ADMINISTRATION AGREEMENT
Exhibit k-2
AGREEMENT (this “Agreement”) made as of March [ ], 2007 by and between GSC Investment
Corp., a Maryland corporation (the “Company”), and GSCP (NJ), L.P., a Delaware limited partnership
(the “Administrator”).
WHEREAS, the Company is a newly organized Maryland corporation that expects to file an
election to be treated as a business development company under the Investment Company Act of 1940,
as amended (the “Investment Company Act”), and to elect to be taxable as a regulated investment
company commencing with its taxable year ending December 31, 2007.
WHEREAS, the Company and GSCP (NJ), L.P. are parties to an Investment Advisory and Management
Agreement dated March [ ], 2007 (the “Investment Advisory and Management Agreement”);
WHEREAS, the Company desires to retain the Administrator to provide administrative services to
the Company in the manner and on the terms hereinafter set forth; and
WHEREAS, the Administrator is willing to provide administrative services to the Company 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 Company and the Administrator hereby agree as follows:
1. Duties of the Administrator.
(a) Employment of Administrator. The Company hereby employs the Administrator to act
as administrator of the Company, 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 Company, 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 as provided for below. The Administrator and any such other persons
providing services arranged for by the Administrator 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 Company in any way or
otherwise be deemed agents of the Company. The Administrator agrees to notify the Company
of any admission or removal of a general partner of the Administrator within a reasonable amount of time after such admission or removal.
(b) Services. The Administrator shall perform (or oversee, or arrange for, the
performance of) the administrative services necessary for the operation of the Company.
Without limiting the generality of the foregoing, the Administrator shall provide the
Company with office facilities, equipment, clerical, bookkeeping and record keeping
services at such office facilities and such other services as the Administrator, subject
to review by the board of directors of the Company, 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 Company, arrange for the services of, and oversee,
custodians, depositories, transfer agents, dividend disbursing agents, other shareholder
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 Company’s board of
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
Company 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 Company
should purchase, retain or sell or any other investment advisory services to the Company.
The Administrator shall be responsible for the financial and other records that the
Company is required to maintain and shall prepare all reports and other materials required
to be filed with the Securities and Exchange Commission (the “SEC”) or any other
regulatory authority, including reports to shareholders. The Administrator will provide
on the Company’s behalf significant managerial assistance to those portfolio companies to
which the Company is required to provide such assistance. In addition, the Administrator
will assist the Company in determining and publishing the Company’s net asset value,
overseeing the preparation and filing of the Company’s tax returns, and the printing and
dissemination of reports to shareholders, and generally overseeing the payment of the
Company’s expenses and the performance of administrative and professional services
rendered to the Company by others.
2. Records. The Administrator agrees to maintain and keep all books, accounts and other
records of the Company 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 that it maintains for the Company shall at
all times remain the property of the Company, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon the
termination of this Agreement or otherwise on written request. The Administrator further agrees
that all records which it maintains for the Company 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. Confidentiality. The parties hereto agree that each shall treat confidentially 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 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.
4. Compensation; Allocation of Costs and Expenses. (a) In full consideration of the provision
of the services of the Administrator, the Company shall reimburse the Administrator for the costs
and expenses incurred by the Administrator in performing its obligations and providing personnel
and facilities hereunder based upon the Company’s allocable portion of the Administrator’s overhead
in performing its obligations under this Agreement, including rent and the allocable portion of the
cost of the Company’s officers and their respective staffs (including travel expenses). The
Company’s allocable portion of such costs and expenses may be determined based on the proportion of
the Company’s total assets to the aggregate total assets administered by the Administrator or
sub-division thereof; provided that the Administrator may determine that certain services
shall be allocated on the basis of the time allocated by certain personnel of the Administrator in
providing such services to the Company.
(b) The Company will bear all costs and expenses that are incurred in its operation and
transactions and not specifically assumed by (i) the Company’s investment adviser, pursuant to the
Investment Advisory and Management Agreement or (ii) the Administrator hereunder, including
payments under this Agreement.
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(c) The reimbursements required to be made to the Administrator by the Company as set forth in
(a) above shall be capped such that the amounts payable to the Administrator by the Company,
together with all of the Company’s
other operating expenses, will not exceed an amount representing 1.5% per annum of the
Company’s net assets attributable to the Company’s common stock.
5. Limitation of Liability of the Administrator; Indemnification. The Administrator, its
members and their respective officers, managers, partners, agents, employees, controlling persons,
members, and any other person or entity affiliated with any of them (collectively, the “Indemnified
Parties”), shall not be liable to the Company 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 Company, and the Company 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 Indemnified Parties (each of whom shall be deemed a third party beneficiary
hereof) 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 Company 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
Company. 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 Company or its shareholders to which the Indemnified Parties would otherwise be subject by
reason of willful misfeasance, bad faith or 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 (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).
6. Activities of the Administrator. The services of the Administrator to the Company are not
to be deemed to be exclusive, and the Administrator and each other person providing services as
arranged by the Administrator is free to render services to others. It is understood that
directors, officers, members, managers, employees and shareholders of the Company 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 Company as shareholders.
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7. Duration and Termination of this Agreement.
(a) This Agreement shall become effective as of the date hereof, and shall remain in
force with respect to the Company 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 Company or by the vote of shareholders
holding a majority of outstanding voting securities of the Company and (ii) a majority of
those members of the Company’s board of directors who are not parties to this Agreement or
“interested persons” (as defined in the Investment Company Act) of any such party.
(b) This Agreement may be terminated at any time, without the payment of any penalty,
by vote of the Company’s board of directors, or by the Administrator, upon 60 days’
written notice to the other party.
8. Amendments of this Agreement. This Agreement may not be amended or modified except by an
instrument in writing signed by all parties hereto.
9. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither party may assign, delegate
or otherwise transfer this Agreement or any of its rights or obligations hereunder without the
prior written consent of the other party; provided, however, that the Administrator may assign its
obligations under this Agreement to an affiliate of the Administrator without obtaining consent.
No assignment by either party permitted hereunder shall relieve the applicable party of its
obligations under this Agreement. Any assignment by either party in accordance with the terms of
this Agreement shall be pursuant to a written assignment agreement in which the assignee expressly
assumes the assigning party’s rights and obligations hereunder.
10. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, including without limitation Sections 5-1401 and 5-1402 of the New
York General Obligations Law and New York Civil Practice Laws and Rules 327(b), 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. The parties unconditionally and
irrevocably consent to the exclusive jurisdiction of the courts located in the State of New York
and waive any objection with respect thereto, for the purpose of any
action, suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
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11. No Waiver. The failure of either party to enforce at any time for any period the
provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of
such provisions or rights or the right of such party
thereafter to enforce such provisions, and no waiver shall be binding unless executed in
writing by all parties hereto.
12. Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
13. Headings. The descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of this Agreement.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which
when executed shall be deemed to be an original instrument and all of which taken together shall
constitute one and the same agreement.
15. Notices. All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by overnight courier service (with signature required), by
facsimile, or by registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at their respective principal executive office addresses.
16. Entire Agreement. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date hereof.
| GSC INVESTMENT CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| GSCP (NJ), L.P. | ||||||
| By: | GSCP (NJ), Inc., | |||||
| its general partner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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