ADMINISTRATION AGREEMENT
AGREEMENT made as of August [ ], 2003 by and between Technology
Investment Capital Corp., a Maryland corporation (hereinafter referred to as the
"Corporation"), and BDC Partners, LLC, a Delaware limited liability company,
(hereinafter referred to as the "Administrator").
W I T N E S S E T H:
WHEREAS, the Corporation is a newly formed specialty finance company
that intends to elect to become a business development company under the
Investment Company Act of 1940 (hereinafter referred to as the "Investment
Company Act");
WHEREAS, the Corporation desires to retain the Administrator to provide
administrative services to the Corporation in the manner and on the terms
hereinafter set forth;
WHEREAS, the Administrator is the managing member of BDC Management
Company, LLC, the Corporation's investment adviser (the "Adviser"); and
WHEREAS, the Administrator is willing to provide administrative
services to the Corporation on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the Corporation and the
Administrator hereby agree as follows:
1. Duties of the Administrator
(a) Employment of Administrator. The Corporation hereby employs the
Administrator to act as administrator of the Corporation, and to furnish, or
arrange for others to furnish, the administrative services, personnel and
facilities described below, subject to review by and the overall control of the
Board of Directors of the Corporation, for the period and on the terms and
conditions set forth in this Agreement. The Administrator hereby accepts such
employment and agrees during such period to render, or arrange for the rendering
of, such services and to assume the obligations herein set forth subject to the
reimbursement of costs and expenses provided for below. The Administrator and
such others shall for all purposes herein be deemed to be independent
contractors and shall, unless otherwise expressly provided or authorized herein,
have no authority to act for or represent the Corporation in any way or
otherwise be deemed agents of the Corporation. It is understood and agreed that
the Administrator is acting hereunder for its own separate account and not as
the managing member of the Adviser.
(b) Services. The Administrator shall perform (or arrange for the
performance of) the administrative services necessary for the operation of the
Corporation. Without limiting the generality of the foregoing, the Administrator
shall provide the Corporation with office facilities, equipment, clerical,
bookkeeping and record keeping services at such facilities and such other
services as the Administrator, subject to review by the Board of Directors of
the Corporation,
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shall from time to time determine to be necessary or useful to perform its
obligations under this Agreement. The Administrator shall also, on behalf of the
Corporation, conduct relations with custodians, depositories, transfer agents,
dividend disbursing agents, other stockholder servicing agents, accountants,
attorneys, underwriters, brokers and dealers, corporate fiduciaries, insurers,
banks and such other persons in any such other capacity deemed to be necessary
or desirable. The Administrator shall make reports to the Directors of its
performance of obligations hereunder and furnish advice and recommendations with
respect to such other aspects of the business and affairs of the Corporation as
it shall determine to be desirable; provided that nothing herein shall be
construed to require the Administrator to, and the Administrator shall not,
provide any advice or recommendation relating to the securities and other assets
that the Corporation should purchase, retain or sell or any other investment
advisory services to the Corporation. The Administrator shall be responsible for
the financial and other records that the Corporation is required to maintain and
shall prepare reports to stockholders, and reports and other materials filed
with the Securities and Exchange Commission. In addition, the Administrator will
assist the Corporation in determining and publishing the Corporation's net asset
value, overseeing the preparation and filing of the Corporation's tax returns,
and the printing and dissemination of reports to stockholders of the
Corporation, and generally overseeing the payment of the Corporation's expenses
and the performance of administrative and professional services rendered to the
Corporation by others.
2. Records
The Administrator agrees to maintain and keep all books, accounts and
other records of the Corporation that relate to activities performed by the
Administrator hereunder and, if required by the Investment Company Act, will
maintain and keep such books, accounts and records in accordance with that Act.
In compliance with the requirements of Rule 31a-3 under the Investment Company
Act, the Administrator agrees that all records which it maintains for the
Corporation shall at all times remain the property of the Corporation, shall be
readily accessible during normal business hours, and shall be promptly
surrendered upon the termination of the Agreement or otherwise on written
request. The Administrator further agrees that all records which it maintains
for the Corporation pursuant to Rule 31a-1 under the Investment Company Act will
be preserved for the periods prescribed by Rule 31a-2 under the 1940 Act unless
any such records are earlier surrendered as provided above. Records shall be
surrendered in usable machine-readable form. The Administrator shall have the
right to retain copies of such records subject to observance of its
confidentiality obligations under this Agreement.
3. Confidentiality
The parties hereto agree that each shall treat confidentially the terms
and conditions of this Agreement and all information provided by each party to
the other regarding its business and operations. All confidential information
provided by a party hereto, including nonpublic personal information pursuant to
Regulation S-P of the Securities and Exchange Commission, shall be used by any
other party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party, without the prior consent of such providing
party. The foregoing shall not be applicable to any information that is publicly
available when provided or thereafter becomes publicly available other than
through a breach of this Agreement, or that is required to
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be disclosed by any regulatory authority, any authority or legal counsel of the
parties hereto, by judicial or administrative process or otherwise by applicable
law or regulation.
4. Allocation of Costs and Expenses
In full consideration of the provision of the services of the
Administrator, the Corporation shall reimburse the Administrator for the costs
and expenses incurred by the Administrator in performing its obligations and
providing personnel and facilities hereunder. The Administrator shall not be
entitled to any additional compensation hereunder.
The Corporation will bear all costs and expenses that are incurred in
its operation and transactions and not specifically assumed by the Adviser,
pursuant to that certain Investment Advisory Agreement, dated as of August [ ],
2003 by and between the Corporation and the Adviser. Costs and expenses to be
borne by the Corporation include, but are not limited to, those relating to:
organization and offering; calculating the Corporation's net asset value;
effecting sales and repurchases of shares of the Corporation's common stock and
other securities; investment advisory fees; fees payable to third parties
relating to, or associated with, making investments (in each case subject to
approval of the Corporation's Board of Directors); transfer agent and custodial
fees; federal and state registration fees; all costs of registration and listing
the Corporation's shares on any securities exchange; federal, state and local
taxes; independent Directors' fees and expenses; costs of proxy statements,
stockholders' reports and notices; fidelity bond, directors and officers/errors
and omissions liability insurance, and any other insurance premiums; direct
costs such as printing, mailing, long distance telephone, staff, independent
auditors and outside legal costs; and all other expenses incurred by the
Corporation or the Administrator in connection with administering the
Corporation's business, including payments under this Agreement, based upon the
Corporation's allocable portion of the Administrator's overhead in performing
its obligations under this Agreement, including rent.
5. Limitation of Liability of the Administrator; Indemnification
The Administrator (and its officers, agents, employees, controlling
persons, members, manager and any other person or entity affiliated with the
Administrator) shall not be liable to the Corporation for any action taken or
omitted to be taken by the Administrator in connection with the performance of
any of its duties or obligations under this Agreement, and the Corporation shall
indemnify the Administrator (and its officers, agents, employees, controlling
persons, members, manager and any other person or entity affiliated with the
Administrator) (collectively, the "Indemnified Parties") and hold them harmless
from and against all damages, liabilities, costs and expenses (including
reasonable attorneys' fees and amounts reasonably paid in settlement) incurred
by the Indemnified Parties in or by reason of any pending, threatened or
completed action, suit, investigation or other proceeding (including an action
or suit by or in the right of the Corporation or its security holders) arising
out of or otherwise based upon the performance of any of the Administrator's
duties or obligations under this Agreement or otherwise as administrator for the
Corporation. Notwithstanding the preceding sentence of this Paragraph 5 to the
contrary, nothing contained herein shall protect or be deemed to protect the
Indemnified Parties against or entitle or be deemed to entitle the Indemnified
Parties to indemnification in respect of, any liability to the Corporation or
its security holders to which the Indemnified Parties would otherwise be subject
by reason of willful misfeasance, bad faith or
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gross negligence in the performance of the Administrator's duties or by reason
of the reckless disregard of the Administrator's duties and obligations under
this Agreement.
6. Activities of the Administrator
The services of the Administrator to the Corporation are not to be
deemed to be exclusive, and the Administrator and each affiliate is free to
render services to others. It is understood that directors, officers, employees
and stockholders of the Corporation are or may become interested in the
Administrator and its affiliates, as officers, members, managers, employees,
partners, stockholders or otherwise, and that the Administrator and officers,
members, managers and employees of the Administrator and its affiliates are or
may become similarly interested in the Corporation as stockholders or otherwise.
7. Duration and Termination of this Agreement
This Agreement shall become effective as of the date hereof, and shall
remain in force with respect to the Corporation for two years thereafter, and
thereafter continue from year to year, but only so long as such continuance is
specifically approved at least annually by (i) the Board of Directors of the
Corporation and (ii) a majority of those Directors who are not parties to this
Agreement or "interested persons" (as defined in the Investment Company Act) of
any such party.
This Agreement may be terminated at any time, without the payment of
any penalty, by vote of the Directors of the Corporation, or by the
Administrator, upon 60 days' written notice to the other party; provided, that
if and so long as the Corporation seeks to qualify as a "venture capital
operating company," as defined in the U.S. Department of Labor's Plan Asset
Regulation, 29 C.F.R. ss.2510.3-101, then this Agreement may be terminated at
any time, without the payment of any penalty, by vote of the Directors of the
Corporation upon 30 days' written notice to the Administrator. This Agreement
may not be assigned by a party without the consent of the other party.
8. Amendments of this Agreement
This Agreement may be amended pursuant to a written instrument by
mutual consent of the parties.
9. Governing Law
This Agreement shall be construed in accordance with laws of the State
of New York and the applicable provisions of the Investment Company Act, if any.
To the extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, if any, the latter shall control.
10. Entire Agreement
This Agreement contains the entire agreement of the parties and
supercedes all prior agreements, understandings and arrangements with respect to
the subject matter hereof.
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11. Notices
Any notice under this Agreement shall be given in writing, addressed
and delivered or mailed, postage prepaid, to the other party at its principal
office.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Technology Investment Capital Corp.
By:
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Name: Xxxxxxxx Xxxxx
Title: President and Chief Executive Officer
BDC Partners, LLC
By:
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Name: Xxxxxxxx Xxxxx
Title: Managing Member
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