Exhibit
99(h)
Prospect
Capital Corporation
6,750,000
Shares
1
Common
Stock
($0.001 par
value)
Underwriting
Agreement
New
York, New York
May
19, 2009
To
the Representatives
named
in Schedule I
hereto
of the several
Underwriters
named in
Schedule II
hereto
Ladies
and Gentlemen:
Prospect
Capital Corporation, a corporation organized under the laws of Maryland (the
“Company”), proposes to sell to the several underwriters named in
Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the number of shares of common
stock, $0.001 par value (“Common Stock”), of the Company set forth in
Schedule I hereto (said shares to be issued and sold by the Company being
hereinafter called the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to the number of
additional shares of Common Stock set forth in Schedule I hereto to cover
over-allotments, if any (the “Option Securities”; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional Underwriters
listed on Schedule II other than you, the term Representatives as used
herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context
requires. Certain terms used herein are defined in Section 21
hereof.
The Company understands that the Underwriters propose to make a public offering
of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has entered into an investment advisory and management agreement,
dated as of June 24, 2004, as renewed on June 18, 2007 by the Board
(the “Investment Advisory Agreement”), with Prospect Capital Management LLC, a
Delaware limited liability company registered as an investment adviser (the
“Adviser”) under the Advisers Act. The Company has entered into an
administration agreement, dated as of June 24, 2004, as
__________________________
1
Plus
an option to purchase from the Company, up to 1,012,500 additional Securities to
cover over-allotments.
renewed
on June 18, 2007 by the Board (the “Administration Agreement”), with
Prospect Administration, LLC, a Delaware limited liability company (the
“Administrator”).
The
Company has filed, pursuant to the 1933 Act, with the Commission a registration
statement on Form N-2 (File No. 333-143819), which registers the offer and
sale of certain securities to be issued from time to time by the Company,
including the Securities. The Company filed a Form N-54A
“Notification of Election to be Subject to Sections 55 through 65 of the
1940 Act Filed Pursuant to Section 54(a) of the 1940 Act” (File No. 814-00659)
with the Commission on April 16, 2004, under the 1940 Act.
The registration statement as amended, including the exhibits and schedules
thereto, at the time it became effective (or is deemed effective pursuant to
Rule 430A or Rule 430C under the 1933 Act), including the information,
if any, omitted from the registration statement pursuant to Rule 430A (the
“Rule 430A Information”), any registration statement filed pursuant to Rule
462(b) under the 1933 Act, and any post-effective amendment thereto, is
hereinafter referred to as the “Registration Statement.” The
prospectus included in the Registration Statement at the time it became
effective is hereinafter referred to as the “Base Prospectus.” The
Base Prospectus and any prospectus or prospectus supplement that omitted the
Rule 430A Information that was used prior to the execution and delivery of
this Agreement and filed pursuant to Rule 497(a) under the 1933 Act, including
in each case any statement of additional information incorporated therein by
reference, is herein called a “Preliminary Prospectus.”
The
Company has prepared and will file with the Commission in accordance with
Rule 497 under the 1933 Act, a prospectus supplement (the “Prospectus
Supplement”) supplementing the Base Prospectus in connection with the offer and
sale of the Securities. The Base Prospectus and Prospectus Supplement
filed with the Commission pursuant to Rule 497 under the 1933 Act
(including the information, if any, deemed to be a part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A or
Rule 430C under the 1933 Act) are hereinafter referred to collectively as
the “Prospectus.” If the Company has filed an abbreviated
registration statement to register additional Securities pursuant to Rule 462(b)
under the 1933 Act (the “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule
462 Registration Statement.
The
Preliminary Prospectus, together with the information set forth in Annex A
hereto to be orally conveyed, when taken together as a whole is hereinafter
referred to as the “Disclosure Package.”
All references in this Agreement to financial statements and schedules and other
information which is “contained,” “disclosed,” “included,” “filed as part of” or
“stated” in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are or are deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement,
Disclosure Package or the Prospectus, as the case may be. All
references
in
this Agreement to the Registration Statement, Disclosure Package, the Prospectus
or any amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (“EDGAR”).
1.
Representations and
Warranties of the Company
. The Company represents and warrants
to and agrees with each of the Underwriters, and the Adviser and the
Administrator, jointly and severally, represent and warrant to and agree with
each of the Underwriters, as of the date hereof, the Applicable Time, the
Closing Date, referred to in Section 4 hereof, and as of each Date of Delivery
(if any) referred to in Section 3(b) hereof, as follows:
(a)
Compliance with Registration
Requirements
.
(i) The
Company meets the requirements for use of Form N-2 under the 1933
Act. The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act, and no proceedings for any such purpose,
have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
(ii) At
the respective times the Registration Statement, and any post-effective
amendment thereto, became effective and at the Closing Date, as hereinafter
defined (and, if any Option Shares are purchased, at the Date of Delivery), the
Registration Statement, and all amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the rules and regulations promulgated thereunder, and did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Date (and, if any Option Shares are purchased, at the
Date of Delivery), 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. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Underwriter for use in the
Registration Statement or Prospectus it being understood and agreed that the
only such information furnished to the Company in writing by the Underwriters
consists of the information described in Section 9(b) below.
(iii) The
Disclosure Package as of the Applicable Time does not include any untrue
statement of a material fact or omit to state any material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by any Underwriter or its
representative expressly for use therein, it being understood and agreed that
the only such information furnished by the Underwriters to the Company consists
of the information described in Section 9(b) below.
(iv) The
Prospectus when filed, and as of the date of the Prospectus Supplement, complied
in all material respects with the 1933 Act, and if filed by electronic
transmission pursuant to EDGAR (except as may be permitted by Regulation S-T
under the 1933 Act), will be substantially identical to the copy thereof
delivered to the Underwriters for use in connection with this
offering.
(b)
Independent
Accountant
. BDO Seidman, LLP, who has expressed its opinion
with respect to certain of the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules filed
with the Commission as a part of the Registration Statement and included in the
Prospectus and the Disclosure Package, is an independent registered public
accounting firm as required by the 1933 Act and Exchange Act.
(c)
Preparation of the Financial
Statements
. The financial statements filed with the Commission
as a part of the Registration Statement and included in the Prospectus and the
Disclosure Package present fairly the consolidated financial position of the
Company as of and at the dates indicated and the results of its operations and
cash flows for the periods specified. Such financial statements have
been prepared in conformity with accounting principles generally accepted in the
United States (“GAAP”) applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The
consolidated selected financial data included in the Prospectus and the
Disclosure Package presents fairly in all material respects the information
shown therein and has been compiled on a basis consistent with the consolidated
financial statements included or incorporated by reference in the Registration
Statement. All disclosures contained in the Registration Statement,
the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply
with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the
1933 Act Regulations, to the extent applicable.
(d)
Internal Control Over
Financial Reporting
. The Company maintains a system of
internal control over financial reporting sufficient to provide reasonable
assurances that financial reporting is reliable and financial statements for
external purposes are prepared in accordance with GAAP and includes policies and
procedures that (i) pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and dispositions of the
assets of the Company; (ii) provide
reasonable
assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with GAAP, and that receipts and expenditures
of the Company are being made only in accordance with applicable law and the
authorizations of management and directors of the Company; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a
material effect on the financial statements.
(e)
Disclosure
Controls
. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under
the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including material
information pertaining to the Company’s operations and assets managed by the
Adviser, is made known to the Company’s Chief Executive Officer and Chief
Financial Officer by others within the Company and the Adviser, and such
disclosure controls and procedures are effective to perform the functions for
which they were established.
(f)
No Material Adverse
Change
. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, subsequent to the respective dates as of which
information is given in the Disclosure Package and the Prospectus: i) there has
been no material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, net asset value, prospects, business or
operations, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one entity (any
such change or effect, where the context so requires is called a “Material
Adverse Change” or a “Material Adverse Effect”); ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business or entered into any material transaction or agreement not in the
ordinary course of business; and iii) except for regular quarterly dividends on
the Common Stock in amounts per share consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by the
Company or, except for dividends paid to the Company or other subsidiaries, any
of its subsidiaries on any class of capital stock or repurchase or redemption by
the Company or any of its subsidiaries of any class of capital
stock.
(g)
Good Standing of the Company
and its Subsidiaries
. The Company and each subsidiary that is
a corporation have been duly incorporated and are validly existing as
corporations in good standing under the laws of the jurisdiction of their
incorporation and have the corporate power and authority to own, lease and
operate their properties and to conduct their business as described in the
Prospectus and the Disclosure Package and, in the case of the Company, to enter
into and perform its obligations under this Agreement. Each of the
Company and each subsidiary that is a corporation is duly qualified as a foreign
corporation 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 for such jurisdictions
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Change. All of the issued and outstanding capital stock of each
subsidiary that is a corporation has been duly authorized and validly issued, is
fully
paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(h)
Subsidiaries of the
Company
. The Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or other entity other than iv) 100% of the equity interests in Gas
Solutions Holdings, Inc. (“Gas Solutions Holdings”) and v) those corporations or
other entities described in the Disclosure Package and the Prospectus under the
caption “Portfolio Companies” (each a “Portfolio Company” and collectively, the
“Portfolio Companies”). Except as otherwise disclosed in the
Disclosure Package and the Prospectus, the Company does not control (as such
term is defined in Section 2(a)(9) of the 1940 Act) any of the Portfolio
Companies. In accordance with Article 6 of Regulation S-X under the
1933 Act, the Company is not required to consolidate the financial statements of
any corporation, association or other entity with the Company’s financial
statements other than Gas Solutions Holdings.
(i)
Portfolio
Companies
. The Company has duly authorized, executed and
delivered agreements required to make the investments described in the
Disclosure Package and the Prospectus under the caption “Portfolio Companies”
(each a “Portfolio Company Agreement”). Except as otherwise disclosed
in the Disclosure Package and the Prospectus, and to the Company’s knowledge,
each Portfolio Company is current, in all material respects, with all its
obligations under the applicable Portfolio Company Agreements, no event of
default (or a default which with the giving of notice or the passage of time
would become an event of default) has occurred under such agreements, except to
the extent that any such failure to be current in its obligations and any such
default would not reasonably be expected to result in a Material Adverse
Change.
(j)
BDC Election; Regulated
Investment Company
. The Company has elected to be regulated as
a business development company under the 1940 Act and has filed with the
Commission, pursuant to Section 54(a) of the 1940 Act, a duly completed and
executed Form N-54A (the “Company BDC Election”); the Company has not filed with
the Commission any notice of withdrawal of the BDC Election pursuant to Section
54(c) of the 1940 Act; the Company’s BDC Election remains in full force and
effect, and, to the Company’s knowledge, no order of suspension or revocation of
such election under the 1940 Act has been issued or proceedings therefore
initiated or threatened by the Commission. The operations of the
Company are in compliance in all material respects with the provisions of the
1940 Act, including the provisions applicable to business development companies
and the rules and regulations of the Commission thereunder, including the
provisions applicable to business development companies.
(k)
Authorization and
Description of Common Stock
. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus and
the Disclosure Package as of the date thereof under the caption “Capitalization”
and “Selected Condensed Financial and Other Data.” The Common Stock (including
the Securities) conform in all material respects to the description thereof
contained in the Prospectus and the Disclosure Package. All issued
and outstanding Common Stock of the Company have been duly authorized and
validly issued and are fully paid and non-
assessable,
and have been offered and sold or exchanged by the Company in compliance with
all applicable laws (including, without limitation, federal and state securities
laws). None of the outstanding Common Stock of the Company was issued
in violation of the preemptive or other similar rights of any security holder of
the Company. No shares of preferred stock of the Company have been
designated, offered, sold or issued and none of such shares of preferred stock
are currently outstanding. The description of the Company’s stock
option, stock bonus and other stock plans or arrangements, if any, and the
options or other rights granted thereunder, set forth in the Prospectus and the
Disclosure Package accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and
rights. The Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth
herein, will be validly issued, fully paid and non-assessable.
(l)
Non-Contravention of
Existing Instruments; No Further Authorizations or Approvals
Required
. Neither the Company nor any subsidiary is in
violation of or default under its vi) charter, articles or certificate of
incorporation, by-laws, or similar organizational documents; vii) under any
indenture, mortgage, loan or credit agreement, note, contract, franchise, lease
or other instrument, including any Portfolio Company Agreement, the Investment
Advisory Agreement and the Administration Agreement, to which the Company or any
of its subsidiaries is a party or bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or viii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except for such violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect. The
Company’s execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus and the Disclosure
Package (i) have been duly authorized by all necessary corporate action, have
been effected in accordance with Sections 15(c) and 23(b) of the 1940 Act and
will not result in any violation of the provisions of the charter, articles or
certificate of incorporation or by-laws of the Company or similar organizational
documents of any subsidiary, (ii) will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
existing instrument, except for such conflicts, breaches, defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Effect and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval, authorization or
other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution,
delivery and performance of this Agreement or consummation of the transactions
contemplated hereby and by the Prospectus and the Disclosure Package, except
such as have already been obtained or made under the 1933 Act and the 1940 Act
and such as may be required under any applicable state securities or blue sky
laws or from the Financial Industry Regulatory
Authority,
Inc. (the “FINRA”), formerly the National Association of Securities Dealers,
Inc.
(m)
Intellectual Property
Rights
. The Company and its subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets and other similar rights (collectively,
“Intellectual Property Rights”) reasonably necessary to conduct their businesses
as described in the Prospectus and the Disclosure Package; and the expected
expiration of any of such Intellectual Property Rights would not result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material Adverse
Effect. To the Company’s knowledge, none of the technology employed
by the Company has been obtained or is being used by the Company in violation of
any contractual obligation binding on the Company or any of its officers,
directors or employees or otherwise in violation of the rights of any
persons.
(n)
Compliance with
Environmental Law
. To the knowledge of the Company, the
Advisor and the Administrator, the Company, its subsidiaries and each Portfolio
Company ix) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”); x) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and xi) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a Material Adverse Effect.
(o)
All Necessary Permits,
etc
. The Company and each subsidiary possess such valid and
current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and the Company has not received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Effect.
(p)
Investment Advisory
Agreement
. xii) The terms of the Investment Advisory
Agreement, including compensation terms, comply in all material respects with
all applicable provisions of the 1940 Act and the Advisers Act and xiii) the
approvals by the board of directors and the stockholders of the Company of the
Investment Advisory Agreement have been made in accordance with the requirements
of Section 15 of the 1940 Act applicable to companies that have elected to be
regulated as business development companies under the 1940 Act.
(q)
Absence of
Proceedings
. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against the Company, which is required to be disclosed in the
Registration Statement, the Prospectus or the Disclosure Package (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder. The aggregate of all pending legal or governmental
proceedings to which the Company is a party or of which any of its property or
assets is the subject which are not described in the Registration Statement, the
Prospectus or the Disclosure Package, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(r)
Accuracy of
Exhibits
. There are no contracts or documents that are
required to be described in the Registration Statement, the Prospectus or the
Disclosure Package or to be filed as exhibits thereto by the 1933 Act, the 1940
Act or by the rules and regulations thereunder that have not been so described
and filed as required. Notwithstanding the foregoing, as of the date
hereof, the Company has not filed certain contracts and documents as exhibits to
the Registration Statement, although all such exhibits will be filed by
post-effective amendment pursuant to Rule 462(d) under the 1933 Act within
twenty-four (24) hours of the execution of this Agreement.
(s)
Advertisements
. Any
advertising, sales literature or other promotional material (including
“prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts”
and “electronic road show presentations”) authorized in writing by or prepared
by the Company used in connection with the public offering of the Securities
(collectively, “Sales Material”) does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made not misleading. Moreover, all Sales Material
complied and will comply in all material respects with the applicable
requirements of the 1933 Act and the 1940 Act and the rules and interpretations
of the FINRA (except that this representation and warranty does not apply to
statements in or omissions from the Sales Material made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
by or on behalf of any Underwriter expressly for use therein).
(t)
Subchapter
M
. During the past fiscal year, the Company has been organized
and operated, and is currently organized and operates, in compliance in all
material respects with the requirements to be taxed as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as amended
(“Subchapter M of the Code” and the “Code,” respectively). The
Company intends to direct the investment of the proceeds of the offering
described in the Registration Statement in such a manner as to comply with the
requirements of Subchapter M of the Code.
(u)
Tax Law
Compliance
. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all
taxes
required to be paid by any of them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them. The
Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in the Prospectus and the Disclosure Package in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its subsidiaries
has not been finally determined. The Company is not aware of any tax
deficiency that has been or might be asserted or threatened against the Company
or any subsidiary that could result in a Material Adverse Effect.
(v)
Distribution of Offering
Materials
. The Company has not distributed and will not
distribute any offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Prospectus, the Disclosure
Package or other materials, if any, permitted by the 1933 Act or the 1940
Act.
(w)
Registration
Rights
. There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act.
(x)
Nasdaq Global
Market
. The Securities are registered pursuant to Section
12(b) or 12(g) of the Exchange Act and have been approved for quotation on the
Nasdaq Global Market (“NASDAQ”) upon notice of issuance, and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Shares under the Exchange Act or delisting the Common
Shares from the NASDAQ, nor has the Company received any notification that the
Commission or the FINRA is contemplating terminating such registration or
listing. The Company has continued to satisfy, in all material
respects, all requirements for listing the Securities for trading on the
NASDAQ.
(y)
No
Price Stabilization or Manipulation
. The Company has not taken
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Common Shares.
(z)
Compliance with the Exchange
Act; Reports Filed
. The documents filed by the Company with
the Commission under the Exchange Act, including all such documents incorporated
by reference in the Registration Statement, complied, and will comply in all
material respects, with the requirements of the Exchange Act, and, when read
together with the other information in the Disclosure Package and the
Prospectus, at the time the Registration Statement and any amendments thereto
became effective (or are deemed effective) and at the Applicable Time, the
Closing Date or on any Date of Delivery, as the case may be, did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The Company has filed all reports required to be filed
pursuant to the 1933 Act, the 1940 Act and the Exchange Act.
(aa) I
nterested
Persons
. Except as disclosed in the Registration Statement,
the Prospectus and the Disclosure Package xiv) no person is serving or acting as
an officer, director or investment adviser of the Company, except in accordance
with the provisions of the 1940 Act and the Advisers Act, and xv) to the
knowledge of the Company, no director of the Company is an “interested person”
(as defined in the 1940 Act) of the Company or an “affiliated person” (as
defined in the 1940 Act) of any of the Underwriters except as otherwise
disclosed in the Registration Statement.
(bb)
No Unlawful Contributions or
Other Payments
. Neither the Company nor any of its
subsidiaries nor, to the Company’s knowledge, any employee or agent of the
Company or any subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the Prospectus and
the Disclosure Package.
(cc)
No Outstanding Loans or
Other Indebtedness
. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees or indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company or any of the members of any of
them, except as disclosed in the Prospectus and the Disclosure
Package.
(dd)
Compliance with
Laws
. The Company has not been advised, and has no knowledge,
that it and each of its subsidiaries are not conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, except where failure to be so in compliance would not
result, individually or in the aggregate, in a Material Adverse
Effect.
(ee)
Compliance with the
Sarbanes-Oxley Act of 2002
. The Company has complied in all
material respects with Sections 302 and 906 of the Sarbanes-Oxley Act and has
made the evaluations of the Company’s disclosure controls and procedures
required under Rule 13a-15 under the Exchange Act.
(ff) Any
certificate signed by any officer of the Company or the Adviser and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or the Adviser (as applicable), to
each Underwriter as to the matters covered thereby.
2.
Representations and
Warranties of the Adviser and the Administrator
.
The Adviser and the Administrator, jointly and severally, represent and warrant
to each Underwriter as of the date hereof, as of the Applicable Time, the
Closing Date referred to in Section 4 hereof, and as of each Date of Delivery
(if any) referred to in Section 3(b) hereof, and agree with each Underwriter as
follows:
(a)
No
Material Adverse Change in Business
. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus and the Disclosure Package, except as otherwise stated therein, there
has been no material adverse change in the financial condition, or in the
earnings, business affairs, operations or regulatory status of the Adviser or
the Administrator or any of their respective
subsidiaries,
whether or not arising in the ordinary course of business, that would reasonably
be expected to result in a Material Adverse Effect, or would otherwise
reasonably be expected to prevent the Adviser or the Administrator from carrying
out its obligations under the Investment Advisory Agreement (an “Adviser
Material Adverse Change” or an “Adviser Material Adverse Effect,” where the
context so requires) or the Administration Agreement (an “Administrator Material
Adverse Change” or an “Administrator Material Adverse Effect,” where the context
so requires).
(b)
Good
Standing
. Each of the Adviser and the Administrator (and each
of their subsidiaries) has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and the Disclosure Package and to enter into and
perform its obligations under this Agreement; the Adviser has full power and
authority to execute and deliver and perform its obligations under the
Investment Advisory Agreement; the Administrator has full power and authority to
execute and deliver the Administration Agreement; and each of the Adviser and
the Administrator is duly qualified to do business as a foreign entity and is in
good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to qualify or be in good standing would not otherwise
reasonably be expected to result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable.
(c)
Registration Under Advisers
Act
. The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the Advisers
Act or the 1940 Act from acting under the Investment Advisory Agreement for the
Company as contemplated by the Prospectus and the Disclosure
Package. There does not exist any proceeding or, to the Adviser’s
knowledge, any facts or circumstances the existence of which could lead to any
proceeding, which might adversely affect the registration of the Adviser with
the Commission.
(d)
Absence of
Proceedings
. There is no action, suit or proceeding or, to the
knowledge of the Adviser or the Administrator, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Adviser or the Administrator, threatened,
against or affecting either the Adviser or the Administrator, which is required
to be disclosed in the Registration Statement (other than as disclosed therein),
or which would reasonably be expected to result in an Adviser Material Adverse
Effect, or which would reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement, the
Investment Advisory Agreement or the Administration Agreement; the aggregate of
all pending legal or governmental proceedings to which the Adviser or the
Administrator is a party or of which any of its respective property or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to their business, would not reasonably
be expected to result in an Adviser Material Adverse Effect.
(e)
Absence of Defaults and
Conflicts
. Neither the Adviser nor the Administrator is in
violation of its certificate of incorporation or in default in the
performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Adviser or the
Administrator is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Adviser or the Administrator is subject, or
in violation of any law, statute, rule, regulation, judgment, order or decree
except for such violations or defaults that would not reasonably be expected to
result in an Adviser Material Adverse Effect or an Administrator Material
Adverse Effect, as applicable; and the execution, delivery and performance of
this Agreement, the Investment Advisory Agreement and the Administration
Agreement and the consummation of the transactions contemplated herein and
therein and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus and the Disclosure Package under the caption “Use of
Proceeds”) and compliance by the Adviser with its obligations hereunder and
under the Investment Advisory Agreement and by the Administrator with its
obligations hereunder and under the Administration Agreement do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Adviser or the Administrator pursuant to such Agreement except for
such violations or defaults that would not reasonably be expected to result in
an Adviser Material Adverse Effect or an Administrator Material Adverse Effect,
as applicable, nor will such action result in any violation of the provisions of
the limited liability company operating agreement of the Adviser or
Administrator, respectively; nor will such action result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Adviser, the Administrator, or any of their respective
assets, properties or operations except for such violations that would not
reasonably be expected to result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable.
(f)
Authorization of
Agreements
. This Agreement has been duly authorized, executed
and delivered by the Adviser and the Administrator; the Investment Advisory
Agreement has been duly authorized, executed and delivered by the Adviser; and
the Administration Agreement has been duly authorized, executed and delivered by
the Administrator; the Investment Advisory Agreement and the Administration
Agreement constitute valid and legally binding agreements of the Adviser and the
Administrator, respectively, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers) or similar laws affecting creditors’ rights
generally and (ii) rights to indemnification and contribution may be limited to
equitable principles of general applicability or by state or federal securities
laws or the policies underlying such law.
(g)
Absence of Further
Requirements
. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Adviser or the Administrator of its obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions
contemplated
by this Agreement, the Investment Advisory Agreement, the Administration
Agreement, the Disclosure Package or the Prospectus (including the use of the
proceeds from the sale of the Securities as described in the Prospectus and the
Disclosure Package under the caption “Use of Proceeds”), except (i) such as have
been already obtained under the 1933 Act, the 1940 Act or the rules and
regulations promulgated thereunder, (ii) such as may be required under state
securities laws, (iii) the filing of the Notification of Election under the 1940
Act, which has been effected and (iv) such as have been obtained under the laws
and regulations of jurisdictions outside the United States in which the
Securities are offered.
(h)
Description of the Adviser
and the Administrator
. The description of the Adviser and the
Administrator contained in the Prospectus and the Disclosure Package does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(i)
Possession of Licenses and
Permits
. Each of the Adviser and the Administrator possesses
such Governmental Licenses issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, except where the failure so to possess would not reasonably be
expected to, singly or in the aggregate, result in an Adviser Material Adverse
Effect or an Administrator Material Adverse Effect, as applicable; each of the
Adviser and Administrator is in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not, singly or in the aggregate, result in an
Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as
applicable; and neither the Adviser nor the Administrator has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to result
in an Adviser Material Adverse Effect or an Administrator Material Adverse
Effect, as applicable.
(j)
Employment
Status
. The Adviser is not aware that (i) any executive, key
employee or significant group of employees of the Company, if any, the Adviser
or the Administrator, as applicable, plans to terminate employment with the
Company, the Adviser or the Administrator or (ii) any such executive or key
employee is subject to any non-compete, nondisclosure, confidentiality,
employment, consulting or similar agreement that would be violated by the
present or proposed business activities of the Company or the Adviser except
where such termination or violation would not reasonably be expected to have an
Adviser Material Adverse Effect.
3.
Purchase
and Sale
. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the
Company,
at the purchase price set forth in Schedule I hereto, the number of Underwritten
Securities set forth opposite such Underwriter’s name in Schedule II
hereto.
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to the number of Option
Securities set forth in Schedule II hereto at the same purchase price per share
as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 30th day after the
date of the Prospectus Supplement upon written notice by the Representatives to
the Company setting forth the number of Option Securities as to which the
several Underwriters are exercising the option and the time and date of payment
and delivery of such Option Securities. Any such time and date of
delivery (a “Date of Delivery”) shall be determined by the Underwriters, but
shall not be later than seven (7) full Business Days and no earlier than
three (3) full Business Days after the exercise of said option, nor in any
event prior to the Closing Date. The number of Option Securities to
be purchased by each Underwriter shall be the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
4.
Delivery and
Payment
. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section
3(b) hereof shall have been exercised on or before the third Business Day
immediately preceding the Closing Date) shall be made on the date and at the
time specified in Schedule I hereto or at such time on such later date not
more than three Business Days after the foregoing date as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 10 hereof (such
date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If
the option provided for in Section 3(b) hereof is exercised after the third
Business Day immediately preceding the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to Citigroup Global
Markets Inc. at 388 Greenwich Street, New York, New York, 10013, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option
Securities
shall be conditioned upon receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 7 hereof.
5.
Offering by
Underwriters
. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus Supplement.
6.
Agreements
. The
Company agrees with the several Underwriters that:
(a) The
Company, subject to Section 6(a)(ii), will comply with the requirements of
Rule 497, and will notify the Underwriters as soon as practicable, and, in
the cases of Sections 6(a)(ii)-(iv), confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 497 and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 497 was received for filing by the Commission and, in the event that
it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement pursuant to Section
8(d) of the 1933 Act, and, if any such stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The
Company will give the Underwriters notice of its intention to file or prepare
any amendment to the Registration Statement, or any supplement or revision to
either the Base Prospectus included in the Registration Statement at the time it
became effective or to the Prospectus Supplement, and will furnish the
Underwriters with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) If,
at any time prior to the filing of the Prospectus Supplement, any event occurs
as a result of which the Disclosure Package would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
or the circumstances then prevailing not misleading, the Company will (i) notify
promptly the Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented; (ii) amend or supplement the Disclosure
Package to correct such statement or omission; and (iii) supply any amendment or
supplement to you in such quantities as you may reasonably request.
(d) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the 1933 Act, any event occurs as a result of which the
Prospectus Supplement as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Prospectus Supplement to comply with the 1933 Act or the Exchange Act or the
respective rules thereunder, including in connection with use or delivery of the
Prospectus Supplement, the Company promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 6,
an amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its best efforts to
have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in
use of the Prospectus Supplement and (iv) supply any supplemented
Prospectus Supplement to you in such quantities as you may reasonably
request.
(e) As
soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158.
(f)
The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and,
so long as delivery of a prospectus by an Underwriter or dealer may be required
by the 1933 Act, as many copies of each Preliminary Prospectus and the
Prospectus Supplement and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(g)
The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such states and jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Prospectus and the Disclosure Package under “Use
of Proceeds.”
(i)
The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to the 1940 Act and the
Exchange Act within the
time
periods required by the 1940 Act and the Exchange Act and the rules and
regulations of the Commission thereunder, respectively.
(j)
The Company will use its best efforts to maintain its
qualification as a regulated investment company under Subchapter M of the
Code.
(k) The
Company will not, without the prior written consent of Citigroup Global Markets
Inc. and UBS Securities LLC, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any other
shares of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule I
hereto,
provided
,
however
, that the
Company may issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company in
effect at the Applicable Time and the Company may issue Common Stock issuable
upon the conversion of securities or the exercise of warrants outstanding at the
Applicable Time. Notwithstanding the foregoing, if (x) during the
period that begins on the date that is 15 calendar days plus three business days
before the last day of the 30-day lock-up period and ends on the last day
of the 30-day lock-up period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (y) prior
to the expiration of the 30-day lock-up period, the Company announces that
it will release earnings results during the 16-day period beginning on the last
day of the 30-day lock-up period, then the 30-day lock-up period will be
extended until the expiration of the date that is 15 calendar days plus three
business days after the date on which the issuance of the earnings release or
the material news or material event occurs, unless the Company obtains a written
waiver from the Representatives. The Company will provide the
Representatives and any co-managers and each individual subject to the 30-day
lock-up period pursuant to the lockup letters described in Section 7(l) with
prior notice of any such announcement that gives rise to an extension of the
30-day lock-up period.
(l)
The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(m) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus and the Prospectus Supplement,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery
(including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus and the
Prospectus Supplement, and all amendments or supplements to any of them, as may,
in each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Securities on the NASDAQ; (vi) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made with
the FINRA. (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of the Company’s
officers and other employees in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (x) all other costs and expenses incident to
the performance by the Company of its obligations hereunder.
7.
Conditions to the
Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Applicable
Time, the Closing Date and any settlement date pursuant to Section
4
hereof, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The
Registration Statement, has become effective and on the Closing Date no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, no stop order pursuant to Section 8(d) of the 1933
Act shall have been issued, and no proceedings with respect to either shall have
been initiated or, to the Company’s knowledge, 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 prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 497 (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of
Rule 430A).
(b) The
Company’s General Counsel shall have furnished to the Representatives his
opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit B thereto.
(c) The
Company shall have requested and caused Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Company, to have furnished to the
Representatives
their opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit C thereto.
(d) The
Company shall have requested and caused Venable LLP, Maryland counsel for the
Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, substantially in the form set
forth in Exhibit D thereto.
(e) The
Representatives shall have received from Davis Polk & Wardwell, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Disclosure Package, the Prospectus Supplement
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f)
The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Disclosure Package, the Prospectus
Supplement and any supplements or amendments thereto, as well as each electronic
road show used in connection with the offering of the Securities, and this
Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
(iii) since
the date of the most recent financial statements included in the Disclosure
Package and the Prospectus Supplement (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus Supplement (exclusive of any supplement
thereto).
(g) The
Company shall have requested and caused BDO Seidman, LLP
to have furnished to the
Representatives, at the Applicable Time and at the Closing Date,
letters,
(which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Applicable Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the 1933
Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and that they have performed a review of
the unaudited interim financial information of the Company for the three-month
period ended March 31, 2009, and as at March 31, 2009, in accordance with
Statement on Auditing Standards No. 100,
and stating in effect
that:
(i)
in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements included or
incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus Supplement and reported on by them comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the Exchange Act and the related rules and regulations adopted by
the Commission;
(ii) on
the basis of a reading of the latest unaudited financial statements made
available by the Company and its subsidiaries; their limited review, in
accordance with standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the three-month period
ended March 31, 2009, and as at March 31, 2009 included in the Registration
Statement, the Preliminary Prospectus and the Prospectus Supplement; carrying
out certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and audit,
nominating and corporate governance
committees of the
Company and the Subsidiaries; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to June 30,
2008 , nothing came to their attention which caused them to believe
that:
(1) any
unaudited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus Supplement
do not comply as to form with applicable accounting requirements of the 1933 Act
and with the related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by reference in
quarterly reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus
Supplement;
(2) with
respect to the period subsequent to March 31, 2009, there were any changes, at a
specified date not more than five days prior to the date of the letter, in the
credit facility payable or payable for securities purchased or decreases in the
net assets as compared with the amounts shown on the March 31, 2009 consolidated
statement of assets and liabilities included in the Registration Statement, the
Preliminary Prospectus and the Prospectus Supplement, or for the period from
April 1, 2009 to such specified date there were any decreases, as compared with
the corresponding period in the preceding quarter in total investment income,
net investment income or earnings per common share of the Company and its
subsidiaries, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the
information included in the Registration Statement, the Preliminary Prospectus
and Prospectus Supplement in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information), Item 402
(Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is
not in conformity with the applicable disclosure requirements of Regulation S-K;
and
(iii) they
have performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company and its subsidiaries)
set forth in the Registration Statement, the Preliminary Prospectus and the
Prospectus Supplement and in Exhibit 12 to the Registration Statement,
including the information set forth under the caption “Selected Condensed
Financial Data” in the Preliminary Prospectus and the Prospectus
Supplement.
References
to the Prospectus Supplement in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent
to the Applicable Time or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus Supplement (exclusive of any amendment or supplement thereto), there
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 7 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus Supplement (exclusive
of any amendment or supplement thereto) the effect of which, in any
case
referred
to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Prospectus Supplement (exclusive of any amendment
or supplement thereto).
(i)
Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j)
On the Closing Date, the Underwriters shall have
received from BDO Seidman, LLP a letter, dated as of Closing Date, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
Section 7(g) of this Agreement.
(k) The
FINRA has confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(l)
On or before the date hereof, the Company shall
have procured for the benefit of the Underwriters lock-up agreements, in the
form of Exhibit A attached hereto, from all of the Company’s officers and
directors, the Adviser and all of the officers and directors of the
Adviser.
(m) In
the event that the Underwriters exercise their option provided in Section
3(b) hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company, the Adviser and the Administrator
contained herein and the statements in any certificates furnished by the
Company, the Adviser and the Administrator hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i)
Certificates, dated such Date of Delivery, of a duly
authorized officer of the Company, the Adviser and the Administrator and of the
chief financial or chief accounting officer of the Company, the Adviser and the
Administrator confirming that the information contained in the certificate
delivered by each of them at the Closing Date pursuant to Section
7(f) hereof remains true and correct as of such Date of
Delivery.
(ii) The
opinions of the Company’s General Counsel, Skadden, Arps, Slate, Meagher &
Flom LLP and Venable LLP, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinions required by Section 7(b), 7(c) and
7(d) and hereof.
(iii) The
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion required by Section
7(e) hereof.
(iv) A
letter from BDO Seidman, LLP in form and substance satisfactory to the
Underwriters and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Underwriters pursuant to Section
7(g) hereof.
(n) On
the Closing Date and at each Date of Delivery, 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 herein contained; and all proceedings taken by the Company in
connection with issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(o) If
any condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities, on a Date of Delivery which is after the
Closing Date, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Underwriters by notice to
the Company at any time at or prior to Closing Date or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1,
2, 9 and 14 shall survive any such termination and remain in full force and
effect.
If
any of the conditions specified in this Section 7 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 7 shall be delivered at the
office of Davis Polk & Wardwell, counsel for the Underwriters, at 450
Lexington Avenue, New York, New York, 10017, on the Closing Date.
8.
Reimbursement of
Underwriters’ Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
Citigroup Global Markets Inc. on demand for all expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
9.
Indemnification and
Contribution
. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the 1933 Act, the Exchange Act or the 1940 Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Disclosure Package, the Prospectus Supplement, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided
,
however
, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the 1933 Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in (i) the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
“Underwriting” or “Plan of Distribution”, (ii) the list of Underwriters and
their respective participation in the sale of the Securities, (iii) the
sentences related to concessions and reallowances and (iv) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
the Disclosure Package and the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Disclosure Package or the Prospectus Supplement.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and
defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below);
provided
,
however
, that such
counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company and one or more
of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities;
provided
,
however
, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder.
If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal
to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus Supplement. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), 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 9, each person who controls an Underwriter within the
meaning of either the 1933 Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either the 1933 Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
10.
Default by an
Underwriter
. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase;
provided
,
however
, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In
the event of a default by any Underwriter as set forth in this Section 10, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus Supplement or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11.
Termination
. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (1)
trading in
the
Company’s Common Stock shall have been suspended by the Commission or the NASDAQ
or trading in securities generally on the New York Stock Exchange or the
NASDAQ
shall have
been suspended or limited or minimum prices shall have been established on
either of such exchanges, (2) a banking moratorium shall have been declared
either by Federal or New York State authorities or (3) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any Preliminary Prospectus or the
Prospectus Supplement (exclusive of any amendment or supplement
thereto).
12.
Representations and
Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 8 and 9 hereof shall survive
the termination or cancellation of this Agreement.
13.
Notices
. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or telefaxed to (i)
the Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and
confirmed to the General Counsel, Citigroup Global Markets Inc. at 388 Greenwich
Street, New York, New York, 10013, Attention: General Counsel and (ii) UBS
Securities LLC, 299 Park Avenue, New York, New York 10171, Attention: Syndicate;
or, if sent to the Company or the Adviser, will be mailed, delivered or
telefaxed to it at (212) 448-9652
and confirmed to it at
Prospect Capital Corporation, 10 East 40
th
Street,
New York, New York 10016, attention Joseph Ferraro.
14.
Successors
. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 9 hereof, and no other person
will have any right or obligation hereunder.
15.
No fiduciary duty
.
The Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principals
and not as agents or fiduciaries of the Company and (c) the Company’s engagement
of the Underwriters in connection with
the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
16.
Integration
. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
17.
Applicable
Law
. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
18.
Waiver of Jury
Trial
. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19.
Counterparts
. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
20.
Headings
. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
21.
Definitions
. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“1933
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“1940
Act” shall mean the Investment Company Act of 1940, as amended, and the rules
and regulations promulgated thereunder.
“Advisors
Act” shall mean the Investment Advisers Act of 1940, as amended, and the rules
and regulations thereunder.
“Applicable
Time” shall mean the time of sale of the applicable Securities.
“Board”
shall mean the Board of Directors of the Company.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Rule
158”, “Rule 430A”, “Rule 430C”, “Rule 436” and “Rule 492” refer to
such rules under the 1933 Act.
If
the foregoing is in accordance with your understanding of our agreement, please
sign and return to us the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company, the
Adviser, the Administrator and the several Underwriters.
|
|
Very
truly yours,
|
|
|
|
|
|
Prospect
Capital Corporation
|
|
|
|
|
|
By:
|
/s/
John F. Barry
III
|
|
|
|
Name:
John F. Barry III
|
|
|
|
Title:
|
|
|
Prospect
Capital Management LLC
|
|
|
|
|
|
By:
|
/s/
John F. Barry
III
|
|
|
|
Name:
John F. Barry III
|
|
|
|
Title:
|
|
|
Prospect
Capital Administration LLC
|
|
|
|
|
|
By:
|
/s/
John F. Barry
III
|
|
|
|
Name:
John F. Barry III
|
|
|
|
Title:
|
The
foregoing Agreement is hereby confirmed and accepted as of the date specified in
Schedule I hereto.
|
Citigroup
Global Markets Inc.
|
|
|
|
|
|
|
|
By:
|
/s/ Kevin
Deignan
|
|
|
|
|
Name:
Kevin Deignan
|
|
|
|
|
Title: Director
- Investment Banking
|
|
|
|
UBS
Securities LLC
|
|
|
|
|
|
|
|
By:
|
/s/
Christopher Gastelu
|
|
|
|
|
Name:
Christopher Gastelu
|
|
|
|
|
Title:
Executive Director
|
|
|
|
By:
|
/s/ Leeor Avigdor
|
|
|
|
|
Name:
Leeor Avigdor
|
|
|
|
|
Title:
Associate Director
|
|
|
|
|
|
|
|
|
|
For
themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
|
|
32