GOLUB CAPITAL BDC, INC. $600,000,000 Aggregate Principal Amount of 6.000% Notes due 2029 UNDERWRITING AGREEMENT Dated: January 29, 2024 GOLUB CAPITAL BDC, INC. $600,000,000 Aggregate Principal Amount of 6.000% Notes due 2029 UNDERWRITING AGREEMENT
Exhibit 1.1
XXXXX CAPITAL BDC, INC.
$600,000,000 Aggregate Principal Amount of 6.000% Notes due 2029
Dated: January 29, 2024
XXXXX CAPITAL BDC, INC.
$600,000,000 Aggregate Principal Amount of 6.000% Notes due 2029
January 29, 2024
Xxxxx Fargo Securities, LLC
X.X. Xxxxxx Securities LLC
SMBC Nikko Securities America, Inc.
as representatives of the underwriters named in Exhibit A
c/x Xxxxx Fargo Securities, LLC
000 Xxxxx Xxxxx Xxxxxx, 0xx Floor
Charlotte, North Carolina 28202
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
SMBC Nikko Securities America, Inc.
000 Xxxx Xxxxxx
Ladies and Gentlemen:
Xxxxx Capital BDC, Inc., a Delaware corporation (the “Company”), GC Advisors LLC, a Delaware limited liability company (the “Adviser”) and a registered investment adviser under the Advisers Act (as defined below), and Xxxxx Capital LLC, a Delaware limited liability company (the “Administrator”), each confirms its agreement (this “Agreement”) with Xxxxx Fargo Securities, LLC, X.X. Xxxxxx Securities LLC, SMBC Nikko Securities America, Inc. and each of the other underwriters named in Exhibit A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Xxxxx Fargo Securities, LLC, X.X. Xxxxxx Securities LLC and SMBC Nikko Securities America, Inc. are acting as representatives (in such capacity, the “Representatives”), with respect to the issuance and sale by the Company of $600,000,000 aggregate principal amount of the Company’s 6.000% notes due 2029 (the “Securities”) as set forth below. Certain terms used in this Agreement are defined in Section 16 hereof.
The Securities will be issued under an indenture, dated October 2, 2020 (the “Base Indenture”), as supplemented by a fifth supplemental indenture to be dated as of the Closing Date (the “Fifth Supplemental Indenture” and together with the Base Indenture, the “Indenture”) between the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”). The Securities will be issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”), pursuant to a blanket letter of representations (the “DTC Agreement”), between the Company and DTC. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The Company understands that each Underwriter proposes to make a public offering of the Securities as soon as each Underwriter deems advisable.
The Company has filed with the Commission an “automatic shelf registration statement” on Form N-2 (File No. 333-265509), including the related base prospectus, covering the registration of the Securities under the 1933 Act, and the offer and sale thereof from time to time in accordance with Rule 415 of the 1933 Act Rules and Regulations. Such registration statement became effective immediately upon its filing with the Commission on June 9, 2022. Except where the context otherwise requires, such registration statement, as amended, including (i) all documents filed as a part thereof or incorporated by reference therein, (ii) any Rule 430B Information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the 1933 Act and deemed to be part of such registration statement and (iii) any Rule 462(b) Registration Statement, is herein called the “Registration Statement.” The Company has also filed with the Commission a preliminary prospectus supplement, dated January 29, 2024, which contains a base prospectus, dated June 9, 2022 (collectively, the “preliminary prospectus”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430B and Rule 424(b). The final prospectus in the form filed by the Company with the Commission pursuant to Rule 424(b) on or before the second business day after the date hereof (or such earlier time as may be required under the 1933 Act), which will include the base prospectus, dated June 9, 2022, together with a final prospectus supplement, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to XXXXX.
All references in this Agreement to financial statements and schedules and other information which is “included” or “stated” in the Registration Statement, the preliminary prospectus or the Prospectus (each as defined above) (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in or otherwise deemed to be a part of or included in the Registration Statement, the preliminary prospectus or the Prospectus, as the case may be, as of any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement, the preliminary prospectus or the Prospectus, including those made pursuant to Rule 424, shall be deemed to mean and include, without limitation, the filing of any document under the 1934 Act, which is or is deemed to be incorporated by reference in or otherwise deemed to be a part of or included in the Registration Statement, the preliminary prospectus or the Prospectus, as the case may be, as of any specified date.
A Form N-54A Notification of Election to be Subject to Sections 55 through 65 of the Investment Company Act of 1940 filed pursuant to Section 54(a) of the Act (File No. 814-00794) (the “Notification of Election”), was filed with the Commission on April 12, 2010 under the 1940 Act.
The Company has entered into the Fourth Amended and Restated Investment Advisory Agreement, dated as of August 3, 2023 and effective as of July 1, 2023 (subject to the Waiver Letter, as defined below, the “Investment Advisory Agreement”), with the Adviser. The Company and the Adviser entered into a waiver letter agreement dated as of January 16, 2024 (the “Waiver Letter”), providing that, for periods ending on or prior to the earlier of (i) the date of the closing of the Company’s acquisition of Xxxxx Capital BDC 3, Inc. (“GBDC 3”) pursuant to the transactions contemplated by the Agreement and Plan of Merger, dated as of January 16, 2024, by and among the Company, Park Avenue Subsidiary Inc., GBDC 3, the Adviser and Xxxxx Capital LLC (the “Merger Agreement”) and (ii) the date of the termination of the Merger Agreement, the Adviser will waive any Incentive Fee (as defined in the Investment Advisory Agreement) owed under the Investment Advisory Agreement in excess of amounts provided for in the Waiver Letter.
The Company has entered into an Administration Agreement, dated as of April 14, 2010 (the “Administration Agreement”), with GC Service Company, LLC, a Delaware limited liability company (“GC Service”), which was subsequently assigned by GC Service to the Administrator pursuant to an Assignment Agreement, dated as of February 5, 2013, by and between the Administrator and GC Service, as consented to by the Company.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to the Underwriters as of the Execution Time, as of the Applicable Time and as of the Closing Date referred to in Section 2(b) hereof and agree with each of the Underwriters, as follows:
(1) Compliance with Registration Requirements. The Company is eligible to use Form N-2. The Registration Statement, any Rule 462(b) Registration Statement and any other post-effective amendment thereto have become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with.
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At the respective times the Registration Statement, the Rule 462(b) Registration Statement, if any, and any post-effective amendments thereto became effective, at the Applicable Time and on the Closing Date, the Registration Statement complied and will comply in all material respects with the applicable requirements of the 1933 Act, the 1940 Act and the Rules and Regulations, and the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement was issued, and on the Closing Date, included or will include an untrue statement of a material fact or omitted or will omit to state a 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 none of the Company, the Adviser or the Administrator makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto), in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of the Underwriters consists of the information described as such in Section 6 hereof.
The General Disclosure Package, when taken together as a whole, does not, as of the Applicable Time, contain 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. The preceding sentence does not apply to statements in or omissions from the General Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of the Underwriters consists of the information described as such in Section 6 hereof.
The copies of the Registration Statement and any Rule 462(b) Registration Statement and any amendments thereto, any preliminary prospectus, the Prospectus and any amendments or supplements thereto delivered and to be delivered to the Representatives (electronically or otherwise) in connection with the offering of the Securities were and will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T of the Commission (“Regulation S-T”).
(2) Offering Materials. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and, without the prior written consent of the Representatives, will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the 1933 Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) any “advertisement” as defined in Rule 482 under the 1933 Act or (iii) any advertising, sales literature, press releases or other promotional material (including “prospectus wrappers,” “broker kits,” “road show scripts” and “electronic road show presentations”) authorized in writing by or prepared by the Company to be used in connection with the offering of the Securities and approved for use by the Representatives (collectively, the “Offering Materials”). The Offering Materials (as amended or supplemented), at the time first used, at the Applicable Time and at the Closing Date, complied and will comply in all material respects with the 1933 Act, have been or will be (within the time period specified in Rule 424, Rule 433 and/or Rule 497) filed in accordance with the 1933 Act (to the extent required thereby) and, when taken together with the General Disclosure Package, at the Applicable Time did not and at the Closing Time will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that none of the Company, the Adviser or the Administrator makes any representation or warranty with respect to any statements or omissions made in any Offering Materials in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of the Underwriters consists of the information described as such in Section 6 hereof.
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(5) Financial Statements. The financial statements of the Company and its subsidiaries, included in the Registration Statement, the General Disclosure Package and the Prospectus, together with related schedules and notes, present fairly the financial condition, results of operations and cash flows of the Company and its subsidiaries as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1940 Act, as applicable, and have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved (except as otherwise noted therein); the other financial and statistical information and data included in the Registration Statement, the General Disclosure Package and the Prospectus are accurately derived from such financial statements and the books and records of the Company. No other financial statements or schedules are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus. There is no pro forma financial information that is required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus that is not included or incorporated by reference as required.
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(9) Good Standing of Subsidiaries. The Company’s only subsidiaries are Xxxxx Capital BDC Holdings LLC, Xxxxx Capital BDC CLO III Depositor LLC, Xxxxx Capital BDC CLO III LLC, Xxxxx Capital BDC CLO 2014 LLC, GBDC Holdings ED Coinvest, Inc., GBDC Holdings Coinvest, Inc., GCIC Holdings LLC, GCIC Funding LLC, GCIC CLO II Depositor LLC, GCIC CLO II LLC, GBDC Quick Quack Coinvest LLC, GCIC Quick Quack Coinvest LLC, GCIC North Haven Stack Buyer Coinvest Inc. and Park Avenue Subsidiary Inc. Each of the subsidiaries of the Company has been duly organized and is existing and in good standing under the laws of its jurisdiction of organization, has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified as a foreign limited liability company or corporation, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable (to the extent such concepts are applicable) and are owned directly or indirectly by the Company free and clear of any Lien; and none of the outstanding shares of capital stock or other equity interests of each subsidiary of the Company was issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder of such subsidiary or any other person.
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(32) Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director or officer of the Company or any of its subsidiaries or any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds of the Company or its subsidiaries for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”), or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
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(33) Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(34) OFAC. Neither the Company nor, to the knowledge of the Company, any of its subsidiaries, directors or officers or any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, the “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea, Venezuela and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(35) FinCen Certificate. The Company has delivered to the Representatives on or prior to the date of execution of this Agreement, such beneficial ownership certifications and information as the Representatives may have requested, together with copies of identifying documentation, and the Company undertakes to provide such additional information and supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing certification
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(b) Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to each of the Underwriters as of the Execution Time, as of the Applicable Time and as of the Closing Date referred to in Section 2(b) hereof and agree with each of the Underwriters, as follows:
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(20) Foreign Corrupt Practices Act. Neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or Administrator, any of their respective directors or officers nor any agent, affiliate or other person associated with or acting on behalf of the Adviser or the Administrator has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the FCPA or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Adviser and the Administrator have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
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(21) Anti-Money Laundering Laws. The operations of the Adviser and the Administrator are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or the Administrator with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser or the Administrator, threatened.
(22) OFAC. Neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or Administrator, any of their respective directors or officers nor any agent, affiliate or other person associated with or acting on behalf of the Adviser or the Administrator is currently the subject or the target of any Sanctions, nor is the Adviser or the Administrator located, organized or resident in a Sanctioned Country. For the past five years, the Adviser or the Administrator have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(c) Certificates. Any certificate signed by any officer of the Company, the Adviser, the Administrator or any of their respective subsidiaries and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company, the Adviser or the Administrator, as the case may be, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase, the respective aggregate principal amount of Securities set forth opposite such Underwriter’s name on Exhibit A hereto at a purchase price of 97.972% of the aggregate principal amount of such Securities.
(b) Payment of the purchase price for and delivery of the Securities shall be made at the offices of Xxxxxxxx & Xxxxx LLP, 0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (New York time) on February 1, 2024, or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Date”).
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Payment shall be made to the Company by wire transfer of immediately available funds to a single bank account designated by the Company against delivery to the Representatives for the account of the Underwriters of the Securities. Delivery of the Securities shall be made through the facilities of DTC unless the Representatives otherwise instruct.
(c) The global note(s) representing the Securities will be made available for examination by the Representatives in The City of New York not later than noon (New York City time) on the business day prior to the Closing Date.
SECTION 3. Covenants.
(a) Covenants of the Company, the Adviser and the Administrator. Each of the Company, the Adviser and the Administrator covenants with each Underwriter as follows:
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(b) Covenants of the Company, the Adviser and the Administrator. Each of the Company, the Adviser and the Administrator covenants with the Underwriters as follows:
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any debt securities issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable for debt securities issued or guaranteed by the Company,
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(ii) file or cause the filing of any registration statement under the 1933 Act with respect to any debt securities issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable for debt securities issued or guaranteed by the Company (other than any Rule 462(b) Registration Statement filed to register Securities to be sold to the Underwriters pursuant to this Agreement), or
(iii) enter into any swap or other agreement, arrangement or transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of any debt securities issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable for debt securities issued or guaranteed by the Company.
SECTION 4. Payment of Expenses.
(a) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), any preliminary prospectus, the Prospectus and each amendment or supplement to any of them, (ii) the word processing, printing and delivery to the Underwriters of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the Securities to the Underwriters, including any duties or taxes payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the counsel, accountants and other advisers to the Company, (v) the qualification or exemption of the Securities under securities laws in accordance with the provisions of Section 3(a)(6) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the blue sky survey and any Canadian “wrapper” and any supplements thereto, (vi) the printing and delivery to the Underwriters of copies of the Registration Statement, any preliminary prospectus and the Prospectus, any Offering Materials and all amendments or supplements to any of them, as may, in each case, be reasonably requested and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the Underwriters of copies of the blue sky survey and any Canadian “wrapper” and any supplements thereto, (viii) the fees and expenses of the Trustee and any paying agent for the Securities, (ix) the expenses and fees incurred in connection with the approval of the Securities for book-entry transfer by DTC, (x) any fees charged by ratings agencies for rating the Securities, (xi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities, up to $10,000, (xii) the costs and expenses relating to investor presentations and any roadshow undertaken in connection with the marketing of Securities, including, without limitation, expenses associated with the production of roadshow slides and graphics and any electronic roadshows, fees and expenses of any consultants engaged in connection with the roadshow presentation or any persons or entities engaged to host any electronic roadshow, travel and other travel expenses (including the costs and expenses of any aircraft chartered in connection with the roadshow) and lodging expense of the representatives and officers of the Company and any such consultants and (xiii) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated with reforming any contracts for sale of the Securities made by the Underwriters where such reformation relates to any inaccuracy or breach of the representation set forth in the third paragraph of Section 1(a)(1) of this Agreement.
(b) Anything herein to the contrary notwithstanding, the provisions of this Section 4 shall not affect any agreement that the Company has made or may make for the allocation or sharing of such expenses and costs.
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(c) If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5 or Section 9(a)(i), (ii) or (iv) (solely with respect to trading in securities of the Company) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company, the Adviser and the Administrator contained in this Agreement or in certificates of any officer of the Company, the Adviser, the Administrator or any of their respective subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company, the Adviser and the Administrator of their respective covenants and other obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and as of the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A final prospectus containing the Rule 430B Information and any Offering Materials (to the extent required) shall have been filed timely with the Commission.
(b) The Representatives shall have received the favorable opinion, dated as of the Closing Date, and negative assurance letter, dated as of the Closing Date, of Eversheds Sutherland (US) LLP, counsel for the Company, the Adviser and the Administrator, in form and substance satisfactory to the Representatives and to such further effect as the Representatives may reasonably request.
(c) The Representatives shall have received from Xxxxxxxx & Xxxxx LLP, counsel for the Underwriters, together with signed or reproduced copies of such opinion, dated as of the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, this Agreement, the Registration Statement, any Rule 462(b) Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other matters as the Representatives may reasonably require, and negative assurance letter, dated as of the Closing Date, and the Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may rely without investigation, as to all matters governed by the laws of any jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives.
(d) On the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
(e) On the Closing Date, the Representatives shall have received a certificate of the Company’s Chief Executive Officer and Chief Financial Officer, dated as of the Closing Date, to the effect that (i) there has been no such material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, are contemplated by the Commission.
(f) On the Closing Date, the Representatives shall have received a certificate of the Adviser’s Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Adviser in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Adviser has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
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(g) On the Closing Date, the Representatives shall have received a certificate of the Administrator’s Chief Executive Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations and warranties of the Administrator in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date and (ii) the Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(h) At the Execution Time, the Representatives shall have received from Ernst & Young LLP a letter dated as of the Execution Time and in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, the General Disclosure Package, the Prospectus and any amendments or supplements thereto.
(i) At the Execution Time, the Representatives shall have received a certificate of the Company’s Chief Financial Officer to the effect that such officer has reviewed the preliminary estimates of (1) net asset value per share of the Company’s common stock as of December 31, 2023, (2) net investment income per share of the Company’s common stock for the three months ended December 31, 2023 and (3) any similar “flash” financials and, based on such officer’s familiarity with the Company’s accounting, operations and records systems, such estimates were made in good faith, are based on the most recently available records of the Company, and represent a reasonable estimate of such financial measures.
(j) On the Closing Date, the Representatives shall have received from Ernst & Young LLP a letter dated as of the Closing Date and in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (h) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(k) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(l) The Securities shall be eligible for clearance and settlement through DTC.
(m) On or prior to the Closing Date, the Company and the Trustee shall have executed and delivered the Indenture.
(n) On the Closing Date, the Securities shall be rated at least BBB by Fitch Ratings, Inc., BBB- by S&P Global Ratings and Baa3 by Xxxxx’x Investor Services, Inc. and, since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any other debt securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Section 3(a)(62) under the 1934 Act, and no such organization shall have provided notice to the Company or publicly announced (1) any intended or potential downgrading of its rating of or (2) that it has under surveillance or review its rating of the Securities or any other debt securities issued or guaranteed by the Company or any of its subsidiaries.
(o) On the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives.
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SECTION 6. Indemnification.
(a) The Company, the Adviser and the Administrator, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the Securities as originally filed or in any amendment thereof (and including any post-effective amendment, any Rule 462(b) Registration Statement and any Rule 430B Information deemed to be included or incorporated therein), or in any preliminary prospectus, the Prospectus, the General Disclosure Package or in any Offering Materials (or any amendment or supplement to any of the foregoing), 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;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter though the Representatives expressly for use in the Registration Statement (or any amendment thereto), or the General Disclosure Package, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or any Offering Materials, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of such Underwriter: the legal names of the Underwriters, the concession amounts appearing in the second paragraph under the heading “Underwriting—Commission and Discounts” and the information regarding stabilizing transactions contained under the heading “Underwriting—Price Stabilization and Short Positions”.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, the Adviser and the Administrator, each of their directors, each of the Company’s officers who signed the Registration Statement, and each person, if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or the General Disclosure Package, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or any Offering Materials, in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of such Underwriter: the legal names of the Underwriters, the concession amounts appearing in the second paragraph under the heading “Underwriting—Commission and Discounts” and the information regarding stabilizing transactions contained under the heading “Underwriting—Price Stabilization and Short Positions”.
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(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. Counsel to the indemnified parties shall be selected as follows: counsel to the Underwriters, their respective employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Representatives; and counsel to the Company, the Adviser, the Administrator, each of their directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Company, the Adviser and the Administrator. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Underwriters, their respective employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Company, the Adviser, the Administrator, each of their directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding 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.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) The provisions of this Section 6 and in Section 7 hereof shall not affect any agreements among the Company, the Adviser and the Administrator with respect to indemnification of each other or contribution between themselves.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) 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 hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, the Adviser and the Administrator on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Adviser and the Administrator (treated jointly for this purpose as one person) on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, the Adviser and the Administrator (treated jointly for this purpose as one person) and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of the Securities as set forth on such cover.
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The relative fault of the Company, the Adviser and the Administrator on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, the Adviser, the Administrator or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Adviser, the Administrator and the Underwriters’ agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities 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 any 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 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, the Adviser, the Administrator, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company, the Adviser and the Administrator. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Exhibit A hereto and not joint,
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company, the Adviser, the Administrator or any of their respective subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, the Adviser or the Administrator, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the Company, the Adviser and the Administrator, at any time on or prior to the Closing Date (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the business affairs or business prospects of the Adviser or the Administrator, whether or not arising in the ordinary course of business, or (iii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Closing Date on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus, or (iv) if trading in any securities of the Company has been suspended or limited by the Commission or The Nasdaq Global Select Market, or if trading generally on the New York Stock Exchange or The Nasdaq Global Select Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (v) if a banking moratorium has been declared by either federal or New York authorities, or (vi) if there shall have occurred any downgrading, or any notice or announcement shall have been given or made of: (A) any intended or potential downgrading or (B) any watch, review or possible change that does not indicate an affirmation or improvement in the rating accorded the Securities or any other securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) under the 1934 Act, or (vii) if an outbreak or escalation of hostilities involving the United States or a declaration by the United States of a national emergency or war has occurred or (viii) if any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere has occurred, if the effect of any such event specified in clause (vii) or (viii) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Closing Date on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
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(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and except that, in the case of any termination of this Agreement, Sections 1, 6, 7, 8 and 17 hereof shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail on the Closing Date to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, the Representatives shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives at Xxxxx Fargo Securities, LLC, 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx, Attention: Transaction Management; X.X. Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Investment Grade Syndicate Desk; and SMBC Nikko Securities America, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Debt Capital Markets; and notices to the Company, the Adviser or the Administrator shall be directed to 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx X. Xxxxx.
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SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, the Adviser, the Administrator and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company, the Adviser, the Administrator and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company, the Adviser, the Administrator and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the Underwriters shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. The Company, the Adviser and the Administrator hereby submit to the non−exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company, the Adviser and the Administrator irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
SECTION 14. Waiver of Jury Trial. The Company, the Adviser, the Administrator and each of the Underwriters hereby irrevocably waive, 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.
SECTION 15. Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
SECTION 16. Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:
“1933 Act” means the Securities Act of 1933, as amended.
“1933 Act Rules and Regulations” means the rules and regulations of the Commission under the 1933 Act.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1934 Act Rules and Regulations” means the rules and regulations of the Commission under the 1934 Act.
“1940 Act” means the Investment Company Act of 1940, as amended.
“1940 Act Rules and Regulations” shall mean the rules and regulations of the Commission under the 1940 Act.
“Administrator Document” means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements to which the Administrator is a party or by which the Administrator is bound or to which any of the property or assets of the Administrator is subject.
“Advisers Act” means the Investment Advisers Act of 1940, as amended.
“Advisers Act Rules and Regulations” means the rules and regulations of the Commission under the Advisers Act.
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“Adviser” shall have the meaning as defined in the introductory paragraph of this Agreement.
“Adviser Document” means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements to which the Adviser is a party or by which the Adviser is bound or to which any of the property or assets of the Adviser is subject.
“Applicable Time” means 3:35 p.m. (New York City time) on January 29, 2024.
“Capital Stock” means any Common Stock, Preferred Stock or other capital stock of the Company.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Company’s common stock, par value $0.001 per share.
“Company Documents” means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements 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, including all Subject Instruments.
“DTC” means The Depository Trust Company.
“XXXXX” means the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“GAAP” means generally accepted accounting principles in the United States.
“General Disclosure Package” shall mean the preliminary prospectus that is generally distributed to investors and used to offer the Securities together with the information included on the Pricing Term Sheet included as Exhibit B hereto.
“Lien” means any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
“Organizational Documents” means (a) in the case of a corporation, its certificate of incorporation and by-laws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, its certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such entity.
“Preferred Stock” means the Company’s preferred stock, par value $0.001 per share.
“Repayment Event” means any event or condition which gives the holder of any bond, note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary of the Company.
“RIC” means a regulated investment company within the meaning of Section 851(a) of the Code.
“Rule 424” refers to Rule 424 under the 1933 Act.
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“Rule 430B” refers to Rule 430B under the 1933 Act.
“Rule 430B Information” shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430B but that is deemed to be part of the Registration Statement at the time it becomes effective.
“Rule 433” refers to Rule 433 under the 1933 Act.
“Rule 462(b) Registration Statement” shall mean any registration statement filed to register the offer and sale of the Securities pursuant to Rule 462(b) under the 1933 Act.
“Rule 497” refers to Rule 497(a) under the 1933 Act.
“Rules and Regulations” shall mean the 1933 Act Rules and Regulations, the 1934 Act Rules and Regulations, the 1940 Act Rules and Regulations and the Advisers Act Rules and Regulations, as applicable.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“Subject Instruments” means any instrument, agreement or other document relating to (i) the $602.4 million term debt securitization that the Company completed on November 16, 2018, (ii) the $908.2 million term debt securitization initially completed on December 13, 2018, which was acquired by the Company effective as of September 16, 2019, (iii) the senior secured revolving credit facility with JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and lenders from time to time party thereto, that the Company entered into on February 11, 2021 and amended from time to time; (iv) the $500 million aggregate principal amount of the Company’s 3.375% notes due 2024, (v) the $600 million aggregate principal amount of the Company’s 2.500% notes due 2026, (vi) the $350 million aggregate principal amount of the Company’s 2.050% notes due 2027 and (vii) the $450 million aggregate principal amount of the Company’s 7.050% notes due 2028; provided that if any instrument, agreement or other document filed as an exhibit to the Registration Statement as aforesaid has been redacted or if any portion thereof has been deleted or is otherwise not included as part of such exhibit (whether pursuant to a request for confidential treatment or otherwise), the term “Subject Instruments” shall nonetheless mean such instrument, agreement or other document, as the case may be, in its entirety, including any portions thereof which shall have been so redacted, deleted or otherwise not filed.
All references in this Agreement to the Registration Statement, any Rule 462(b) Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to XXXXX and all references in this Agreement to “supplements” to the General Disclosure Package, any preliminary prospectus or the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Securities by the Underwriters outside of the United States.
SECTION 17. Absence of Fiduciary Relationship. Each of the Company, the Adviser and the Administrator, severally and not jointly, acknowledges and agrees that:
(a) each of the Underwriters is acting solely as an underwriter in connection with the public offering of the Securities and no fiduciary, advisory or agency relationship between the Company, the Adviser and the Administrator on the one hand, and any of the Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not any of the Underwriters has advised or is advising the Company, the Adviser or the Administrator on other matters, and none of the Underwriters has any obligation to the Company, the Adviser or the Administrator with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid by the Underwriters for the Securities set forth in this Agreement were established by the Company, the Adviser and the Administrator following discussions and arms-length negotiations with the Representatives;
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(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(d) in connection with each transaction contemplated by this Agreement and the process leading to such transactions, each of the Underwriters is and has been acting solely as principal and not as fiduciary, adviser or agent of the Company, the Adviser, the Administrator or any of their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party;
(e) none of the Underwriters has provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisers to the extent it has deemed appropriate;
(f) it is aware that the Underwriters and their respective affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company, the Adviser and the Administrator and that none of the Underwriters has any obligation to disclose such interests and transactions to the Company, the Adviser or the Administrator by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(g) it waives, to the fullest extent permitted by law, any claims it may have against any of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Adviser, the Administrator or any stockholders, employees or creditors of the Company, the Adviser or the Administrator.
SECTION 18. Recognition of the U.S. Special Resolution Regimes.(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 18:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
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“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 19. Counterparts. This Agreement may be executed 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 Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Underwriters, the Company, the Adviser and the Administrator in accordance with its terms.
Very truly yours, | ||
XXXXX CAPITAL BDC, INC. | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | ||
Title: Chief Executive Officer | ||
GC ADVISORS LLC | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | ||
Title: President | ||
XXXXX CAPITAL LLC | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | ||
Title: President |
CONFIRMED AND ACCEPTED, as of the
date first above written:
Xxxxx Fargo Securities, LLC | ||
By: | /s/ Xxxxxxx Xxxxxx | |
Name: Xxxxxxx Xxxxxx | ||
Title: Managing Director | ||
X.X. Xxxxxx Securities LLC | ||
By: | /s/ Som Xxxxxxxxxxxxx | |
Name: Som Xxxxxxxxxxxxx | ||
Title: Executive Director | ||
SMBC NIKKO SECURITIES AMERICA, INC. | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx | ||
Title: Managing Director |
For themselves and as Representatives of the several Underwriters named in Exhibit A hereto
[Signature Page to Underwriting Agreement]
EXHIBIT A
Name of Underwriter | Aggregate Principal Amount of Securities | |||
Xxxxx Fargo Securities, LLC | $ | 75,000,000 | ||
X.X. Xxxxxx Securities LLC | $ | 72,000,000 | ||
SMBC Nikko Securities America, Inc. | $ | 75,000,000 | ||
Xxxxxxx Xxxxx & Co. LLC | $ | 24,000,000 | ||
Xxxxxx Xxxxxxx & Co. LLC | $ | 36,000,000 | ||
MUFG Securities Americas Inc. | $ | 72,000,000 | ||
Regions Securities LLC | $ | 36,000,000 | ||
Santander US Capital Markets LLC | $ | 36,000,000 | ||
SG Americas Securities, LLC | $ | 60,000,000 | ||
Academy Securities, Inc. | $ | 6,000,000 | ||
Capital One Securities, Inc. | $ | 24,000,000 | ||
CIBC World Markets Corp. | $ | 24,000,000 | ||
Comerica Securities, Inc. | $ | 24,000,000 | ||
Xxxxxxxxxxx & Co. Inc. | $ | 18,000,000 | ||
WauBank Securities LLC | $ | 18,000,000 | ||
Total | $ | 600,000,000 |
EXHIBIT B
[See attached.]
Filed Pursuant to Rule 433
Issuer Free Writing Prospectus dated January 29, 2024
Relating to Preliminary Prospectus Supplement dated January 29, 2024 and
Prospectus dated June 9, 2022
Registration No. 333-265509
Xxxxx Capital BDC, Inc.
$600,000,000
6.000% Notes due 2029
PRICING TERM SHEET
January 29, 2024
The following sets forth the final terms of the 6.000% Notes due 2029 (the “Notes”) being offered pursuant to the preliminary prospectus supplement dated January 29, 2024, together with the accompanying prospectus dated June 9, 2022, relating to these securities (the “Preliminary Prospectus”), should be read together with the Preliminary Prospectus and supersedes the information in the Preliminary Prospectus to the extent inconsistent with the information in the Preliminary Prospectus. In all other respects, this pricing term sheet is qualified in its entirety by reference to the Preliminary Prospectus. Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Prospectus. All references to dollar amounts are references to U.S. dollars.
Issuer: | Xxxxx Capital BDC, Inc. (the “Company”) |
Security: | 6.000% Notes due 2029 |
Expected Ratings (Fitch/Moody’s/S&P)*: | [Intentionally Omitted] |
Aggregate Principal Amount Offered: | $600,000,000 |
Trade Date: | January 29, 2024 |
Settlement Date**: | February 1, 2024 (T+3) |
Maturity Date: | July 15, 2029, unless earlier repurchased or redeemed |
Interest Payment Dates: | January 15 and July 15, commencing July 15, 2024 |
Record Dates: | June 30 and December 30, as the case may be, immediately preceding the relevant interest payment date |
Price to Public (Issue Price): | 98.872% of the aggregate principal amount |
Coupon (Interest Rate): | 6.000% |
Yield to Maturity: | 6.248% |
Spread to Benchmark Treasury: | + 225 basis points |
Benchmark Treasury: | 4.000% due January 31, 2029 |
Benchmark Treasury Price and Yield: | 100-00 ¼ / 3.998% |
Optional Redemption: | Prior to June 15, 2029 (one month prior to the maturity date of the Notes), or the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price equal to the greater of: | |
· | 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date, or | |
· | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points less (b) interest accrued to the date of redemption. | |
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the redemption date. | ||
Denomination: | $2,000 and integral multiples of $1,000 in excess thereof | |
CUSIP / ISIN: | 38173M AE2 / US38173MAE21 | |
Joint Book-Running Managers: | Xxxxx Fargo Securities, LLC | |
X.X. Xxxxxx Securities LLC | ||
SMBC Nikko Securities America, Inc. | ||
Xxxxxxx Xxxxx & Co. LLC | ||
Xxxxxx Xxxxxxx & Co. LLC | ||
MUFG Securities Americas Inc. | ||
Regions Securities LLC | ||
Santander US Capital Markets LLC | ||
SG Americas Securities, LLC | ||
Co-Managers: | Academy Securities, Inc. | |
Capital One Securities, Inc. | ||
CIBC World Markets Corp. | ||
Comerica Securities, Inc. | ||
Xxxxxxxxxxx & Co. Inc. | ||
WauBank Securities LLC |
*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
** The Company expects that delivery of the Notes will be made against payment therefor on or about February 1, 2024, which will be the third business day following the date of the pricing of the Notes (such settlement being herein referred to as “T+3”). Under Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the second business day before the date of delivery hereunder will be required, by virtue of the fact that the Notes initially will settle in T+3 business days, to specify an alternative settlement arrangement at the time of any such trade to prevent a failed settlement.
Investors are advised to carefully consider the investment objective, risks, charges and expenses of the Company before investing. The Preliminary Prospectus, which has been filed with the Securities and Exchange Commission (the “SEC”), contains this and other information about the Company and should be read carefully before investing.
The information in the Preliminary Prospectus and in this pricing term sheet is not complete and may be changed. The Preliminary Prospectus and this pricing term sheet are not offers to sell any securities of the Company and is not soliciting an offer to buy such securities in any state or jurisdiction where such offer and sale is not permitted.
A shelf registration statement relating to these securities is on file with, and has been declared effective by, the SEC. The offering may be made only by means of a preliminary prospectus supplement and an accompanying prospectus. The Company has filed the Preliminary Prospectus for the offering to which this communication relates. Before you invest, you should read the Preliminary Prospectus and other documents the Company has filed with the SEC for more complete information about the issuer and this offering. You may obtain these documents for free by visiting XXXXX on the SEC’s website at xxx.xxx.xxx. Alternatively, the Company, any underwriter or any dealer participating in the offering can arrange to send you the Preliminary Prospectus if you request them by calling Xxxxx Fargo Securities, LLC at 1-800-645- 3751, X.X. Xxxxxx Securities LLC at 000-000-0000 or SMBC Nikko Securities America, Inc. at 0-000-000-0000.
ABOUT XXXXX CAPITAL BDC, INC.
The Company is an externally-managed, non-diversified closed-end management investment company that has elected to be regulated as a business development company under the Investment Company Act of 1940, as amended. The Company invests primarily in one stop and other senior secured loans of U.S. middle-market companies that are often sponsored by private equity investors. The Company’s investment activities are managed by its investment adviser, GC Advisors LLC, an affiliate of the Xxxxx Capital LLC group of companies (“Xxxxx Capital”).
Xxxxx Capital is a market-leading, award-winning direct lender and credit asset manager. The firm specializes in delivering reliable, creative and compelling financing solutions to companies backed by private equity sponsors. Xxxxx Capital’s sponsor finance expertise also forms the foundation of its Broadly Syndicated Loan and Credit Opportunities investment programs. Xxxxx Capital nurtures long-term, win-win partnerships that inspire repeat business from private equity sponsors and investors.
As of January 1, 2024, Xxxxx Capital had over 875 employees and over $65 billion of capital under management, a gross measure of invested capital including leverage. The firm has lending offices in New York, Chicago, Miami, San Francisco and London.