Underwriting Agreement
Exhibit (h)
Common Stock, $0.01 par value per share
July 15, 2009
Xxxxx Fargo Securities, LLC,
000 Xxxx Xxxxxx,
0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx,
0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
As representatives (the “Representatives”) of the several Underwriters
named in Schedule I hereto
named in Schedule I hereto
Ladies and Gentlemen:
Fifth Street Finance Corp., a Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule
I hereto (the “Underwriters”), an aggregate of 8,250,000 shares (the “Firm Shares”)
and, at the election of the Underwriters, up to 1,237,500 additional shares (the “Optional
Shares”) of Common Stock, $0.01 par value per share (“Stock”) of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 3 hereof
being collectively called the “Shares”).
On January 2, 2008, Form N-54A Notification of Election to be Subject to Sections 55 through
65 of the Investment Company Act of 1940, (File No. 814-00755) (the “Notification of
Election”) was filed with the Securities and Exchange Commission (the “Commission”)
under the Investment Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively, the “Investment Company Act”), pursuant to which the Company elected to be
treated as a business development company (“BDC”).
The Company has entered into an amended and restated investment advisory and management
agreement, dated as of April 30, 2008 (the “Investment Advisory Agreement”), with Fifth
Street Management LLC, a Delaware limited liability company (the “Adviser”), registered as
an investment adviser under the Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder (the “Advisers Act”).
The Company has entered into an administration agreement, dated as of December 14, 2007, (the
“Administration Agreement”), with FSC, Inc., a New York corporation (the
“Administrator”).
1. The Company represents and warrants to and agrees with each of the
Underwriters, and the Adviser and the Administrator, jointly and severally,
represent and warrant to and agree with each of the Underwriters, that:
(a) A registration statement on Form N-2 (File No. 333-159720) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”) not earlier than three years prior to the date hereof; the Company is
eligible to use Form N-2; the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, for each of
the other Underwriters, have been declared effective by the Commission in such form; other than the
correspondences with the Commission, copies of which have been provided to you, no other document
with respect to the Initial Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial Registration Statement or any
post-effective amendment thereto has been issued, no proceeding for that purpose has been initiated
or threatened by the Commission and no notice of objection of the Commission to the use of the
Initial Registration Statement has been received by the Company (the base prospectus in the form in
which it has most recently been filed with the Commission and declared effective on or prior to the
date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary
prospectus (including the Basic Prospectus and any prospectus supplement that omitted information
deemed by virtue of Rule 430A under the Securities Act of 1933, as amended (the “Act”), to
be part of the Initial Registration Statement at the time it was declared effective) relating to
the Shares included in the Initial Registration Statement or filed with the Commission pursuant to
Rule 497(a) of the rules and regulations of the Commission under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of the Initial Registration Statement,
including all exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 497(h) under the Act in accordance with
Section 6(A)(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or hereafter becomes effective, are
hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus
relating to the Shares that was included in the Registration Statement immediately prior to the
Applicable Time (as defined in Section 1(c) hereof) is hereinafter called the “Pricing
Prospectus”; and the form of final prospectus relating to the Shares filed with the Commission
pursuant to Rule 497(h) under the Act in accordance with Section 6(A)(a) is hereinafter called the
“Prospectus”;
(b) No order preventing or suspending the use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Investment Company Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 8:30 a.m. (Eastern
time) on July 16, 2009. The Pricing Prospectus, as of the Applicable Time when considered together
with the price to the public and number of Shares to be offered set forth on the cover of the
Prospectus (such price to the public and number of Shares being referred to herein as the
“Pricing Information”), did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to
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make the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Additional Disclosure Item (as defined in Section 7 hereof) listed on Schedule
II(a) hereto does not conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Additional Disclosure Item, as supplemented by
and taken together with the Pricing Prospectus as of the Applicable Time when considered together
with the Pricing Information, did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to statements or omissions made in the Pricing
Prospectus in reliance upon and in conformity with information furnished in writing to the Company
by an Underwriter through the Representatives expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein; there are no
contracts or agreements that are required to be described in the Registration Statement, the
Pricing Prospectus or the Prospectus, or to be filed as an exhibit to the Registration Statement
that have not been so described and filed as required;
(e) None of FSFC Holdings, Inc., a Delaware corporation, FSF/MP Holdings, Inc., a Delaware
corporation (collectively, the “Subsidiaries”) or the Company has sustained since the date
of the latest audited financial statements included in the Pricing Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and the Pricing Prospectus,
there has not been any change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its Subsidiaries (any such change or development
is hereinafter referred to as a “Material Adverse Change”), otherwise than as set forth or
contemplated in the Pricing Prospectus;
(f) The Company and each of its Subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by the Company or any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be made of such property
and buildings by the Company and its Subsidiaries; the Company and its Subsidiaries own, lease or
have access to all properties and other assets that are necessary to the conduct of their business
as described in the Registration Statement and the Pricing Prospectus;
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(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction; and each Subsidiary of the
Company has been duly organized and is validly existing and in good standing under the laws of its
jurisdiction of organization, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Pricing Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in the Pricing Prospectus under
the caption “Description of Our Securities” and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and non-assessable and
conform to the description of the Stock contained in the Pricing Prospectus and Prospectus; and all
of the issued equity capital of each Subsidiary has been duly and validly authorized and issued, is
fully paid and non-assessable and is owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(i) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus, and the offer and sale of the Shares
as contemplated hereby has been duly approved by all necessary corporate action, including the
approval of the stockholders of the Company;
(j) This Agreement has been duly authorized, executed and delivered by the Company; each of
the License Agreement, dated as of December 14, 2007 (the “License Agreement”), between the
Company and Fifth Street Capital LLC, the Custodian Agreement, dated as of May 5, 2008 (the
“Custodian Agreement”), between the Company and Bank of America, National Association, the
Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed
and delivered by the Company and constitute valid, binding and enforceable agreements of the
Company, subject, as to enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights generally; and the Investment Advisory
Agreement has been approved by the Company’s board of directors and stockholders in accordance with
Section 15 of the Investment Company Act, contains the applicable provisions required by Section
205 of the Advisers Act and Section 15 of the Investment Company Act and otherwise complies in all
material respects with the requirements of the Advisers Act and the Investment Company Act;
(k) None of the execution, delivery and performance of this Agreement, or the consummation of
transactions contemplated hereby and thereby, will (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or
to which any of the property or assets of the Company or any of its Subsidiaries is subject, or
(ii) result in any violation of the provisions of the Restated Certificate of Incorporation or the
Amended and Restated Bylaws (the “Bylaws”) of the Company or any statute or any order, rule
or regulation of any
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court or governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their properties except, with respect to clause (i), to the extent that any
such conflict, breach or violation would not result in a Material Adverse Change; and no consent,
approval, authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the execution, delivery or performance of any of this
Agreement, the License Agreement, the Investment Advisory Agreement or the Administration
Agreement, or the consummation of the transactions contemplated hereby and thereby, except the
registration under the Act of the Shares, such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and such consents, approvals,
authorization, registrations or qualifications which have been obtained or effected;
(l) Neither the Company nor any of its Subsidiaries is in violation of its Certificate of
Incorporation, Bylaws or any other organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(m) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Our Securities”, insofar as they purport to constitute a summary of the terms of
the Stock, and under the captions “Regulation”, “Material U.S. Federal Income Tax Considerations”,
“Plan of Distribution” and “Underwriting”, insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair;
(n) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be a “registered management investment
company”, as such term is used in the Investment Company Act;
(o) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a party or of which any
property of the Company or any of its Subsidiaries is the subject which, if determined adversely to
the Company or any of its Subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future financial position, stockholders’ equity or results of
operations of the Company and its Subsidiaries; and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(p) The Company has duly elected to be regulated by the Commission as a BDC under the
Investment Company Act, and no order of suspension or revocation has been issued or proceedings
therefor initiated or, to the knowledge of the Company, threatened by the Commission. Such election
has not been withdrawn and the provisions of the Company’s Restated Certificate of Incorporation
and Bylaws and compliance by the Company with the investment objectives, policies and restrictions
described in the Pricing Prospectus and the Prospectus, will not conflict with the provisions of
the Investment Company Act applicable to the Company;
(q) Xxxxx Xxxxxxxx LLP, who have certified certain financial statements of the Company, are
independent public accountants of the Company as required by the Act and the rules and regulations
of the Commission thereunder;
(r) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or
specific authorization; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. generally accepted accounting principles and to
maintain
5
accountability for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Pricing Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (1) no material weakness (whether or not
remediated) in the Company’s internal control over financial reporting (as such term is defined in
Rule 13a-15 and 15d-15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and
(2) no change in the Company’s internal control over financial reporting that has materially
negatively affected, or is reasonably likely to materially negatively affect, the Company’s
internal control over financial reporting;
(s) Except as disclosed in the Registration Statement and the Pricing Prospectus, since the
date of the latest audited financial statements included in the Pricing Prospectus, there has been
no change in the Company’s internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control over financial
reporting;
(t) The Company has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the Company, including
material information pertaining to the Company’s operations and assets managed by the Adviser, is
made known to the Company’s Chief Financial Officer by others within the Company and the Adviser,
and such disclosure controls and procedures are effective to perform the functions for which they
were established;
(u) There are no agreements requiring the registration under the Act of, and there are no
options, warrants or other rights to purchase any shares of, or exchange any securities for shares
of, the Company’s capital stock;
(v) The Company owns, or has obtained valid and enforceable licenses for, or other rights to
use, the inventions, patent applications, patents, trademarks (both registered and unregistered),
trade names, copyrights, trade secrets and other proprietary information described in the Pricing
Prospectus and the Prospectus which are necessary for the conduct of its businesses;
(w) The Company maintains insurance covering its properties, operations, personnel and
businesses as the Company deems adequate; such insurance insures against such losses and risks to
an extent which is adequate in accordance with customary industry practice to protect the Company
and its business; all such insurance is fully in force;
(x) The Company has not sent or received any communication regarding termination of, or intent
not to renew, any of the contracts or agreements referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened
by the Company or, to the Company’s knowledge, any other party to any such contract or agreement;
(y) The Company has not, directly or indirectly, extended credit, arranged to extend credit,
or renewed any extension of credit, in the form of a personal loan, to or for any director or
executive officer of the Company, or to or for any family member or affiliate of any director or
executive officer of the Company;
(z) Neither the Company nor, to the Company’s knowledge, any employee or agent of the Company
has made any payment of funds of the Company or received or retained any funds in violation of any
law, rule or regulation, which payment, receipt or retention of funds is of a character required to
be disclosed in the Registration Statement or the Pricing Prospectus;
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(aa) Neither the Company nor, to the Company’s knowledge, any of its respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly, any action designed,
or which has constituted or might reasonably be expected to cause or result in, under the Exchange
Act, to result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale of the Shares;
(bb) To the Company’s knowledge, there are no affiliations or associations between any member
of the Financial Industry Regulatory Authority (“FINRA”) and any of the Company’s officers,
directors or securityholders, except as set forth in the Registration Statement and the Pricing
Prospectus or disclosed by the Company to FINRA through Web COBRADesk;
(cc) Except as disclosed in the Pricing Prospectus, (i) no person is serving or acting as an
officer, director or investment adviser of the Company, except in accordance with the provisions of
the Investment Company Act and the Advisers Act and (ii) to the knowledge of the Company, no
director of the Company is an “affiliated person” (as defined in the Investment Company
Act) of any of the Underwriters;
(dd) The operations of the Company are in compliance in all material respects with the
provisions of the Investment Company Act applicable to a BDC and the rules and regulations of the
Commission thereunder;
(ee) The Company has not distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the Pricing Prospectus or the Prospectus;
(ff) None of the persons identified as “independent directors” in the Registration
Statement or the Pricing Prospectus is an “interested person” as that term is defined in
Section 2(a)(19) of the Investment Company Act;
(gg) Except as described in the Registration Statement and the Pricing Prospectus, no
relationship, direct or indirect, exists between or among the Company, on the one hand, and the
directors, officers or stockholders of the Company, on the other hand, that is required to be
described in the Registration Statement or the Pricing Prospectus which is not so described;
(hh) Except as disclosed in the Registration Statement and the Pricing Prospectus, neither the
Company nor the Adviser has any lending or other relationship with any affiliate of any Underwriter
and the Company will not use any of the proceeds from the sale of the Shares to repay any
indebtedness owed to any affiliate of any Underwriter;
(ii) The Company has elected to be treated as a regulated investment company (“RIC”)
under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), effective
as of January 2, 2008. The Company is in compliance with the requirements of the Code necessary to
qualify as a RIC. The Company intends to direct the investment of the net proceeds of the offering
of the Shares and to continue to conduct its activities in such a manner as to continue to comply
with the requirements for qualification as a RIC under Subchapter M of the Code. Each of the
Company and its Subsidiaries has filed all tax returns that are required to be filed and have paid
all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine
or penalty that is currently being contested in good faith by appropriate actions and except for
such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in
the aggregate, be reasonably expected to have a Material Adverse Change. The Company has made
adequate charges, accruals and reserves in the applicable financial statements referred to in the
Registration Statement and the Preliminary Prospectus in respect of all federal, state and foreign
income and franchise taxes for all
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periods as to which the tax liability of the Company or any of its Subsidiaries has not been
finally determined. The Company is not aware of any tax deficiency that has been or might be
asserted or threatened against the Company or any of its Subsidiaries that could result in a
Material Adverse Change;
(jj) Other than the Subsidiaries and except as disclosed in the Registration Statement and the
Pricing Prospectus under the caption “Portfolio Companies”, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long term debt securities of any corporation
or other entity. Except for Lighting by Xxxxxxx, LLC, the Company does not control (as such term
is defined in Section 2(a)(9) of the Investment Company Act) any of the companies described in the
Registration Statement and the Pricing Prospectus under the caption “Portfolio Companies”;
(kk) The Company is not aware that any executive, key employee or significant group of
employees of the Company, if any, plans to terminate employment with the Company or any such
executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar agreement that would be violated by the present or proposed business
activities of the Company;
(ll) The Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on
The New York Stock Exchange (the “Exchange”). The Company has taken no action designed to,
or likely to have the effect of, terminating the registration of the Stock under the Exchange Act
or delisting the common stock of the Company from the Exchange, nor has the Company received any
notification that the Commission or the Exchange is contemplating terminating such registration or
listing. The Company has continued to satisfy, in all material respects, all Exchange listing
requirements;
(mm) The Company (i) has adopted and implemented written policies and procedures reasonably
designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1
under the Investment Company Act) by the Company and its Subsidiaries, (ii) is conducting its
business in compliance with all laws, rules, regulations, decisions, directives and orders except
for such failure to comply which would not reasonably be expected to result in a Material Adverse
Change and (iii) is conducting its business in compliance in all material respects with the
requirements of the Investment Company Act; and
(nn) The Company’s filings under the Exchange Act and the Investment Company Act, when they
were filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Exchange Act and the Investment Company Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances under which they were
made.
2. (a) The Adviser represents and warrants to the Underwriters that:
(i) The Adviser has not sustained since January 2, 2008 any material loss or
interference with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus; and, since January 2, 2008, there has not been any material adverse
change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders’ equity
or results of operations of the Adviser (any such change or development is
hereinafter referred to
8
as an “Adviser Material Adverse Change”), otherwise than as set forth or
contemplated in the Pricing Prospectus;
(ii) The Adviser has been duly formed and is validly existing as a limited
liability company and is in good standing under the laws of the State of Delaware,
with power and authority to own its properties and conduct its business as described
in the Pricing Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(iii) The Adviser is duly registered with the Commission as an investment
adviser under the Advisers Act and is not prohibited by the Advisers Act or the
Investment Company Act from acting under the Investment Advisory Agreement for the
Company as contemplated by the Pricing Prospectus. There does not exist any
proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence
of which could lead to any proceeding which might adversely affect the registration
of the Adviser with the Commission;
(iv) This Agreement and the Investment Advisory Agreement have each been duly
authorized, executed and delivered by the Adviser and constitute valid, binding and
enforceable agreements of the Adviser, subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’
rights generally; except as amended as of April 30, 2008, the Investment Advisory
Agreement has not been amended and continues in full force and effect;
(v) None of the execution, delivery and performance of this Agreement or the
Investment Advisory Agreement, or the consummation of transactions contemplated
hereby and thereby, will (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Adviser or any of its subsidiaries is a party or by which the Adviser or any of its
subsidiaries is bound or to which any of the property or assets of the Adviser or any
of its subsidiaries is subject, or (ii) result in any violation of the provisions of
the limited liability company agreement of the Adviser or any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction
over the Adviser or any of its subsidiaries or any of its properties except, with
respect to clause (i), to the extent that any such conflict, breach or violation
would not result in an Adviser Material Adverse Change; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the execution, delivery or performance of
any of this Agreement or the Investment Advisory Agreement, or the consummation of
the transactions contemplated hereby and thereby by the Adviser, including the
conduct of its business, except such as have been obtained under the Act, the
Investment Company Act and the Advisers Act;
(vi) There are no legal or governmental proceedings pending to which the Adviser
is a party or of which any of its property is the subject which, if determined
adversely to the Adviser would individually or in the aggregate materially adversely
affect the Adviser’s ability to properly render services to the Company or have a
material adverse effect on the current or future financial position, stockholders’
equity
9
or results of operations of the Adviser and, to the best of its knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vii) The Adviser is not in violation of its limited liability company agreement
or in default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound;
(viii) The description of the Adviser contained in the Pricing Prospectus is
true, accurate and complete in all material respects;
(ix) The Adviser has the financial resources available to it necessary for the
performance of its services and obligations as contemplated in the Pricing Prospectus
and under this Agreement and the Investment Advisory Agreement; the Adviser owns,
leases or has access to all properties and other assets that are necessary to the
conduct of its business and to perform the services, as described in the Registration
Statement and the Pricing Prospectus;
(x) The Adviser is not aware that (i) any of its executives, key employees or
significant group of employees plans to terminate employment with the Adviser or (ii)
any such executive or key employee is subject to any noncompete, nondisclosure,
confidentiality, employment, consulting or similar agreement that would be violated
by the present or proposed business activities of the Adviser;
(xi) The Adviser maintains system of internal controls sufficient to provide
reasonable assurance that (i) transactions effectuate by it under the Investment
Advisory Agreement are executed in accordance with its management’s general or
specific authorization; and (ii) access to the Company’s assets is permitted only in
accordance with its management’s general or specific authorization; and
(xii) The Adviser maintains insurance covering its properties, operations,
personnel and businesses as they deem adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with customary industry
practice to protect the Adviser and its businesses; all such insurance is fully in
force and effect.
(b) The Administrator represents and warrants to the Underwriters that:
(i) The Administrator has not sustained since January 2, 2008 any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus; and, since January 2, 2008, there has not been any material
adverse change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Administrator (any such change or development
is hereinafter referred to as an “Administrator Material Adverse Change”),
otherwise than as set forth or contemplated in the Pricing Prospectus;
(ii) The Administrator has been duly formed and is validly existing as a
corporation and is in good standing under the laws of the State of Delaware, with
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power and authority to own its properties and conduct its business as described
in the Pricing Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(iii) This Agreement and the Administration Agreement have each been duly
authorized, executed and delivered by the Administrator and constitute valid, binding
and enforceable agreements of the Administrator, subject, as to enforcement, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally; and the Administration Agreement has not been amended
and continues in full force and effect;
(iv) None of the execution, delivery and performance of this Agreement or the
Administration Agreement, or the consummation of transactions contemplated hereby and
thereby, will (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Administrator
or any of its subsidiaries is a party or by which the Administrator or any of its
subsidiaries is bound or to which any of the property or assets of the Administrator
or any of its subsidiaries is subject, or (ii) result in any violation of the
provisions of the organizational documents of the Administrator or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Administrator or any of its subsidiaries or any of its
properties except, with respect to clause (i), to the extent that any such conflict,
breach or violation would not result in an Administrator Material Adverse Change; and
no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the execution, delivery
or performance of any of this Agreement or the Administration Agreement, or the
consummation of the transactions contemplated hereby and thereby by the
Administrator, including the conduct of its business, except such as have been
obtained;
(v) There are no legal or governmental proceedings pending to which the
Administrator is a party or of which any of its property is the subject which, if
determined adversely to the Administrator would individually or in the aggregate have
a material adverse effect on the current or future financial position, stockholders’
equity or results of operations of the Administrator and, to the best of its
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) The Administrator is not in violation of its certificate of incorporation
or bylaws or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(vii) The description of the Administrator contained in the Pricing Prospectus
is true, accurate and complete in all material respects;
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(viii) The Administrator has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the Pricing
Prospectus and under this Agreement and the Administration Agreement; the
Administrator owns, leases or has access to all properties and other assets that are
necessary to the conduct of its business and to perform the services, as described in
the Registration Statement and the Pricing Prospectus;
(ix) The Administrator is not aware that (i) any of its executives, key
employees or significant group of employees plans to terminate employment with the
Administrator or (ii) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or similar
agreement that would be violated by the present or proposed business activities of
the Administrator;
(x) The Administrator maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions for which it has
bookkeeping and record keeping responsibility for under the Administration Agreement
are recorded as necessary to permit preparation of the Company’s financial statements
in conformity with generally accepted accounting principles and to maintain
accountability for the Company’s assets and (ii) the recorded accountability for such
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and
(xi) The Administrator maintains insurance covering its properties, operations,
personnel and businesses as they deem adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with customary industry
practice to protect the Administrator and its businesses; all such insurance is in
full force and effect.
3. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase price
per share of $8.7875, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 3, that portion
of the number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction, the numerator of which is
the maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
1,237,500 Optional Shares, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering sales of shares in excess of the number of Firm Shares,
provided that the purchase price per Optional Share shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and payable on the Firm Shares but
not payable on the Optional Shares. Any such election to purchase Optional Shares may be exercised
only by written
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notice from you to the Company, given within a period of 30 calendar days after the date of
this Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date
on which such Optional Shares are to be delivered, as determined by you but in no event earlier
than the First Time of Delivery (as defined in Section 5(a) hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days after the date of such
notice.
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms and
conditions set forth in the Prospectus.
5. (a) The Shares to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours’ prior notice to the
Company shall be delivered by or on behalf of the Company to the Representatives,
through the facilities of the Depository Trust Company (“DTC”), for the
account of such Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight hours
in advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York
City time, on July 21, 2009 or such other time and date as the Representatives and
the Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by the Representatives in the
written notice given by the Representatives of the Underwriters’ election to
purchase such Optional Shares, or such other time and date as the Representatives
and the Company may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the “First Time of Delivery”, such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the “Second Time of Delivery”, and each such time and date for
delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 9 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 9(j) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX (the “Closing
Location”), and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New York City time, on the
New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 5, “New York Business Day” shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or executive order to
close.
6. (A) The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 497(h) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
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earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment
or any supplement to the Registration Statement, the Basic Prospectus, the Preliminary Prospectus
or the Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Basic Prospectus, the Preliminary Prospectus or the Prospectus has
been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Basic Prospectus or any Preliminary Prospectus or other prospectus in
respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the Registration Statement, the
Basic Prospectus, the Preliminary Prospectus or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or suspending the use of
the Basic Prospectus or any Preliminary Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 3:00 p.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but
in any event not later than 16 months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
14
(e) During the period beginning from the date hereof and continuing to and including the date
60 days after the date of the Prospectus (the “Lock-Up Period”), not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder, of any securities of the Company that are substantially similar to
the Shares, including but not limited to any options or warrants to purchase shares of Stock or any
securities that are convertible into or exchangeable for, or that represent the right to receive,
Stock or any such substantially similar securities (other than pursuant to a dividend reinvestment
plan described in the Pricing Prospectus), without the prior written consent of Xxxxx Fargo
Securities, LLC and UBS Securities LLC; provided, however, that if (1) during the
last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces
material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 15-day period following the last
day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically
extended until the expiration of the 18-day period beginning on the date of release of the earnings
results or the announcement of the material news or material event, as applicable, unless each of
Xxxxx Fargo Securities, LLC and UBS Securities LLC waives, in writing, such extension; the Company
will provide Xxxxx Fargo Securities, LLC, UBS Securities LLC and each stockholder subject to the
Lock-Up Period pursuant to the lockup letters described in Section 9(l) with prior notice of any
such announcement that gives rise to an extension of the Lock-up Period;
(f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
to make available to its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration Statement and
only to the extent not otherwise available on the Commission’s XXXXX system, to furnish to you
copies of all reports or other communications (financial or other) furnished to stockholders, and
to deliver to you (i) as soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information concerning the business
and financial condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission);
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Shares on the
Exchange;
(j) To use its commercially reasonable efforts to maintain in effect its qualification and
election to be treated as a RIC under Subchapter M of the Code for each taxable year during which
it is a BDC under the Investment Company Act;
(k) The Company, during a period of two years from the effective date of the Registration
Statement, will use its best efforts to maintain its status as a business development company;
provided, however, the Company may change the nature of its business so as to cease to be, or to
15
withdraw its election as, a BDC, with the approval of the board of directors and a vote of
stockholders as required by Section 58 of the Investment Company Act or any successor provision;
(l) Not to take, directly or indirectly, any action designed, or which could reasonably be
expected to cause or result in, under the Exchange Act, in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale of the Shares;
(m) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of
the Company, a registrar for the Stock; and
(n) The Company will comply with the Act, the Exchange Act and the Investment Company Act, and
the rules and regulations thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus.
(B) The Adviser agrees with each of the Underwriters not to take, directly or indirectly, any
action designed, or which could reasonably be expected to cause or result in, under the Exchange
Act, in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale of the Shares.
7. The Company represents and agrees that, without the prior consent of the
Representatives, (i) it will not distribute any offering material other than the
Registration Statement, the Pricing Prospectus or the Prospectus, and (ii) it has
not made and will not make any offer relating to the Shares that would constitute a
“free writing prospectus” as defined in Rule 405 under the Act and which the
parties agree, for the purposes of this Agreement, includes (x) any
“advertisement” as defined in Rule 482 under the Act; and (y) any sales
literature, materials or information provided to investors by, or with the approval
of, the Company in connection with the marketing of the offering of the Shares,
including any in-person roadshow or investor presentations (including slides and
scripts relating thereto) made to investors by or on behalf of the Company (the
materials and information referred to in this Section 7 are herein referred to as an
“Additional Disclosure Item”); any Additional Disclosure Item the use of
which has been consented to by the Representatives is listed on Schedule II(a)
hereto.
8. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection with
the preparation, printing, reproduction and filing of the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 6(A)(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection with
the Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by FINRA of the
16
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) “road show”
expenses of the Company (including but not limited to travel and accommodations) and
(ix) all other costs and expenses incident to the performance of the Company, the
Adviser and the Administrator of their obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except
as provided in this Section, and Sections 10 and 13 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company, the Adviser and the Administrator herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company, the Adviser and the
Administrator shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 497 under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 6(A)(a) hereof; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; the Registration Statement shall
be effective and no stop order suspending or preventing the use of the Basic Prospectus, the
Preliminary Prospectus or the Prospectus shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to
you, with respect to such matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable them to pass upon
such matters;
(c) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such Time
of Delivery, in form and substance satisfactory to you;
(d) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Adviser and the Administrator, shall have
furnished to you their written opinion (a draft of such opinion being attached as Annex II(b)
hereto), dated such Time of Delivery in form and substance satisfactory to you;
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at such Time of Delivery, Xxxxx
Xxxxxxxx LLP shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex
I(b) hereto);
17
(f) (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its Subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(g) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or (v) the occurrence
of any other calamity or crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to
notice of issuance, on the Exchange;
(i) The Company shall have complied with the provisions of Section 6(A)(c) hereof with respect
to the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(j) The Company, the Adviser and the Administrator shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of their respective officers satisfactory to
you as to the accuracy of the representations and warranties of the Company, the Adviser and the
Administrator herein at and as of such Time of Delivery, as to the performance by the Company, the
Adviser and the Administrator of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (f) of this
Section, as to the accuracy of the third quarter information provided in the Pricing Prospectus and
the Prospectus, and as to such other matters as you may reasonably request;
(k) The Company shall continue to be regulated as a BDC under the Investment Company Act; and
(l) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from each of the directors and officers of the Company (as considered prior to the First
Time of Delivery), substantially to the effect set forth in Section 6(A)(e) hereof in form and
substance satisfactory to you.
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10. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Additional Disclosure Item, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, or any Additional
Disclosure Item in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives expressly
for use therein.
(b) The Adviser and the Administrator, severally and not jointly, will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Additional Disclosure Item, or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such expenses are incurred,
in each case to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or supplement thereto, or any Additional Disclosure Item, in reliance upon and in conformity with
written information furnished to the Company by the Adviser (in the case of the Adviser) or the
Administrator (in the case of the Administrator), respectively.
(c) Each Underwriter will indemnify and hold harmless the Company, the Adviser and the
Administrator against any losses, claims, damages or liabilities to which it may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Additional Disclosure Item, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, the Basic
19
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Additional Disclosure Item, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company, the Adviser and the
Administrator for any legal or other expenses reasonably incurred by the Company, the Advisor and
the Administrator in connection with investigating or defending any such action or claim as such
expenses are incurred; it being understood and agreed that the only such information furnished by
any Underwriter consists of the following information in the Preliminary Prospectus furnished on
behalf of each Underwriter: (i) the fifth paragraph of text under the caption “Underwriting” in the
prospectus supplement, concerning the terms of the offering by the Underwriters; (ii) the eight,
ninth and tenth paragraphs of text under the caption “Underwriting” in the prospectus supplement,
concerning short sales, stabilizing transactions and purchase to cover positions created by short
sales by the Underwriters; and (iii) the twenty-ninth paragraph of text under the caption
“Underwriting” in the prospectus supplement, concerning sales to discretionary accounts.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party; provided
that, if the defendants in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under Section 10(a), (b) or (c) for any legal or other expenses
subsequently incurred by such indemnified party (other than reasonable costs of investigation) in
connection with the defense thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with the proviso to the
next preceding sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii). No indemnifying party
shall, without the written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i)
20
includes an unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 10 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company, the Adviser
and the Administrator on the one hand and the Underwriters on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company, the Adviser and the Administrator on the one
hand and the Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company, the
Adviser and the Administrator on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, the Adviser or the Administrator on the one
hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company, the
Adviser and the Administrator and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this subsection
(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e)
to contribute are several in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company, the Adviser and the Administrator under this Section 10
shall be in addition to any liability which the Company, the Adviser and the Administrator may
otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 10 shall be in addition to
any
21
liability which the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to become a director of the
Company) and the Adviser and to each person, if any, who controls the Company, the Adviser and the
Administrator within the meaning of the Act. No party shall be entitled to indemnification under
this Section 10 if such indemnification of such party would violate Section 17(i) of the Investment
Company Act.
11. (a) (i) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the purchase of such Shares, or
the Company notifies you that it has so arranged for the purchase of such Shares,
you or the Company shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section with like effect
as if such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company
to sell the Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company as
provided in Section 8 hereof and the indemnity and contribution agreements in Section 10 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its default.
22
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Adviser, the Administrator and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by
or on behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof, the
Company, the Adviser and the Administrator shall not then be under any liability to
any Underwriter except as provided in Sections 8 and 10 hereof; but, if for any
other reason, any Shares are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company shall
then be under no further liability to any Underwriter except as provided in Sections
8 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or given
by you jointly or by Xxxxx Fargo Securities, LLC or UBS Securities LLC on behalf of
you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
Representatives in care of Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Syndicate Department and UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Equity Syndicate Department; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice to
an Underwriter pursuant to Section 10(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its Underwriters’
Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request; provided, however, that notices under subsection
6(A)(e) shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the Representatives at Xxxxx Fargo Securities, LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Department and UBS Securities LLC,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Equity Syndicate Department. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
15. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company, the Adviser and the Administrator and, to the extent
provided in Sections 10 and 12 hereof, the officers and directors of the Company and
23
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in
Washington, D.C. is open for business.
17. Each of the Company, the Adviser and the Administrator hereby acknowledges
and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, the Adviser and the
Administrator on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the
Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in
favor of the Company, the Adviser or the Administrator with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) or
any other obligation to the Company, the Adviser or the Administrator except the
obligations expressly set forth in this Agreement and (iv) each of the Company, the
Adviser or the Administrator has consulted its own legal and financial advisors to
the extent it deemed appropriate. Each of the Company, the Adviser and the
Administrator agrees that it will not claim that the Underwriters, or any of them,
has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, the Adviser and the Administrator in connection with
such transaction or the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Adviser and the Administrator on the one
hand and the Underwriters on the other, or any of them, with respect to the subject
matter hereof.
19. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
20. The Company, the Adviser, the Administrator and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
22. Notwithstanding anything herein to the contrary, the Company is authorized
to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax
opinions and other tax analyses) provided to the Company relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind.
24
However, any information relating to the tax treatment and tax structure shall
remain confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose,
“tax structure” is limited to any facts that may be relevant to that
treatment.
23. Except as set forth below, no claim, counterclaim or dispute of any kind
or nature whatsoever arising out of or in any way relating to this Agreement (a
“Claim”) may be commenced, prosecuted or continued in any court other than
the courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company, the
Adviser and the Administrator each consents to the jurisdiction of such courts and
personal service with respect thereto. The Company, the Adviser and the
Administrator each hereby consents to personal jurisdiction, service and venue in
any court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against any Underwriter or any indemnified party.
Each Underwriter and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates), the Adviser and the
Administrator (each on its behalf and, to the extent permitted by applicable law,
its members and affiliates) each waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in any
way arising out of or relating to this Agreement. The Company, the Adviser and the
Administrator each agrees that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon each of
the Company, the Adviser and the Administrator and may be enforced in any other
courts to the jurisdiction of which any of the Company, the Adviser and the
Administrator each is or may be subject, by suit upon such judgment.
25
If the foregoing is in accordance with your understanding, please sign and return to us five
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company, the Adviser and the Administrator. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to the authority of the
signers thereof.
| Very truly yours, Fifth Street Finance Corp. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Fifth Street Management LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FSC, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
Xxxxx Fargo Securities, LLC
| By: | ||||
| Name: | ||||
| Title: | ||||
UBS Securities LLC
| By: | ||||
| By: | ||||
SCHEDULE I
| Number of | ||||||||
| Optional | ||||||||
| Shares to be | ||||||||
| Total Number of | Purchased if | |||||||
| of Firm Shares | Maximum Option | |||||||
| Underwriter | to be Purchased | Exercised | ||||||
Xxxxx Fargo Securities, LLC |
2,887,500 | 433,125 | ||||||
UBS Securities LLC |
2,475,000 | 371,250 | ||||||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
1,650,000 | 247,500 | ||||||
Xxxxxxxxxxx & Co. Inc. |
288,750 | 43,313 | ||||||
RBC Capital Markets Corporation |
288,750 | 43,313 | ||||||
BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, LLC |
247,500 | 37,125 | ||||||
Xxxxxx Xxxxxxxxxx Xxxxx LLC |
206,250 | 30,938 | ||||||
Gilford Securities Incorporated |
206,250 | 30,938 | ||||||
Total |
8,250,000 | 1,237,500 | ||||||
