Form of Administration Agreement] ADMINISTRATION AGREEMENT
Exhibit
k
[Form
of Administration
Agreement]
This
Agreement (“Agreement”)
is
made as of July __, 2007 by and between MEDIATECH INVESTMENT CORP. a Maryland
corporation (the “Corporation”),
and
MEDIATECH INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company
(the
“Administrator”).
WITNESSETH:
WHEREAS,
the Corporation is a newly organized closed-end management investment company
that intends to elect to be treated as a business development company
(“BDC”)
under
the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
and
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; 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:
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1.
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Duties
of the Administrator
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(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
(the “Board”), 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.
(b) Services.
The
Administrator shall perform (or oversee, or arrange for, the performance of)
the
administrative services necessary for the operation of the Corporation. Without
limiting the generality of the foregoing, to the extent the Corporation so
requires, the Administrator shall provide the Corporation with office
facilities, utilities, equipment, clerical, bookkeeping and record keeping
services at such facilities and such other services as the Administrator,
subject to review by the Board, 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 Board 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 pursuant
to
this Agreement. The Administrator shall provide portfolio collections functions
for interest income, fees and warrants and be responsible for the financial
and
other records that the Corporation is required to maintain and shall prepare,
print and disseminate reports to stockholders, and reports and other materials
filed with the Securities and Exchange Commission (the “SEC”).
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 generally overseeing the payment of
the Corporation’s expenses and the performance of administrative and
professional services rendered to the Corporation by others.
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2.
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Records
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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 will maintain and keep such books, accounts and records in
accordance with the Investment Company 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 that 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 Investment Company 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.
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3.
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Confidentiality
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All
confidential information provided by a party hereto, including nonpublic
personal information (regulated pursuant to Regulation S-P of the SEC), 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 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.
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4.
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Compensation;
Allocation of Costs and
Expenses
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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 Corporation will bear all costs and
expenses that are incurred in its operation, administration and transactions
and
not specifically assumed by the Adviser, pursuant to that certain Investment
Advisory Agreement, dated as of July __, 2007 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: offering and organization; the cost of
calculating the Corporation’s net asset value; the cost of effecting sales and
repurchases of shares of its common stock and other securities; management
and
incentive fees payable pursuant to the investment advisory agreement; fees
payable to third parties relating to, or associated with, making investments
(including third-party valuation firms); transfer agent and custodial fees;
federal and state registration fees; any exchange listing fees; federal, state
and local taxes; independent directors’ fees and expenses; brokerage
commissions; costs of proxy statements, stockholders’ reports and notices;
fidelity bond, liability insurance and other insurance premiums; and printing,
mailing, independent accountants and outside legal costs and all other direct
expenses incurred by either the Corporation or the Administrator in connection
with administering the Corporation’s business, including third-party costs
directly related to the investigation and monitoring of the Corporation’s
investments and payments under this Agreement based upon the Corporation’s
allocable portion of the Administrator’s overhead in performing its obligations
under the Administration Agreement, including rent and the allocable portion
of
the cost of the Corporation’s Chief Financial Officer/Chief Compliance Officer
and his staff.
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5.
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Limitation
of Liability of the Administrator;
Indemnification
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The
Administrator (and its officers, managers, partners, agents, employees,
controlling persons, members, and any other person or entity affiliated with
the
Administrator, including without limitation its members, and any person
affiliated with its members to the extent they are providing services for or
otherwise acting on behalf of the Administrator, Adviser or the Corporation)
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 or otherwise as administrator for
the
Corporation, and the Corporation shall indemnify, defend and protect the
Administrator (and its officers, managers, partners, agents, employees,
controlling persons, members, and any other person or entity affiliated with
the
Administrator, including without limitation the Adviser, each of whom shall
be
deemed a third party beneficiary hereof) (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 Section 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
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 (to the extent applicable, as the same shall be determined in
accordance with the Investment Company Act and any interpretations or guidance
by the SEC or its staff thereunder).
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6.
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Activities
of the Administrator
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The
services of the Administrator to the Corporation are not to be deemed to be
exclusive, and the Administrator and each of its affiliates 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 directors, officers, members, managers,
employees, partners, stockholders or otherwise, and that the Administrator
and
Directors, officers, members, managers, employees, partners and stockholders
of
the Administrator and its affiliates are or may become similarly interested
in
the Corporation as stockholders or otherwise.
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7.
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Duration
and Termination of this
Agreement
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(a) This
Agreement shall become effective as of the first date above written. This
Agreement may be terminated at any time, without the payment of any penalty,
upon not more than 60 days’ written notice, by the vote of a majority of the
outstanding voting securities of the Corporation, or by action of the Board
or
by the Administrator.
(b) This
Agreement shall remain in force with respect to the Corporation for two (2)
years and thereafter continue from year to year, but only so long as such
continuance is specifically approved at least annually by (A) the vote of the
Corporation’s Board of Directors, or by the vote of a majority of the
outstanding voting securities of the Corporation and (B) the vote of a majority
of the Corporation’s Directors who are not parties to this Agreement or
“interested persons” (as such term is defined in Section 2(a)(19) of the
Investment Company Act) of any such party, in accordance with the requirements
of the Investment Company Act and each of whom is an “independent
director” as
defined by Nasdaq Marketplace Rule 4200(a)(15).
(c) This
Agreement may not be assigned by a party without the consent of the other party;
provided,
however,
that
the rights and obligations of the Corporation under this Agreement shall not
be
deemed to be assigned to a newly-formed entity in the event of the merger of
the
Corporation into, or conveyance of all of the assets of the Corporation to,
such
newly-formed entity; provided,
further,
however,
that
the sole purpose of that merger or conveyance is to effect a mere change in
the
Corporation’s legal form into another limited liability entity. The provisions
of Section 5 of this Agreement shall remain in full force and effect, and the
Administrator shall remain entitled to the benefits thereof, notwithstanding
any
termination of this Agreement.
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8.
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Amendments
of this Agreement
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This
Agreement may be amended pursuant to a written instrument by mutual consent
of
the parties.
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9.
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Governing
Law
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This
Agreement shall be construed in accordance with the laws of the State of New
York and shall be construed in accordance with the applicable provisions of
the
Investment Company Act. To the extent the applicable laws of the State of New
York, or any of the provisions herein, conflict
with
the
provisions of the Investment Company Act, the latter shall control.
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10.
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Entire
Agreement
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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.
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Notices
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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.
Remainder
of Page Intentionally Left Blank
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
By:
Name:
Title:
MEDIATECH
INVESTMENT MANAGEMENT, LLC
By:
Name:
Title:
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