OWL ROCK CAPITAL CORPORATION II Up to 264,000,000 Shares of Common Stock, $0.01 par value per share PARTICIPATING BROKER-DEALER AGREEMENT March , 2017
Exhibit (h)(2)
OWL ROCK CAPITAL CORPORATION II
Up to 264,000,000 Shares of Common Stock, $0.01 par value per share
PARTICIPATING BROKER-DEALER AGREEMENT
March , 2017
Ladies and Gentlemen:
Subject to the terms described herein below, Owl Rock Capital Securities LLC, as the dealer manager (“Dealer Manager”) for Owl Rock Capital Corporation II, a Maryland corporation (the “Corporation”), invites you (“Participating Broker-Dealer”) to participate in the distribution, on a “best efforts” basis, of up to 264,000,000 shares of common stock of the Corporation, $0.01 par value per share (the “Common Stock”) (such offering, the “Offering”), to be issued and sold to the public on a “best efforts” basis (the “Offered Shares”). The Offered Shares will be sold at the initial offering price as set forth in Section III hereof, which may be subject to change as set forth in the registration statement on Form N-2 filed by the Corporation (File No. 333-213716), which includes the Corporation’s prospectus, as amended or supplemented from time to time (the “Prospectus”).
| I. | Dealer Manager Agreement |
Owl Rock Capital Advisors LLC, a Delaware limited liability company, is the investment adviser of the Corporation (the “Adviser”). The Dealer Manager has entered into a dealer manager agreement with the Corporation and the Adviser dated [•], 2017, in the form attached hereto as Exhibit A (the “Dealer Manager Agreement”). Upon effectiveness of this Participating Broker-Dealer Agreement (this “Agreement”) pursuant to Section XIV below, you will become one of the Participating Broker-Dealers referred to in the Dealer Manager Agreement and will be entitled and subject to the representations, warranties and covenants contained in the Dealer Manager Agreement relating to the rights and obligations of a Participating Broker-Dealer, including, but not limited to, the provisions of Sections 2.5 and 4.3 regarding suspension of offers and sales of Offered Shares, Section 4.1 regarding solicitation of subscriptions of Offered Shares, Section 4.2 regarding regulatory compliance, Section 5, wherein each of the Participating Broker-Dealers severally agrees to indemnify and hold harmless the Corporation, the Adviser, the Dealer Manager and their respective officers, directors, employees, members, partners, agents and representatives, and each person, if any, who controls such entity within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), Section 13 regarding submission of subscriptions for Offered Shares, and Section 14 regarding suitability of investors and compliance procedures for offers and sales of Offered Shares. Except as otherwise set forth herein, capitalized terms used and not otherwise defined herein shall have the meanings given to them in the Dealer Manager Agreement. The Offered Shares are offered solely through broker-dealers who are members in good standing of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
Participating Broker-Dealer hereby agrees to use its best efforts to sell the Offered Shares for cash on the terms and conditions stated in the Prospectus. Nothing in this Agreement shall be deemed or construed to make Participating Broker-Dealer an employee, agent, representative, or partner of the Dealer Manager, the Corporation or the Adviser, and Participating Broker-Dealer is not authorized to act for the Dealer Manager, the Corporation or the Adviser or to make any representations on their behalf except as set forth in the Prospectus and any printed sales literature or other materials prepared by the Corporation, the Adviser or the Dealer Manager, provided that the use of said sales literature and other materials has been approved for use by the Corporation in writing and all appropriate regulatory agencies (the “Authorized Sales Materials”). In the event that the Corporation uses printed materials in connection with the Offering prepared by the Corporation, the Adviser or the Dealer Manager intended for “broker-dealer use only,” Participating Broker-Dealer shall use such “broker-dealer use only” materials in accordance with Section VII below.
Exhibit (h)(2)
| II. | Submission of Orders |
Each person desiring to purchase Offered Shares in the Offering will be required to complete and execute a Subscription Agreement in the form attached as an Appendix to the Prospectus and to deliver to Participating Broker-Dealer such completed Subscription Agreement, together with a check, draft or wire (hereinafter referred to as a “Subscription Payment”) for the purchase price of the Offered Shares. There shall be a minimum initial purchase by any one purchaser of $5,000 (except as otherwise indicated in the Prospectus, or in any letter or memorandum from the Corporation to the Dealer Manager). Additional purchases of Offered Shares shall be in increments of $500 per transaction, except for purchases made pursuant to the Corporation’s distribution reinvestment plan (the “DRP”), as described in the Prospectus. Any minimum purchase amount may be waived in the sole discretion of the Corporation. Prior to the Corporation raising gross offering proceeds of $2,500,000 (the “Minimum Offering”), persons who purchase Offered Shares shall make their Subscription Payments payable to “UMB Bank, N.A., as EA for ORCC II.” Subsequent to the Corporation raising the Minimum Offering, persons who purchase Offered Shares shall make their Subscription Payments payable to “UMB Bank, N.A., as EA for ORCC II.”
The Participating Broker-Dealer receiving a Subscription Agreement and Subscription Payment not conforming to the foregoing instructions or for a sale of Offered Shares not meeting the offering terms and conditions of the Prospectus, shall return such Subscription Agreement and Subscription Payment directly to such subscriber not later than the end of the second business day following receipt by the Participating Broker-Dealer of such materials. Subscription Agreements and Subscription Payments received by the Participating Broker-Dealer which conform to the foregoing instructions shall be transmitted for deposit pursuant to one of the methods described in this Section II.
(a) If the Participating Broker-Dealer conducts its internal supervisory review at the same location at which Subscription Agreements and Subscription Payments are received from subscribers, then, by noon of the next business day following receipt by the Participating Broker-Dealer, the Participating Broker-Dealer will transmit the Subscription Agreements and Subscription Payment for deposit to the UMB Bank, N.A. (the “Escrow Agent”), or after the Minimum Offering has been achieved, to the Corporation or its designated agent.
(b) If the Participating Broker-Dealer conducts its internal supervisory review at a different location (the “Final Review Office”), Subscription Agreements and Subscription Payments will be transmitted by the Participating Broker-Dealer to the Final Review Office by noon of the next business day following receipt by the Participating Broker-Dealer. The Final Review Office will, in turn, by noon of the next business day following receipt by the Final Review Office, transmit such Subscription Agreements and Subscription Payment for deposit to the Escrow Agent, or after the Minimum Offering has been achieved, to the Corporation or its designated agent.
Participating Broker-Dealer understands that the Corporation reserves the unconditional right to reject any order, in whole or in part, for any or no reason.
Notwithstanding the foregoing, with respect to any Offered Shares to be purchased by a custodial account, the Participating Broker-Dealer shall cause the custodian of such account to deliver a completed Subscription Agreement and Subscription Payment for such account directly for deposit to the Escrow Agent, or after the Minimum Offering has been achieved, to the Corporation or its designated agent. The Participating Broker-Dealer shall furnish with each delivery of Subscription Payments a list of the subscribers showing the name, U.S. address, tax identification number, state of residence, dollar amount of Offered Shares subscribed for, and the amount of money paid.
| III. | Pricing |
Except as otherwise provided in the Prospectus, the Offered Shares shall be offered to the public at an initial offering price (the “Initial Offering Price”) and in accordance with the offering terms and conditions as set forth in the Prospectus and payable in cash. Except as otherwise indicated in the Prospectus or in any letter or memorandum sent to Participating Broker-Dealer by the Corporation or Dealer Manager, a minimum initial purchase of $5,000 in Offered Shares is required. Minimum subsequent purchases of Offered Shares shall be $500 per transaction. After meeting the Minimum Offering, the Corporation will sell the Offered Shares on a continuous basis at the Initial Offering Price per Offered Share, subject to the adjustments described in or otherwise provided in the Prospectus. Each person desiring to purchase Offered Shares in the Offering must submit subscriptions for a certain dollar amount, rather than a number of Offered Shares and, as a result, may receive fractional Offered Shares.
Exhibit (h)(2)
For stockholders of the Corporation who elect to participate in the DRP, the cash otherwise distributable to them will be invested in additional shares of the Common Stock. No selling commissions or dealer manager fees or Additional Selling Commissions (as defined below) will be paid with respect to shares issued under the DRP. The Corporation will pay the plan administrator’s fees under the DRP.
The Offered Shares are non-assessable. Participating Broker-Dealer hereby agrees to place any order for the full purchase price except as otherwise provided in the Prospectus.
| IV. | Participating Broker-Dealer’s Compensation |
Except as described in the Prospectus, the up-front sales load applicable to the Offered Shares sold by Participating Broker-Dealer is as provided in Schedule 1. The up-front sales load provided in Schedule 1 includes an up-front selling commission (the “Up-Front Selling Commissions”) and reallowance of the dealer manager fee (the “Dealer Manager Fees” and, together with the Up-Front Selling Commissions, the “Selling Commissions”). For purposes of Schedule 1, a “sale of Offered Shares” shall occur following the release from escrow of the Minimum Offering proceeds, and if and only if a transaction has closed with a securities purchaser pursuant to all applicable offering and subscription documents and the Corporation has thereafter distributed the upfront selling commission to the Dealer Manager in connection with such transaction.
The Dealer Manager may reallow all or a portion of the Dealer Manager Fees received by it to Participating Broker-Dealer as is provided in Schedule 1 in its sole discretion as an upfront marketing support fee, provided that Participating Broker-Dealer has agreed to provide marketing and due diligence services as set forth in Schedule 1.
In addition to the Selling Commissions, the Adviser may pay the Dealer Manager an additional fee (the “Additional Selling Commissions”). Except as described in the Prospectus, the Additional Selling Commissions applicable to the Offered Shares sold by Participating Broker-Dealer is as provided in Schedule 1. The Dealer Manager may reallow all or a portion of such amounts to Participating Broker-Dealer in its sole discretion as an ongoing marketing support fee as set forth in Schedule 1, provided that Participating Broker-Dealer has agreed to provide marketing and due diligence services as set forth in Schedule 1. The Additional Selling Commissions will be paid by the Dealer Manager or its affiliate and will not be paid by investors.
See Schedule 1 for further details regarding the Selling Commissions and Additional Selling Commissions.
Participating Broker-Dealer hereby waives any and all rights to receive payment of the Selling Commissions and Additional Selling Commissions due until such time as the Dealer Manager is in receipt of such Selling Commissions or Additional Selling Commissions from the Corporation or the Adviser, as applicable. Participating Broker-Dealer affirms that the Dealer Manager’s liability for Selling Commissions and Additional Selling Commissions payable is limited solely to the proceeds received associated therewith.
Participating Broker-Dealer acknowledges and agrees that no commissions, payments or amount whatsoever will be paid to Participating Broker-Dealer in respect of the purchase of Offered Shares by a Participating Broker-Dealer (or its registered representative), in its individual capacity, or by a retirement plan of such Participating Broker-Dealer (or its registered representative), or by an officer, director or employee of the Corporation, the Adviser or their respective affiliates.
The parties hereby agree that the foregoing underwriting compensation, including the Selling Commissions and Additional Selling Commissions, are not in excess of the usual and customary distributors’ or sellers’ commission received in the sale of securities similar to the Offered Shares, that Participating Broker-Dealer’s interest in the offering is limited to such compensation from the Dealer Manager and Participating Broker-Dealer’s indemnity referred to in Section 5 of the Dealer Manager Agreement, and that the Corporation is not liable or responsible for the direct payment of such Selling Commissions and Additional Selling Commissions to Participating Broker-Dealer. In addition, as set forth in the Prospectus, the Corporation may reimburse Participating Broker-Dealers for reasonable out-of-pocket due diligence expenses incurred by such Participating Broker-Dealers. Participating Broker-Dealer shall provide a detailed and itemized invoice for any such due diligence expenses.
Exhibit (h)(2)
| V. | Payment |
Payments of any Selling Commissions will be made by the Dealer Manager (or by the Corporation as the agent of the Dealer Manager, as provided in the Dealer Manager Agreement) to Participating Broker-Dealer within thirty (30) days of the receipt by the Dealer Manager of the gross Selling Commission from the Corporation.
Participating Broker-Dealer, in its sole discretion, may authorize Dealer Manager (or by the Corporation as the agent of the Dealer Manager, as provided in the Dealer Manager Agreement) to deposit Selling Commissions and other payments due to it pursuant to this Agreement directly to its bank account. If Participating Broker-Dealer so elects, Participating Broker-Dealer shall provide such deposit authorization and instructions in Schedule 2 to this Agreement.
Payments of any Additional Selling Commissions will be made by the Dealer Manager to Participating Broker-Dealer within thirty (30) days of the receipt by the Dealer Manager of the gross Additional Selling Commission from the Adviser.
Participating Broker-Dealer, in its sole discretion, may authorize Dealer Manager to deposit Additional Selling Commissions and other payments due to it pursuant to this Agreement directly to its bank account. If Participating Broker-Dealer so elects, Participating Broker-Dealer shall provide such deposit authorization and instructions in Schedule 2 to this Agreement.
| VI. | Right to Reject Orders or Cancel Sales |
All orders, whether initial or additional, are subject to acceptance by and shall only become effective upon confirmation by the Corporation, which reserves the right to reject any order, in whole or in part, for any or no reason. Orders not accompanied by a Subscription Agreement and executed signature page thereto and the required Subscription Payment for the Offered Shares may be rejected. Issuance and delivery of the Offered Shares will be made only after actual receipt of payment therefor. If any Subscription Payment is not paid upon presentment, or if the Corporation is not in actual receipt of clearinghouse funds or cash, certified or cashier’s check or the equivalent in payment for the Offered Shares within fifteen (15) days of sale, the Corporation reserves the right to cancel the sale without notice. In the event an order is rejected, canceled or rescinded for any reason, Participating Broker-Dealer agrees to return to the Dealer Manager within thirty (30) days thereafter any Selling Commission and any Additional Selling Commissions theretofore paid with respect to such order, and, if Participating Broker-Dealer fails to so return any such Selling Commission or Additional Selling Commissions, the Dealer Manager shall have the right to offset amounts owed against future Selling Commissions and Additional Selling Commissions due and otherwise payable to Participating Broker-Dealer.
| VII. | Prospectus and Authorized Sales Materials |
Participating Broker-Dealer is not authorized or permitted to give, and will not give, any information or make any representation (written or oral) concerning the Offered Shares except as set forth in the Prospectus and the Authorized Sales Materials. The Dealer Manager will supply Participating Broker-Dealer with reasonable quantities of the Prospectus, any supplements thereto and any amended Prospectus, as well as any Authorized Sales Materials, for delivery to investors, and Participating Broker-Dealer will deliver a copy of the Prospectus and all supplements thereto and any amended Prospectus to each investor to whom an offer is made prior to or simultaneously with the first solicitation of an offer to sell the Offered Shares to an investor. Participating Broker-Dealer agrees that it will not send or give any supplements to the Prospectus, any amended Prospectus or any Authorized Sales Materials to that investor unless it has previously sent or given a Prospectus and all supplements thereto and any amended Prospectus to that investor or has simultaneously sent or given a Prospectus and all supplements thereto and any amended Prospectus with such Prospectus supplement, amended Prospectus or Authorized Sales Materials. Participating Broker-Dealer agrees that it will not show or give to any investor or prospective investor or reproduce any material or writing which is supplied to it by the Dealer Manager and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the offer or sale of Offered Shares to members of the public. Participating Broker-Dealer agrees that it will not use in connection with the offer or sale of Offered Shares any materials or writings which have not been previously approved by the Corporation in writing other than the Prospectus and the Authorized Sales Materials. Participating Broker-Dealer agrees to furnish a copy of any revised preliminary Prospectus to each person to whom it has furnished a copy of any previous preliminary Prospectus, and further agrees that it will itself mail or otherwise deliver all preliminary and final Prospectuses
Exhibit (h)(2)
required for compliance with the provisions of Rule 15c2-8 under the Exchange Act. Regardless of the termination of this Agreement, Participating Broker-Dealer will deliver a Prospectus in transactions in the Offered Shares for a period of ninety (90) days from the Effective Date of the Registration Statement or such longer period as may be required by the Exchange Act. Participating Broker-Dealer agrees to comply with all the applicable requirements under the Securities Act, the Exchange Act, conduct rules of FINRA or its predecessor, the National Association of Securities Dealers, Inc., and any other foreign, state or local securities or other laws or rules of FINRA or any other applicable self-regulatory agency in offering and selling Offered Shares.
| VIII. | License and Association Membership |
Participating Broker-Dealer’s acceptance of this Agreement constitutes a representation to the Corporation and the Dealer Manager that Participating Broker-Dealer is a properly registered or licensed broker-dealer, duly authorized to sell Offered Shares under federal and state securities laws and regulations in all states where it offers or sells Offered Shares, and that it is a member in good standing of FINRA. Participating Broker-Dealer represents and warrants that it is currently licensed as a broker-dealer in the jurisdictions identified on Schedule 3 to this Agreement. Participating Broker-Dealer represents and warrants that it is its sole responsibility to ensure that its representatives are properly registered and licensed as required by any applicable law, rule or regulation. This Agreement shall automatically terminate if Participating Broker-Dealer ceases to be a member in good standing of FINRA or with the securities commission of the state in which Participating Broker-Dealer’s principal office is located. Participating Broker-Dealer agrees to notify the Dealer Manager immediately if Participating Broker-Dealer ceases to be a member in good standing of FINRA or with the securities commission of any state in which Participating Broker-Dealer is currently registered or licensed, or in the case of a foreign dealer, so to conform. Participating Broker-Dealer also hereby agrees to abide by the conduct rules set forth in the FINRA rulebook (“FINRA Rules”), including, without limitation, FINRA Rules 2040, 2090, 2111, 2310, 2340, 5110 and 5141 and NASD Rule 2340.
| IX. | Anti-Money Laundering Compliance Programs |
Participating Broker-Dealer’s acceptance of this Dealer Agreement constitutes a representation to the Corporation and the Dealer Manager that Participating Broker-Dealer has established and implemented an anti-money laundering compliance program (“AML Program”) in accordance with applicable law, including applicable FINRA Rules, U.S. Securities and Exchange Commission (the “SEC”) Rules (the “Commission Rules”) and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (the “USA PATRIOT Act”), specifically including, but not limited to, Section 352 of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act,” and together with the USA PATRIOT Act, the “AML Rules”), reasonably expected to detect and cause the reporting of suspicious transactions in connection with the sale of Offered Shares. In addition, Participating Broker-Dealer represents that it has established and implemented a program for compliance with Executive Order 13224 and all regulations and programs administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control Department of Commerce, Bureau of Industry and Security, or the Department of State (such regulations and program, “Sanctions,” and such program as established by the Participating Broker-Dealer, “OFAC Program”) and will continue to maintain its OFAC Program during the term of this Agreement. Upon request by the Dealer Manager at any time, Participating Broker-Dealer hereby agrees to (i) furnish a written copy of its AML Program and OFAC Program to the Dealer Manager for review, and (ii) furnish a copy of the findings and any remedial actions taken in connection with Participating Broker-Dealer’s most recent independent testing of its AML Program and/or its OFAC Program.
The parties acknowledge that for the purposes of FINRA Rules, the investors who purchase Offered Shares through Participating Broker-Dealer are “customers” of Participating Broker-Dealer and not the Dealer Manager. Nonetheless, to the extent that the Dealer Manager deems it prudent, Participating Broker-Dealer shall cooperate with the Dealer Manager’s reasonable requests for information, records and data related to the Corporation’s stockholders introduced to, and serviced by, Participating Broker-Dealer (the “Customers”). Notwithstanding the foregoing, Participating Broker-Dealer shall not be required to provide to the Dealer Manager any documentation that, in Participating Broker-Dealer’s reasonable judgment, would cause Participating Broker-Dealer to lose the benefit of attorney-client privilege or other privilege which it may be entitled to assert relating to the discoverability of documents in any civil or criminal proceedings. Participating Broker-Dealer hereby represents that it is currently in compliance with all
Exhibit (h)(2)
AML Rules and all OFAC requirements, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the USA PATRIOT Act. Participating Broker-Dealer hereby agrees, upon request by the Dealer Manager to (A) provide an annual certification to Dealer Manager that, as of the date of such certification (i) its AML Program and its OFAC Program are consistent with the AML Rules and Sanctions requirements; (ii) it has continued to implement its AML Program and its OFAC Program, and (iii) it is currently in compliance with all AML Rules and Sanctions requirements, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the USA PATRIOT Act; and (B) perform and carry out, on behalf of both the Dealer Manager and the Corporation, the Customer Identification Program requirements in accordance with Section 326 of the USA PATRIOT Act and applicable SEC and Treasury Department Rules thereunder.
| X. | Limitation of Offer; Suitability |
Participating Broker-Dealer will offer Offered Shares only to persons who meet the respective suitability standards for the Offered Shares as set forth in the Prospectus and in accordance with the offering and conditions contained therein, or in any suitability letter or memorandum sent to it by the Corporation or the Dealer Manager and will only make offers to persons in the jurisdictions in which it is advised in writing that the Offered Shares are qualified for sale or that such qualification is not required. Offered Shares are available for purchase by persons meeting the suitability standards described in the Prospectus. Notwithstanding the qualification of the Offered Shares for sale in any respective jurisdiction (or the exemption therefrom), Participating Broker-Dealer represents, warrants and covenants that it will not offer Offered Shares and will not permit any of its registered representatives to offer Offered Shares in any jurisdiction unless both Participating Broker-Dealer and such registered representative are duly licensed to transact securities business in such jurisdiction. In offering Offered Shares, Participating Broker-Dealer will comply with the provisions of FINRA Rules, as well as all other applicable rules and regulations relating to suitability of investors.
Participating Broker-Dealer further represents, warrants and covenants that neither Participating Broker-Dealer, nor any person associated with Participating Broker-Dealer, shall offer or sell Offered Shares in any jurisdiction except to investors who satisfy the investor suitability standards and minimum investment requirements under the most restrictive of the following: (a) applicable provisions described in the Prospectus, including minimum income and net worth standards; (b) applicable laws of the jurisdiction of which such investor is a resident; or (c) applicable FINRA Rules. Participating Broker-Dealer agrees to ensure that, in recommending the purchase, sale or exchange of Offered Shares to an investor, Participating Broker-Dealer, or a person associated with Participating Broker-Dealer, shall have reasonable grounds to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period required by the SEC, any state securities commission, FINRA or the Corporation) concerning his or her age, investment objectives, investment experience, income, net worth, other investments, financial situation and needs, and any other information known to Participating Broker-Dealer, or person associated with Participating Broker-Dealer, that (i) the investor can reasonably benefit from an investment in the Offered Shares based on the investor’s overall investment objectives and portfolio structure, (ii) the investor is able to bear the economic risk of the investment based on the investor’s overall financial situation, and (iii) the investor has an apparent understanding of (A) the fundamental risks of the investment, (B) the risk that the investor may lose his or her entire investment in the Offered Shares, (C) the lack of liquidity of the Offered Shares, (D) the background and qualifications of the Adviser or the persons responsible for directing and managing the Corporation, and (E) the tax consequences of an investment in the Offered Shares, provided, however, that for institutional accounts within the meaning of FINRA Rule 2111, the Participating Broker-Dealer will ensure compliance with the requirements of Rule 2111 and any applicable state law with respect to institutional accounts. In the case of sales to fiduciary accounts, the suitability standards must be met by the person who directly or indirectly supplied the funds for the purchase of the Offered Shares or by the beneficiary of such fiduciary account. Participating Broker-Dealer further represents, warrants and covenants that Participating Broker-Dealer, or a person associated with Participating Broker-Dealer, will make every reasonable effort to determine the suitability and appropriateness of an investment in Offered Shares of each proposed investor by reviewing documents and records disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by Participating Broker-Dealer, whether such documents and records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. Participating Broker-Dealer agrees to retain such documents and records in Participating Broker-Dealer’s records for a period of six years from the date of the applicable sale of Offered Shares, to otherwise comply with the record keeping requirements
Exhibit (h)(2)
provided in Section XII below and to make such documents and records available to (i) the Dealer Manager and the Corporation upon request, and (ii) representatives of the SEC, FINRA and applicable state securities administrators upon Participating Broker-Dealer’s receipt of an appropriate document subpoena or other appropriate request for documents from any such agency. Participating Broker-Dealer further represents, warrants and covenants that it will notify Dealer Manager in writing if an investment in the Offered Shares becomes no longer suitable or appropriate for a proposed investor prior to the acceptance of the order by the Corporation. Participating Broker-Dealer shall not purchase any Offered Shares for a discretionary account without obtaining the prior written approval of Participating Broker-Dealer’s customer and his or her signature on a Subscription Agreement.
| XI. | Due Diligence; Adequate Disclosure |
Prior to offering the Offered Shares for sale, Participating Broker-Dealer shall have conducted an inquiry (the “Diligence Review”) such that Participating Broker-Dealer has reasonable grounds to believe, based on information made available to Participating Broker-Dealer by the Corporation or the Dealer Manager through the Prospectus or other materials, that all material facts are adequately and accurately disclosed and provide a basis for evaluating a purchase of Offered Shares. In determining the adequacy of disclosed facts pursuant to the foregoing, Participating Broker-Dealer may obtain, upon request, information on material facts relating at a minimum to the following: (i) items of compensation; (ii) tax aspects; (iii) financial stability and experience of the Corporation and its Adviser; (iv) conflicts and risk factors; and (v) other pertinent reports. Notwithstanding the foregoing, Participating Broker-Dealer may rely upon the results of an inquiry conducted by an independent third party retained for that purpose or another Participating Broker-Dealer, provided that: (i) such Participating Broker-Dealer has reasonable grounds to believe that such inquiry was conducted with due care by said independent third party or such other Participating Broker-Dealer; (ii) the results of the inquiry were provided to Participating Broker-Dealer with the consent of the other Participating Broker-Dealer conducting or directing the inquiry; and (iii) no Participating Broker-Dealer that participated in the inquiry is an affiliate of the Corporation or its Adviser. Prior to the sale of the Offered Shares, Participating Broker-Dealer shall inform each prospective purchaser of Offered Shares of pertinent facts relating to the Offered Shares including specifically the lack of liquidity and lack of marketability of the Offered Shares during the term of the investment but shall not, in any event, make any representation on behalf of the Corporation or the Adviser except as set forth in the Prospectus and any Authorized Sales Materials.
| XII. | Compliance with Record Keeping Requirements |
Participating Broker-Dealer agrees to comply with the record keeping requirements of the Exchange Act, including but not limited to, Rules 17a-3 and 17a-4 promulgated under the Exchange Act. Participating Broker-Dealer further agrees to keep such records with respect to each customer who purchases Offered Shares, his or her suitability and the amount of Offered Shares sold, and to retain such records for such period of time as may be required by the SEC, any state securities commission, FINRA or the Corporation.
| XIII. | Customer Complaints |
Each party hereby agrees to provide to the other party copies of any written or otherwise documented customer complaints received by such party relating in any way to the Offering (including, but not limited to, the manner in which the Offered Shares are offered by the Dealer Manager or Participating Broker-Dealer), the Offered Shares or the Corporation in the case of the Dealer Manager, only in such cases as such complaints relate to the Participating-Broker-Dealer.
| XIV. | Effective Date |
This Agreement will become effective upon the last date it is signed by either party hereto. Upon effectiveness of this Agreement, all offers and sales of Offered Shares by Participating Broker-Dealer will be made pursuant to this Agreement exclusively and not through any prior agreement between Participating Broker-Dealer and the Dealer Manager, if any.
| XV. | Termination; Survival; Amendment |
Participating Broker-Dealer will immediately suspend or terminate its offer and sale of Offered Shares upon the request of the Corporation or the Dealer Manager at any time and will resume its offer and sale of Offered Shares
Exhibit (h)(2)
hereunder upon subsequent request of the Corporation or the Dealer Manager. Any party may terminate this Agreement by written notice, which termination shall be effective 48 hours after such notice is given. This Agreement may be terminated at any time, without the payment of any penalty, by vote of a majority of the Corporation’s directors who are not “interested persons” (as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”)) of the Corporation and who have no direct or indirect financial interest in the operation of the Corporation’s distribution plan or this Agreement or by vote of a majority of the outstanding voting securities of the Corporation or the affected class of common stock, on not more than sixty (60) days’ written notice to the Dealer Manager and Participating Broker-Dealer; and will automatically terminate in the event of its assignment (as defined in the Investment Company Act). This Agreement and the exhibits and schedules hereto are the entire agreement of the parties and supersedes all prior agreements, if any, between the parties hereto.
This Agreement may be amended at any time by the Dealer Manager by written notice to Participating Broker-Dealer, and any such amendment shall be deemed accepted by Participating Broker-Dealer upon placing an order for sale of Offered Shares after it has received such notice.
The respective agreements and obligations of Participating Broker-Dealer and the Dealer Manager set forth in Articles I, IV, V, VII, VIII, X, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXIV and XXV of this Agreement and Section 4 of the Dealer Manager Agreement shall remain operative and in full force and effect regardless of the termination of this Agreement.
Notwithstanding the termination of this Agreement or the payment of any amount to Participating Broker-Dealer, Participating Broker-Dealer agrees to pay Participating Broker-Dealer’s proportionate share of any claim, demand or liability asserted against Participating Broker-Dealer and the other Participating Broker-Dealers on the basis that the Participating Broker-Dealers or any of them constitute an association, unincorporated business or other separate entity, including in each case Participating Broker-Dealer’s proportionate share of any expenses incurred in defending against any such claim, demand or liability.
| XVI. | Privacy Laws |
The Dealer Manager and Participating Broker-Dealer (each referred to individually in this section as a “party”) agree as follows:
(a) Each party agrees to abide by and comply with (i) the privacy standards and requirements of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (“GLB Act”) and Regulation S-P; (ii) the privacy standards and requirements of any other applicable Federal or state law; and (iii) its own internal privacy policies and procedures, each as may be amended from time to time;
(b) Each party agrees to refrain from the use or disclosure of non-public personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures except as necessary to service the customers or as otherwise necessary or required by applicable law; and
(c) Each party shall be responsible for determining which customers have opted out of the disclosure of non-public personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) as provided by each to identify customers that have exercised their opt-out rights. In the event either party uses or discloses non-public personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, that party will consult the List to determine whether the affected customer has exercised his or her opt-out rights. Each party understands that each is prohibited from using or disclosing any non-public personal information of any customer that is identified on the List as having opted out of such disclosures.
| XVII. | Electronic Signatures and Electronic Delivery of Documents |
If Participating Broker-Dealer has adopted or adopts a process by which persons may authorize certain account-related transactions and/or requests, in whole or in part, by “Electronic Signature” (as such term is defined by the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., the Uniform Electronic Transactions Act, as promulgated by the Uniform Conference of Commissioners on Uniform State Law in July 1999 and as adopted by the relevant jurisdiction(s) where Participating Broker-Dealer is licensed, and applicable rules,
Exhibit (h)(2)
regulations and/or guidance relating to the use of electronic signatures issued by the SEC and FINRA (collectively, “Electronic Signature Law”)), to the extent the Corporation allows the use of Electronic Signature, in whole or in part, Participating Broker-Dealer represents that: (i) each Electronic Signature will be genuine; (ii) each Electronic Signature will represent the signature of the person required to sign the Subscription Agreement or other form to which such Electronic Signature is affixed; and (iii) Participating Broker-Dealer will comply with the terms outlined in the Electronic Signature Use Rules of Engagement attached as Exhibit B hereto. Participating Broker-Dealer agrees to the Electronic Signature Use Indemnity Agreement attached as Exhibit C hereto.
If Participating Broker-Dealer intends to use electronic delivery to distribute the Prospectus or other documents related to the Corporation to any person, Participating Broker-Dealer will comply with all applicable rules, regulations and/or guidance relating to the electronic delivery of documents issued by the SEC, FINRA and state securities administrators and any other laws or regulations related to the electronic delivery of prospectuses. In particular, and without limitation, Participating Broker-Dealer shall comply with the prospectus delivery and completion of sale timing requirements for Offered Shares as set forth in applicable Statements of Policy adopted by the North American Securities Administrators Association.
| XVIII. | Notice |
All notices will be in writing and will be duly given to the Dealer Manager when mailed to:
Owl Rock Capital Securities LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile:
Attention:
and to Participating Broker-Dealer when mailed to the address specified by Participating Broker-Dealer below.
| XIX. | Attorneys’ Fees; Applicable Law and Venue |
This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement, directly or indirectly, shall be governed by the laws of the State of New York applicable to contracts formed and to be formed entirely within the State of New York, without regard to the conflicts of laws principles and rules thereof, to the extent such principles would require or permit the application of the laws of another jurisdiction; provided, however, that the governing law for causes of action for violations of federal or state securities law shall be governed by the applicable federal or state securities law.
| XX. | Successors and Assigns |
Participating Broker-Dealer shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the Dealer Manager. This Agreement shall be binding upon the Dealer Manager and Participating Broker-Dealer and their respective successors and permitted assigns.
| XXI. | Arbitration |
All disputes arising out of or in connection with this Agreement, including without limitation, its existence, validity, interpretation, performance, breach or termination, and any provisions of the Dealer Manager Agreement incorporated into this Agreement, shall be submitted to, and fully and finally resolved by, binding arbitration, conducted on a confidential basis, under the then current commercial arbitration rules of the American Arbitration Association, except to the extent a claim is required to be arbitrated as specified in FINRA rules in which case the FINRA rules of arbitration will apply, in accordance with the terms of this Agreement (including the governing law provisions of this section) and pursuant to the Federal Arbitration Act (9 U.S.C. §§ 1 –16). All arbitration proceedings, and all documents, pleadings and transcripts associated therewith, shall be kept strictly confidential by all parties, their counsel and other advisors, employees, experts and all others under their reasonable control. Unless the parties otherwise agree, each party shall appoint one arbitrator and the two party-appointed arbitrators shall appoint the third arbitrator, who shall also be the chair of the arbitration panel (the “Arbitrator). The parties will request that the Arbitrator issue written findings of fact and conclusions of law. The Arbitrator shall not be empowered to make any award or render any judgment for punitive damages, and the Arbitrator shall be required to
Exhibit (h)(2)
follow applicable law in construing this Agreement, making awards, and rendering judgments. The decision of the Arbitrator shall be final and binding, and judgment upon any arbitration award may be entered in any appropriate state or federal court within the County of New York, State of New York or any other court having competent jurisdiction. All arbitration hearings will be held (i) for claims required to be arbitrated as specified in FINRA rules, at the New York FINRA District Office, (ii) in all other cases, in New York, NY, or (iii) in either case, at another mutually agreed upon site. In the event that a third party brings an action or other proceeding against either party to this Agreement (a “Third Party Action”), then the party to this Agreement against which or whom such Third Party Action is brought or asserted, may in such Third Party Action, litigate any related claim which it may have against the other party to this Agreement, including, without limitation, by way of a claim, indemnity, cross-claim, counterclaim, interpleader or other third party action without being obligate to arbitrate the same as otherwise provided in this Section XXI, except to the extent otherwise required in the FINRA rules regarding arbitration. In any such case, the matter which is the subject of such Third Party Action (including any related claims, indemnity, cross-claim, counterclaim, interpleader or other third party action, which either party hereto may have against the other) shall not be subject to arbitration, but shall be resolved exclusively within such Third Party Action. Notwithstanding anything set forth herein to the contrary, no party will be prevented from immediately seeking provisional remedies in courts of competent jurisdiction, including but not limited to, temporary restraining orders and preliminary injunctions in aid of arbitration, but such remedies will not be sought as a means to avoid or stay arbitration. In the event a court grants provisional remedies, the duration thereof shall last no longer than the Arbitrator (upon constitution of the arbitration panel) deems necessary to review such provisional remedies and render its own decision. Except as provided otherwise in Section 5 of the Dealer Manager Agreement, in any action or arbitration to enforce the provisions of this Agreement or to secure damages for its breach, the prevailing party shall recover its costs and reasonable attorney’s fees. Each party to this Agreement hereby waives a trial by jury in any legal action or proceeding relating to this Agreement.
| XXII. | Severability |
The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.
| XXIII. | Counterparts |
This Agreement may be executed in any number of counterparts. Each counterpart, when executed and delivered, shall be an original contract, but all counterparts, when taken together, shall constitute one and the same agreement. This Agreement will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, which delivery may be made by exchange of copies of the signature page by facsimile or electronic transmission.
| XXIV. | No Partnership |
Nothing in this Agreement shall be construed or interpreted to constitute Participating Broker-Dealer as an employee, agent or representative of, or in association with or in partnership with, the Dealer Manager, the Corporation or the other Participating Broker-Dealers; instead, this Agreement shall only constitute Participating Broker-Dealer as a dealer authorized by the Dealer Manager to sell the Offered Shares according to the terms set forth in the Registration Statement and the Prospectus as amended and supplemented and in this Agreement.
| XXV. | Confidentiality |
Dealer Manager, the Corporation, Owl Rock Capital Partners LP (“Owl Rock”) or one of their affiliates or employees, agents or advisers (“Representatives”) (all such entities and persons, collectively, the “Owl Rock Entities”) may have provided and will furnish to Participating Broker-Dealer or its affiliates or Representatives with certain information that is either non-public, confidential or proprietary in nature in order to enable Participating Broker-Dealer to perform a diligence review. This information furnished to Participating Broker-Dealer or its affiliates or Representatives, including the terms and conditions of any agreements entered into between Participating Broker-Dealer or its affiliates and any Owl Rock Entity, together with analyses, compilations, forecasts, studies or other documents prepared by Participating Broker-Dealer or its affiliates or Representatives which contain or otherwise reflect such information is hereinafter referred to as the “Information.” The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a result of a
Exhibit (h)(2)
disclosure by Participating Broker-Dealer or its affiliates or Representatives in violation of this Agreement, or (ii) become available to Participating Broker-Dealer on a non-confidential basis from a source other than an Owl Rock Entity that has a bona fide right to such Information and which is not subject to any obligation to keep such Information confidential. In consideration of the Owl Rock Entities furnishing Participating Broker-Dealer or its affiliates or Representatives with the Information, Participating Broker-Dealer agrees that:
(a) The Information will be kept confidential and shall not, without Owl Rock’s prior written consent, be disseminated or disclosed by Participating Broker-Dealer or its affiliates or Representatives, in any manner whatsoever, in whole or in part, and shall not be used by Participating Broker-Dealer or its affiliates or Representatives, other than in connection with performing the diligence review contemplated by Section XI of this Agreement. Moreover, Participating Broker-Dealer agrees to reveal the Information only to such of its affiliates or Representatives who need to know the Information for the purpose of performing the diligence review contemplated by Section XI of this Agreement, who are informed by Participating Broker-Dealer of the confidential nature of the Information and who agree to act in accordance with the terms and conditions of this Section XXV.
(b) All copies of the Information will be returned to Owl Rock or destroyed upon Owl Rock’s request.
(c) In the event that Participating Broker-Dealer or any of its affiliates or Representatives are requested or required (by oral questions, depositions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose any of the Information, Participating Broker-Dealer will provide Owl Rock with prompt written notice so that any of the Owl Rock Entities may seek a protective order, other appropriate remedy or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Owl Rock waives compliance with the provisions of this Agreement, Participating Broker-Dealer shall disclose such Information without liability hereunder; provided, however, that Participating Broker-Dealer will furnish only that portion of the Information which, in the opinion of its counsel, Participating Broker-Dealer is compelled to disclose and will not oppose any action by Owl Rock to obtain reliable assurance that confidential treatment will be accorded the Information. Participating Broker-Dealer further agrees to exercise its reasonable efforts to otherwise preserve the confidentiality of the Information. Upon reasonable notice, Participating Broker-Dealer further agrees to cooperate with the Owl Rock Entities in obtaining a protective order or other appropriate remedy.
(d) In no event shall any of the Owl Rock Entities be liable for any losses, damages, claims or expenses incurred or actions undertaken by Participating Broker-Dealer or its affiliates or Representatives as a result of their receipt of the Information or their use thereof. Participating Broker-Dealer agrees that the Information is and shall remain the property of Owl Rock and that none of the Owl Rock Entities has granted Participating Broker-Dealer or its affiliates or Representatives any license, copyright, or similar right with respect to any of the Information.
(e) Participating Broker-Dealer hereby acknowledges that Participating Broker-Dealer is aware, and that Participating Broker-Dealer will advise its affiliates or Representatives who have been provided with Information, that the United States securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Participating Broker-Dealer further acknowledges that some or all of the Information is or may be price-sensitive information and that the use of such Information may be regulated or prohibited by applicable legislation relating to insider dealing and Participating Broker-Dealer undertakes, on behalf of itself and its Representatives, not to use any Information for any unlawful purpose.
(f) Owl Rock has the right to enforce this Section XXV as a third-party beneficiary.
[Signatures Appear on Following Pages]
Exhibit (h)(2)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on its behalf by its duly authorized agent.
| “DEALER MANAGER” OWL ROCK CAPITAL SECURITIES LLC | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| President | ||
We have read the foregoing Agreement and we hereby accept and agree to the terms and conditions therein set forth. We hereby represent that the jurisdictions identified below represent a true and correct list of all jurisdictions in which we are registered or licensed as a broker or dealer and are fully authorized to sell securities, and we agree to advise you of any change in such list during the term of this Agreement.
| 1. | Identity of Participating Broker-Dealer: | |||
| Full Legal Name:
|
||||
| (to be completed by Participating Broker-Dealer) | ||||
| Type of Entity:
|
||||
| (to be completed by Participating Broker-Dealer) | ||||
| Organized in the State of:
|
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| (to be completed by Participating Broker-Dealer) | ||||
| Tax Identification Number:
|
||||
| (to be completed by Participating Broker-Dealer) | ||||
| FINRA/CRD Number:
|
||||
| (to be completed by Participating Broker-Dealer) | ||||
| 2. | Any notice under this Agreement will be deemed given pursuant to Section XVIII hereof when delivered to Participating Broker-Dealer as follows: | |||
| Company Name: |
| |
| Attention to: | (Name) | |
| (Title) | ||
| Street Address: |
| |
Exhibit (h)(2)
| City, State and Zip Code: |
| |
| Telephone No.: |
| |
| Facsimile No.: |
| |
| Email Address: |
| |
Accepted and agreed as of the date below:
| “PARTICIPATING BROKER-DEALER”
(Print Name of Participating Broker-Dealer) | ||||
| By: |
||||
| Name: |
||||
| Title: |
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| Date: |
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Exhibit (h)(2)
SCHEDULE 1
TO
PARTICIPATING BROKER-DEALER AGREEMENT WITH
OWL ROCK CAPITAL SECURITIES LLC (“DEALER MANAGER”)
| Upfront Selling Commission(1) | Upfront Dealer Manager Fee(1), (2) |
Additional Selling Commissions(1), (2), (3) | ||
| Up to [•]% of price per Share | Up to [•]% of price per Share | Annualized rate of up to [•]% of most-recent NAV per Share |
(1) Paid on Shares sold in the Offering, excluding Shares sold pursuant to the Company’s distribution reinvestment plan, as provided in this Agreement and in the Prospectus.
(2) Eligibility to receive the Upfront Dealer Manager Fee and Additional Selling Commissions is conditioned upon the Participating Broker-Dealer’s compliance with one or more of the following conditions. Any determination regarding the Participating Broker-Dealer’s compliance with the listed conditions will be made by the Dealer Manager, in its sole discretion.
| • | The Participating Broker-Dealer has and uses internal marketing support personnel (such as telemarketers, or a marketing director) to assist the Dealer Manager’s marketing team; |
| • | The Participating Broker-Dealer has and uses internal marketing communications vehicles, such as newsletters, conference calls, discs and internal mail to promote the Company and the Offering; |
| • | The Participating Broker-Dealer will answer investors’ inquiries concerning quarterly statements, valuations, distribution rates, tax information, annual reports, reinvestment rights and procedures, and the financial status of the Company; |
| • | The Participating Broker-Dealer will assist investors with reinvestments; |
| • | The Participating Broker-Dealer will maintain the technology necessary to adequately service the Company’s investors as otherwise associated with the Offering; and |
| • | The Participating Broker-Dealer will provide other services requested by investors from time to time. |
(3) Dealer Manager will cease making Additional Selling Commissions payments to Participating Broker-Dealer with respect to each share of Common Stock sold by Participating Broker-Dealer pursuant to this Agreement upon the earliest to occur of the following: (i) the date when the aggregate underwriting compensation would exceed that permitted under FINRA Rule 2310 over the life of the Offering, which equals 10% of the gross offering proceeds from the sale of Common Stock in the Offering; (ii) the date of a liquidity event; (iii) the date when aggregate Selling Commissions and Additional Selling Commissions paid to Participating Broker-Dealer equals [8%] of the aggregate amount of investments made in the Company through the Participating Broker-Dealer; (iv) the date that such share is redeemed or is no longer outstanding; or (v) the date when the Adviser no longer serves as the Company’s investment adviser.
Exhibit (h)(2)
SCHEDULE 2
TO
PARTICIPATING BROKER-DEALER AGREEMENT WITH
OWL ROCK CAPITAL SECURITIES LLC (“DEALER MANAGER”)
| NAME OF ISSUER: | OWL ROCK CAPITAL CORPORATION II | |
| NAME OF PARTICIPATING BROKER-DEALER: | ||
| SCHEDULE TO AGREEMENT DATED: | ||
Participating Broker-Dealer hereby authorizes the Dealer Manager or its agent to deposit Selling Commissions and other payments due to it pursuant to this Participating Broker-Dealer Agreement to its bank account specified below. This authority will remain in force until Participating Broker-Dealer notifies the Dealer Manager in writing to cancel it. In the event that the Dealer Manager deposits funds erroneously into Participating Broker-Dealer’s account, the Dealer Manager is authorized to debit the account with no prior notice to Participating Broker-Dealer for an amount not to exceed the amount of the erroneous deposit. Instructions provided pursuant to this Schedule 2 will supersede the instructions provided by Participating Broker-Dealer with respect to all other funds sponsored by Owl Rock Capital Partners LP (“Owl Rock”).
| ☐ ACH | ☐ Wire | |||
| Bank Name: |
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| Bank Address: |
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| Bank Routing Number: |
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| Account Number: |
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| “PARTICIPATING BROKER-DEALER” (Print Name of Participating Broker-Dealer/Beneficiary) | ||
| By: |
||
| Name: | ||
| Title: | ||
| Date: | ||
[For direct access to commission information, including support and allocation, please enroll in DST Internet Dealer Commissions (IDC). IDC allows a Participating Broker-Dealer to obtain commission statements at any time following the processing period. Please log on to xxx.XXXXXX.xxx to request access to reporting for all Owl Rock investments. For further assistance, call the DST IDC team at 0-000-000-0000 or email xxxxxxxxxxx@xxxxxxxxxx.xxx.]
Exhibit (h)(2)
SCHEDULE 3
TO
PARTICIPATING BROKER-DEALER AGREEMENT WITH
OWL ROCK CAPITAL SECURITIES LLC
Participating Broker-Dealer represents and warrants that it is currently licensed as a broker-dealer in the following jurisdictions:
| ☐ | Alabama |
☐ |
Montana | |||
| ☐ | Alaska |
☐ |
Nebraska | |||
| ☐ | Arizona |
☐ |
Nevada | |||
| ☐ | Arkansas |
☐ |
New Hampshire | |||
| ☐ | California |
☐ |
New Jersey | |||
| ☐ | Colorado |
☐ |
New Mexico | |||
| ☐ | Connecticut |
☐ |
||||
| ☐ | Delaware |
☐ |
North Carolina | |||
| ☐ | District of Columbia |
☐ |
North Dakota | |||
| ☐ | Florida |
☐ |
Ohio | |||
| ☐ | Georgia |
☐ |
Oklahoma | |||
| ☐ | Guam |
☐ |
Oregon | |||
| ☐ | Hawaii |
☐ |
Pennsylvania | |||
| ☐ | Idaho |
☐ |
Puerto Rico | |||
| ☐ | Illinois |
☐ |
Rhode Island | |||
| ☐ | Indiana |
☐ |
South Carolina | |||
| ☐ | Iowa |
☐ |
South Dakota | |||
| ☐ | Kansas |
☐ |
Tennessee | |||
| ☐ | Kentucky |
☐ |
Texas | |||
| ☐ | Louisiana |
☐ |
Utah | |||
| ☐ | Maine |
☐ |
Vermont | |||
| ☐ | Maryland |
☐ |
Virginia | |||
| ☐ | Massachusetts |
☐ |
Washington | |||
| ☐ | Michigan |
☐ |
West Virginia | |||
| ☐ | Minnesota |
☐ |
Wisconsin | |||
| ☐ | Mississippi |
☐ |
Wyoming | |||
| ☐ | Missouri |
☐ |
Wyoming |
Exhibit (h)(2)
EXHIBIT A
DEALER MANAGER AGREEMENT
Exhibit (h)(2)
EXHIBIT B
ELECTRONIC SIGNATURE USE RULES OF ENGAGEMENT
In consideration of the Corporation allowing Participating Broker-Dealer and Participating Broker-Dealer’s clients to authorize certain account-related transactions and/or requests, in whole or in part, by Electronic Signature (as such term is defined in Section XVII hereof), and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Participating Broker-Dealer does hereby, for itself and its successors and permitted assigns, covenant and agree:
| 1. | That Participating Broker-Dealer has selected an appropriate electronic signature technology that: (a) adheres to applicable Electronic Signature Law; (b) provides a visible indication that an Electronic Signature was affixed to the relevant document and displays the date on which such Electronic Signature was affixed thereto; (c) employs an authentication process to establish signer credentials (the “Authentication Process”); (d) prevents the Electronic Signature from repudiation; (e) protects the signed record from undetected and unauthorized alteration after signing; and (f) utilizes a password protected, encrypted interface to provide client access to documents to be signed electronically or which have previously been signed electronically. The Authentication Process will comply with the Customer Identification Program requirements of the USA Patriot Act. |
| 2. | That (a) Participating Broker-Dealer shall advise clients that participation in the Electronic Signature program is optional; (b) clients must expressly opt into the Electronic Signature program to participate; (c) any client that fails to make an election will execute paper subscription documents; (d) clients may terminate their participation in the Electronic Signature program at any time; (e) clients that elect to participate in the Electronic Signature program will have the ability to elect to receive the Prospectus and other materials electronically or in paper form; (f) the same investment opportunities will be available to the client, regardless of whether the client participates in the Electronic Signature program; (g) the use of Electronic Signatures will not affect the Participating Broker-Dealer’s obligation to make the suitability determinations that are required under the Participating Broker-Dealer Agreement and the Dealer Manager Agreement; and (h) Participating Broker-Dealer maintains and will comply with written policies and procedures covering its use of Electronic Signatures. |
| 3. | That Participating Broker-Dealer will maintain a copy (the “Record”) of each Electronic Signature used to execute a transaction and/or request for the life of the account and a minimum of seven years after the account is closed, or for such longer period as any law, rule or regulation may require. Participating Broker-Dealer will provide such Record to the Corporation and/or the Dealer Manager upon request. Supporting documentation for the use of any Electronic Signature will be maintained and available to the Corporation and/or the Dealer Manager upon request. Participating Broker-Dealer will maintain all Records in accordance with applicable recordkeeping obligations under state and federal securities laws and regulations and all applicable FINRA rules and regulations. |
| 4. | Electronic Signature may only be used to the extent permitted by the Corporation. |
| 5. | That the consent of Participating Broker-Dealer’s client will be obtained for the use of Electronic Signature prior to delivery of any Electronic Signature to the Dealer Manager or the Corporation. For each transaction and/or request submitted, the signer must be informed that an Electronic Signature is being created. If a party must sign a single document in more than one place, a separate signature or expression of intent to sign will be obtained for each location where a signature is required. If multiple documents are to be signed, a separate signature or expression of intent to sign will be obtained for each document. |
| 6. | That, if Electronic Signature credentials may be used multiple times, Participating Broker-Dealer will use a procedure to identify and de-activate expired, withdrawn or compromised credentials. Participating Broker-Dealer will establish procedures for removing Electronic Signature credentials when a client no longer wishes to participate in the use of Electronic Signature. |
Exhibit (h)(2)
| 7. | Participating Broker-Dealer may not limit its clients to the use of Electronic Signature or electronic delivery of documents only. Participating Broker-Dealer will allow its clients to elect to sign any document with a manual signature. Participating Broker-Dealer will allow its clients to elect to receive any document in paper format. Participating Broker-Dealer may not charge its clients different fees or expenses based on their clients election to participate, or not to participate, in the Electronic Signature program. |
Exhibit (h)(2)
EXHIBIT C
ELECTRONIC SIGNATURE USE INDEMNITY AGREEMENT
The Participating Broker-Dealer has adopted a process by which clients may authorize certain account-related transactions or requests, in whole or in part, evidenced by Electronic Signature (as such term is defined in Section XVII hereof). In consideration of the Corporation allowing Participating Broker-Dealer and its clients to certain account-related transactions and/or requests, in whole or in part, by Electronic Signature, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Participating Broker-Dealer does hereby, for itself and its successors and permitted assigns, covenant and agree to indemnify and hold harmless the Corporation, the Dealer Manager, each of their affiliates and each of their and their affiliates’ officers, directors, trustees, agents and employees, in whatever capacity they may act, from and against any and all claims (whether groundless or otherwise), losses, liabilities, damages and expenses, including, but not limited to, costs, disbursements and reasonable counsel fees (whether incurred in connection with such claims, losses, liabilities, damages and expenses or in connection with the enforcement of any rights hereunder), arising out of or in connection with the Participating Broker-Dealer’s representations or covenants set forth in Section XVII hereof or the representations described below.
The Participating Broker-Dealer represents that it will comply with the terms outlined in the Electronic Signature Use Rules of Engagement attached hereto as Exhibit B. Participating Broker-Dealer represents that the Corporation may accept any Electronic Signature without any responsibility to verify or authenticate that it is the signature of Participating Broker-Dealer’s client given with such client’s prior authorization and consent. Participating Broker-Dealer represents that the Corporation may act in accordance with the instructions authorized by Electronic Signature without any responsibility to verify that Participating Broker-Dealer’s client intended to give the Electronic Signature for the purpose of authorizing the instruction, transaction or request and that Participating Broker-Dealer’s client received all disclosures required by applicable Electronic Signature Law. Participating Broker-Dealer agrees to provide a copy of each Electronic Signature and further evidence supporting any Electronic Signature upon request by the Corporation.
