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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
October 6, 2023
GOLUB CAPITAL BDC, INC.
(Exact name of Registrant as Specified in Its
Charter)
DELAWARE |
|
814-00794 |
|
27-2326940 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
200 Park Avenue, 25th Floor, New York, NY |
10166 |
(Address of Principal Executive Offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (212) 750-6060
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant
to Section 12(b) of the Act:
Title of each class |
|
Trading
Symbol |
|
Name
of each exchange on which
registered |
Common Stock, par value $0.001 per share |
|
GBDC |
|
The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b–2 of the Securities Exchange Act of 1934.
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement.
On October 6, 2023, Golub Capital BDC, Inc. (“GBDC”)
entered into an equity distribution agreement (the “Equity Distribution Agreement”), by and among GBDC, GC Advisors LLC, Golub Capital LLC, Keefe, Bruyette & Woods, Inc. and Regions Securities LLC (the “Placement Agents”) in connection
with the sale by GBDC of shares of its common stock, par value $0.001 per share (the “Shares”), having an aggregate offering
price of up to $250.0 million, in amounts and at times to be determined by GBDC (the “Offering”). Actual sales, if any, will
depend on a variety of factors to be determined by GBDC from time to time, including, among others, market conditions and the market price
of GBDC’s common stock.
Any Shares offered and sold pursuant to the
Equity Distribution Agreement will be sold pursuant to a prospectus supplement dated October 6, 2023 (the “Prospectus
Supplement”) together with the base prospectus included in GBDC’s registration statement on Form N-2 (File No.
333-265509), which was filed by GBDC on June 9, 2022 and was automatically effective upon filing.
The Equity Distribution Agreement provides that
GBDC may offer and sell the Shares from time to time through the Placement Agents, or to them. Sales of the Shares, if any, may be made
in negotiated transactions or transactions that are deemed to be “at the market,” as defined in Rule 415 under the Securities
Act of 1933, as amended, including sales made directly on The Nasdaq Global Select Market or any similar securities exchange or sales
made to or through a market maker other than on a securities exchange, at prices related to the prevailing market prices or at negotiated
prices. Pursuant to the terms of the Equity Distribution Agreement, the Placement Agents will receive a commission from GBDC of up to
1.50% of the gross sales price of any Shares sold through the Placement Agents under the Equity Distribution Agreement. The Equity Distribution
Agreement contains customary representations, warranties and agreements of GBDC, indemnification rights and other obligations of the parties
and termination provisions.
The foregoing description is only a summary of
the material provisions of the Equity Distribution Agreement and is qualified in its entirety by reference to a copy of the Equity Distribution
Agreement, which is attached hereto as Exhibit 1.1 and is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute
an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or
jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or other jurisdiction.
On October 6, 2023, Dechert LLP delivered its
legality opinion with respect to the Shares to be sold pursuant to the Prospectus Supplement, which is attached hereto as Exhibit 5.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
1.1 |
|
Equity
Distribution Agreement, dated October 6, 2023, by and among Golub Capital BDC, Inc., GC Advisors LLC, Golub Capital LLC, Keefe, Bruyette
& Woods, Inc. and Regions Securities LLC |
|
|
|
5.1 |
|
Opinion
of Dechert LLP, dated October 6, 2023 |
|
|
|
23.1 |
|
Consent
of Dechert LLP (included in Exhibit 5.1) |
|
|
|
104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
Golub Capital BDC, Inc. |
|
|
Date: October 10, 2023 |
By: |
/s/ Christopher C. Ericson |
|
|
Name: Christopher C. Ericson |
|
|
Title: Chief Financial Officer |
Exhibit 1.1
GOLUB CAPITAL BDC, INC.
Shares of Common Stock, $0.001 par value per share
EQUITY DISTRIBUTION AGREEMENT
October 6, 2023
Keefe, Bruyette & Woods, Inc.
787 Seventh Avenue, 5th Floor
New York, New York 10019
Regions Securities LLC
615 South College Street, Suite 600
Charlotte, NC 28202
Ladies and Gentlemen:
Golub Capital BDC, Inc., a
Delaware corporation (the “Company”), GC Advisors LLC, a Delaware limited liability company (the “Adviser”),
and Golub Capital LLC, a Delaware limited liability company (the “Administrator”), each confirms its agreement (this
“Agreement”) with Keefe, Bruyette & Woods, Inc. and Regions Securities LLC (each individually, a “Placement
Agent”, and collectively, the “Placement Agents”) as follows:
Section
1. Description
of Securities.
Each of the Company, the Adviser
and the Administrator agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set
forth herein, the Company may issue and sell through the Placement Agents, acting as agent and/or principal, shares of the Company’s
common stock, $0.001 par value per share (the “Common Stock”), having an aggregate offering price of up to $250,000,000.00
(the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance
with the limitations set forth in this Section 1 regarding the aggregate offering price of the shares of Common Stock issued and
sold under this Agreement (such shares of Common Stock being referred to herein as the “Securities”) shall be the sole
responsibility of the Company, and the Placement Agents shall have no obligation in connection with such compliance. The issuance and
sale of the Securities through the Placement Agents will be effected pursuant to the Registration Statement (as defined below) filed by
the Company with the Securities and Exchange Commission (the “Commission”) and effective under the Securities Act of
1933, as amended (collectively with the rules and regulations thereunder, the “Securities Act”), although nothing in
this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Securities.
The Company has filed,
in accordance with the provisions of the Securities Act, with the Commission an “automatic shelf registration statement”
on Form N-2 (File No. 333-265509), including a base prospectus, relating to certain securities, including the
Securities to be issued from time to time by the Company. Such registration statement became effective immediately upon its filing
with the Commission on June 9, 2022. The Company has prepared a prospectus supplement specifically relating to the Securities (the
“Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will
furnish to the Placement Agents, for use by the Placement Agents, copies of the prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating to the Securities. Except where the context otherwise requires,
such registration statement, as amended when it most recently became effective, including all documents filed as part thereof and
incorporated or deemed to be incorporated therein by reference, and including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule 424 under the Securities Act or deemed to be a part of such
registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration
Statement.” The Company may file one or more registration statements after the date hereof which may be referred to as the
Registration Statement, only to the extent that such registration statement relates to the Common Stock offered and sold pursuant to
this Agreement. The base prospectus included in the Registration Statement, as it may be supplemented by the Prospectus Supplement,
in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424 under the Securities Act, relating to the Securities, including documents incorporated or deemed to be
incorporated therein by reference, is herein called the “Prospectus.” Any reference to the base prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration
Statement and any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424, in each case
after the date of the base prospectus, the Prospectus Supplement or the Prospectus, as the case may be. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to
include any copy filed with the Commission pursuant to EDGAR.
A Form N-54A Notification
of Election to be Subject to Sections 55 through 65 of the Investment Company Act, filed pursuant to Section 54(a) of the Investment Company
Act (File No. 814-00794) (the “Notification of Election”), was filed with the Commission on April 12, 2010, under the
Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder (collectively, the “Investment
Company Act”).
The Company has entered into
a Fourth Amended and Restated Investment Advisory Agreement, dated as of August 3, 2023 (as approved by the board of directors of the
Company at a meeting on August 3, 2023, the “Investment Advisory Agreement”), with the Adviser.
The Company has entered into
an Administration Agreement, dated as of April 14, 2010 (as most recently re-approved by the board of directors of the Company at a meeting
on May 5, 2023, the “Administration Agreement”), with GC Service Company, LLC, a Delaware limited liability company
(“GC Service”), which was subsequently assigned by GC Service to the Administrator pursuant to an Assignment Agreement,
dated as of February 5, 2013, by and between the Administrator and GC Service, as consented to by the Company.
Section
2. Placements.
Each time that the Company
wishes to issue and sell the Securities hereunder (each, a “Placement”), it will notify a Placement Agent (the “Designated
Agent”) by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance
with which it desires the Securities to be sold, which shall at a minimum include the number of Securities to be issued and sold (the
“Placement Securities”), the time period during which sales are requested to be made, any limitation on the number
of Securities that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”),
a form of which containing such necessary minimum sales parameters is attached hereto as Exhibit A. The Placement Notice shall originate
from any of the individuals from the Company set forth on Exhibit B (with a copy to each of the other individuals from the Company
listed on such schedule) and shall be addressed to each of the individuals from Designated Agent set forth on Exhibit B, as such
Exhibit B may be amended from time to time.
If the Designated Agent
wishes to accept such proposed terms included in the Placement Notice (which it may decline to do for any reason in its sole
discretion) or, following discussion with the Company, wishes to accept amended terms, the Designated Agent will, prior to
4:30 p.m. (New York City time) on the business day following the business day on which such Placement Notice is delivered to
the Designated Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties)
addressed to all of the individuals from the Company and the Designated Agent set forth on Exhibit B setting forth the terms
that the Designated Agent is willing to accept. Where the terms provided in the Placement Notice are amended as provided for in the
immediately preceding sentence, such terms will not be binding on the Company or the Designated Agent until the Company delivers to
the Designated Agent an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of
such Placement Notice, as amended (the “Acceptance”), which email shall be addressed to all of the individuals
from the Company and the Designated Agent set forth on Exhibit B. The Placement Notice (as amended by the corresponding
Acceptance, if applicable) shall be effective upon receipt by the Company of the Designated Agent’s acceptance of the terms of
the Placement Notice or upon receipt by the Designated Agent of the Company’s Acceptance, as the case may be, unless and until
(i) the entire amount of the Placement Securities has been sold, (ii) in accordance with the notice requirements set forth
in the second sentence of this paragraph, the Company terminates the Placement Notice, (iii) the Company issues a subsequent
Placement Notice to the Designated Agent with parameters superseding those on the earlier dated Placement Notice, (iv) this
Agreement has been terminated under the provisions of Section 13, or (v) the Company or the Designated Agent shall have
suspended the sale of the Placement Securities in accordance with Section 4 below. The amount of any discount, commission or
other compensation to be paid by the Company to the Designated Agent in connection with the sale of the Placement Securities shall
be calculated in accordance with the terms set forth in Exhibit C. It is expressly acknowledged and agreed that neither the
Company nor the Placement Agents will have any obligation whatsoever with respect to a Placement or any Placement Securities unless
and until the Company delivers a Placement Notice to the Designated Agent and either (i) the Designated Agent accepts the terms
of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts such amended terms
by means of an Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the Placement Notice (as
amended by the corresponding Acceptance, if applicable) and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice (as amended by the corresponding Acceptance, if applicable), the terms of the Placement Notice
(as amended by the corresponding Acceptance, if applicable) will control.
Section
3. Sale of Placement
Securities.
Subject to the provisions
of Section 6(a), the Designated Agent, for the period specified in the Placement Notice (as amended by the corresponding Acceptance,
if applicable), will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Placement
Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding
Acceptance, if applicable). The Designated Agent will provide written confirmation to the Company no later than the opening of the Trading
Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Securities hereunder setting forth
the number of Placement Securities sold on such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined in Section 6(b) below) payable to the Company, with an itemization of
the deductions made by the Designated Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales.
Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the Designated Agent may sell
Placement Securities by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of
the Securities Act, including without limitation sales made directly on the Nasdaq Global Select Market, on any other existing trading
market for the Common Stock, or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding
Acceptance, if applicable), the Designated Agent may also sell Placement Securities by any other method permitted by law, including but
not limited to, in privately negotiated transactions. For the purposes hereof, “Trading Day” means any day on which
shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted.
Section
4. Suspension
of Sales.
The Company or the Designated
Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party
set forth on Exhibit B, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is
sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to
each of the individuals of the other party set forth on Exhibit B), suspend any sale of Placement Securities; provided, however,
that such suspension shall not affect or impair either party’s obligations with respect to any Placement Securities sold
hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective
against the other unless it is made to one of the individuals named on Exhibit B hereto, as such Exhibit may be amended from time
to time.
Section
5. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Placement Agent as of the date hereof and as of each
Representation Date (as defined in Section 7(n)(ii) below) on which a certificate is required to be delivered pursuant to Section
7(n) of this Agreement, as of each Applicable Time and as of each Settlement Date (as defined in Section 6(b) below), and agrees
with the Placement Agents as follows:
(1)
Compliance with Registration Requirements. The Company is eligible to use Form N-2. The Registration Statement,
any Rule 462(b) Registration Statement, and any other post-effective amendment thereto have become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective
times the Registration Statement, the Rule 462(b) Registration Statement, if any, and any post-effective amendments thereto became effective,
as of the date hereof and as of each Representation Date, Applicable Time and Settlement Date, the Registration Statement complied and
will comply in all material respects with the applicable requirements of the Securities Act and the Investment Company Act, and the
Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not misleading. Neither the Prospectus nor any amendments
or supplements thereto (including any prospectus wrapper), at the time such Prospectus or any such amendment or supplement was issued,
as of the date hereof and as of each Representation Date, Applicable Time and Settlement Date, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that none of the Company, the Adviser or the Administrator
makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus (or
any supplement thereto), in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of a
Placement Agent specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood
and agreed that the only such information furnished by or on behalf of either Placement Agent consists of the Agent Content described
in Section 10 hereof.
The copies of the
Registration Statement and any Rule 462(b) Registration Statement and any amendments thereto, and the Prospectus and any amendments
or supplements thereto, delivered and to be delivered the Placement Agents (electronically or otherwise) in connection with the offering
of the Securities were and will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T of the Commission (“Regulation S-T”).
(2) Offering
Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection
with the sale of the Securities other than the Registration Statement and the Prospectus and other materials, if any, permitted
under the Securities Act and consistent with Sections 7(a) and (d) hereof. Any additional offering materials (as amended or
supplemented, the “Offering Materials”), at the time first used, as of the date hereof and as of each
Representation Date, Applicable Time and Settlement Date, will comply in all material respects with the Securities Act, will be
(within the time period specified in Rule 424, Rule 433 and/or Rule 497) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Prospectus, as of each Representation Date, Applicable Time and Settlement Date,
will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided that none of the Company, the
Adviser or the Administrator makes any representation or warranty with respect to any statements or omissions made in any Offering
Materials in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of a Placement
Agent specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of
either Placement Agent consists of the Agent Content described in Section 10 hereof.
(3)
Investment Company Act. The Company is a closed-end, non-diversified management investment company and has elected
to be regulated as a business development company under the Investment Company Act and was eligible to make such an election.
(4)
Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public accountants within the meaning of, and as required by, the Securities
Act and the Public Company Accounting Oversight Board.
(5)
Financial Statements. The financial statements of the Company and its subsidiaries, included in the Registration Statement
and the Prospectus, together with related schedules and notes, present fairly the financial condition, results of operations and cash
flows of the Company and its subsidiaries as of the dates and for the periods indicated, comply as to form with the applicable accounting
requirements of the Securities Act, the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), and the Investment Company Act, as applicable, and have been prepared in conformity
with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout
the periods involved (except as otherwise noted therein); the other financial and statistical information and data included in the Registration
Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Company; and any pro
forma and pro forma as adjusted financial information and related notes thereto included in the Registration Statement and the Prospectus
have been prepared in accordance with the applicable requirements of the Securities Act, the Exchange Act and the Investment Company Act,
as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration
Statement and the Prospectus. No other financial statements or schedules are required to be included in the Registration Statement or
the Prospectus.
(6)
Expense Summary. The information set forth in the fee table contained in the section of the Registration Statement and
the Prospectus entitled “Fees and Expenses” has been prepared in all material respects in accordance with the requirements
of Form N-2, and interpretations thereunder, and to the extent estimated or projected, such estimates or projections are reasonably
believed to be attained and reasonably based.
(7)
Supporting Schedules and Other Financial Data. The supporting schedules, if any, included in the Registration Statement
present fairly, in accordance with GAAP, the information required to be stated therein. The information in the Registration Statement
and the Prospectus under the caption “Selected Consolidated Financial Data” presents fairly the information shown therein
and has been compiled on a basis consistent with that of the audited financial statements of the Company and its subsidiaries included
in the Registration Statement and the Prospectus.
(8)
No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration
Statement and each Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement),
except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions
entered into by the Company or any of its subsidiaries which are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) except for regular periodic distributions on the Common Stock, there has been no dividend or distribution
of any kind declared, paid or made by the Company on the Common Stock, the Company’s preferred stock, par value $0.001 per share
(the “Preferred Stock”), or on any other class of common or preferred stock of the Company (the “Capital Stock”).
(9)
Good Standing of the Company. The Company has been duly incorporated and is existing as a corporation in good standing under
the laws of the State of Delaware and has power and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement, the Investment
Advisory Agreement and the Administration Agreement; and the Company 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 (solely in the case of jurisdictions other than the State of Delaware) where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(10) Good
Standing of Subsidiaries. The Company’s only subsidiaries are Golub Capital BDC Holdings LLC, Golub Capital BDC CLO III
Depositor LLC, Golub Capital BDC CLO III LLC, GBDC Holdings ED Coinvest, Inc., GBDC Holdings Coinvest, Inc., GCIC Holdings LLC, GCIC
Funding LLC, GCIC CLO II Depositor LLC, GCIC CLO II LLC, GBDC Quick Quack Coinvest LLC, GCIC Quick Quack Coinvest LLC and GCIC North
Haven Stack Buyer Coinvest Inc. Each of the subsidiaries of the Company has been duly organized and is existing and in good standing
under the laws of its jurisdiction of organization, has power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus and is duly qualified as a foreign limited partnership,
limited liability company or corporation, as the case may be, to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement and the Prospectus, all of the issued and outstanding shares of capital stock or other equity
interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable (to
the extent such concepts are applicable) and are owned directly or indirectly by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (each, a “Lien”); and none of the outstanding
shares of capital stock or other equity interests of each subsidiary of the Company was issued in violation of any preemptive
rights, rights of first refusal or other similar rights of any securityholder of such subsidiary or any other person.
(11)
Capitalization. As of June 30, 2023, the Company’s authorized stock consists of 350,000,000 shares of Common Stock
and 1,000,000 shares of Preferred Stock, of which 169,599,992 shares of Common Stock were issued and outstanding. The shares of issued
and outstanding Capital Stock have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding
shares of Capital Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder
of the Company or any other person.
(12)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(13)
Authorization of Securities. The Securities to be sold by the Company pursuant to this Agreement have been duly authorized
for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company against payment of the consideration set
forth herein, will be validly issued, fully paid and non-assessable; no holder of the Securities is or will be subject to personal
liability by reason of being such a holder; and the issuance and sale of the Securities to be sold by the Company pursuant to this Agreement
are not subject to any preemptive rights, rights of first refusal or other similar rights of any security holder of the Company or any
other person.
(14)
Description of Securities. The Common Stock conforms in all material respects to all of the respective statements relating
thereto contained in the Registration Statement and the Prospectus, and such statements conform to the rights set forth in the respective
instruments and agreements defining the same.
(15) Absence
of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its Organizational Documents or in
default in the performance or observance of any obligation, agreement, covenant or condition contained in any Company Document,
except (solely in the case of Company Documents) for such defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Registration Statement and the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations under this 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 or Repayment Event
under, or result in the creation or imposition of any Lien upon any property or assets of the Company or any of its subsidiaries
pursuant to, any Company Documents, except (solely in the case of Company Documents) for such conflicts, breaches, defaults or Liens
that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the
Organizational Documents of the Company or any of its subsidiaries or 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
Company or any of its subsidiaries or any of their respective assets, properties or operations.
(16)
Absence of Labor Dispute. As of the date hereof, the Company and its subsidiaries do not have, and as of each Representation
Date, Applicable Time and Settlement Date, the Company and its subsidiaries will not have, any employees. To the knowledge of the Company,
no labor dispute with the employees of the Administrator exists or is imminent.
(17)
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 or affecting the
Company or any of its subsidiaries which is required to be disclosed in the Registration Statement or the Prospectus (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 properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance
by the Company of its obligations under this Agreement; the aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in
the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably
be expected to result in a Material Adverse Effect.
(18)
Material Contracts. There are no franchises, mortgages, loan or credit agreements, bonds, notes, leases, agreements, contracts,
indentures, leases or other instruments or documents that are required to be described in the Registration Statement or the Prospectus,
or to be filed as an exhibit thereto, which are not described or filed as required by the Securities Act or the Investment Company Act.
(19) Accuracy
of Descriptions and Exhibits. The information (1) in the Prospectus under the captions “Prospectus Supplement
Summary—Our Adviser,” “Risk Factors,” “Material U.S. Federal Income Tax Considerations,”
“Description of Our Capital Stock,” and “Plan of Distribution,” and (2) incorporated by reference into the
Registration Statement and the Prospectus from the Company’s most recent annual report on Form 10-K under the captions
“Item 1. Business—Management—Management Agreements,” “Item 1. Business—Regulation,”
“Item 1A. Risk Factors,” “Item 13. Certain Relationships and Related Transactions, and Director
Independence” and Exhibit 4.7, Description of securities, in each case to the extent that it constitutes matters of law,
summaries of legal matters, summaries of provisions of the Company’s Organizational Documents or other instruments or
agreements, summaries of legal proceedings, or legal conclusions, is correct in all material respects and all descriptions in the
Registration Statement and the Prospectus of any Company Documents are accurate in all material respects.
(20)
Possession of Intellectual Property. The Company and its subsidiaries own, or have obtained valid and enforceable licenses
for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames,
copyrights, trade secrets and other proprietary information described in the Registration Statement and the Prospectus as being licensed
by it or which are necessary for the conduct of its businesses (collectively, “Intellectual Property”), except where
the failure to own, license or have such rights would not, individually or in the aggregate, have a Material Adverse Effect; except as
disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has received notice and is
not otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property
or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company
or any subsidiary, as the case may be, therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling
or finding) or invalidity or inadequacy, would result in a Material Adverse Effect.
(21)
Absence of Further Requirements. (A) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote
or other consent of any holder of Capital Stock or other securities of the Company or any creditor of the Company, (C) no waiver
or consent under any Subject Instrument, and (D) no authorization, approval, vote or other consent of any other person or entity,
is necessary or required for the execution, delivery or performance by the Company of this Agreement (including the offering, issuance,
sale or delivery of the Securities hereunder), or for the consummation of any of the other transactions contemplated by this Agreement,
in each case on the terms contemplated by the Registration Statement and the Prospectus, except such as have been obtained or such as
may be required under state securities laws.
(22) Possession
of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Company Governmental Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Company Governmental Licenses, except where the failure so to comply would
not, individually or in the aggregate, have a Material Adverse Effect; all of the Company Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Company Governmental Licenses or the failure of such Company Governmental
Licenses to be in full force and effect would not, individually or in the aggregate, have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such
Company Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(23)
Title to Property. The Company owns or leases or has access to all properties and assets as are necessary to the conduct
of its operations as presently conducted.
(24)
Absence of Registration Rights. There are no persons with registration rights or other similar rights to have any securities
(debt or equity) registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement, and there
are no persons with co-sale rights, tag-along rights or other similar rights to have any securities (debt or equity) included in the
offering contemplated by this Agreement or sold in connection with the sale of the Securities pursuant to this Agreement.
(25)
Nasdaq Global Select Market. The Common Stock has been registered pursuant to Section 12(b) of the Exchange Act, and
the outstanding Common Stock is listed on The Nasdaq Global Select Market. The Company has not taken any action designed to or likely
to have the effect of terminating the registration of the Common Stock under the Exchange Act or de-listing the Common Stock from The
Nasdaq Global Select Market, nor has the Company received any notification that the Commission or The Nasdaq Global Select Market is contemplating
terminating such registration or listing.
(26)
FINRA Matters. All of the information provided to the Placement Agents or to counsel for the Placement Agents by the Company
and, to the knowledge of the Company, its officers and directors and the holders of any securities of the Company in connection with letters,
filings or other supplemental information provided to Financial Industry Regulatory Authority, Inc. (“FINRA”) pursuant
to FINRA Conduct Rule 5110 is true, complete and correct in all material respects.
(27)
Taxes and Tax Returns. The Company and its subsidiaries have filed all foreign, federal, state and local tax returns required
to be filed or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or
penalty levied against any of them, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine
or penalty that is currently being contested in good faith and for which appropriate reserves have been included on the books and records
of the Company.
(28) Insurance.
The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or
surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; there are no claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the
Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect.
(29)
Accounting Controls and Disclosure Controls. The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific
authorizations and with the investment objectives, policies and restrictions of the Company and the applicable requirements of the Exchange
Act and the Investment Company Act, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability and to maintain material compliance with the books and records requirements under the Exchange
Act and the Investment Company Act, (C) access to assets is permitted only in accordance with management’s general or specific
authorization, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Except as described in the Registration Statement and the Prospectus, since the date
of the Company’s most recent audited financial statements, there has been (1) no material weakness in the Company’s internal
control over financial reporting (as such term is defined in Rules 13a-15 and 15d-15 of the Exchange Act) (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company has established and
maintains disclosure controls and procedures (as such term is defined in Rules 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 is made known to the
Company’s principal executive officer or officers and principal financial officer or officers, as appropriate, and such disclosure
controls and procedures are effective to perform the functions for which they were established.
(30)
Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with which any of them is required to comply, including Section 402 related to loans and Sections 302 and 906
related to certifications.
(31)
Absence of Manipulation. Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company
and its subsidiaries have not taken and 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 the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(32) Statistical,
Demographic or Market-Related Data. Any statistical, demographic or market-related data included in the Registration Statement
or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, all such data included
in the Registration Statement or the Prospectus accurately reflect the materials upon which it is based or from which it was
derived, and the Company has delivered true, complete and correct copies of such materials to the Placement Agents.
(33)
Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director or officer of the Company or any of its subsidiaries or any agent, affiliate or other person associated with or acting on behalf
of the Company or any of its subsidiaries has (i) used any corporate funds of the Company or its subsidiaries for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise
or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including
of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for
or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”), or any applicable
law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law;
or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without
limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries
have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures designed to promote and ensure
compliance with all applicable anti-bribery and anti-corruption laws.
(34)
Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries
conducts business, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(35) OFAC.
Neither the Company nor, to the knowledge of the Company, any of its subsidiaries, directors or officers or any agent, affiliate or
other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of
any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control
of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a
“specially designated national” or “blocked person”), the United Nations Security Council, the European
Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, the “Sanctions”), nor is
the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of
Sanctions, including, without limitation, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson
Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North
Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds
of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time
of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in
any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person
participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the
past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or
transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with
any Sanctioned Country.
(36)
FinCen Certificate. The Company has delivered to the Placement Agents, on or prior to the date of execution of this Agreement,
such beneficial ownership certifications and information as the Placement Agents may have requested, together with copies of identifying
documentation, and the Company undertakes to provide such additional information and supporting documentation as the Placement Agents
may reasonably request in connection with the verification of the foregoing certification.
(37)
Related Party Transactions. There are no business relationships or related party transactions involving the Company or any
of its subsidiaries or, to the knowledge of the Company, any other person that are required to be described in the Registration Statement
or the Prospectus that have not been described as required.
(38)
Portfolio Companies. The Company has duly authorized, executed and delivered any agreements pursuant to which it made the
investments described in the Registration Statement and the Prospectus (each a “Portfolio Company Agreement”) with
corporations or other entities (each a “Portfolio Company”). Except as otherwise disclosed in the Registration Statement
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 Effect.
(39)
Offer and Sale of Securities. The Company has taken all required action under the Securities Act, the Exchange Act and the
Investment Company Act to make the public offering and consummate the sale of the Securities as contemplated by this Agreement.
(40)
Relationships with Directors, Officers and Stockholders. Except as described in the Registration Statement and the Prospectus,
no relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers or stockholders
of the Company, on the other hand, that is required to be described in the Registration Statement and the Prospectus, which is not so
described.
(41)
Interested Persons. Except as disclosed in the Registration Statement and the Prospectus, no director of the Company is
an “interested person” (as defined in the Investment Company Act) of the Company or an “affiliated person” (as
defined in the Investment Company Act) of either Placement Agent.
(42)
Directors’ and Officers’ Insurance and Fidelity Bond. The Company’s directors’ and officers’
errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 of the Investment Company Act are in full
force and effect; the Company is in compliance with the terms of such policy and fidelity bond in all material respects; there are no
claims by the Company under any such policy or fidelity bond as to which any insurance company is denying liability or defending under
a reservation of rights clause; the Company has not been refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, in
each case, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(43)
Compliance with RIC Requirements. The Company elected and qualified to be treated as a RIC under Subchapter M of the
Code starting with its taxable year ended September 30, 2010. The Company intends to direct the investment of the net proceeds of
the offering of the Securities and to continue to conduct its activities in such a manner as to continue to comply with the requirements
for qualification and taxation as a RIC under Subchapter M of the Code. The Company qualified and maintained in effect its election
to be treated as a RIC under Subchapter M of the Code for its taxable years ended September 30, 2020, 2021 and 2022.
(44)
BDC Election. The Company has filed the Notification of Election with the Commission; the Company has not filed with the
Commission any notice of withdrawal of the Notification of Election pursuant to Section 54(c) of the Investment Company Act; the
Notification of Election remains in full force and effect, and, to the Company’s knowledge, no order of suspension or revocation
of such election under the Investment Company 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 Investment Company Act, including
the provisions applicable to business development companies. The Company is not required and, after giving effect to the offer and sale
of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be required to register as an “investment
company,” as such term is used in the Investment Company Act.
(45)
No Restrictions on Subsidiaries. Except as disclosed in the Registration Statement and the Prospectus, no subsidiary of
the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying
to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties
or assets to the Company or any other subsidiary of the Company.
(46)
No Integration. Neither the Company nor any of its affiliates (within the meaning of Rule 144 under the Securities
Act) has made any offer or sale of any securities which could be “integrated” (within the meaning of the Securities Act) with
the offer and sale of the Securities and the Company has not sold or issued any shares of Common Stock during the six-month period preceding
the date of the Prospectus other than as described in the Registration Statement and the Prospectus.
(47)
No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or either
Placement Agent for a brokerage commission, finder’s fee or like payment in connection with the offer and sale of the Securities.
(48)
WKSI Status. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting
on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities
in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the date hereof, the Company was and is a “well known
seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to
the date hereof; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting
to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic
shelf registration form.
(49)
IT Systems. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and
all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of the information technology and computer systems, networks, hardware, software,
websites, applications, data and databases used by the Company or any of its subsidiaries (collectively, “IT Systems”)
used by the Company and all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)
and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, except, in
each case, as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(b)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally,
represent and warrant to each Placement Agent as of the date hereof and as of each Representation Date on which a certificate is required
to be delivered pursuant to Section 7(n) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agree with
the Placement Agents as follows:
(1)
Absence of Manipulation. Each of the Adviser and the Administrator has not taken, directly or indirectly, any action designed
to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities in violation of any law,
statute, regulation or rule applicable to the Company or its affiliates.
(2)
No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration
Statement and each Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement),
except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Adviser and the Administrator considered as one enterprise, whether or not
arising in the ordinary course of business and (B) there have been no transactions entered into by the Adviser or the Administrator
which are material with respect to the Adviser and the Administrator considered as one enterprise.
(3)
Good Standing. Each of the Adviser and the Administrator has been duly organized and is existing as a limited liability
company in good standing under the laws of the State of Delaware and has power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations
under this Agreement and each of the Adviser and the Administrator is duly qualified as a limited liability company to transact business
and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse
Effect.
(4)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by each of the Adviser and the
Administrator.
(5) Absence
of Defaults and Conflicts. Neither the Adviser nor the Administrator is in violation of its Organizational Documents or in
default in the performance or observance of any obligation, agreement, covenant or condition contained in any Adviser Document or
Administrator Document, except for such defaults that would not result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the
Prospectus (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 under the caption “Use of Proceeds”) and compliance by each of the Adviser and the
Administrator with its obligations under this 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 or Repayment Event under, or result in the creation or
imposition of any Lien upon any property or assets of the Adviser or the Administrator pursuant to, any Adviser Document or
Administrator Document, except for such conflicts, breaches, defaults or Liens that would not result in a Material Adverse Effect,
nor will such action result in any violation of the provisions of the Organizational Documents of the Adviser or the Administrator,
as applicable, or 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 or the Administrator or any of their respective
assets, properties or operations.
(6)
Absence of Labor Dispute. As of the date hereof, the Adviser does not have, and as of each Representation Date, Applicable
Time and Settlement Date the Adviser will not have, any employees. To the knowledge of the Adviser and the Administrator, no labor dispute
with the employees of Golub Capital LLC exists or is imminent.
(7)
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 Adviser or the Administrator, threatened, against
or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement or the Prospectus (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 properties or assets thereof or the consummation of the transactions contemplated in this
Agreement or the performance by each of the Adviser and the Administrator of its obligations under this 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 their respective property
or assets is the subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a Material Adverse Effect.
(8)
Absence of Misstatements or Omissions. The description of each of the Adviser and the Administrator and its business, and
the statements attributable to the Adviser and the Administrator, in the Registration Statement and the Prospectus complied and comply
in all material respects with the provisions of the Securities Act, the Investment Company Act and the Investment Advisers Act of 1940,
as amended, and the rules and regulations promulgated thereunder (collectively, the “Advisers Act”) and did not and
will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein
, in light of the circumstances under which they were made, not misleading.
(9)
Possession of Intellectual Property. Each of the Adviser and the Administrator owns, or has obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames,
copyrights, trade secrets and other proprietary information described in the Registration Statement and the Prospectus as being licensed
by it or which are necessary for the conduct of its businesses (collectively, “Adviser/Administrator Intellectual Property”),
except where the failure to own, license or have such rights would not, individually or in the aggregate, have a Material Adverse Effect;
except as disclosed in the Registration Statement and the Prospectus, neither the Adviser nor the Administrator has received notice and
is not otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Adviser/Administrator
Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or
inadequate to protect the interest of the Adviser or the Administrator, as the case may be, therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in a Material Adverse Effect.
(10)
Absence of Further Requirements. (A) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote
or other consent of any holder of securities of the Adviser, the Administrator or any creditor of the Adviser or the Administrator, (C) no
waiver or consent under any Subject Instrument, and (D) no authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the execution, delivery or performance by each of the Adviser and the Administrator of this Agreement
for the offering, issuance, sale or delivery of the Securities hereunder, or for the consummation of any of the other transactions contemplated
by this Agreement, in each case on the terms contemplated by the Registration Statement and the Prospectus, except such as have been obtained
under the Securities Act, the Exchange Act and the Investment Company Act or such as may be required under state securities laws.
(11)
Title to Property. Each of the Adviser and the Administrator owns or leases or has access to all properties and assets as
are necessary to the conduct of its operations as presently conducted.
(12)
Possession of Licenses and Permits. Each of the Adviser and the Administrator possesses such permits, licenses, approvals,
consents and other authorizations (collectively, the “Adviser/Administrator Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Adviser and
the Administrator are in compliance with the terms and conditions of all such Adviser/Administrator Governmental Licenses, except where
the failure so to comply would not, individually or in the aggregate, have a Material Adverse Effect; all of the Adviser/Administrator
Governmental Licenses are valid and in full force and effect, except when the invalidity of such Adviser/Administrator Governmental Licenses
or the failure of such Adviser/Administrator Governmental Licenses to be in full force and effect would not, individually or in the aggregate,
have a Material Adverse Effect; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation
or modification of any such Adviser/Administrator Governmental Licenses which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(13)
Investment Company Act. Neither the Adviser nor the Administrator is, and upon the sale of the Securities contemplated
under this Agreement and the application of the net proceeds therefrom as described in the Registration Statement and the Prospectus under
the caption “Use of Proceeds” will not be, an “investment company” or an entity “controlled” by an
“investment company” as such terms are defined in the Investment Company Act.
(14)
Insurance. Each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance
and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms of such policies and instruments
in all material respects; there are no claims by the Adviser or the Administrator under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of rights clause; neither the Adviser nor the Administrator has
been refused any insurance coverage sought or applied for; and neither the Adviser nor the Administrator has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(15)
Accounting Controls. Each of the Adviser and the Administrator maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations,
(B) access to assets is permitted only in accordance with management’s general or specific authorization, and (C) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
(16)
Advisers Act. The Adviser is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers
Act or the Investment Company Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration
Statement and the Prospectus.
(17)
Financial Resources. Each of the Adviser and the Administrator has the financial resources available to it necessary for
the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus and this Agreement, and
each of the Adviser and the Administrator owns, leases or has access to all properties and other assets that are necessary to the conduct
of its business and to perform the services, as described in the Registration Statement and the Prospectus.
(18) Employment
Status. Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of
employees of the Administrator plans to terminate employment with 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, the Adviser or the Administrator except where such
termination or violation would not reasonably be expected to have a Material Adverse Effect.
(19)
Subsidiaries. The Administrator does not have any subsidiaries. The following entities are the only subsidiaries of the
Adviser: the Administrator, FTUTB, Inc., Aveer Capital LLC and Golub Capital Markets LLC.
(20)
Foreign Corrupt Practices Act. Neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or Administrator,
any of their respective directors or officers nor any agent, affiliate or other person associated with or acting on behalf of the Adviser
or the Administrator has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect
unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled
entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing,
or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the
FCPA or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery
or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful
benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.
The Adviser and the Administrator have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures
designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(21)
Anti-Money Laundering Laws. The operations of the Adviser and the Administrator are and have been conducted at all times
in compliance with applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Adviser or the Administrator with respect to the Anti-Money Laundering Laws is pending
or, to the knowledge of the Adviser or the Administrator, threatened.
(22)
OFAC. Neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or Administrator, any of their respective
directors or officers nor any agent, affiliate or other person associated with or acting on behalf of the Adviser or the Administrator
is currently the subject or the target of any Sanctions, nor is the Adviser or the Administrator located, organized or resident in a Sanctioned
Country. For the past five years, the Adviser or the Administrator have not knowingly engaged in, are not now knowingly engaged in any
dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions
or with any Sanctioned Country.
(23) IT
Systems. Neither the Adviser nor the Administrator is aware of any security breach or incident, unauthorized access or
disclosure, or other compromise relating to IT Systems used by the Adviser or the Administrator. The Adviser’s or the
Administrator’s IT systems are adequate for, and operate and perform in all material respects as required in connection with
the operation of the business of the Adviser and the Administrator as currently conducted, and, to the knowledge of the Adviser and
the Administrator, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other
corruptants, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse
Effect. The Adviser and the Administrator have implemented and maintained commercially reasonable controls, policies, procedures,
and safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and
security of all material IT Systems and data (including Personal Data) used in connection with their business, and there have been
no breaches, violations, outages or unauthorized uses of or access to the same, except, in each case, as would not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect. The Adviser and the Administrator are presently in
material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of the
IT Systems used by the Adviser or the Administrator and all Personal Data and to the protection of such IT Systems and Personal Data
from unauthorized use, access, misappropriation or modification, except, in each case, as would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
(c)
Certificates. Any certificate signed by any officer of the Company, the Adviser, the Administrator or any of their respective
subsidiaries and delivered to the Placement Agents or to counsel for the Placement Agents shall be deemed a representation and warranty
by the Company, the Adviser or the Administrator, as the case may be, to the Placement Agents as to the matters covered thereby.
Section
6. Sale and Delivery
to the Placement Agents; Settlement.
(a) Sale
of Placement Securities. On the basis of the representations and warranties herein contained and subject to the terms and
conditions herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice or upon receipt by the
Designated Agent of an Acceptance, as the case may be, and unless the sale of the Placement Securities described therein has been
declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Agent, for the period
specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable), will use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell such Placement Securities up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). Each of
the Company, the Adviser and the Administrator acknowledges and agrees that (i) there can be no assurance that the Designated
Agent will be successful in selling Placement Securities, (ii) the Designated Agent will incur no liability or obligation to
the Company, the Adviser, the Administrator or any other person or entity if it does not sell Placement Securities for any reason
other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Securities as required under this Section 6 and (iii) the Designated Agent shall be under
no obligation to purchase Securities on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated
Agent in the Placement Notice (as amended by the corresponding Acceptance, if applicable).
(b)
Settlement of Placement Securities. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding
Acceptance, if applicable), settlement for sales of Placement Securities will occur on the second (2nd) Trading Day following
the date on which such sales are made (or such shorter time period set forth in Rule 15c6-1 under the Exchange Act) or such other date
as may be mutually agreed by the Company and the Designed Agent (each, a “Settlement Date”). The amount of proceeds
to be delivered to the Company on a Settlement Date against receipt of the Placement Securities sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by Designated Agent at which such Placement Securities were sold, after deduction
for (i) Designated Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2
hereof and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c)
Delivery of Placement Securities. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Securities being sold by crediting the Designated Agent’s or its designee’s account
(provided the Designated Agent shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System, or by such other means of delivery as may be mutually agreed upon
by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each
Settlement Date, the Designated Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation
to deliver Placement Securities on a Settlement Date, the Company agrees that, in addition to and in no way limiting the rights and obligations
set forth in Section 10(a) and Section 11 hereto, it will (i) hold the Designated Agent harmless against any loss, liability,
claim, damage, or expense whatsoever (including reasonable legal fees and expenses), as incurred, arising out of or in connection with
such default by the Company or its transfer agent (if applicable) and (ii) pay to the Designated Agent any commission, discount,
or other compensation to which it would otherwise have been entitled absent such default.
(d)
Settlement. On each Settlement Date, the Company shall deliver the Placement Securities through the facilities of The Depository
Trust Company unless the Designated Agent shall otherwise instruct.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Securities if, after giving
effect to the sale of such Securities, the aggregate offering price of the Securities sold pursuant to this Agreement would exceed
the lesser of (A) together with all sales of Securities under this Agreement, the Maximum Amount, (B) the amount available
for offer and sale under the currently effective Registration Statement, (C) the amount authorized from time to time to be
issued and sold under this Agreement by the Company and notified to the Placement Agents in writing. Under no circumstances shall
the Company cause or request the offer or sale of any Securities pursuant to this Agreement at a price (net of Placement
Agents’ commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof)
lower than the Company’s then current net asset value per share (as calculated pursuant to Section 23(b) of the Investment
Company Act), unless the Company has received the requisite approval from stockholders as required pursuant to the Investment
Company Act.
(f)
Sales through the Placement Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any
sales of Placement Securities of the Company shall only be effected by or through only a single Designated Agent on any single given date,
and in no event shall the Company request that more than one Placement Agent sell Securities on the same day; provided however that (i)
the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instruction
governing such securities and (B) sales solely to employees, directors or security holders of the Company or its subsidiaries, or to a
trustee or other person acquiring such securities for the accounts of such person and (ii) such limitation shall not apply (x) on any
day during which no sales are made pursuant to this Agreement or (y) during a period in which the Company has notified the Placement Agents
that it will not sell Securities under this Agreement and (1) no Placement Notice is pending or (2) after a Placement Notice has
been withdrawn.
(g)
Restrictions on Sales. Notwithstanding any other provision of this Agreement, except as may be mutually agreed by the Company
and the Placement Agents, the Company and the Placement Agents agree that no sales of Placement Securities shall take place, and the Company
shall not request the sale of any Placement Securities that would be sold, and no Placement Agent shall be obligated to sell, (i) with
respect to the Company’s quarterly filings on Form 10-Q, during any period commencing upon the 30th day following the
end of each fiscal quarter and ending on the date on which the Company files with the Commission updated financial and other information
as of the end of the Company’s most recent quarterly period (the “10-Q Filing”), (ii) with respect to the Company’s
annual report filings on Form 10-K, during any period commencing upon the 50th day following the end of the Company’s
fiscal year and ending on the date on which the Company files with the Commission updated audited financial and other information as of
the end of the Company’s most recent fiscal year (the “10-K Filing”), and (iii) with respect to the Company’s
current reports on Form 8-K that are “filed” with the Commission and not “furnished,” during any period commencing
on the date of the event causing the filing of the Form 8-K and ending on the date on which the Company files with the Commission such
Form 8-K (the “8-K Filing”) (each of a 10-Q Filing, a 10-K Filing and/or an 8-K Filing shall also be referred to herein
as an “SEC Filing”). To the extent the Company releases its earnings for its most recent quarterly period or fiscal
year, as applicable (an “Earnings Release”), before it files with the Commission its quarterly report on Form 10-Q
for such quarterly period or annual report on Form 10-K for such fiscal year, as applicable, then the Placement Agents and the
Company agree that no sales of Securities shall take place for the period beginning on the date of the Earnings Release and ending on
the date of the applicable SEC Filing. Notwithstanding the foregoing, no sales of Securities shall take place, and the Company shall not
request the sale of any Securities that would be sold, and the Placement Agents shall not be obligated to sell, during any period in which
the Company is in possession of material non-public information.
Section
7. Covenants
of the Company, the Adviser and the Administrator. Each of the Company, the Adviser and the Administrator covenants with the Placement
Agents as follows:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating
to any Placement Securities is required to be delivered by the Placement Agents under the Securities Act (whether physically, deemed to
be delivered pursuant to Rule 153 or any similar rule), the Company will notify the Placement Agents promptly of the time when any subsequent
amendment to the Registration Statement has been filed with the Commission and/or has become effective or any subsequent supplement to
the Prospectus has been filed and of any comment letter from the Commission or any request by the Commission for any amendment or supplement
to the Registration Statement or Prospectus or for additional information; and the Company will cause each amendment or supplement to
the Prospectus to be filed with the Commission as required pursuant to Rule 424. The Company will also promptly effect the necessary post-effective
amendment and the filings required pursuant to Rule 424, and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not,
it will promptly file such prospectus.
(b)
Notice of Commission Stop Orders. The Company will advise the Placement Agents, promptly after it receives notice or obtains
knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any other order preventing or suspending the use of the Prospectus, or of the suspension of the qualification of the Placement
Securities for offering or sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification, or of the
initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the Securities
Act concerning the Registration Statement or if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the offering of the Securities. The Company will use commercially reasonable effort to prevent the issuance of
any stop order, the suspension of any qualification of the Securities for offering or sale and any loss or suspension of any exemption
from any such qualification, and if any such stop order is issued or any such suspension or loss occurs, to obtain the lifting thereof
at the earliest possible moment.
(c)
Delivery of Prospectus. The Company will furnish to the Placement Agents and their counsel (at the expense of the Company)
copies of the Prospectus and all amendments and supplements to the Prospectus that are filed with the Commission during any period in
which a Prospectus relating to the Placement Securities is required to be delivered under the Securities Act, in each case as soon as
reasonably practicable, but in no event later than two business days after such filing, and in such quantities and at such locations as
the Placement Agents may from time to time reasonably request. The copies of the Registration Statement and the Prospectus and any supplements
or amendments thereto furnished to the Placement Agents will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Continued
Compliance with Securities Laws. If at any time when a Prospectus is required by the Securities Act to be delivered in
connection with a pending sale of the Placement Securities, any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Placement Agents or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act, the
Company will promptly notify the Placement Agents to suspend the offering of Placement Securities during such period and the Company
will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the
Placement Agents such number of copies of such amendment or supplement as the Placement Agents may reasonably request.
(e)
Blue Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Placement
Agents, to qualify the Securities for offering and sale, or to obtain an exemption for the Securities to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Placement Agents may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Securities (but in no event for less
than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Placement Securities have been so qualified or exempt, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect
for so long as required for the distribution of the Placement Securities (but in no event for less than one year from the date of this
Agreement).
(f)
Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Placement
Agents the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g)
Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified
in the Registration Statement and the Prospectus under “Use of Proceeds.”
(h)
Listing. During any period in which the Prospectus relating to the Placement Securities is required to be delivered by the
Placement Agents under the Securities Act with respect to a pending sale of the Placement Securities, the Company will use its commercially
reasonable efforts to cause the Placement Securities to be listed on the Nasdaq Global Select Market.
(i)
Reporting Requirements. The Company, during any period when the Prospectus is required to be delivered under the Securities
Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act and the Investment Company Act within
the time periods required by the Exchange Act and the Investment Company Act, as the case may be.
(j) Notice
of Other Sales. The Company will not, without (i) giving the Placement Agents at least one (1) business day prior written notice
specifying the nature of the proposed sale and the date of such proposed sale, and (ii) the Placement Agents suspending activity
under this program for such period of time as requested by the Company or as deemed appropriate by the Placement Agents in light of
the proposed sale, (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or
dispose of, directly or indirectly, any Common Stock or securities convertible into or exchangeable or exercisable for or repayable
with Common Stock, or file any registration statement under the Securities Act with respect to any of the foregoing, or (B) enter
into any swap or other agreement or any transaction that transfers in whole or in part, directly or indirectly, any of the economic
consequence of ownership of the Common Stock, or any securities convertible into or exchangeable or exercisable for or repayable
with Common Stock, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (x) the Common Stock to be offered
and sold through the Placement Agents pursuant to this Agreement, and (y) Common Stock issuable pursuant to the Company’s
dividend reinvestment plan as it may be amended or replaced from time to time.
(k)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a
Placement Notice or sell Placement Securities, advise the Placement Agents promptly after it shall have received notice or obtained knowledge
thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document
provided to the Placement Agents pursuant to this Agreement.
(l)
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Placement
Agents or their agents in connection with the transactions contemplated hereby, including, without limitation, providing information and
making available documents and senior officers, during regular business hours and at the Company’s principal offices, as the Placement
Agents may reasonably request. The parties acknowledge that the due diligence review contemplated by this Section 7(l) will include,
without limitation, during the term of this Agreement, upon the Placement Agents’ request, a quarterly diligence conference to occur
within five business days after the filing of the Company’s quarterly report on Form 10-Q or annual report on Form 10-K, as applicable,
whereby the Company will make appropriate senior corporate officers available to address diligence inquiries of the Placement Agents and
will provide such additional information and documents as the Placement Agents may reasonably request.
(m)
Disclosure of Sales. The Company will disclose in its quarterly reports on Form 10-Q and in its annual report on
Form 10-K the number of Placement Securities sold through the Placement Agents, the Net Proceeds to the Company and the compensation
payable by the Company to the Placement Agents with respect to such Placement Securities. To the extent the information set forth in this
Section 7(m) is filed in a prospectus supplement, the Company agrees to deliver such number of copies of each such prospectus supplement
to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(n)
Representation Dates; Certificates. On or prior to the date that the first Securities are sold pursuant to the terms of
this Agreement and:
(i)
each time the Company:
(A) files
the Prospectus relating to the Placement Securities or amends or supplements the Registration Statement or the Prospectus relating to
the Placement Securities by means of a post-effective amendment, sticker, or supplement relating to the Placement Securities (other
than (i) by an amendment or supplement that is filed solely to report sales of the Securities pursuant to this Agreement, (ii) in connection
with the filing of any Current Reports on Form 8-K (other than any Current Reports on Form 8-K which contain capsule financial information,
financial statements, supporting schedules or other financial data) or the incorporation of other documents by reference into the Registration
Statement or Prospectus except as set forth in clauses (B) and (C) below, or (iii) by a prospectus supplement relating solely to the offering
of other securities, including, without limitation, other shares of Common Stock and any debt securities of the Company);
(B) the Company files
an annual report on Form 10-K under the Exchange Act, or an amendment thereto containing financial information;
(C) the Company files
a quarterly report on Form 10-Q under the Exchange Act; and
(D) each time Securities
are delivered to a Placement Agent as principal on a Settlement Date; and
(ii)
at any other time reasonably requested by the Placement Agents (each such date of filing of one or more of the documents referred
to in clauses (i)(A) and (D) above and any time of request pursuant to this Section 7(n) shall be a “Representation
Date”),
each of the Company, the Adviser
and the Administrator shall furnish the Placement Agents with a certificate, in the form attached hereto as Exhibit D-1 or Exhibit
D-2, as applicable, within three (3) Trading Days of any Representation Date. The requirement to provide a certificate under this
Section 7(n) shall be waived for any Representation Date occurring at a time at which no Placement Notice (as amended by the corresponding
Acceptance, if applicable) is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date;
provided, however, that such waiver shall not apply for any Representation Date on which the Company files its annual
report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Securities following
a Representation Date when the Company relied on such waiver and did not provide the Placement Agents with a certificate under this Section 7(n),
then before the Company delivers the Placement Notice or the Placement Agents sells any Placement Securities, each of the Company, the
Adviser and the Administrator shall provide the Placement Agents with a certificate, in the form attached hereto as Exhibit D-1 or
Exhibit D-2, as applicable, dated the date of the Placement Notice.
(o)
Legal Opinion. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement, and
within three (3) Trading Days of each Representation Date with respect to which the Company, the Adviser and the Administrator are
obligated to deliver a certificate in the form attached hereto as Exhibit D-1 or Exhibit D-2, as applicable, for which no waiver is applicable,
the Company shall cause to be furnished to the Placement Agents written opinions of Dechert LLP (“Company Counsel”),
or other counsel satisfactory to the Placement Agents, in form and substance satisfactory to the Placement Agents, dated the date that
the opinion is required to be delivered; provided, however, that in lieu of such opinions for subsequent Representation
Dates, any such counsel may furnish the Placement Agents with a letter to the effect that the Placement Agents may rely on a prior opinion
delivered under this Section 7(o) to the same extent as if it were dated the date of such letter (except that statements in such
prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation
Date).
(p)
Comfort Letter and Certificate of the Chief Financial Officer. On or prior to the date that the first Securities are sold
pursuant to the terms of this Agreement and within three (3) Trading Days of each Representation Date with respect to which the Company,
the Adviser and the Administrator are obligated to deliver a certificate in the form attached hereto as Exhibit D-1 or Exhibit D-2, as
applicable, for which no waiver is applicable, the Company shall cause (A) its independent accountants (and any other independent accountants
whose report is included in the Registration Statement or the Prospectus) to furnish to the Placement Agents letters (collectively, the
“Comfort Letter”), dated the date the Comfort Letter is delivered, in form and substance satisfactory to the Placement
Agents, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the
Exchange Act and the Public Company Accounting Oversight Board, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letters, the “Initial Comfort Letter”),
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had
it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letter, and (B) the Chief Executive Officer and the Chief Financial Officer to furnish to the Placement Agents a certificate
(the “CEO/CFO Certificate”) dated the date that the certificate is required to be delivered, in form and substance
satisfactory to the Placement Agents.
(q)
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in,
or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (ii) sell, bid for, or purchase the Securities, or pay anyone any compensation
for soliciting purchases of the Securities other than the Placement Agents; provided, however, that the Company may
bid for and purchase its Common Stock in accordance with Rule 10b-18 under the Exchange Act.
(r) Insurance.
The Company, the Adviser and the Administrator will be insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company, the Adviser, the Administrator or their respective businesses,
properties, assets, employees, officers, trustees, directors, members, managers and partners will be in full force and effect; the
Company, the Adviser and the Administrator will be in compliance with the terms of such policies and instruments.
(s)
Business Development Company. The Company, during a period of two years from the effective date of the Registration Statement,
will use its best reasonable efforts to maintain its status as a business development company; provided, however, the Company
may change the nature of its business so as to cease to be, or to withdraw its election as, a business development company, with the approval
of its board of directors and a vote of the stockholders as required by Section 58 of the Investment Company Act, or any successor
provision.
(t)
Securities Act and Exchange Act. The Company will use its best reasonable efforts to comply with all requirements imposed
upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales
of, or dealings in, the Securities as contemplated by the provisions hereof and the Prospectus.
(u)
Compliance with Laws. The Company, the Adviser and the Administrator will use their best reasonable efforts to comply with
all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Investment Company Act
and the Sarbanes-Oxley Act, and will use their best reasonable efforts to cause the Company’s, the Adviser’s and the Administrator’s
directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the
provisions of the Investment Company Act and the Sarbanes-Oxley Act.
(v)
Regulation M. If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of
Regulation M under the Exchange Act are not satisfied with respect to the Company or the Securities, it shall promptly notify the
Placement Agents, and sales of the Securities and any Placement Notice shall be suspended until that or other exemptive provisions have
been satisfied in the judgment of the Company and the Placement Agents.
(w)
Status as Regulated Investment Company. The Company will maintain its qualification as a “regulated investment company”
under Subchapter M of the Code for so long as the Company remains a business development company regulated under the Investment Company
Act.
(x)
Custodian and Transfer Agent. The Company will maintain a custodian and a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Common Stock.
(y)
Best Efforts. The Company, the Adviser and the Administrator will use their best reasonable efforts to discharge all conditions
of theirs to closing as set forth in this Agreement and with respect to the Company, to perform all of the agreements required of them
by this Agreement.
(z)
Depository Trust Company. The Company will use its commercially reasonable efforts to cause the Securities to continue to
be eligible for clearance through The Depository Trust Company.
Section
8. Payment of
Expenses.
(a)
Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment and supplement thereto, (ii) the word processing, printing and delivery to the Placement Agents
of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of
the Securities, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Placement Agents, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery
of the Securities to the Placement Agents, (iv) the fees and disbursements of the counsel, accountants and other advisers to the
Company, (v) the qualification or exemption of the Securities under securities laws in accordance with the provisions of Section 7(e)
hereof, including filing fees and the reasonable fees and disbursements of counsel for the Placement Agents in connection therewith and
in connection with the preparation of a state securities law or “blue sky” survey and any supplements thereto, (vi) the
printing and delivery to the Placement Agents of copies of the Prospectus, any Offering Materials and all amendments or supplements thereto
and any costs associated with electronic delivery of any of the foregoing by the Placement Agents to investors, (vii) the preparation,
printing and delivery to the Placement Agents of copies of the blue sky survey and any Canadian “wrapper” and any supplements
thereto, (viii) the fees and expenses of the custodian and the transfer agent and registrar for the Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the Placement Agents in connection with, the review by FINRA
of the terms of the sale of the Securities up to $10,000, (x) the fees and expenses incurred in connection with the listing of the
Securities on the Nasdaq Global Select Market and (xi) the disbursements of counsel for the Placement Agents in connection with the
copying and delivery of closing documents delivered by the Company or the Company’s accountants or counsel (including any local
counsel).
Section
9. Conditions
of Placement Agents’ Obligations. The obligations of Placement Agents hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties of the Company, the Adviser and the Administrator contained
in this Agreement or in certificates of any officer of the Company, the Adviser or the Administrator delivered pursuant to the provisions
hereof, to the performance by the Company, the Adviser or the Administrator of the covenants and other obligations hereunder, and to the
following further conditions:
(a)
Effectiveness of Registration Statement. The Registration Statement and any Rule 462(b) Registration Statement shall have
become effective and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices
(each as amended by a corresponding Acceptance, if applicable), and (ii) the sale of all Placement Securities contemplated to be
issued by any Placement Notice (each as amended by a corresponding Acceptance, if applicable).
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its subsidiaries or the Adviser or the Administrator of any request for additional information from the Commission or any other
federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which
would require any post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the
issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the
Registration Statement or order pursuant to Section 8(e) of the Investment Company Act having been issued and proceedings
therefor initiated or, to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any
event that makes any material statement made in the Registration Statement or the Prospectus untrue in any material respect or that
requires the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the case of the
Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it
will not contain any materially untrue statement of a material fact or omit to state any 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.
(c)
Opinions of Counsel. The Placement Agents shall have received the favorable opinions of Company Counsel, required to be
delivered pursuant to Section 7(o) on or before the date on which such delivery of such opinion is required pursuant to Section 7(o),
and the favorable opinion of counsel to the Placement Agents.
(d)
Representation Certificate. The Placement Agents shall have received the certificate required to be delivered pursuant to
Section 7(n) on or before the date on which delivery of such certificate is required pursuant to Section 7(n).
(e)
Accountants’ Comfort Letter & CEO/CFO Certificate. The Placement Agents shall have received the Comfort Letter
and the CEO/CFO Certificate required to be delivered pursuant Section 7(p) on or before the date on which such delivery of such letter
and certificate are required pursuant to Section 7(p).
(f)
Approval for Listing. The Placement Securities shall either have been (i) approved for listing on the Nasdaq Global
Select Market, subject only to notice of issuance, or (ii) the Company shall have filed an application for listing of the Placement
Securities on the Nasdaq Global Select Market at, or prior to, the issuance of any Placement Notice.
(g)
No Suspension. Trading in the Common Stock shall not have been suspended on the Nasdaq Global Select Market.
(h)
Additional Documents. On each date on which the Company is required to deliver a certificate pursuant to Section 7(n),
counsel for the Placement Agents shall have been furnished with such certificates, letters, opinions and other documents as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement.
(i)
Securities Act Filings Made. All filings with the Commission required by Rule 424 or Rule 497 under the Securities
Act, or such other rules under the Securities Act as may be applicable to the Company, to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424 or Rule 497,
or such other rules under the Securities Act as may be applicable to the Company.
(j)
Termination of Agreement. If any condition specified in this Section 9 shall not have been fulfilled when and as required
to be fulfilled, this Agreement may be terminated by the Placement Agents by notice to the Company, and such termination shall be without
liability of any party to any other party except as provided in Section 8 hereof and except that, in the case of any termination
of this Agreement, Sections 5, 10, 11, 12, 16 and 19 hereof shall survive such termination and remain in full force and effect.
Section
10. Indemnification.
(a)
Indemnification by the Company. The Company, the Adviser and the Administrator, jointly and severally, agree to indemnify
and hold harmless each Placement Agent, its affiliates and employees and each person, if any, who controls any Placement Agent within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Placement Agent Indemnified
Party”) as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement for the Securities as originally filed or in any amendment
thereof (and including any post-effective amendment, any Rule 462(b) Registration Statement and any Rule 430B Information deemed to be
included or incorporated therein), or in the Prospectus or in any Offering Materials (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that
(subject to Section 10(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Placement Agents), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information
furnished to the Company by a Placement Agent expressly for use in the Registration Statement (or any amendment thereto) or the
Prospectus or any Offering Materials (or any amendment or supplement thereto), it being understood and agreed upon that the only
such information furnished by the Placement Agents consists of the following information in the Prospectus furnished on behalf of
the Placement Agents: the first sentence under the caption “Plan of Distribution” and the last paragraph under the
sub-heading “Additional Relationships” in the “Plan of Distribution” section (the “Agent
Content”).
(b)
Indemnification by the Placement Agents. Each Placement Agent severally agrees to indemnify and hold harmless the Company,
the Adviser and the Administrator, each of their directors, each of the Company’s officers who signed the Registration Statement,
and each person, if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 10, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) or any Offering Materials in reliance upon and in conformity with the Agent Content.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. Counsel to the indemnified parties shall be selected as follows: counsel to the Placement
Agents, their respective employees and each person, if any, who controls any Placement Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall be selected by Placement Agents; and counsel to the Company, the Adviser, the
Administrator, each of their directors, each of the Company’s officers who signed the Registration Statement and each person,
if any, who controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall be selected by the Company, the Adviser and the Administrator. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from
their own counsel for the Placement Agents, their respective employees and each person, if any, who controls any Placement Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for the Company, the Adviser, the Administrator, each of
their directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls
the Company, the Adviser or the Administrator within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification
or contribution could be sought under this Section 10 or Section 11 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 10(a) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e)
Other Agreements with Respect to Indemnification and Contribution. The provisions of this Section 10 and Section 11
hereof shall not affect any agreements among the Company, the Adviser and the Administrator with respect to indemnification of each other
or contribution between themselves.
Section
11. Contribution.
If the indemnification provided
for in Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, the Adviser and the Administrator, on the one hand, and the
Placement Agents, on the other hand, from the offering of the Securities pursuant to this Agreement, or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the Adviser and the Administrator, on the one hand, and
of the Placement Agents, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits
received by the Company, the Adviser and the Administrator (treated jointly for this purpose as one person), on the one hand, and
the Placement Agents, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company, the Adviser and the Administrator (treated jointly for this purpose
as one person) and the total commissions received by the Placement Agents, in each case as set forth on the cover of the Prospectus,
bear to the aggregate public offering price of the Securities as set forth on such cover.
The relative fault of the
Company, on the one hand, and the Placement Agents, on the other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company, the Adviser, the Administrator or by the Placement Agents and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The Company, the Adviser,
the Administrator and the Placement Agents agree that it would not be just and equitable if contribution pursuant to this Section 11
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions
of this Section 11, no Placement Agent shall be required to contribute any amount in excess of the amount by which the total price
at which the Securities sold by it pursuant to this Agreement exceeds the amount of any damages which such Placement Agent has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11,
each person, if any, who controls any Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Placement Agent, and each director of the Company, the Adviser, the
Administrator, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company, the
Adviser or the Administrator within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company, the Adviser and the Administrator.
Section
12. Representations, Warranties and Agreements
to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of
the Company, the Adviser the Administrator or any of their subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any Placement Agent or controlling person, or by or on behalf
of the Company, the Adviser or the Administrator, and shall survive delivery of the Securities to the Placement Agents.
Section
13. Termination of Agreement.
(a)
Termination by the Company. The Company shall have the right to terminate this Agreement in its sole discretion at any time
after the date of this Agreement.
(b)
Termination by the Placement Agents. Each Placement Agent shall have the right to terminate this Agreement in its sole discretion
at any time after the date of this Agreement.
(c)
Automatic Termination. Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate
upon the issuance and sale of all of the Placement Securities through the Placement Agents on the terms and subject to the conditions
set forth herein with an aggregate offering price equal to the amount set forth in Section 1 of this Agreement.
(d)
Continued Force and Effect. This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a),
(b), or (c) above or otherwise by mutual agreement of the parties.
(e)
Effectiveness of Termination. Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided, however, that such termination shall not be effective until the close of business on the
date of receipt of such notice by the Placement Agents or the Company, as the case may be. If such termination shall occur prior to the
Settlement Date for any sale of Placement Securities, such Placement Securities shall settle in accordance with the provisions of this
Agreement.
(f)
Liabilities. If this Agreement is terminated pursuant to this Section 13, such termination shall be without liability
of any party to any other party except as provided in Section 8 hereof, and except that, in the case of any termination of this Agreement,
Sections 5, 10, 11, 12, 16 and 20 hereof shall survive such termination and remain in full force and effect.
Section
14. Notices. Except as otherwise
provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication. Notices to the Placement Agents shall be directed to Keefe, Bruyette
& Woods, Inc., 787 Seventh Avenue, 5th Floor, New York, New York 10019, Attention: Transaction Management, and Regions Securities
LLC, 615 South College Street, Suite 600, Charlotte, NC, 28202, Attention: ECM Desk; notices to the Company, the Adviser or the Administrator
shall be directed to such party at 200 Park Avenue, 25th Floor, New York, New York 10166, Attention of David B. Golub.
Section
15. Parties. This Agreement
shall inure to the benefit of and be binding upon the Placement Agents, the Company, the Adviser, the Administrator and their
respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Placement Agents, the Company, the Adviser, the Administrator and their respective successors and the
controlling persons and officers and directors referred to in Sections 10 and 11 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Placement Agents, the Company,
the Adviser, the Administrator and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the
Placement Agents shall be deemed to be a successor by reason merely of such purchase.
Section
16. Governing Law and Time. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME. The Company, the Adviser and the Administrator hereby submit to the non-exclusive jurisdiction of the federal and state
courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company, the Adviser and the Administrator irrevocably and unconditionally waive any objection to
the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in
federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
Section
17. Waiver of Jury Trial. The Company,
the Adviser, the Administrator and the Placement Agents hereby irrevocably waive, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section
18. Effect of Headings. The Section
and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
Section
19. Definitions. As used in this
Agreement, the following terms have the respective meanings set forth below:
“Administrator Document”
means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness,
leases or other instruments or agreements to which the Administrator is a party or by which the Administrator is bound or to which any
of the property or assets of the Administrator is subject.
“Adviser Document”
means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness,
leases or other instruments or agreements to which the Adviser is a party or by which the Adviser is bound or to which any of the property
or assets of the Adviser is subject.
“Applicable Time”
means the time of each sale of any Securities pursuant to this Agreement.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company Documents”
means any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness,
leases or other instruments or agreements to which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, including all
Subject Instruments.
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
“Organizational Documents”
means (a) in the case of a corporation, its certificate of incorporation and by-laws; (b) in the case of a limited or general partnership,
its partnership certificate, certificate of formation or similar organization document and its partnership agreement; (c) in the case
of a limited liability company, its articles of organization, its certificate of formation or similar organizational documents and its
operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust,
its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement;
and (e) in the case of any other entity, the organizational and governing documents of such entity.
“Repayment Event”
means any event or condition which gives the holder of any bond, note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary of the Company.
“RIC” means
a regulated investment company within the meaning of Section 851(a) of the Code.
“Rule 424”
refers to Rule 424 under the Securities Act.
“Rule 430B”
refers to Rule 430B under the Securities Act.
“Rule 430B Information”
shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430B but that is deemed to be part of the Registration Statement at the time it becomes effective.
“Rule 433”
refers to Rule 433 under the 1933 Act.
“Rule 462(b) Registration
Statement” shall mean any registration statement filed to register the offer and sale of the Securities pursuant to Rule 462(b)
under the Securities Act.
“Rule 497”
refers to Rule 497(a) under the Securities Act.
“Sarbanes-Oxley Act”
means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“Subject
Instruments” means any instrument, agreement or other document relating to (i) the $602.4 million term debt
securitization that the Company completed on November 16, 2018, (ii) the $908.2 million term debt securitization initially completed
on December 13, 2018, which was acquired by the Company effective as of September 16, 2019, (iii) the senior secured revolving
credit facility with JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and lenders from time to time party
thereto, that the Company entered into on February 11, 2021; (iv) the $500 million aggregate principal amount of the Company’s
3.375% notes due 2024, (v) the $600 million aggregate principal amount of the Company’s 2.500% notes due 2026 and (vi) the
$350 million aggregate principal amount of the Company’s 2.050% notes due 2027 provided that if any instrument, agreement or
other document filed as an exhibit to the Registration Statement as aforesaid has been redacted or if any portion thereof has been
deleted or is otherwise not included as part of such exhibit (whether pursuant to a request for confidential treatment or
otherwise), the term “Subject Instruments” shall nonetheless mean such instrument, agreement or other document,
as the case may be, in its entirety, including any portions thereof which shall have been so redacted, deleted or otherwise not
filed.
All references in this Agreement
to the Registration Statement, any Rule 462(b) Registration Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to EDGAR and all references
in this Agreement to “supplements” to any preliminary prospectus or the Prospectus shall include, without limitation, any
supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Securities
by the Placement Agents outside of the United States.
Section
20. Absence of Fiduciary Relationship.
Each of the Company, the Adviser and the Administrator, severally and not jointly, acknowledges and agrees that:
(a)
Each of the Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Securities
and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary
or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or
employees or any other party, on the one hand, and either of the Placement Agents, on the other hand, has been or will be created in respect
of any of the transactions contemplated by this Agreement, irrespective of whether or not either of the Placement Agents has advised or
is advising the Company on other matters, and neither Placement Agent has no obligation to the Company with respect to the transactions
contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b)
the public offering price of the Securities was not established by the Placement Agents;
(c) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(d)
neither Placement Agent has provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and the Placement Agents have consulted their own legal, accounting, regulatory and tax advisers to the extent they
have deemed appropriate;
(e)
it is aware that Placement Agents and their respective affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and neither Placement Agent has an obligation to disclose such interests and transactions
to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(f)
it waives, to the fullest extent permitted by law, any claims it may have against either of the Placement Agents for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that neither of the Placement Agents shall have any liability (whether
direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or in right of it or the Company, employees or creditors of Company.
Section
21. Recognition of the U.S. Special Resolution
Regimes.
(a)
In the event that either Placement Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer from such Placement Agent of this Agreement, and any interest and obligation in or under this Agreement, will be
effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such
interest and obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that either Placement Agent that is a Covered Entity or a BHC Act Affiliate of such Placement Agent becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Placement
Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section
21:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
(i)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of
the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section
22. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any
electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page Follows]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement by and among the Placement Agents, the Company, the Adviser and the Administrator
in accordance with its terms.
|
Very truly
yours, |
|
|
|
GOLUB CAPITAL
BDC, INC. |
|
|
|
By: |
/s/
David B. Golub |
|
|
Name: |
David B.
Golub |
|
|
Title: |
Chief Executive Officer |
|
|
|
GC ADVISORS
LLC |
|
|
|
By: |
/s/
David B. Golub |
|
|
Name: |
David B. Golub |
|
|
Title: |
President |
|
|
|
GOLUB CAPITAL
LLC |
|
|
|
By: |
/s/
David B. Golub |
|
|
Name: |
David B. Golub |
|
|
Title: |
President |
[Signature Page to Equity
Distribution Agreement]
CONFIRMED
AND ACCEPTED, as of the |
|
date first
above written: |
|
|
|
KEEFE, BRUYETTE
& WOODS, INC. |
|
|
|
By: |
/s/
Al Laufenberg |
|
|
Name: |
Al Laufenberg |
|
|
Title: |
Managing Director |
|
|
|
REGIONS SECURITIES
LLC |
|
|
|
By: |
/s/
Edward L. Armstrong |
|
|
Name: |
Edward L. Armstrong |
|
|
Title: |
Managing Director --
ECM |
|
[Signature Page to Equity Distribution Agreement]
EXHIBIT A
FORM OF PLACEMENT NOTICE
| Subject: | Equity Distribution—Placement Notice |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Equity Distribution Agreement by and among Golub Capital BDC, Inc. (the “Company”),
GC Advisors LLC, Golub Capital LLC, and Keefe, Bruyette & Woods, Inc. and Regions Securities LLC (the “Placement Agents”),
dated October 6, 2023 (the “Agreement”), I hereby request on behalf of the Company that Placement Agent sell up to
[XXX,XXX] shares (the “Placement Securities”) of the Company’s common stock, par value $0.001 per share, at a
minimum market price of $[XX.XX] per share.
[ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH
AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE
TO BE MADE BY PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)]
Sincerely,
[ ]
EXHIBIT B
AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES AND ACCEPTANCES
Keefe, Bruyette
& Woods, Inc.
To: |
Scott Jaffe |
sjaffe@kbw.com |
|
Andy Fenwick |
afenwick@kbw.com |
|
Victor Sack |
vsack@kbw.com |
Regions Securities
LLC
To: | Brit Stephens |
brit.stephens@regions.com |
• | Ed Armstrong |
ed.armstrong@regions.com |
• | Matthew Stewart |
matthew.stewart@regions.com |
• | Scott Williams |
scott.williams2@regions.com |
Golub Capital BDC, Inc. |
|
|
|
|
To: |
David
B. Golub |
dgolub@golubcapital.com |
|
Christopher C. Ericson |
cericson@golubcapital.com |
|
Matthew Benton |
mbenton@golubcapital.com |
|
Timothy Topicz |
ttopicz@golubcapital.com |
EXHIBIT C
COMPENSATION
Each Placement Agent shall be paid compensation of
up to 1.50% of the gross proceeds from the Securities sold by such Placement Agent pursuant to this Agreement.
EXHIBIT D-1
GOLUB CAPITAL BDC,
INC.
FORM OF OFFICERS’ CERTIFICATE
[Date]
The undersigned, the Chief
Executive Officer and the Chief Financial Officer of Golub Capital BDC, Inc., a Delaware corporation (the “Company”),
pursuant to Section 7(n) of the Equity Distribution Agreement, dated as of October 6, 2023 (the “Equity Distribution Agreement”),
by and among the Company, GC Advisors LLC, a Delaware limited liability company (the “Adviser”), and Golub Capital
LLC, a Delaware limited liability company (the “Administrator”), and Keefe, Bruyette & Woods, Inc. and Regions
Securities LLC (the “Placement Agents”), providing for the offer and sale by the Company to the Placement Agents of
shares of the Company’s common stock, par value $0.001 per share, having an aggregate offering price of up to $250,000,000.00, hereby
certify that they are authorized to execute this Officers’ Certificate in the name and on behalf of the Company.
Each of the undersigned also
hereby certifies, on behalf of the Company, in his respective capacity as Chief Executive Officer or Chief Financial Officer, that:
| (1) | the representations and warranties of the Company in the Equity Distribution Agreement are true and correct
with the same force and effect as though expressly made at and as of the date hereof; |
| (2) | the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the date hereof under or pursuant to the Equity Distribution Agreement; |
| (3) | no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to our knowledge, are contemplated by the Commission; |
| (4) | there has not been, since the date of the Equity Distribution Agreement or since the respective dates
as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and |
| (5) | the Company is not in possession of, and has not supplied the Placement Agents with, any material non−public
information. |
Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Equity Distribution Agreement.
IN WITNESS WHEREOF, we have
hereunto set our hands as of the date first written above.
|
By: |
|
|
Name: |
David B. Golub |
|
Title: |
Chief Executive Officer |
|
|
|
|
By: |
|
|
Name: |
Christopher Ericson |
|
Title: |
Chief Financial Officer |
EXHIBIT D-2
[GC ADVISORS LLC][ GOLUB CAPITAL LLC]
FORM OF OFFICERS’ CERTIFICATE
[Date]
The undersigned, the Chairman,
Chief Executive Officer & Co-General Counsel and the President of [GC Advisors LLC][Golub Capital LLC], a Delaware limited
liability company (the “[Adviser][Administrator]”), pursuant to Section 7(n) of the Equity Distribution Agreement,
dated as of October 6, 2023 (the “Equity Distribution Agreement”), by and among Golub Capital BDC, Inc., a Delaware
corporation (the “Company”), [GC Advisors LLC, a Delaware limited liability company (the “Adviser”)][the
Adviser], and [Golub Capital LLC, a Delaware limited liability company (the “Administrator”)][the Administrator], and
Keefe, Bruyette & Woods, Inc. and Regions Securities LLC (the “Placement Agents”), providing for the offer and
sale by the Company to the Placement Agents of shares of the Company’s common stock, par value $0.001 per share, having an aggregate
offering price of up to $250,000,000.00, hereby certify that they are authorized to execute this Officers’ Certificate in the name
and on behalf of the [Adviser][Administrator].
Each of the undersigned also
hereby certifies, on behalf of the [Adviser][Administrator], in his respective capacity as Chairman, Chief Executive Officer & Co-General
Counsel or President, that:
| (1) | the representations and warranties of the [Adviser][Administrator] in the Equity Distribution Agreement
are true and correct with the same force and effect as though expressly made at and as of the date hereof; and |
| (2) | the [Adviser][Administrator] has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the date hereof under or pursuant to the Equity Distribution Agreement. |
Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Equity Distribution Agreement.
[Signature page follows]
IN WITNESS WHEREOF, we have hereunto set our hands
as of the date first written above.
|
By: |
|
|
Name: |
Lawrence E. Golub |
|
Title: |
Chairman, Chief Executive Officer & |
|
|
Co-General Counsel |
|
|
|
|
By: |
|
|
Name: |
David B. Golub |
|
Title: |
President |
Exhibit 5.1
|
1900 K Street, NW |
Washington, DC 20006-1110 |
+1 202 261 3300 Main |
+1 202 261 3333 Fax |
www.dechert.com |
October 6, 2023
Golub Capital BDC, Inc.
200 Park Avenue, 25th Floor
New York, NY 10166
Re: Registration
Statement on Form N-2
Ladies and Gentlemen:
We have acted as counsel to Golub Capital BDC,
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a registration statement
on Form N-2 (File No. 333-265509) as originally filed on June 9, 2022 and which became effective immediately upon filing
with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”) (such registration statement, together with any post-effective amendments thereto, all exhibits thereto
and all documents incorporated by reference therein and deemed to be part thereof at the time it most recently became effective, are hereinafter
referred to, collectively, as the “Registration Statement”), relating to the public offering of securities of the Company
that may be offered by the Company from time to time as set forth in the prospectus dated June 9, 2022, which was included in the Registration
Statement, and which forms a part of the Registration Statement (the “Prospectus”), and as may be set forth from time
to time in one or more supplements to the Prospectus.
This opinion letter is rendered in connection
with the sale from time to time by the Company of shares of its common stock, par value $0.001 per share (the “Shares”),
with an aggregate offering price of up to $250.0 million, as described in the prospectus supplement dated as of October 6, 2023 (the “Prospectus
Supplement”), filed with the Commission pursuant to Rule 424(b)(2) under the Securities Act. The Shares are to be sold by the
Company pursuant to an equity distribution agreement, dated October 6, 2023 (the “Equity Distribution Agreement”),
by and among the Company, GC Advisors LLC, and Golub Capital LLC, and Keefe, Bruyette & Woods, Inc. and Regions Securities LLC, as
the placement agents. This opinion letter is being furnished to the Company in accordance with the requirements of Item 25 of Form N-2
under the Investment Company Act of 1940, as amended (the “1940 Act”), and we express no opinion herein as to any matter
other than as to the legality of the Shares.
In rendering the opinion expressed below, we have
examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records
and other instruments and such agreements, certificates and receipts of public officials, certificates of officers or other representatives
of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below,
including the following documents:
|
(i) |
the Registration Statement; |
|
|
|
|
(ii) |
the Prospectus Supplement; |
|
|
|
|
(iii) |
the Equity Distribution Agreement; |
|
|
|
|
(iv) |
the form of certificate evidencing the Shares, filed as Exhibit (d)(1) to the Registration Statement; |
|
Golub Capital BDC, Inc. |
|
October 6, 2023 |
|
Page 2 |
|
(v) |
the certificate of incorporation, as amended by the articles of amendment, of the Company; |
|
|
|
|
(vi) |
the amended and restated bylaws of the Company; |
|
|
|
|
(vii) |
a certificate of good standing with respect to the Company issued by the Secretary of State of the State of Delaware as of a recent date; and |
|
|
|
|
(viii) |
the resolutions of the board of directors of the Company relating to, among other things, (a) the authorization and approval of the preparation and filing of the Registration Statement, the Prospectus and the Prospectus Supplement and (b) the authorization to enter into the Equity Distribution Agreement, certified as of the date hereof by an officer of the Company. |
As to the facts upon which this opinion is based,
we have relied, to the extent we deem proper, upon certificates of public officials and certificates and written statements of agents,
officers, directors and representatives of the Company.
In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as original documents and the conformity to original documents of
all documents submitted to us as copies. In addition, we have assumed (i) the legal capacity of all natural persons and (ii) the legal
power and authority of all persons signing on behalf of the parties to such documents (other than the Company).
On the basis of the foregoing and subject to the
assumptions and qualifications set forth in this letter, we are of the opinion that when (i) the Equity Distribution Agreement has been
duly executed and delivered by the parties thereto and (ii) the Shares are (a) issued and delivered against receipt by the Company of
payment therefor at a price per Share not less than the par value per share of the Common Stock as contemplated by the Registration Statement
and the Prospectus contained therein and in accordance with the terms of the Equity Distribution Agreement and (b) if applicable, countersigned
by the transfer agent, the Shares will be validly issued, fully paid and nonassessable.
The opinion expressed herein is limited to the
General Corporation Law of the State of Delaware. We express no opinion as to compliance with the 1940 Act or other federal securities
laws, or state securities laws, including the securities laws of the State of Delaware. We are members of the bar of the State of New
York.
This opinion letter has been prepared for your
use solely in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent
to the date of this opinion letter.
We hereby consent to the filing of this
opinion letter as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on or about October 10, 2023
and to the reference to this firm under the caption “Legal Matters” in the Prospectus Supplement. In giving such
consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Dechert LLP
Dechert LLP
v3.23.3
Cover
|
Oct. 06, 2023 |
Cover [Abstract] |
|
Document Type |
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|
Amendment Flag |
false
|
Document Period End Date |
Oct. 06, 2023
|
Entity File Number |
814-00794
|
Entity Registrant Name |
GOLUB CAPITAL BDC, INC.
|
Entity Central Index Key |
0001476765
|
Entity Tax Identification Number |
27-2326940
|
Entity Incorporation, State or Country Code |
DE
|
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|
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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