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Exhibit 10(iii)(a)
MANAGEMENT AGREEMENT
Management Agreement ("Agreement") made as of June 15, 1998 between
Access Capital Strategies Community Investment Fund, Inc. ("Fund"), a Maryland
corporation, and Access Capital Strategies LLC ("Access"), a Massachusetts
corporation. Access 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"); and
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 hereto as follows:
1. Appointment. The Fund hereby appoints Access as Manager for the
period and on the terms set forth in this Agreement. Access 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 ("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, and structure the investments to be made by the Fund,
arrange debt financing for the Fund, provide portfolio management and servicing
of securities held in the Fund's portfolio, and administer the Fund's day-to-day
affairs.
3. Administrative Duties. The Manager will administer the affairs of
the Fund subject to the supervision of the Board and the following
understandings:
(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 herein contained shall be deemed to
relieve or deprive the Board of its responsibility for and control of the
conduct of the affairs of the Fund.
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(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 ("1934 Act"),
proxy material, tax returns, and required reports to the Fund's shareholders and
the Securities and Exchange Commission ("SEC") and other appropriate federal or
state regulatory authorities.
(c) 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 which 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 which it maintains for the Fund and which are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Fund any records which it maintains for the Fund upon request by
the Fund.
(d) 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.
4. Use of Sub-Investment Adviser. The Manager may, subject to the
approvals required under the 1940 Act, employ a sub-investment adviser to assist
the Manager in the performance of its duties under this Agreement. Such use does
not relieve the Manager of any duty or liability it would otherwise have under
this Agreement. Compensation of any such sub-investment adviser for services
provided and expenses assumed under any agreement between the Manager and such
sub-investment adviser permitted under this paragraph is the sole responsibility
of the Manager.
5. Further Duties. In all matters relating to the performance of this
Agreement, the Manager will act in conformity with the Articles of Incorporation
and By-Laws 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.
6. Services Not Exclusive. The services furnished by the Manager
hereunder are not to be deemed exclusive and the Manager shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby. 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 nature or dissimilar nature.
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7. Expenses.
(a) The Manager 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 First Closing. Upon the First Closing and
continuing until the Final Closing, the Manager will be paid an annual fee of
.02% of the Fund's monthly net assets, paid quarterly, in arrears, not to exceed
the amount of combined organizational and offering expenses previously paid by
the manager.
(b) Except as otherwise expressly provided for in this Section 7 of
this Agreement, 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 and commission expense and other transaction costs incident to the
acquisition and dispositions of investments, (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 in connection with
borrowings, (iv) SEC fees and expenses and any fees and expenses of state
securities regulatory authorities, (v) expenses of printing and distributing
reports and notices to shareholders, (vi) costs of proxy solicitation, (vii)
costs of meetings of shareholders and the Board, (viii) charges and expenses of
the Fund's custodian, transfer and dividend disbursing agent, and fund
accountant, (ix) compensation and expenses of the Fund's directors who are not
interested persons of the Fund or the Manager, and of any of the Fund's officers
who are not interested persons of the Manager, and expenses of all directors in
attending board or shareholder meetings, (x) legal and auditing expenses,
including expenses incident to the documentation for, and consummation of,
transactions, (xi) costs of any certificates representing the Shares, (xii)
costs of stationery and supplies, (xiii) the costs of membership by the Fund in
any trade organizations, (xiv) expenses associated with litigation and other
extraordinary or non-recurring expenses and (xv) any insurance premiums.
(c) Beginning with the First Closing, the Manager will pay the annual
operating expenses to be borne by the Fund as described in Section 7(b). Upon
the First Closing, the Fund will pay to the Manager an annual fee of .03% of
monthly net assets, paid quarterly in arrears, not to exceed the amount of
operating expenses previously paid by the Manager.
(d) The expenses to be borne by the Manager are limited to the
following: (i) all costs and fees incident to the selection and investigation of
prospective Fund investments, including associated due diligence expenses such
as travel expenses and professional fees (but excluding legal and accounting
fees and other costs incident to the closing, documentation, or consummation of
such transactions), (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 costs of providing the Fund with such
corporate, administrative, and clerical personnel (including officers and
directors of the Fund who are interested persons of
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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)
the costs of providing significant managerial assistance offered to an accepted
by the recipient of Fund investments.
(e) 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 Paragraph 8(a)
thereof 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.
(f) 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.
8. Compensation.
(a) For the services provided and the expenses assumed pursuant to this
Agreement, the Fund will pay to the Manager a fee ("Management Fee"), paid
quarterly, at an annual rate of .50% of the Fund's average gross monthly assets,
less accrued liabilities other than indebtedness for borrowings.
(b) Upon the structuring and effecting of a transaction for the Fund,
the Fund will pay the Manager an investment structuring fee of 1.00% of the
Fund's net assets.
(c) 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 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.
(d) If (i) the Manager, (ii) an officer, director, or employee of the
Manager, (iii) a company controlling, controlled by, or under common control
with a 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.
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9. 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 their part
in the performance of their duties or from reckless disregard by them of their
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 for 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.
10. Duration and Termination.
(a) This Agreement shall become effective upon the date here above
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, 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 at
any time, without the payment of any penalty, by vote of the Board or by a vote
of a majority of the outstanding voting securities of the Fund on sixty days'
written notice to the Manager or 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.
11. 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.
12. 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.
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13. 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. Capitalized
terms used herein and not defined have the meaning assigned to them in the
Fund's Private Offering Memorandum dated February 18, 1998, as revised as of May
15, 1998. 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", "affiliated person", "interested person", "assignment", "broker",
"investment adviser", "national securities exchange", "net assets", "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.
ACCESS CAPITAL STRATEGIES COMMUNITY
INVESTMENT FUND, INC.
By: /s/ Xxxxx X. Sand
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Name: Xxxxx X. Sand
Title: CEO
ACCESS CAPITAL STRATEGIES LLC
By: /s/ Xxxxx X. Sand
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Name: Xxxxx X. Sand
Title: President
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