adviser or  manager to any client, if the investment program of such pooled investment vehicle or client includes,  as a primary or major component, the provision of asset-backed debt financing to domestic venture  capital-backed companies. In the event that the LLC elects irrevocably to release the members of the  LLC from any uncalled portion of their subscription obligations, then solely for purposes of  determining when the 75% investment threshold described above has occurred, the “total amounts  subscribed for” shall be deemed reduced to reflect such release.   The foregoing restriction shall not  be deemed to prohibit the Manager or any Controlled Person thereof from acting as investment  adviser or manager with respect to any of the Prior Debt Fund Entities; provided, however, that, until  the 75% investment threshold described above has occurred, such party shall not, without the consent  of the Fund, accept from the Prior Debt Fund Entities any additional investment funds (other than  amounts required for follow-on investments to existing investments) beyond the funds invested or  committed to the Prior Debt Fund Entities (for this purpose treating commitments to Venture Lending  & Leasing VII, LLC as also being commitments to Venture Lending & Leasing VII, Inc.) as of  August 3, 2015. A “Controlled Person” of the Manager as used in this paragraph means any entity  (i) 50% or more of whose voting securities are beneficially owned by the Manager or (ii) 50% or  more of whose voting securities are controlled in the aggregate by Ronald W. Swenson, Salvador O.  Gutierrez, Maurice C. Werdegar, David R. Wanek or Jay L. Cohan. “Investment Period” as used in  this paragraph means the period commencing on the date of the first investment by the Fund (or, if  earlier, the LLC) and ending on the last day of the calendar quarter during which the fifth  anniversary of such date occurs; provided, however, that the Manager shall be permitted to extend  such period by up to two (2) additional calendar quarters in its sole and absolute discretion.    It is the intention of the Manager to sponsor one or more private investment entities formed  for the purpose of making equity and equity-oriented investments (other than asset backed  investments) in privately held companies (collectively, the “Equity Fund”). For the avoidance of  doubt, nothing in this Agreement shall prevent the Manager and/or any Controlled Person of the  Manager from at any time forming, calling down capital from and/or acting as the investment adviser  or manager to the Equity Fund or any successor thereto.    6. Expenses.    (a) The Fund will pay all expenses (including, without limitation, accounting,  legal, printing, clerical, filing and other expenses) incurred by the Fund, the Manager or its affiliates  on behalf of the Fund in connection with the organization of the Fund and the initial offering of its  shares.   In addition, except as otherwise expressly provided for in Section 6(b), during the term of  this Agreement, the Fund will bear all of its expenses incurred in its operations including, but not  limited to, the following: (i) brokerage, legal, accounting and commission fees and expenses and  other transaction costs related to the acquisitions, dispositions and/or restructurings (including  





 






GDSVF&H\2111492.6 4   collection and/or workout costs and expenses) of investments (including investments that are not  consummated), any hedging transactions with respect thereto and the creation and perfection of  security interests with respect thereto; (ii) federal, state and local taxes and fees, including transfer  taxes and filing fees, incurred by or levied upon the Fund; (iii) interest charges and other fees and  expenses incurred in connection with borrowings (including without limitation costs and expenses  incurred in connection with negotiating with one or more lenders to the Fund (including prospective  lenders) to structure a loan syndicate and to satisfy any conditions imposed by lenders to the Fund;  (iv) SEC fees and expenses, including the expenses of compliance by the Fund and its directors with  SEC rules, regulations, and filing requirements, and any fees and expenses of other federal or state  securities or other regulatory authorities (such as obtaining a surety bond); (v) expenses of preparing,  printing and distributing Fund reports and notices; (vi) costs of proxy solicitation; (vii) costs of  meetings of stockholders and the Board; (viii) charges and expenses of the Fund’s custodian, transfer  and dividend disbursing agents; (ix) any fees and expenses incurred to conduct background checks on  the management personnel of prospective Fund investments; (x) compensation and expenses of the  Fund’s disinterested directors (which at present include a $20,000 annual fee for each disinterested  director, an additional $10,000 annual fee for the chair of the Audit Committee of the Board, and a  fee of $1,000 per meeting, which amounts may be revised as determined by the Nominating and  Corporate Governance Committee of the Board), and expenses of directors in attending Board  meetings, expenses of directors and officers liability insurance, and payments under indemnification  agreements; (xi) expenses of administrators, custodians, counsel and auditors; (xii) costs of  certificates representing the shares of stock of the Fund, if any; (xiii) costs of stationery and supplies;  (xiv) the costs of membership by the Fund in any trade organizations (including Investment Company  Institute membership dues for both the Fund and the Manager); (xv) expenses associated with the  preparation of tax returns, and financial statements and obtaining accounting and tax advice; (xvi) all  costs and expenses associated with litigation involving the Fund and the amount of any judgment or  settlement in connection therewith; (xvii) costs and expenses incurred in connection with valuing the  Fund’s investments, including valuation software and the retention of any valuation expert; and  (xviii) other extraordinary or non-recurring expenses (such as litigation expenses or indemnification  expenses).    (b) The expenses to be borne by the Manager in connection with its duties to the  Fund hereunder are limited to the following: (i) all costs and fees incident to the selection and  investigation of prospective Fund investments, such as travel expenses and professional fees (but  excluding broker, legal and accounting fees and other costs incident to the closing, documentation, or  consummation of such transactions, and further excluding any fees and expenses incurred to conduct  background checks on the management personnel of prospective Fund investments); (ii) the cost of  adequate office space for the Fund and all necessary office equipment and services, including  telephone service, heat, utilities and similar items; (iii) the cost of providing the Fund with such  corporate, administrative and clerical personnel (including officers and directors of the Fund who are  interested persons of the Manager and are acting in their respective capacities as officers and  directors) as the Board reasonably deems necessary or advisable to perform the services required to  be performed by the Manager under this Agreement; and (iv) costs and expenses associated with the  Manager’s registration or compliance with, or examination by the SEC with respect to, the Advisers  Act (other than charges and expenses of the Fund’s custodian, transfer and dividend disbursing agents  or any other costs or expenses associated with the acquiring, holding or disposing of the Fund’s  assets, whether required by the Advisers Act (or similar state laws) or otherwise).  





 






GDSVF&H\2111492.6 5   (c) The Fund may pay directly any expenses incurred by it in its normal operations  and, if any such payment is consented to by the Manager and acknowledged as otherwise payable by  the Manager pursuant to this Agreement, the Fund may reduce the fee payable to the Manager  pursuant to Section 7 hereof by such amount. To the extent that such deductions exceed the fee  payable to the Manager on any quarterly payment date, such excess shall be carried forward and  deducted in the same manner from the fee payable on succeeding quarterly payment dates.    (d) The payment or assumption by the Manager of any expense of the Fund that  the Manager is not required by this Agreement to pay or assume shall not obligate the Manager to  pay or assume the same or any similar expense of the Fund on any subsequent occasion.    7. Management Fee.    (a) For the services provided and the expenses assumed pursuant to this  Agreement, the Fund or its successor trustees will pay to the Manager, whether before or after  dissolution of the Fund, a management fee (the “Management Fee”), computed and paid quarterly as  follows:    (i) for the first two years following the first closing of the initial offering  of interests in the LLC, at an annual rate equal to 2.5% of Member Committed Equity Capital (as  defined below) (regardless of when or if such committed capital is called or released) as of the last  day of each such fiscal quarter;    (ii) for each quarter thereafter, at an annual rate equal to 2.5% of the total  value of the Fund’s assets (including amounts derived from borrowed funds), as of the last day of  each such fiscal quarter.    The “Member Committed Equity Capital”, as of the end of any fiscal quarter, shall be the  aggregate amount of subscription obligations for the purchase of interests in the LLC (including any  amounts of such obligations that have been satisfied) as of the end of such fiscal quarter. For  purposes of calculating the Management Fee, any capital committed to the LLC at a closing  subsequent to the first closing (regardless of when or if such committed capital is called or released)  shall be deemed to have been committed to the LLC as of the first closing.    (b) If this Agreement becomes effective or terminates before the end of any fiscal  quarter, the Management Fee for the period from the effective day to the end of the fiscal quarter or  from the beginning of such fiscal quarter to the date of termination, as the case may be, shall be  prorated according to the proportion which such period bears to the full fiscal quarter in which such  effectiveness or termination occurs.    (c) If (i) the Manager, (ii) an officer, director or employee of the Manager, (iii) a  company controlling, controlled by or under common control with the Manager, or (iv) an officer,  director or employee of any such company receives any compensation from a company whose  securities are held in the Fund’s portfolio in connection with the provision to that company of  significant managerial assistance, the compensation due to the Manager hereunder shall be reduced  by the amount of such fee. If such amounts have not been fully offset at the time of termination of  this Agreement, the Manager shall pay such excess amounts to the Fund upon termination.  





 






GDSVF&H\2111492.6 6   8. Limitation of Liability of Manager. The Manager shall not be liable for any error of  judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to  which this Agreement relates except a loss resulting from willful misfeasance, bad faith or gross  negligence on its part in the performance of its duties or from its reckless disregard of its obligations  and duties under this Agreement. Any person, even though also an officer, director, employee or  agent of the Manager, who may be or become an officer, director, employee or agent of the Fund  shall be deemed, when rendering services to the Fund or acting with respect to any business of the  Fund, to be rendering such service to, or acting solely on behalf of, the Fund and not as an officer,  director, employee or agent or one under the control or direction of the Manager even though paid by  it.    9. Duration and Termination.    (a) This Agreement shall become effective upon the date hereabove written  provided that this Agreement shall not take effect unless it has first been approved (i) by a vote of a  majority of those directors of the Fund who are not parties to this Agreement or interested persons of  any such party, cast in person at a meeting called for the purpose of voting on such approval, and (ii)  by vote of a majority of the Fund’s outstanding voting securities.    (b) Unless sooner terminated as provided herein, this Agreement shall continue in  effect for two years from the above written date.   Thereafter, regardless of the dissolution of the  Fund, if not terminated, this Agreement shall continue automatically for successive periods of twelve  months each, provided that such continuance is specifically approved at least annually (i) by a vote of  a majority of those directors of the Fund who are not parties to this Agreement or interested persons  of any such party, cast in person at a meeting called for the purpose of voting on such approval, and  (ii) by the Board or by vote of a majority of the outstanding voting securities of the Fund.    (c) Notwithstanding the foregoing, this Agreement may be terminated: (i) by vote  of the Board or by a vote of a majority of the outstanding voting securities of the Fund at any time,  without the payment of any penalty, on sixty days’ written notice to the Manager or (ii) by the  Manager at any time, without the payment of any penalty, on sixty days’ written notice to the Fund.  This Agreement will automatically terminate in the event of its assignment.    10. 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 vote of a majority of the Fund’s  outstanding voting securities.    11. Governing Law.   This Agreement shall be construed in accordance with the laws of  the State of Maryland, without giving effect to the conflicts of laws principles thereof, and in  accordance with the 1940 Act.   To the extent that the applicable laws of the State of Maryland  conflict with the applicable provisions of the 1940 Act, the latter shall control.    12. Miscellaneous. 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.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their  respective successors. As used in this Agreement, the terms “majority of the outstanding voting  securities", "interested person", "assignment", "broker", "investment adviser", "security" and  "significant managerial assistance" shall have the same meaning as such terms have in the 1940  Act, subject  to such exemption  as may be granted by the SEC by any rule, regulation or order.  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 general application, such  provision shall be deemed to incorporate the effect of such rule, regulation or order.    IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by  their officers designated as of the day and year first above written.    VENTURE LENDING & LEASING VIII, INC.    WESTECH INVESTMENT ADVISORS LLC      By:  /s/ Jay Cohan               By:  /s/ Maurice Werdegar                           Jay Cohan              Maurice Werdegar              Vice President              Chief Executive Officer                                                            GDSVF&I-f\2111492.6 7