As filed with the Securities and Exchange
Commission on April 13, 2015
Securities Act of 1933 File No. 333-193308
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Post-effective Amendment No. 4
x
Pre-effective Amendment ¨
GOLUB CAPITAL BDC,
INC.
(Exact Name of Registrant as Specified in
Charter)
150 South Wacker Drive,
Suite 800
Chicago, Illinois 60606
(Address of Principal Executive Offices)
(312) 205-5050
(Registrant’s Telephone Number, Including
Area Code)
David B. Golub
Golub Capital BDC, Inc.
150 South Wacker Drive, Suite 800
Chicago, Illinois 60606
(Name and Address of Agent for Service)
Copies to:
Thomas J. Friedmann
David J. Harris
William J. Tuttle
Dechert LLP
1900 K Street, N.W.
Washington, D.C. 20006
(202) 261-3300
Approximate date of proposed public
offering: As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this
form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than
securities offered in connection with a dividend reinvestment plan, check the following box. x
It is proposed that this filing will become
effective (check appropriate box):
¨ when
declared effective pursuant to section 8(c).
If appropriate, check the following box:
¨ This
amendment designates a new effective date for a previously filed registration statement.
¨ This
form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act and the Securities
Act registration statement number of the earlier effective registration statement for the same offering is
EXPLANATORY NOTE
This Post-Effective Amendment No. 4 to the Registration Statement
on Form N-2 (File No. 333-193308) of Golub Capital BDC, Inc., or the Registration Statement, is being filed pursuant to Rule 462(d)
under the Securities Act of 1933, as amended, or the Securities Act, solely for the purpose of filing exhibits to the Registration
Statement. Accordingly, this Post-Effective Amendment No. 4 consists only of a facing page, this explanatory note and Part C of
the Registration Statement setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 4 does not
modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment
No. 4 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration
Statement are hereby incorporated by reference.
PART C
OTHER INFORMATION
Item 25. Financial Statements and Exhibits
(1) Financial Statements |
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The Index to Consolidated Financial Statements on page F-1 of this Registration Statement is hereby incorporated by reference. |
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(2) Exhibits |
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(a) |
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Form of Certificate of Incorporation (Incorporated by reference to Exhibit (a)(2) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(b) |
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Form of Bylaws (Incorporated by reference to Exhibit (b)(2) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(c) |
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Not applicable. |
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(d)(1) |
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Form of Stock Certificate (Incorporated by reference to Exhibit (d) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(d)(2) |
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Form of Subscription Certificate.(1) |
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(d)(3) |
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Form of Indenture.(1) |
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(d)(4) |
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Form of Subscription Agent Agreement.(1) |
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(d)(5) |
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Form of Warrant Agreement.(1) |
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(d)(6) |
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Form of Certificate of Designations for Preferred Stock.(2) |
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(d)(7) |
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Form T-1 Statement of Eligibility of U.S. Bank National Association, as Trustee, with respect to the Form of Indenture.(2) |
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(e) |
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Amended and Restated Dividend Reinvestment Plan (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on May 5, 2011). |
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(f) |
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Not applicable. |
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(g) |
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Second Amended and Restated Investment Advisory Agreement, dated August 5, 2014, by and between Registrant and GC Advisors LLC (Incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q (File No. 814-00794), filed on August 8, 2014). |
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(h)(1) |
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Form of Underwriting Agreement for equity securities.(1) |
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(h)(2) |
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Form of Underwriting Agreement for debt securities.(1) |
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(h)(3) |
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Underwriting Agreement dated as of March 18, 2014, among the Registrant, GC Advisors LLC, Golub Capital LLC, Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC (Incorporated by reference to Exhibit (h)(3) to the Registrant’s Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333-193308), filed on March 19, 2014). |
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(h)(4) |
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Equity Distribution Agreement dated as of August 20, 2014, among the Registrant, GC Advisors LLC, Golub Capital LLC and UBS Securities LLC (Incorporated by reference to Exhibit (h)(4) to the Registrant’s Post-Effective Amendment No. 2 to the Registration Statement on Form N-2 (File No. 333-193308), filed on August 21, 2014). |
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(h)(5) |
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Underwriting Agreement dated as of April 10, 2015, among the Registrant, GC Advisors LLC, Golub Capital LLC, Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC. |
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(i) |
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Not applicable. |
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(j) |
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Form of Custody Agreement (Incorporated by reference to Exhibit (j) to the Registrant’s Pre-effective Amendment No. 5 to the Registration Statement on Form N-2 (File No. 333-163279), filed on April 12, 2010). |
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(k)(1) |
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Certificate of Appointment of Transfer Agent (Incorporated by reference to Exhibit (k)(1) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(k)(2) |
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Form of Administration Agreement between the Registrant and GC Service Company LLC (Incorporated by reference to Exhibit (k)(2) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(k)(3) |
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Form of Trademark License Agreement between the Registrant and Golub Capital Management LLC (Incorporated by reference to Exhibit (k)(3) to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-163279), filed on March 24, 2010). |
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(k)(4) |
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Purchase Agreement, dated July 16, 2010, by and among the Registrant, Golub Capital BDC 2010-1 Holdings LLC, Golub Capital BDC 2010-1 LLC and Wells Fargo Securities, LLC (Incorporated by reference to Exhibit 10.1 to the Registrant’s Report on Form 8-K (File No. 814-00794), filed on July 16, 2010). |
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(k)(5) |
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Master Loan Sale Agreement, dated July 16, 2010, by and between the Registrant, Golub Capital BDC 2010-1 LLC and Golub Capital BDC 2010-1 Holdings LLC (Incorporated by reference to Exhibit 10.2 to the Registrant’s Report on Form 8-K (File No. 814-00794), filed on July 16, 2010). |
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(k)(6) |
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Indenture, dated July 16, 2010, by and between Golub Capital BDC 2010-1 LLC and U.S. Bank, National Association (Incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on July 16, 2010). |
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(k)(7) |
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Collateral Management Agreement, dated July 16, 2010, by and between Golub Capital BDC 2010-1 LLC and GC Advisors LLC (Incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on July 16, 2010). |
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(k)(8) |
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Purchase and Sale Agreement, dated July 21, 2011, by and between the Registrant, as the seller, and Golub Capital BDC Funding LLC, as the purchaser (Incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on July 21, 2011). |
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(k)(9) |
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Supplemental Indenture No. 1, dated as of February 15, 2013, by and between Golub Capital BDC 2010-1 LLC and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on February 19, 2013). |
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(k)(10) |
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Senior Loan Fund LLC Limited Liability Company Agreement dated May 31, 2013, by and between the Registrant and United Insurance Company of America (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on June 7, 2013). |
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(k)(11) |
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Credit Agreement dated November 22, 2013, by and among Golub Capital BDC Revolver Funding LLC, as the borrower, the Registrant, as the servicer; and The PrivateBank and Trust Company, as lender and administrative agent (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on November 27, 2013). |
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(k)(12) |
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Purchase Agreement, dated June 5, 2014, by and among the Registrant, Golub Capital BDC CLO 2014 LLC and Wells Fargo Securities, LLC (Incorporated by reference to Exhibit 10.2 to the Registrant’s Report on Form 8-K (File No. 814-00794), filed on June 6, 2014). |
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(k)(13) |
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Loan Sale Agreement, dated June 5, 2014, by and between the Registrant and Golub Capital BDC CLO 2014 LLC (Incorporated by reference to Exhibit 10.3 to the Registrant’s Report on Form 8-K (File No. 814-00794), filed on June 6, 2014). |
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(k)(14) |
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Indenture, dated June 5, 2014, by and between Golub Capital BDC CLO 2014 LLC and Wells Fargo Bank, National Association (Incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on June 6, 2014). |
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(k)(15) |
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Collateral Management Agreement, dated June 5, 2014, by and between Golub Capital BDC CLO 2014 LLC and GC Advisors LLC (Incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on June 6, 2014). |
(k)(16) |
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Amended and Restated Loan and Servicing Agreement, dated as of December 18, 2014, by and among Golub Capital BDC Funding LLC, as the Borrower; the Registrant, as Transferor and Servicer; Wells Fargo Securities, LLC, as the Administrative Agent; the lenders from time to time party thereto; the lender agents from time to time party thereto; and Wells Fargo Bank, N.A., as the Collateral Agent, the Account Bank, and the Collateral Custodian. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 814-00794), filed on January 2, 2015). |
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(k)(17) |
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First amendment to Senior Loan Fund LLC Limited Liability Company Agreement dated July 31, 2004 by and between the Registrant and RGA Insurance Company (Incorporated by reference to Exhibit 10.25 to the Registrant’s Annual Report on Form 10-K (File No. 814-00794), filed on November 18, 2014). |
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(l)(1) |
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Opinion and Consent of Dechert LLP, special counsel for Registrant (Incorporated by reference to Exhibit (l)(1) to the Registrant’s Registration Statement on Form N-2 (File No. 333-193308), filed on January 10, 2014). |
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(l)(2) |
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Opinion and Consent of Dechert LLP, special counsel for Registrant (Incorporated by reference to Exhibit (l)(2) to the Registrant’s Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333-193308), filed on March 19, 2014). |
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(l)(3) |
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Opinion and Consent of Dechert LLP, special counsel for Registrant (Incorporated by reference to Exhibit (l)(3) to the Registrant’s Post-Effective Amendment No. 2 to the Registration Statement on Form N-2 (File No. 333-193308), filed on August 21, 2014). |
(l)(4) |
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Opinion and Consent of Dechert LLP, special counsel for Registrant. |
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(m) |
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Not applicable. |
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(n) |
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Independent Registered Public Accounting Firm Consent (Incorporated by reference to Exhibit (n) to the Registrant’s Post-Effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-193308), filed on December 10, 2014). |
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(o) |
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Not applicable. |
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(p) |
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Not applicable. |
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(q) |
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Not applicable. |
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(r)(1) |
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Code of Ethics of the Registrant (Incorporated by reference to Exhibit 14.1 to the Registrant’s Annual Report on Form 10-K (File No. 814-00794), filed on November 29, 2012). |
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(r)(2) |
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Code of Ethics of GC Advisors (Incorporated by reference to Exhibit (r)(2) to the Registrant’s Post-effective Amendment No. 2 to the Registration Statement on Form N-2 (File No. 333-174756), filed on August 7, 2012). |
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(s)(1) |
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Form of Prospectus Supplement for Common Stock Offerings.(2) |
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(s)(2) |
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Form of Prospectus Supplement for Preferred Stock Offerings.(2) |
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(s)(3) |
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Form of Prospectus Supplement for Debt Offerings.(3) |
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(s)(4) |
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Form of Prospectus Supplement for Rights Offerings.(2) |
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(s)(5) |
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Form of Prospectus Supplement for Warrant Offerings.(2) |
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(s)(6) |
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Form of Prospectus Supplement for Convertible Debt Offerings.(3) |
_____________
| (1) | Previously filed as part of the Registrant’s Registration
Statement on Form N-2 (File No. 333-174756) filed on June 7, 2011 and incorporated herein by reference. |
| (2) | Previously filed as part of the Registrant’s Pre-Effective
Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333-174756) filed on August 26, 2011 and incorporated herein
by reference. |
| (3) | Previously filed as part of the Registrant’s Post-Effective
Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-174756) filed on December 10, 2014 and incorporated herein
by reference. |
Item 26. Marketing Arrangements
The information contained under the heading
“Plan of Distribution” on this Registration Statement is incorporated herein by reference.
Item 27. Other Expenses of Issuance and Distribution
The following table sets forth the estimated
expenses to be incurred by the Registrant in connection with the offering described in this registration statement:
Securities and Exchange Commission registration fee |
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$ |
128,800 |
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FINRA filing fee |
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150,500 |
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NASDAQ Global Select Market listing fees |
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195,000 |
(1) |
Printing expenses |
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200,000 |
(1) |
Legal fees and expenses |
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600,000 |
(1) |
Accounting fees and expenses |
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300,000 |
(1) |
Miscellaneous |
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50,000 |
(1) |
Total |
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$ |
1,624,300 |
(1) |
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| (1) | These amounts are estimates. |
All of the expenses set forth above shall be borne by
us.
Item 28. Persons Controlled by or Under Common
Control
The Registrant directly or indirectly owns
100% of the limited liability company interests of Golub Capital BDC 2010-1 Holdings LLC, a Delaware limited liability company,
Golub Capital BDC 2010-1 LLC, a Delaware limited liability company, Golub Capital BDC Funding LLC, a Delaware limited liability
company, Upper GCC Holdings LLC, a Delaware limited liability company, GC SBIC IV-GP, LLC, a Delaware limited liability company,
Golub Capital BDC Holdings LLC, a Delaware limited liability company, GC SBIC V-GP, LLC, a Delaware limited liability company,
Golub Capital BDC Revolver Funding LLC, a Delaware limited liability company, and Golub Capital BDC CLO 2014 LLC, a Delaware limited
liability company, and 100% of the interests of GC SBIC IV-GP, Inc., a Delaware corporation, GC SBIC IV, L.P., a Delaware limited
partnership, GC SBIC V, L.P., a Delaware limited partnership, all of which are included in the Registrant’s consolidated
financial statements as of December 31, 2014.
Item 29. Number
of Holders of Securities
The following table sets forth the approximate
number of record holders of the Registrant’s common stock as of April 7, 2015.
Title of Class |
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Number of
Record Holders |
Common Stock, $0.001 par value |
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300 |
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Item 30. Indemnification
As permitted by Section 102 of the General
Corporation Law of the State of Delaware, or the DGCL, the Registrant has adopted provisions in its certificate of incorporation,
as amended, that limit or eliminate the personal liability of its directors for a breach of their fiduciary duty of care as a director.
The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment
based on all material information reasonably available to them. Consequently, a director will not be personally liable to the Registrant
or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for: any breach of the
director’s duty of loyalty to the Registrant or its stockholders; any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law; any act related to unlawful stock repurchases, redemptions or other distributions
or payment of dividends; or any transaction from which the director derived an improper personal benefit. These limitations of
liability do not affect the availability of equitable remedies such as injunctive relief or rescission.
The Registrant’s certificate of incorporation
and bylaws provide that all directors, officers, employees and agents of the registrant shall be entitled to be indemnified by
us to the fullest extent permitted by the DGCL, subject to the requirements of the Investment Company Act of 1940, as amended,
or the 1940 Act. Under Section 145 of the DGCL, the Registrant is permitted to offer indemnification to its directors, officers,
employees and agents.
Section 145(a) of the DGCL provides, in
general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), because the person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise.
Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and
in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect
to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the DGCL provides, in
general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of any other enterprise, against any expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145(g) of the DGCL provides, in
general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee
or agent of any other enterprise, against any liability asserted against the person in any such capacity, or arising out of the
person’s status as such, regardless of whether the corporation would have the power to indemnify the person against such
liability under the provisions of the law. We have obtained liability insurance for the benefit of our directors and officers.
The Investment Advisory Agreement provides
that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard
of its duties and obligations, GC Advisors LLC, or the Adviser, and its officers, managers, agents, employees, controlling persons,
members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages,
liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising
from the rendering of the Adviser’s services under the Investment Advisory Agreement or otherwise as an investment adviser
of the Registrant.
The Administration Agreement, as assigned,
provides that, absent willful misfeasance, bad faith or negligence in the performance of its duties or by reason of the reckless
disregard of its duties and obligations, Golub Capital LLC, or the Administrator, and its officers, manager, agents, employees,
controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant
for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement)
arising from the rendering of the Administrator’s services under the Administration Agreement or otherwise as administrator
for the Registrant.
Each Underwriting Agreement provides that
each underwriter severally agrees to indemnify, defend and hold harmless the Registrant, its directors and officers, and any person
who controls the Registrant within the meaning of Section 15 of the Securities Act of 1933, as amended, or the Securities Act,
or Section 20 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Registrant or any such person may incur under the Securities Act, the Exchange Act, the 1940 Act,
the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in conformity with information concerning such underwriter
furnished in writing by or on behalf of such underwriter through the managing underwriter to the Registrant expressly for use in
this Registration Statement (or in the Registration Statement as amended by any post-effective amendment hereof by the Registrant)
or in the Prospectus contained in this Registration Statement, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be stated in this Registration Statement or such Prospectus
or necessary to make such information not misleading.
The Equity Distribution Agreement provides
that the sales agent agrees to indemnify, defend and hold harmless the Registrant, its directors and officers, and any person who
controls the Registrant within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Registrant or any such person may incur under the Securities Act, the Exchange
Act, the 1940 Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning
the sales agent furnished in writing by or on behalf of the sales agent to the Registrant expressly for use in this Registration
Statement (or in the Registration Statement as amended by any post-effective amendment hereof by the Registrant) or in the Prospectus
contained in this Registration Statement, or arises out of or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in this Registration Statement or such Prospectus or necessary to
make such information not misleading.
Insofar as indemnification for liability
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
Item 31. Business and Other Connections of Investment Adviser
A description of any other business, profession,
vocation or employment of a substantial nature in which the Adviser, and each managing director, director or executive officer
of the Adviser, is or has been during the past two fiscal years, engaged in for his or her own account or in the capacity of director,
officer, employee, partner or trustee, is set forth in Part A of this Registration Statement in the sections entitled “Management.”
Additional information regarding the Adviser and its officers and directors is set forth in its Form ADV, as filed with the Securities
and Exchange Commission (SEC File No. 801-70448), and is incorporated herein by reference.
Item 32. Location of Accounts and Records
All accounts, books and other documents
required to be maintained by Section 31(a) of the Investment Company Act of 1940, and the rules thereunder are maintained at the
offices of:
| (1) | the Registrant, Golub Capital BDC, Inc., 150 South
Wacker Drive, Suite 800, Chicago, IL 60606; |
| (2) | the Transfer Agent, American Stock Transfer &
Trust Company, LLC, 6201 15th Avenue, 3rd Floor, Brooklyn, NY 11219; |
| (3) | the Custodian, U.S. Bank National Association, Corporate
Trust Services, One Federal Street, 3rd Floor, Boston, MA 02110; and |
| (4) | the Adviser, GC Advisors LLC, 150 South Wacker Drive,
Suite 800, Chicago, IL 60606. |
Item 33. Management Services
Not Applicable.
Item 34. Undertakings
The Registrant hereby undertakes:
| (1) | To suspend the offering of shares until the prospectus
is amended if (1) subsequent to the effective date of its registration statement, the net asset value declines more than ten percent
from its net asset value as of the effective date of the registration statement; or (2) the net asset value increases to an amount
greater than the net proceeds as stated in the prospectus. |
| (3) | In the event that the securities being registered are
to be offered to existing shareholders pursuant to warrants or rights, and any securities not taken by shareholders are to be
reoffered to the public, to supplement the prospectus, after the expiration of the subscription period, to set forth the results
of the subscription offer, the transactions by underwriters during the subscription period, the amount of unsubscribed securities
to be purchased by underwriters, and the terms of any subsequent reoffering thereof; and further, if any public offering by the
underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the
prospectus, to file a post-effective amendment to set forth the terms of such offering; |
(4) | (a) | to to file, during any period in which offers
or sales are being made, a post-effective amendment to the registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3)
of the Securities Act; |
| (ii) | to reflect in the prospectus any facts or events after
the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration statement; and |
| (iii) | to include any material information with respect to
the plan of distribution not previously disclosed in the registration statement or any material change to such information in
the registration statement; |
| (b) | that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering
thereof; |
| (c) | to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering; |
| (d) | that, for the purpose of determining liability under
the Securities Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b),
(c), (d) or (e) under the Securities Act as part of a registration statement relating to an offering, other than prospectuses
filed in reliance on Rule 430A under the Securities Act, shall be deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such date of first use; and |
| (e) | that, for the purpose of determining liability of
the Registrant under the Securities Act to any purchaser in the initial distribution of securities, the undersigned Registrant
undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to the purchaser: |
| (i) | any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule 497 under the Securities Act; |
| (ii) | the portion of any advertisement pursuant to Rule 482
under the Securities Act relating to the offering containing material information about the undersigned Registrant or its securities
provided by or on behalf of the undersigned Registrant; and |
| (iii) | any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser. |
(5) | (a) | For the purpose of determining any liability
under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by us pursuant to Rule 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time it was declared effective. |
| (b) | For the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant has duly caused this Post-effective Amendment No. 4 to the Registration Statement on Form N-2 to be
signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York, in the State of New York, on this
13th day of April, 2015.
GOLUB CAPITAL BDC, INC.
By:
/s/ David B. Golub
Name: David B. Golub
Title: Chief Executive Officer
Pursuant to the requirements of the Securities
Act of 1933, this Post-effective Amendment No. 4 to the Registration Statement on Form N-2 has been signed by the following persons
in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ David B. Golub |
|
Chief Executive Officer and Director
(Principal Executive Officer) |
|
April 13, 2015 |
David B. Golub |
|
|
|
|
|
|
|
/s/ Ross A. Teune |
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
April 13, 2015 |
Ross A. Teune |
|
|
|
|
|
|
|
* |
|
Chairman of the Board of Directors |
|
April 13, 2015 |
Lawrence E. Golub |
|
|
|
|
|
|
|
* |
|
Director |
|
April 13, 2015 |
John T. Baily |
|
|
|
|
|
|
|
* |
|
Director |
|
April 13, 2015 |
Kenneth F. Bernstein |
|
|
|
|
|
|
|
* |
|
Director |
|
April 13, 2015 |
Anita R. Rosenberg |
|
|
|
|
|
|
|
* |
|
Director |
|
April 13, 2015 |
William M. Webster IV |
|
|
|
*By: /s/ David B.
Golub
David B. Golub
Title: Attorney-in-fact
Exhibit (h)(5)
Execution Version
GOLUB CAPITAL BDC, INC.
3,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: April 10, 2015
Table of Contents
|
|
Page |
|
|
|
SECTION 1. |
Representations and Warranties |
2 |
SECTION 2. |
Sale and Delivery to Underwriters; Closing |
20 |
SECTION 3. |
Covenants |
21 |
SECTION 4. |
Payment of Expenses |
26 |
SECTION 5. |
Conditions of Underwriters’ Obligations |
27 |
SECTION 6. |
Indemnification |
30 |
SECTION 7. |
Contribution |
33 |
SECTION 8. |
Representations, Warranties and Agreements to Survive Delivery |
34 |
SECTION 9. |
Termination of Agreement |
34 |
SECTION 10. |
Default by One or More of the Underwriters |
35 |
SECTION 11. |
Notices |
36 |
SECTION 12. |
Parties |
36 |
SECTION 13. |
GOVERNING LAW AND TIME |
37 |
SECTION 14. |
Waiver of Jury Trial |
37 |
SECTION 15. |
Effect of Headings |
37 |
SECTION 16. |
Definitions |
37 |
SECTION 17. |
Absence of Fiduciary Relationship |
42 |
EXHIBITS
Exhibit A |
– |
Underwriters |
Exhibit B |
– |
Initial Securities to be Sold |
Exhibit C |
– |
List of Directors and Officers |
Exhibit D |
– |
Form of Lock-Up Agreement |
Exhibit E |
– |
Form of Opinion of Dechert |
Exhibit F |
– |
Price-Related Information |
Exhibit G |
|
Form of Certificate of Chief Financial Officer |
GOLUB CAPITAL BDC, INC.
3,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
April 10, 2015
Wells Fargo Securities, LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Securities LLC
as representatives of the underwriters named in Exhibit A
c/o Wells Fargo Securities, LLC
375 Park Avenue
4th Floor
New York, New York 10152
Ladies and Gentlemen:
Golub Capital BDC,
Inc., a Delaware corporation (the “Company”), GC Advisors LLC, a Delaware limited liability company (the “Adviser”)
and a registered investment adviser under the Advisers Act, and Golub Capital LLC, a Delaware limited liability company (the “Administrator”)
each confirms with Wells Fargo Securities, LLC (“Wells Fargo”), Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill Lynch”), UBS Securities LLC (“UBS”) and each of the other underwriters named in
Exhibit A hereto (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Wells Fargo, Merrill Lynch and UBS are acting as representatives
(in such capacity, the “Representatives”), with respect to the issue and sale by the Company of a total of 3,500,000 shares
(the “Initial Securities”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of Initial
Securities set forth in said Exhibit A hereto, and with respect to the grant by the Company to the Underwriters of
the option described in Section 2(b) hereof to purchase all or any part of 525,000 additional shares of Common Stock (the
“Option Securities”). The Initial Securities to be purchased by the Underwriters and all or any part of the
Option Securities are hereinafter called, collectively, the “Securities.” Certain terms used in this Agreement
are defined in Section 16 hereof.
The Company understands
that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Company has filed
with the Commission a shelf registration statement on Form N-2 (File No. 333-193308), including the related base prospectus, covering
the registration of the Securities under the 1933 Act, and the offer and sale thereof from time to time in accordance with Rule
415 of the 1933 Act Rules and Regulations. Such registration statement was most recently declared effective by the Commission on
February 3, 2015. The Company has also filed
with the Commission a preliminary prospectus
supplement, dated April 9, 2015, which contains a base prospectus, dated February 3, 2015 (collectively, the “preliminary
prospectus”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus
in accordance with the provisions of Rule 430C and Rule 497 of the 1933 Act Rules and Regulations. Unless the context otherwise
requires, such registration statement, including all documents filed as a part thereof, and including any Rule 430C Information
contained in a prospectus subsequently filed with the Commission pursuant to Rule 497 under the 1933 Act and deemed to be part
of the registration statement and also including any Rule 462(b) Registration Statement, is herein called the “Registration
Statement.” The final prospectus in the form filed by the Company with the Commission pursuant to Rule 497 under the
1933 Act on or before the second business day after the date hereof (or such earlier time as may be required under the 1933 Act),
which will include the base prospectus, dated February 3, 2015, together with a final prospectus supplement, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with
the Commission pursuant to EDGAR.
A Form N-54A
Notification of Election to be Subject to Sections 55 through 65 of the Investment Company Act of 1940 filed Pursuant to Section 54(a)
of the Investment Company Act (File No. 814-00794) (the “Notification of Election”) was filed with
the Commission on April 12, 2010 under the 1940 Act.
The Company has entered
into an Investment Advisory and Management Agreement, dated as of April 14, 2010 (as amended and restated as of August 5,
2014, 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 6, 2014, the “Administration Agreement”), with GC Service Company, LLC, a Delaware limited
liability company (“GC Service”), which was subsequently assigned by GC Service to the Administrator pursuant
to an Assignment Agreement, dated as of February 5, 2013, by and between the Administrator and GC Service, as consented to by the
Company.
SECTION 1.
Representations and Warranties.
(a)
Representations and Warranties by the Company, the Adviser and the Administrator. The Company, the Adviser and the
Administrator, jointly and severally, represent and warrant to each Underwriter as of the Execution Time, as of the Applicable
Time, as of the Closing Date referred to in Section 2(c) hereof, and as of each Option Closing Date (if any) referred to in
Section 2(b) hereof, and agree with each Underwriter, as follows:
(1)
Compliance with Registration Requirements. The Company is eligible to use Form N-2. The Registration Statement
(as amended by any post-effective amendment if the Company shall have made any amendments thereto after the effective date
of the Registration Statement) has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement (and the Registration Statement as amended by any post-effective amendment if the Company shall have made
any amendments thereto after
the effective date of the Registration Statement) has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated 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, at the Applicable Time and on the Closing Date (and, if any Option Securities are purchased, at the Option Closing
Date), the Registration Statement complied and will comply in all material respects with the applicable requirements of the 1933
Act, the 1940 Act and the Rules and Regulations, and the Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein not misleading. Neither the Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectus or any such amendment or supplement was issued, and on the Closing Date (and, if any Option Securities
are purchased, at the Option Closing Date), included or will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that none of the Company, the Adviser or the Administrator makes any representation
or warranty as to the information contained in or omitted from the Registration Statement, or the Prospectus (or any supplement
thereto), in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto),
it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 6 hereof.
Each of (i) the
General Disclosure Package, when taken together as a whole, and (ii) each electronic road show when taken together as a whole
with the General Disclosure Package, does not, as of the Applicable Time, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to statements in or omissions from the General Disclosure Package
in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such in Section 6 hereof.
The copies
of the Registration Statement and any Rule 462(b) Registration Statement and any amendments thereto and the copies of any
preliminary prospectus, the Prospectus and any amendments or supplements thereto delivered and to be delivered to the Underwriters
(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)
Investment Company Act. The Company is a closed-end, non-diversified management investment company and has
elected to be treated as a business development company (“BDC”) under the 1940 Act and was eligible to make
such an election.
(3)
Independent Accountants. The accountants who certified the financial statements and supporting schedules included
in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants within the
meaning of, and as required by, the 1933 Act, the 1933 Act Rules and Regulations and the Public Company Accounting Oversight Board.
(4)
Financial Statements. The financial statements of the Company and its subsidiaries, included in the Registration
Statement, the General Disclosure Package and the Prospectus, together with related schedules and notes, present fairly the financial
condition, results of operations and cash flows of the Company and its subsidiaries as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1940 Act, as applicable, and
have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved (except as otherwise noted
therein); the other financial and statistical information and data included in the Registration Statement, the General Disclosure
Package and the Prospectus are accurately derived from such financial statements and the books and records of the Company; and
any pro forma financial information and related notes thereto included in the Registration Statement, the General Disclosure Package
and the Prospectus have been prepared in accordance with the applicable requirements of the 1933 Act, the 1934 Act and the 1940
Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the
Registration Statement, the General Disclosure Package and the Prospectus. No other financial statements or schedules are required
to be included in the Registration Statement, the General Disclosure Package or the Prospectus.
(5)
Expense Summary. The information set forth in the fee table contained in the section of the Registration Statement,
the General Disclosure Package 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.
(6)
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,
the General Disclosure Package 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, the General Disclosure Package and the Prospectus.
(7)
No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), 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 any class of its
capital stock.
(8)
Good Standing of the Company. The Company has been duly incorporated and is validly 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, the General Disclosure Package 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 the State of Illinois
and in each other 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.
(9)
Good Standing of Subsidiaries. The Company’s only subsidiaries are Golub Capital BDC 2010-1 Holdings LLC,
Golub Capital BDC 2010-1 LLC, GC SBIC IV-GP, Inc., GC SBIC IV-GP, LLC, GC SBIC IV, L.P., GC SBIC V-GP, LLC, GC SBIC V, L.P.,
Golub Capital BDC Holdings LLC, Golub Capital BDC Funding LLC, Senior Loan Fund LLC, Senior Loan Fund II LLC, Upper GCC Holdings
LLC, Golub Capital BDC Revolver Funding LLC and Golub Capital BDC CLO 2014 LLC. Each of the subsidiaries of the Company has been
duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, has power and authority
to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure
Package and the Prospectus and is duly qualified as a foreign limited 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, the General
Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock or other equity interests of each
subsidiary of the Company have been duly authorized and validly issued, are fully paid and
non-assessable and are owned
directly or indirectly by the Company free and clear of any Lien; and none of the outstanding shares of capital stock or other
equity interests of each subsidiary of the Company was issued in violation of any preemptive rights, rights of first refusal or
other similar rights of any securityholder of such subsidiary or any other person.
(10)
Capitalization. The authorized, issued and outstanding Capital Stock as of December 31, 2014 is as set forth in the
column entitled “Actual” and in the corresponding line items under the caption “Capitalization” in the
General Disclosure Package and the Prospectus. After giving effect to the purchase of the Initial Securities by the Underwriters
on the Closing Date, the authorized, issued and outstanding Capital Stock of the Company as of the date hereof is as set forth
in the column entitled “Pro Forma” and in the corresponding line items under the caption “Capitalization”
in the General Disclosure Package and the Prospectus. The shares of issued and outstanding Capital Stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of Capital Stock
of the Company 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.
(11)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(12)
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 securityholder
of the Company or any other person.
(13)
Description of Securities. The Common Stock, the authorized but unissued Preferred Stock and the Company’s
Organizational Documents conform in all material respects to all of the respective statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus, and such statements conform to the rights set forth
in the respective instruments and agreements defining the same.
(14)
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, the General Disclosure Package 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, the General Disclosure Package
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.
(15)
Absence of Labor Dispute. As of the date hereof, the Company and its subsidiaries do not have, and on the Closing
Date the Company and its subsidiaries will not have, any employees. To the knowledge of the Company, no labor dispute with the
employees of Golub Capital LLC (formerly Golub Capital Management LLC) exists or is imminent. Golub Capital Incorporated does not
have any employees.
(16)
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, the General Disclosure
Package 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, the General Disclosure
Package and the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(17)
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 1933 Act, the 1940
Act or the Rules and Regulations.
(18)
Accuracy of Descriptions and Exhibits. The information in the General Disclosure Package and the Prospectus under
the captions “Prospectus Supplement Summary—Our Adviser,” “Prospectus Supplement Summary—Operating
and Regulatory Structure,” “Prospectus Supplement Summary—Conflicts of Interest,” “Prospectus Summary—Recent
Developments,” “Capitalization,” “Risk Factors,” “Management,” “Management Agreements,”
“Related Party Transactions and Certain Relationships,” “Material U.S. Federal Income Tax Considerations,”
“Description of Our
Capital Stock,” and “Regulation”
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, the General Disclosure Package and the Prospectus of
any Company Documents are accurate in all material respects.
(19)
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, the General Disclosure
Package 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, the General Disclosure Package 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.
(20)
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 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, the General Disclosure Package and the Prospectus,
except such as have been obtained or such as may be required under state securities laws.
(21)
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.
(22)
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.
(23)
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 Securities pursuant to
this Agreement.
(24)
Parties to Lock-Up Agreements. The Adviser, the Administrator and each of the Company’s directors and Section 16
officers have executed and delivered to the Representatives a lock-up agreement in the form of Exhibit D hereto.
Exhibit C hereto contains a true, complete and correct list of all directors and Section 16 officers of the Company.
(25)
Stop Transfer Instructions. The Company has, with respect to all Common Stock (other than Securities to be sold pursuant
to this Agreement) and other Capital Stock and all securities convertible into, or exercisable or exchangeable for, Common Stock
or other Capital Stock owned or held (of record or beneficially) by any of the entities or persons who, as described in the immediately
preceding paragraph, have entered into lock-up agreements in the form of Exhibit D hereto, provided written directions
to the transfer agent or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect
to such securities during the Lock-Up Period (as defined in Section 3(b)(1)); and, during the Lock-Up Period, the
Company will not cause or permit any waiver, release, modification or amendment of any such stop transfer instructions or stop
transfer procedures without the prior written consent of the Representatives.
(26)
Nasdaq Global Select Market. The Common Stock has been registered pursuant to Section 12(b) of the 1934 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 1934 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. The Securities to be sold by the Company hereunder have been
approved for listing, subject only to official notice of issuance, on The Nasdaq Global Select Market.
(27)
FINRA Matters. All of the information provided to the Underwriters or to counsel for the Underwriters 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 (“FINRA”)
pursuant to FINRA Conduct Rule 5100 is true, complete and correct in all material respects.
(28)
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.
(29)
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.
(30)
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 1934 Act, the 1940 Act and the Rules and Regulations, (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 1934 Act, the 1940 Act and the Rules and Regulations, (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, the General Disclosure Package 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 1934 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 1934 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.
(31)
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.
(32)
Absence of Manipulation. Other than excepted activity pursuant to Regulation M under the 1934 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.
(33)
Statistical, Demographic or Market-Related Data. Any statistical, demographic or market-related data included in
the Registration Statement, the General Disclosure Package 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, the General Disclosure Package 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 Representatives.
(34)
Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that has resulted or would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or
any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and
the Company and its subsidiaries and, to the knowledge of the Company, its other affiliates (other than the Underwriters) have
conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued compliance therewith.
(35)
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 of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, 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 “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 Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
(36)
OFAC. Neither the Company nor any of its subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate (other than the Underwriters) or person acting on behalf of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and the Company will not knowingly directly or indirectly use any of the proceeds received by the Company from the sale of Securities
contemplated by this Agreement, or lend, contribute or otherwise make available any such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by the OFAC.
(37)
Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, none of the Company or any of its subsidiaries, the Adviser or the Administrator has any outstanding borrowings
from, or is a party to any line of credit, credit agreement or other credit facility or otherwise has a borrowing relationship
with, any bank or other lending institution affiliated with any of the Underwriters, and the Company does not intend to use any
of the proceeds from the sale of the Securities to repay any debt owed to any Underwriter or any affiliate of any Underwriter.
(38)
Transfer Taxes. There are no stock or other transfer taxes, stamp duties, capital duties or other similar duties,
taxes or charges payable in connection with the execution or delivery of this Agreement by the Company or the issuance or sale
by the Company of the Securities to be sold by the Company to the Underwriters hereunder.
(39)
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, the General Disclosure Package or the Prospectus that have not been described as required.
(40)
Portfolio Companies. The Company has duly authorized, executed and delivered any agreements pursuant to which it
made the investments described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption
“Portfolio Companies” (each a “Portfolio Company Agreement”) with corporations or other entities
(each a “Portfolio Company”). Except as otherwise
disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, and to the Company’s knowledge, each Portfolio Company is current,
in all material respects, with all its obligations under the applicable Portfolio Company Agreements, no event of default (or a
default which with the giving of notice or the passage of time would become an event of default) has occurred under such agreements,
except to the extent that any such failure to be current in its obligations and any such default would not reasonably be expected
to result in a Material Adverse Effect.
(41)
Offer and Sale of Securities. The Company has taken all required action under the 1933 Act, the 1934 Act, the 1940
Act and the Rules and Regulations to make the public offering and consummate the sale of the Securities as contemplated by this
Agreement.
(42)
Relationships with Directors, Officers and Stockholders. Except as described in the Registration Statement, the General
Disclosure Package 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, the General Disclosure Package and the Prospectus, which is not so described.
(43)
Interested Persons. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
no director of the Company is an “interested person” (as defined in the 1940 Act) of the Company or an “affiliated
person” (as defined in the 1940 Act) of any Underwriter listed in Exhibit A hereto.
(44)
Absence of Prohibited Offering Material. The Company has not distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than the Registration Statement and the Prospectus or other materials permitted
by the 1933 Act, the 1940 Act or the Rules and Regulations and reviewed and consented to by the Representatives.
(45)
Sales Material. All advertising, sales literature or other promotional material (including “prospectus wrappers,”
“broker kits,” “road show slides” and “road show scripts”), whether in printed or electronic
form, authorized in writing by or prepared by the Company or any of its subsidiaries, the Adviser or the Administrator for use
in connection with the offering and sale of the Securities (collectively, “sales material”) complied and will
comply, at their respective times of use, in all material respects with the applicable requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations and, if required to be filed with FINRA under FINRA’s conduct rules, were provided to Fried,
Frank, Harris, Shriver & Jacobson LLP, counsel for the Underwriters, for filing. No sales material contained, contains or will
contain an untrue statement of a material fact or omitted or omits 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.
(46)
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 1940 Act Rules and Regulations
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, the General
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(47)
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,
2012, September 30, 2013, and September 30, 2014.
(48)
Small Business Investment Company. Each of GC SBIC IV, L.P. and GC SBIC V, L.P. is licensed to operate as a Small
Business Investment Company (“SBIC”) by the U.S. Small Business Administration (“SBA”). The
SBIC licenses of GC SBIC IV, L.P. and GC SBIC V, L.P. are in good standing with the SBA and no adverse regulatory findings contained
in any examinations reports prepared by the SBA regarding GC SBIC IV, L.P. or GC SBIC V, L.P. are outstanding or unresolved. The
method of operation of each of GC SBIC IV, L.P. and GC SBIC V, L.P. will permit them to continue to meet the requirements for qualification
as an SBIC.
(49)
SBA Debentures. Each of GC SBIC IV, L.P. and GC SBIC V, L.P. is eligible to sell securities guaranteed by the SBA
in the amounts and on the terms described in the Registration Statement, the General Disclosure Package and the Prospectus. Each
of GC SBIC IV, L.P. and GC SBIC V, L.P. is not in default under the terms of any debenture which each has issued to the SBA for
guaranty by the SBA or any other material monetary obligation, and no event, which with the passage of time, notice or both has
occurred, which would be a default or event of default thereunder.
(50)
BDC Election. The Company has filed with the Commission, pursuant to Section 54(a) of the 1940 Act, a duly completed
and executed Form N-54A (the “Company BDC Election”); the Company has not filed with the Commission
any notice of withdrawal of the Company’s BDC Election pursuant to Section 54(c) of the 1940 Act; the Company’s
BDC Election remains in full force and effect, and, to the Company’s knowledge, no order of suspension or revocation of such
election under the 1940 Act has been issued or proceedings therefore initiated or threatened by the Commission. The
operations of the Company are
in compliance in all material respects with the provisions of the 1940 Act, including the provisions applicable to BDCs and the
1940 Act Rules and Regulations, including the provisions applicable to BDCs. The Company is not required and, after giving effect
to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement,
the General Disclosure Package and the Prospectus, will not be required to register as an “investment company,” as
such term is used in the 1940 Act.
(51)
No Restrictions on Subsidiaries. Except as disclosed in the Registration Statement, the General Disclosure Package
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.
(52)
No Integration. Neither the Company nor any of its affiliates (within the meaning of Rule 144 under the 1933
Act) has made any offer or sale of any securities which could be “integrated” (within the meaning of the 1933 Act)
with the offer and sale of the Securities pursuant to the Registration Statement and the Company has not sold or issued any shares
of Common Stock during the six-month period preceding the date of the General Disclosure Package other than as described in the
Registration Statement, the General Disclosure Package and the Prospectus.
(53)
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 any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering
and sale of the Securities.
(b)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and
severally, represent and warrant to each Underwriter as of the Execution Time, as of the Applicable Time, as of the Closing Date
referred to in Section 2(c) hereof, and as of each Option Closing Date (if any) referred to in Section 2(b) hereof, and
agree with each Underwriter, 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 1934 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.
(2)
No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent
to the Execution Time), 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 validly 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, the General Disclosure Package 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, the General Disclosure Package 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 General Disclosure Package and 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 on the Closing 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 (formerly Golub Capital Management 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, the General
Disclosure Package 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, the General Disclosure Package 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 1933 Act, the 1940 Act, the Advisers Act and the Rules and Regulations
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, the General Disclosure
Package 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, the General Disclosure Package 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,
the General Disclosure Package and the Prospectus, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940
Act and the Rules and Regulations 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, the General
Disclosure Package 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 1940 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, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the
Company as contemplated by the Registration Statement, the General Disclosure Package 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 General Disclosure Package,
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,
the General Disclosure Package 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 Golub Capital LLC (formerly Golub Capital Management LLC) plans to terminate employment with
Golub Capital LLC (formerly Golub Capital Management LLC) 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 subsidiaries of the
Adviser: Golub Capital LLC and GCI Capital Markets LLC.
(c)
Certificates. Any certificate signed by any officer of the Company, the Adviser, the Administrator or any of their
respective subsidiaries and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company, the Adviser or the Administrator, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a)
On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth,
the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities
set forth opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees
to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A
hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion
shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $16.89 per share (the
“Purchase Price”).
(b)
In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to 525,000
Option Securities at a price per share equal to the Purchase Price referred to in Section 2(a) above; provided that the price
per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions paid by the
Company on the Initial Securities but not payable on such Option Securities. The option hereby granted will expire at 11:59 P.M.
(New York City time) on the 30th day after the date hereof and may be exercised on up to three occasions in whole or
in part upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (an “Option Closing Date”) shall be determined by the Representatives, but shall not
be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Date. If the option
is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the
total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and
each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in Exhibit A opposite the name of such Underwriter,
plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions
of Section 10 hereof, bears to the total number of Initial Securities, subject in each case to such adjustments as the Representatives
in their discretion shall make to eliminate any sales or purchases of fractional shares.
(c)
Payment of the purchase price for, and delivery of certificates for, the Initial Securities shall be made at the offices
of Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004, or at such other place as shall
be agreed upon by the Representatives and the Company, at 10:00 A.M. (New York City time) on April 15, 2015 (unless postponed
in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall
be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing
Date”).
In addition, in the
event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option
Securities shall be made at 10:00 A.M.
(New York City time) at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Option Closing Date as specified in the notice from the Representatives to the Company.
Payment shall be made
to the Company by wire transfer of immediately available funds to a single bank account designated by the Company against delivery
to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. Each of the
Representatives, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of
the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date or the relevant Option Closing Date, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d)
Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant
Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be
made available for examination and packaging by the Representatives in The City of New York not later than noon (New York time)
on the business day prior to the Closing Date or the relevant Option Closing Date, as the case may be.
SECTION 3.
Covenants.
(a)
Covenants of the Company, the Adviser and the Administrator. The Company, the Adviser and the Administrator, jointly
and severally, covenant with each Underwriter as follows:
(1)
Compliance with Securities Regulations and Commission Requests. Through the Closing Date, the Company, subject to
Section 3(a)(2), will comply with the requirements of Rule 415, Rule 430C and Rule 497 and will notify the
Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission relating to the Registration Statement (and shall promptly furnish the Representatives
with a copy of any comment letters and any transcript of oral comments, and shall furnish the Representatives with copies of any
written responses thereto a reasonable amount of time prior to the proposed filing thereof with the Commission and will not file
any such response to which the Representatives or counsel for the Underwriters shall object), (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, the Prospectus or any amendment or supplement to any of the
foregoing, or of the suspension of the qualification of the
Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 497 and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that
it was not, it will promptly file such prospectus. Through the Closing Date, the Company will use its reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(2)
Filing of Amendments. Through the Closing Date, the Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to any preliminary prospectus (including any prospectus included in the Registration Statement at the time
it became effective) or to the Prospectus and will furnish the Representatives with copies of any such documents within a reasonable
amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings
made pursuant to the 1934 Act or the 1934 Act Rules and Regulations within 48 hours prior to the Applicable Time; the Company
will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will
furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case
may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably
object.
(3)
Delivery of Commission Filings. The Company has furnished or will deliver to the Representatives and counsel for
the Underwriters, without charge, conformed copies of the Registration Statement as originally filed, and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and conformed copies of all consents and certificates
of experts, and, upon the Representatives’ request, will also deliver to the Representatives, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to the Underwriters 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,
or as filed with the Commission in paper form as permitted by Regulation S-T.
(4)
Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary
prospectus and any amendments or supplements thereto as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge,
such number of copies of the preliminary prospectus and the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The preliminary prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters
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.
(5)
Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Rules and Regulations,
the 1934 Act and the 1934 Act Rules and Regulations so as to permit the completion of the distribution of the Securities as contemplated
in this Agreement, the General Disclosure Package and the Prospectus. If any event shall occur or condition shall exist as a result
of which it is necessary (or, if the Representatives or counsel for the Underwriters shall notify the Company that, in their judgment,
it is necessary) to amend the Registration Statement or amend or supplement the General Disclosure Package, the Prospectus in order
that the Registration Statement, the General Disclosure Package and the Prospectus, as the case may be, will not include any untrue
statements 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 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations,
the Company will promptly notify the Representatives of such event or condition and of its intention to file such amendment or
supplement (or, if the Representatives or counsel for the Underwriters shall have notified the Company as aforesaid, the Company
will promptly notify the Representatives of its intention to prepare such amendment or supplement) and will promptly prepare and
file with the Commission, subject to Section 3(a)(2), such amendment or supplement as may be necessary to correct such untrue
statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to
the Registration Statement, the Company will use its best efforts to have such amendment declared or become effective as soon as
practicable, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(6)
Blue Sky Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Underwriters,
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 Representatives 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 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 Securities (but in no event for less than one year
from the date of this Agreement).
(7)
Rule 158. The Company will timely file such reports pursuant to the 1934 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 Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(8)
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, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(9)
Listing. The Company will use its commercially reasonable efforts to maintain the listing of the Securities
on The Nasdaq Global Select Market.
(10)
Reporting Requirements. Through the Closing Date, the Company will file all documents required to be filed with the
Commission pursuant to the 1934 Act and the 1934 Act Rules and Regulations within the time periods required by the 1934 Act and
the 1934 Act Rules and Regulations.
(11)
Compliance with Laws. The Company, the Adviser and the Administrator will comply with all applicable securities and
other applicable laws, rules and regulations, including, without limitation, 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 Sarbanes-Oxley Act.
(12)
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.
(13)
Regulated Investment Company Status. 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 BDC regulated under the 1940 Act.
(14)
Business Development Company Status. 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 BDC; provided, however, the Company may change the
nature of its business so as to cease to be, or to withdraw its election as, a BDC, with the approval of the board of directors
and a vote of stockholders as required by Section 58 of the 1940 Act or any successor provision.
(15)
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.
(16)
Depository Trust Company. The Company will use its commercially reasonable efforts to cause the Securities to continue
to be eligible for clearance through DTC.
(b)
Covenants of the Company, the Adviser and the Administrator. The Company, the Adviser and the Administrator, jointly
and severally, covenant with each Underwriter as follows:
(1)
Restrictions on Sale of Securities. During the period beginning on and including the date of this Agreement through
and including the date that is the 45th day after the date of this Agreement (such period, as the same may be extended pursuant
to the provisions set forth in the next sentence, is hereinafter called the “Lock-Up Period”), each of the
Company, the Adviser and the Administrator will not, without the prior written consent of the Representatives, directly or indirectly:
(i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any Common Stock or other Capital Stock
or any securities convertible into or exercisable or exchangeable for Common Stock or other Capital Stock,
(ii)
file or cause the filing of any registration statement under the 1933 Act with respect to any Common Stock or other Capital
Stock or any securities convertible into or exercisable or exchangeable for any Common Stock or other Capital Stock (other than any
Rule 462(b) Registration Statement filed to register Securities to be sold to the Underwriters pursuant to this Agreement),
or
(iii)
enter into any swap or other agreement, arrangement or transaction that transfers to another, in whole or in part, directly
or indirectly, any of the economic consequences of ownership of any Common Stock or other Capital Stock or any securities convertible
into or exercisable or exchangeable for any Common Stock or other Capital Stock,
whether any transaction
described in (i) or (iii) above is to be settled by delivery of Common Stock, other Capital Stock, other securities, in cash or
otherwise. Moreover, if:
(i)
during the last 17 days of such 45-day restricted period, the Company issues an earnings release or material news
or a material event relating to the Company occurs, or
(ii)
prior to the expiration of such 45-day restricted period, the Company announces that it will release earnings results
or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of such
45-day restricted period,
the restrictions imposed by this
Section 3(b)(1) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of
the earnings release
or the occurrence of the material
news or material event, as the case may be, unless the Representatives waive, in writing, such extension.
Notwithstanding anything herein
to the contrary, this Section 3(b)(1) shall not prohibit (i) the registration of the Securities and sales to the Underwriters
pursuant to this Agreement or (ii) any issuance of Common Stock pursuant to the Company’s dividend reinvestment plan.
(2)
Stabilization. The Company, the Adviser and the Administrator will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in, under the 1934 Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(3)
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.
SECTION 4.
Payment of Expenses.
(a)
The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), any preliminary prospectus, the Prospectus and each amendment or supplement to any of them, (ii) the
word processing, printing and delivery to the Underwriters of this Agreement and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, 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 Underwriters, (iv) the
fees and disbursements of the counsel, accountants and other advisers to the Company, (v) the qualification or exemption of
the Securities under securities laws in accordance with the provisions of Section 3(a)(6) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation
of the blue sky survey and any Canadian “wrapper” and any supplements thereto, (vi) the printing and delivery
to the Underwriters of copies of the Registration Statement, any preliminary prospectus and the Prospectus, any sales material
and all amendments or supplements to any of them, as may, in each case, be reasonably requested and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the Underwriters
of copies of the blue sky survey and any Canadian “wrapper” and any supplements thereto, (viii) the fees and expenses
of the 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 Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities,
up to $10,000, (x) fifty percent (50%) of the costs and expenses relating to investor presentations and any roadshow undertaken
in connection with the marketing of Securities, including, without limitation, expenses associated with the production of roadshow
slides and graphics and any
electronic roadshows, fees and expenses
of any consultants engaged in connection with the roadshow presentation or any persons or entities engaged to host any electronic
roadshow, travel and other travel expenses (including the costs and expenses of any aircraft chartered in connection with the roadshow)
and lodging expense of the representatives and officers of the Company and any such consultants, (xi) the fees and expenses
incurred in connection with the listing of the Securities on The Nasdaq Global Select Market, and (xii) the costs and expenses
(including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated
with reforming any contracts for sale of the Securities made by any Underwriter where such reformation relates to any inaccuracy
or breach of the representation set forth in the third paragraph of Section 1(a)(1) of this Agreement.
(b)
Anything herein to the contrary notwithstanding, the provisions of this Section 4 shall not affect any agreement that
the Company has made or may make for the allocation or sharing of such expenses and costs.
(c)
If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5.
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject
to the accuracy of the representations and warranties of the Company, the Adviser and the Administrator contained in this Agreement
or in certificates of any officer of the Company, the Adviser, the Administrator or any of their respective subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company, the Adviser and the Administrator of their respective covenants
and other obligations hereunder, and to the following further conditions:
(a)
The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and as of the Closing
Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the Underwriters. A final prospectus containing the Rule 430C
Information shall have been filed with the Commission in accordance with Rule 497.
(b)
The Representatives shall have received the favorable opinion, dated as of the Closing Date, of Dechert LLP, counsel for
the Company, the Adviser and the Administrator (“Dechert”), in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such opinion for each of the Underwriters, in the form set forth in Exhibit E
hereto and to such further effect as the Representatives may reasonably request.
(c)
The Representatives shall have received from Fried, Frank, Harris, Shriver & Jacobson, LLP, counsel for the Underwriters,
together with signed or reproduced copies of such opinion, dated as of the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, this Agreement, the Registration Statement, any Rule 462(b) Registration
Statement, the General Disclosure Package and the Prospectus and any amendments
or supplements thereto and such other matters
as the Representatives may reasonably require, and the Company, the Adviser and the Administrator shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving such opinion such
counsel may rely without investigation, as to all matters governed by the laws of any jurisdictions other than the law of the State
of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representatives.
(d)
On the Closing Date or the applicable Option Closing Date, as the case may be, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package
and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement),
any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business.
(e)
On the Closing Date, the Representatives shall have received a certificate of the Company’s Chief Executive Officer
and Chief Financial Officer, dated as of the Closing Date, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force
and effect as though expressly made at and as of the Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement,
and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to their knowledge, are contemplated by the Commission.
(f)
On the Closing Date, the Representatives shall have received a certificate of the Adviser’s Chief Executive Officer
and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations
and warranties of the Adviser in this Agreement are true and correct with the same force and effect as though expressly made at
and as of the Closing Date and (ii) the Adviser has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(g)
On the Closing Date, the Representatives shall have received a certificate of the Administrator’s Chief Executive
Officer and Chief Financial Officer or equivalent officer(s), dated as of the Closing Date, to the effect that (i) the representations
and warranties of the Administrator in this Agreement are true and correct with the same force and effect as though expressly made
at and as of the Closing Date and (ii) the Administrator has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.
(h)
At the Execution Time, the Representatives shall have received from McGladrey LLP (formerly McGladrey & Pullen, LLP)
a letter, dated as of the Execution Time and in form and substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information
of the Company contained in the Registration Statement, the General Disclosure Package, the Prospectus and any amendments or supplements
thereto.
(i)
At the Execution Time, the Representatives shall have received a certificate of the Chief Financial Officer of the Company,
dated as of the Execution Time, substantially in the form of Exhibit G hereto.
(j)
On the Closing Date, the Representatives shall have received from McGladrey LLP a letter, dated as of the Closing Date and
in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section 5, except that the specified date referred to shall be a date not more than
three business days prior to the Closing Date.
(k)
On the Closing Date, the Representatives shall have received from the Company a certificate of the Chief Financial Officer
of the Company, dated as of the Closing Date, substantially in the form of Exhibit G hereto.
(l)
On the Closing Date, and each Option Closing Date, if any, the Securities shall have been approved for listing on The Nasdaq
Global Select Market, subject only to official notice of issuance.
(m)
Prior to the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit D
hereto signed by each of the persons mentioned in Section 1(a)(24).
(n)
Prior to the date of this Agreement, FINRA shall have confirmed in writing that it has no objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(o)
In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion
of the Option Securities on any Option Closing Date that is after the Closing Date, the obligations of the several Underwriters
to purchase the applicable Option Securities shall be subject to the conditions specified in the introductory paragraph of this
Section 5 and to the further condition that, at the applicable Option Closing Date, the Representatives shall have received:
(1)
A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(e)
hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(2)
A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(f)
hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(3)
A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the officers specified in Section 5(g)
hereof except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(4)
The favorable opinion of Dechert in form and substance satisfactory to the Representatives and dated such Option Closing
Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(5)
The favorable opinion of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Underwriters, in form and substance
satisfactory to the Representatives and dated such Option Closing Date, relating to the Option Securities to be purchased on such
Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(6)
A letter from McGladrey LLP, in form and substance satisfactory to the Representatives and dated such Option Closing Date,
substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(i) hereof,
except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three
business days prior to such Option Closing Date.
(p)
On the Closing Date and each Option Closing Date, counsel for the Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, contained in this Agreement; and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Representatives.
(q)
If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities on an Option Closing Date which is after the Closing
Date, the obligations of the several Underwriters to purchase the relevant Option Securities may be terminated by the Representatives
by notice to the Company at any time on or prior to the Closing Date or such Option Closing Date, as the case may be, and such
termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that,
in the case of any termination of this Agreement, Sections 1, 6, 7, 8 and 17 hereof shall survive such termination and remain
in full force and effect and except that, in the case of the termination of the obligations of the several Underwriters to purchase
any Option Securities on an Option Closing Date which is after the Closing Date, this Agreement shall otherwise survive such termination
and remain in full force and effect.
SECTION 6.
Indemnification.
(a)
The Company, the Adviser and the Administrator, jointly and severally, agree to indemnify and hold harmless each Underwriter,
its affiliates and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement for the Securities as originally filed or
in any amendment thereof (and including any post-effective amendment, any Rule 462(b) Registration Statement and any Rule 430C
Information deemed to be included or incorporated therein), or in any preliminary prospectus, the Prospectus, the Disclosure Package
or in any sales material (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Company; and
(iii)
against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto),
or the General Disclosure Package, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), it being
understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in
the Prospectus furnished on behalf of each Underwriter: (i) their names, (ii) the figure appearing in the first sentence
of the second paragraph of text under the caption “Underwriting—Option” and (iii) the second paragraph under
the caption “Underwriting—Sales Outside the United States.”
(b)
Each Underwriter severally agrees to indemnify and hold harmless the Company, the Adviser and the Administrator, each of
their directors, each of the Company’s officers who signed the Registration Statement, and each person, if any, who controls
the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or the General Disclosure Package, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives expressly for use therein, it being understood and agreed
upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished
on behalf of each Underwriter: (i) their names, (ii) the figure appearing in the first sentence of the second paragraph
of text under the caption “Underwriting—Option” and (iii) the second paragraph under the caption “Underwriting—Sales
Outside the United States.”
(c)
Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
Counsel to the indemnified parties shall be selected as follows: counsel to the Underwriters and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the
Representatives; and counsel to the Company, the Adviser, the Administrator, each of their directors, each of the Company’s
officers who signed the Registration Statement and each person, if any, who controls the Company, the Adviser or the Administrator
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Company, the
Adviser and the Administrator. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for the Company, the Adviser, the Administrator,
each of their directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who
controls the Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) effected without its written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e)
The provisions of this Section 6 and in Section 7 hereof shall not affect any agreements among the Company, the
Adviser and the Administrator with respect to indemnification of each other or contribution between themselves.
SECTION 7.
Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company, the Adviser and the Administrator on the one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, the Adviser and the Administrator on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits
received by the Company, the Adviser and the Administrator (treated jointly for this purpose as one person) on the one hand and
the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company, the Adviser and the Administrator (treated jointly for this purpose as one
person) and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover
of the Prospectus, bear to the aggregate public offering price of the Securities as set forth on such cover.
The relative fault
of the Company, the Adviser and the Administrator on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, the Adviser, the Administrator or by the Underwriters
and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Adviser,
the Administrator and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, the Adviser or
the Administrator, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the
Company, the Adviser or the Administrator within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company, the Adviser and the Administrator. The Underwriters’ respective
obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth
opposite their respective names in Exhibit A hereto and not joint.
SECTION 8.
Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained
in this Agreement or in certificates of officers of the Company, the Adviser, the Administrator or any of their respective subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, the Adviser or the Administrator, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9.
Termination of Agreement.
(a)
The Representatives may terminate this Agreement, by notice to the Company, the Adviser and the Administrator, at any time
on or prior to the Closing Date (and, if any Option Securities are to be purchased on an Option Closing Date which occurs after
the Closing Date, the Representatives may terminate the obligations of the several Underwriters to purchase such Option Securities,
by notice to the Company, at any time on or prior to such Option Closing Date) (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package,
any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has been, since the time of execution of this Agreement or since the respective dates as of which information
is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise,
or in the business affairs or business prospects of the Adviser or the
Administrator, whether or not arising in
the ordinary course of business, or (iii) if there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities, or (iv) if trading in any securities of the
Company has been suspended or limited by the Commission or The Nasdaq Global Select Market, or if trading generally on the New
York Stock Exchange or The Nasdaq Global Select Market has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA
or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States, or (v) if a banking moratorium has been declared by either federal or New York authorities,
or (vi) if there shall have occurred any downgrading, or any notice or announcement shall have been given or made of: (A) any
intended or potential downgrading or (B) any watch, review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as that term is defined in Section 3(a)(62) under the 1934 Act, or (vii) if an outbreak
or escalation of hostilities involving the United States or a declaration by the United States of a national emergency or war has
occurred or (viii) if any other calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere has occurred, if the effect of any such event specified in clause (vii) or (viii) in your judgment
makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at
such Closing Date or Option Closing Date on the terms and in the manner contemplated in the General Disclosure Package and the
Prospectus.
(b)
Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof, and except that, in the case of any termination
of this Agreement, Sections 1, 6, 7, 8 and 17 hereof shall survive such termination and remain in full force and effect and
except that, in the case of the termination of the obligations of the several Underwriters to purchase any Option Securities on
an Option Closing Date which occurs after the Closing Date, this Agreement shall otherwise survive such termination and remain
in full force and effect.
SECTION 10.
Default by One or More of the Underwriters. If one or more of the Underwriters shall fail on the Closing Date or
an Option Closing Date to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a)
if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each
of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that
their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting Underwriters; or
(b)
if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement
or, with respect to any Option Closing Date which occurs after the Closing Date, the obligation of the Underwriters to purchase
and of the Company to sell the Option Securities that were to have been purchased and sold on such Option Closing Date, shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant
to this Section 10 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any
such default which does not result in a termination of this Agreement or, in the case of an Option Closing Date which is after
the Closing Date, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell
the relevant Option Securities, as the case may be, the Representatives shall have the right to postpone the Closing Date or the
relevant Option Closing Date, as the case may be, for a period not exceeding seven days in order to effect any required changes
in the Registration Statement, the General Disclosure Package or Prospectus or in any other documents or arrangements. As used
herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives at Wells Fargo Securities, LLC, 375 Park Avenue, 4th Floor, New York, New York 10152, Attention of Equity Syndicate;
Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036, Attention of Syndicate Department
(facsimile: (646) 855-3073), with a copy to ECM Legal (facsimile: (212) 230-8730); UBS Securities LLC, 1285 Avenue of the Americas,
New York, New York 10019, Attention of Equity Capital Markets; and notices to the Company, the Adviser or the Administrator shall
be directed to 150 South Wacker Drive, Suite 800, Chicago, Illinois 60606, Attention of David B. Golub.
SECTION 12.
Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company, the
Adviser, the Administrator and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, firm or corporation, other than the Underwriters, the Company, the Adviser, the Administrator
and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company, the Adviser, the Administrator and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13.
GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. The Company, the Adviser and the Administrator hereby submit to
the non−exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company, the Adviser
and the Administrator irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby in federal and state courts in the Borough of Manhattan
in The City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such
suit or proceeding in any such court has been brought in an inconvenient forum.
SECTION 14.
Waiver of Jury Trial. The Company, the Adviser, the Administrator and each of the Underwriters hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
SECTION 15.
Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 16.
Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:
“1933 Act”
means the Securities Act of 1933, as amended.
“1933 Act
Rules and Regulations” means the rules and regulations of the Commission under the 1933 Act.
“1934 Act”
means the Securities Exchange Act of 1934, as amended.
“1934 Act
Rules and Regulations” means the rules and regulations of the Commission under the 1934 Act.
“1940 Act”
means the Investment Company Act of 1940, as amended.
“1940 Act
Rules and Regulations” shall mean the rules and regulations of the Commission under the 1940 Act.
“Administrator”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Administrator
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 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/Administrator
Governmental Licenses” shall have the meaning as defined in Section 1(b)(12) of this Agreement.
“Adviser/Administrator
Intellectual Property” shall have the meaning as defined in Section 1(b)(9) of this Agreement.
“Advisers
Act” means the Investment Advisers Act of 1940, as amended.
“Advisers
Act Rules and Regulations” means the rules and regulations of the Commission under the Advisers Act.
“Adviser”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Adviser 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 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 8:30 a.m. (New York City time) on April 10, 2015.
“BDC”
shall have the meaning as defined in Section 1(a)(2) of this agreement.
“Capital Stock”
means any Common Stock, Preferred Stock or other capital stock of the Company.
“Closing Date”
shall have the meaning as defined in Section 2(c) of this Agreement.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commission”
means the Securities and Exchange Commission.
“Common Stock”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Company”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Company BDC
Election” shall have the meaning as defined in Section 1(a)(50) of this Agreement.
“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.
“Company Governmental
Licenses” shall have the meaning as defined in Section 1(a)(21) of this Agreement.
“Dechert”
shall have the meaning as defined in Section 5(b) of this Agreement.
“Defaulted
Securities” shall have the meaning as defined in Section 10 of this Agreement.
“DTC”
shall mean The Depository Trust Company.
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
“Effective
Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement became or become effective.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“FCPA”
shall have the meaning as defined in Section 1(a)(34) of this Agreement.
“FINRA”
shall have the meaning as defined in Section 1(a)(27) of this Agreement.
“GAAP”
means generally accepted accounting principles in the United States.
“GC Service”
shall have the meaning as defined in the introductory paragraph of this Agreement
“General Disclosure
Package” shall mean the preliminary prospectus that is generally distributed to investors and used to offer the Securities,
and the information set forth in Exhibit F.
“Initial Securities”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Intellectual
Property” shall have the meaning as defined in Section 1(a)(19) of this Agreement.
“Investment
Advisory Agreement” shall have the meaning as defined in the introductory paragraphs of this Agreement.
“Lien”
means any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
“Lock-Up
Period” shall have the meaning as defined in Section 3(b)(1) of this Agreement.
“Material
Adverse Effect” shall have the meaning as defined in Section 1(a)(7) of this Agreement.
“Merrill Lynch”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Money Laundering
Laws” shall have the meaning as defined in Section 1(a)(35) of this Agreement.
“OFAC”
shall have the meaning as defined in Section 1(a)(36) of this Agreement.
“Option Closing
Date” shall have the meaning as defined in Section 2(b) of this Agreement.
“Option Securities”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Organizational
Documents” means (a) in the case of a corporation, its certificate of incorporation and by-laws; (b) in
the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document
and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, its certificate
of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement
or other similar agreement; (c) in the case of any other entity, the organizational and governing documents of such entity;
(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.
“Portfolio
Company” shall have the meaning as defined in Section 1(a)(40) of this Agreement.
“Portfolio
Company Agreement” shall have the meaning as defined in Section 1(a)(40) of this Agreement.
“Preferred
Stock” means the Company’s preferred stock, par value $0.001 per share.
“preliminary
prospectus” shall have the meaning as defined in the third introductory paragraph of this Agreement.
“Prospectus”
shall have the meaning as defined in the third introductory paragraph of this Agreement.
“Purchase
Price” shall have the meaning as defined in Section 2(a) of this Agreement.
“Registration
Statement” shall have the meaning as defined in the third introductory paragraph of this Agreement.
“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.
“Representatives”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“RIC”
means a regulated investment company within the meaning of Section 851(a) of the Code.
“Rule 430C”
refers to Rule 430C under the 1933 Act.
“Rule 430C
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 430C but that is deemed to be part of the Registration
Statement at the time it becomes effective.
“Rule 462(b)
Registration Statement” shall mean any registration statement filed to register the offer and sale of the Securities
pursuant to Rule 462(b) under the 1933 Act.
“Rule 497”
refers to Rule 497(c) or 497(h) under the 1933 Act, as applicable.
“Rules and
Regulations” shall mean the 1933 Act Rules and Regulations, the 1934 Act Rules and Regulations, the 1940 Act Rules and
Regulations and the Advisers Act Rules and Regulations, as applicable.
“sales material”
shall have the meaning as defined in Section 1(a)(45) of this Agreement.
“Sarbanes-Oxley
Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions
thereof.
“SBA”
shall have the meaning as defined in Section 1(a)(48) of this Agreement.
“SBIC”
shall have the meaning as defined in Section 1(a)(48) of this Agreement.
“Securities”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Subject Instruments”
means any instrument, agreement or other document relating to (i) the $402.6 million term debt securitization that the Company
completed on June 5, 2014, (ii) the $350 million term debt securitization that the Company completed on July 16, 2010, as amended,
(iii) any instrument, agreement or other document relating to the senior secured revolving credit facility with Wells Fargo Securities,
LLC, as administrative agent, and Wells Fargo Bank, N.A., as lender, that a wholly owned subsidiary of the Company entered into
on July 21, 2011, as amended, (iv) any instrument, agreement or other document relating to the revolving line of credit with The
PrivateBank and Trust Company that a wholly owned subsidiary of the Company entered into on November 22, 2013, as amended and (v) any
instrument, agreement or other document relating to debentures guaranteed by the U.S. Small Business Administration; 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.
“UBS”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Underwriters”
shall have the meaning as defined in the introductory paragraph of this Agreement.
“Wells Fargo”
shall have the meaning as defined in the introductory paragraph of this Agreement.
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 the General Disclosure Package, any preliminary prospectus
or the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Securities by the Underwriters outside of the United States.
SECTION 17.
Absence of Fiduciary Relationship. Each of the Company, the Adviser and the Administrator, severally and not jointly,
acknowledges and agrees that:
(a)
each of the Underwriters is acting solely as an underwriter in connection with the public offering of the Securities and
no fiduciary, advisory or agency relationship between the Company, the Adviser and the Administrator on the one hand, and any of
the Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not any of the Underwriters has advised or is advising the Company, the Adviser or the Administrator
on other matters, and none of the Underwriters has any obligation to the Company, the Adviser or the Administrator with respect
to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b)
the public offering price of the Securities and the price to be paid by the Underwriters for the Securities set forth in
this Agreement were established by the Company, the Adviser and the Administrator following discussions and arms-length negotiations
with the Representatives;
(c)
it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement;
(d)
in connection with each transaction contemplated by this Agreement and the process leading to such transactions, each of
the Underwriters is and has been acting solely as principal and not as fiduciary, adviser or agent of the Company, the Adviser,
the Administrator or any of their respective affiliates, stockholders (or other equity holders), creditors or employees or any
other party;
(e)
none of the Underwriters has provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisers to the extent it has deemed appropriate;
(f)
it is aware that the Underwriters and their respective affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company, the Adviser and the Administrator and that none of the Underwriters has
any obligation to disclose such interests and transactions to the Company, the Adviser or the Administrator by virtue of any fiduciary,
advisory or agency relationship or otherwise; and
(g)
it waives, to the fullest extent permitted by law, any claims it may have against any of the Underwriters for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that none of the Underwriters shall have any liability (whether direct
or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or in right of it or the Company, the Adviser, the Administrator or any stockholders, employees or creditors
of the Company, the Adviser or the Administrator.
[Signature Page Follows]
If the foregoing is
in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the Underwriters, 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: Manager
GOLUB CAPITAL LLC
By: /s/
David B. Golub
Name: David B. Golub
Title: Manager
[Signature Page to Underwriting Agreement] |
CONFIRMED AND ACCEPTED, as of the
date first above written:
WELLS FARGO SECURITIES, LLC
By: /s/
David Herman
Name: David Herman
Title: Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/
Mark A. Adley
Name: Mark A. Adley
Title: Managing Director
UBS SECURITIES LLC
By: /s/
Jeff Spurlock
Name: Jeff Spurlock
Title: Director
By: /s/
Bradford Lo Gatto
Name: Bradford Lo Gatto
Title: Associate Director
For themselves and as Representatives of the
Underwriters named in Exhibit A hereto.
[Signature Page to Underwriting Agreement] |
EXHIBIT A
Name of Underwriter |
Number of
Initial
Securities |
Wells Fargo Securities, LLC |
1,190,000 |
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated |
875,000 |
UBS Securities LLC |
612,500 |
Raymond James & Associates, Inc. |
525,000 |
Keefe, Bruyette & Woods, Inc |
297,500 |
Total |
3,500,000 |
EXHIBIT B
|
Number
of Initial
Securities to be Sold
|
Company |
3,500,000 |
EXHIBIT C
LIST OF DIRECTORS AND SECTION 16 OFFICERS
Name |
Position |
Lawrence E. Golub |
Chairman of the Board |
David B. Golub |
Chief Executive Officer and Director |
John T. Baily |
Director |
Kenneth F. Bernstein |
Director |
Anita R. Rosenberg |
Director |
William M. Webster IV |
Director |
Ross A. Teune |
Chief Financial Officer and Treasurer |
Joshua M. Levinson |
Chief Compliance Officer and Secretary |
EXHIBIT D
FORM OF LOCK-UP AGREEMENT
Golub Capital BDC, Inc.
Public Offering of Common Stock
Dated as of __________,
2015
Wells Fargo Securities, LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Securities LLC
as representatives of the underwriters
c/o Wells Fargo Securities, LLC
375 Park Avenue
4th Floor
New York, New York 10152
This agreement is being
delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) by and
among Golub Capital BDC, Inc., a Delaware corporation (the “Company”), GC Advisors LLC, a Delaware limited liability
company (the “Adviser”), Golub Capital LLC, a Delaware limited liability company (the “Administrator”),
and Wells Fargo Securities, LLC (“Wells Fargo”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”), UBS Securities LLC (“UBS”) and each of the other Underwriters named in Exhibit A
therein, relating to a proposed underwritten public offering of Common Stock (the “Common Stock”) of the Company.
In order to induce
you and the other Underwriters to enter into the Underwriting Agreement, and in light of the benefits that the offering of the
Common Stock will confer upon the undersigned in its capacity as a securityholder and/or an officer, director or employee of the
Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each Underwriter that, during the period beginning on and including the date of the Underwriting Agreement through
and including the date that is the 45th day after the date of the Underwriting Agreement, the undersigned will not, without the
prior written consent of Wells Fargo, Merrill Lynch and UBS directly or indirectly:
(i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of any shares of the Company’s Common Stock or preferred
stock or other capital stock (collectively, “Capital Stock”) or any securities convertible into or exercisable
or exchangeable for Common Stock or other Capital Stock, whether now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of disposition, or
(ii) enter
into any swap or other agreement, arrangement or transaction that transfers to another, in whole or in part, directly or indirectly,
any of the economic consequences of ownership of any Common Stock or other Capital Stock or any securities convertible into or
exercisable or exchangeable for any Common Stock or other Capital Stock,
whether any transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock, other Capital Stock, other securities, in cash or otherwise. Moreover,
if:
| (1) | during the last 17 days of such 45-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company occurs, or |
| (2) | prior to the expiration of such 45-day restricted period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning
on the last day of such 45-day restricted period, |
the restrictions imposed by this agreement
shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release
or the occurrence of the material news or material event, as the case may be, unless Wells Fargo, Merrill Lynch and UBS waive,
in writing, such extension.
The undersigned hereby
acknowledges and agrees that written notice of any extension of the 45-day restricted period pursuant to the provisions of
the previous paragraph will be delivered by Wells Fargo, Merrill Lynch and UBS to the Company, the Adviser or the Administrator
and that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this agreement
during the period from and including the date of this agreement through and including the 34th day following the expiration
of the 45-day restricted period, the undersigned will give prior notice thereof to the Company and will not consummate any
such transaction or take any such action unless it has received written confirmation from the Company that such restricted period
(as the same may have been extended pursuant to the previous paragraph) has expired.
Notwithstanding the
provisions set forth in the second preceding paragraph, the undersigned may, without the prior written consent of Wells Fargo,
Merrill Lynch and UBS, transfer any Common Stock or other Capital Stock or any securities convertible into or exchangeable or exercisable
for Common Stock or other Capital Stock
(1) if
the undersigned is a natural person, as a bona fide gift or gifts, or by will or intestacy, or as may be required by court order
or by action of law, to any member of the immediate family (as defined below) of the undersigned or to a trust the beneficiaries
of which are exclusively the undersigned or members of the undersigned’s immediate family, or as a bona fide gift or gifts
to a charity or educational institution,
(2) if
the undersigned is a partnership or a limited liability company, to a partner or member, as the case may be, of such partnership
or limited liability company if, in any such case, such transfer is not for value, and
(3) if
the undersigned is a trust, to a beneficiary of such trust if such transfer is not for value,
provided, however, that in the case of
any transfer described in clause (1) or (2) above, it shall be a condition to the transfer that (A) the transferee executes
and delivers to Wells Fargo, Merrill Lynch and UBS, acting on behalf of the Underwriters, not later than one business day prior
to such transfer, a written agreement, in substantially the form of this agreement (it being understood that any references to
“immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family
of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to Wells
Fargo, Merrill Lynch and UBS, and (B) such transfer is not reported or required to be reported in any public report or filing
with the Securities and Exchange Commission or otherwise, and the undersigned does not otherwise voluntarily effect any public
filing or report regarding such transfer during such 45-day restricted period (as the same may be extended as described above).
For purposes of this paragraph, “immediate family” shall mean a spouse, child, grandchild or other lineal descendant
(including by adoption), father, mother, brother or sister of the undersigned.
The undersigned further
agrees that (i) it will not, during such 45-day restricted period (as the same may be extended as described above), make
any demand or request for or exercise any right with respect to the registration under the 1933 Act, of any Common Stock or other
Capital Stock or any securities convertible into or exercisable or exchangeable for Common Stock or other Capital Stock, and (ii) the
Company may, with respect to any Common Stock or other Capital Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or other Capital Stock owned or held (of record or beneficially) by the undersigned, cause the transfer agent
or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect to such securities during
such 45-day restricted period (as the same may be extended as described above).
Notwithstanding anything
herein to the contrary, this letter agreement shall not prohibit the disposition of Common Stock by the undersigned to Golub Capital
Employee Grant Program Rabbi Trust upon the vesting of restricted shares of Common Stock in order to satisfy withholding and other
income tax related obligations of the undersigned.
In addition, the undersigned
hereby waives any and all notice requirements and rights with respect to the registration of any securities pursuant to any agreement,
instrument, understanding or otherwise, including any registration rights agreement or similar agreement, to which the undersigned
is a party or under which the undersigned is entitled to any right or benefit and any tag-along rights, co-sale rights or other
rights to have any securities (debt or equity) included in the offering contemplated by the Underwriting Agreement or sold in connection
with the sale of Common Stock pursuant to the Underwriting Agreement, provided that such waiver shall apply only to the public
offering of Common Stock pursuant to the
Underwriting Agreement and each registration
statement filed under the 1933 Act in connection therewith.
The undersigned hereby
represents and warrants that the undersigned has full power and authority to enter into this agreement and that this agreement
has been duly authorized (if the undersigned is not a natural person), executed and delivered by the undersigned and is a valid
and binding agreement of the undersigned. This agreement and all authority herein conferred are irrevocable and shall survive the
death or incapacity of the undersigned (if a natural person) and shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
The undersigned acknowledges
and agrees that whether or not any public offering of Common Stock actually occurs depends on a number of factors, including market
conditions.
[Signature Page Immediately Follows]
IN WITNESS WHEREOF,
the undersigned has executed and delivered this agreement as of the date first set forth above.
Yours very truly,
Print Name:
EXHIBIT E
FORM OF OPINION OF DECHERT LLP
EXHIBIT F
PRICE-RELATED INFORMATION
Public offering price: $17.42 per share
Number of Initial Securities: 3,500,000
Number of Option Securities: 525,000
EXHIBIT G
FORM OF CERTIFICATE OF THE CHIEF FINANCIAL
OFFICER
The undersigned, Ross
A. Teune, is the Chief Financial Officer and Treasurer of Golub Capital BDC, Inc., a Delaware corporation (the “Company”),
and as such, the undersigned is authorized to execute and deliver this Certificate. The undersigned hereby executes this Certificate,
dated as of April [10][15], 2015, pursuant to Section 5[(i)][(k)] of that certain Underwriting Agreement, dated April 10, 2015
(the “Underwriting Agreement”), by and between the Company, GC Advisors LLC and GC Service Company, LLC, on
the one hand, and Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC on
the other hand. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Underwriting Agreement.
| 1. | The undersigned is familiar with the accounting, financial operations and financial
records of the Company and its subsidiaries. |
| 2. | The undersigned has reviewed the Registration Statement, the General Disclosure
Package and the [preliminary][final] prospectus, dated April [9][10], 2015 (the “[Preliminary] Prospectus”). |
| 3. | The estimated financial information of the Company identified in the attached Exhibit A,
which is included in the Registration Statement, the General Disclosure Package and the [Preliminary] Prospectus represents a good
faith estimate of the financial information presented based on the most recently available internal accounting records of the Company
and all other information available to the Company concerning its portfolio. |
| 4. | Nothing has come to the attention of the undersigned that would cause him to believe that the information
identified in the attached Exhibit A (1) is not stated on a basis substantially consistent with that of the audited consolidated
financial statements of the Company for the year ended September 30, 2014 included in the General Disclosure Package and the [Preliminary]
Prospectus (except for any adjustments which may arise in the future as part of the audit process) or is not stated on a basis
substantially consistent with how the Company expects to present its unaudited interim financial results for the three months ended
March 31, 2015 and (2) does not represent the Company’s current expectations for financial information the Company expects
to report as part of its quarterly report on Form 10-Q for the quarter ended March 31, 2015. |
[signature page follows]
IN
WITNESS WHEREOF, the undersigned has signed his name as of the date first set forth above.
GOLUB CAPITAL BDC, INC.
By: ______________________
Ross A. Teune
Chief Financial
Officer and Treasurer
[Signature Page to
CFO Certificate]
Exhibit
A
Exhibit (l)(4)
![](image_002.gif) |
1900 K Street, NW
Washington, DC 20006-1110
+1 202 261 3300 Main
+1 202 261 3333 Fax
www.dechert.com
|
|
|
April 13, 2015
Golub Capital BDC, Inc.
150 South Wacker Drive
Suite 800
Chicago, IL 60606
| 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 (Registration No. 333-193308) as originally filed on January 10, 2014 with the U.S. Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), and as
subsequently amended on February 19, 2014, March 18, 2014, August 21, 2014, December 10, 2014 and on or about the date hereof (the
“Registration Statement”), relating to the proposed issuance by the Company of up to 4,025,000 shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (“Common Stock”), including 525,000 shares that
may be sold pursuant to the underwriters’ over-allotment option, to be sold to underwriters pursuant to an underwriting agreement
substantially in the form filed as Exhibit (h)(5) to the Registration Statement (the “Underwriting Agreement”).
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, and no opinion is expressed 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 rendering this opinion,
including the following documents:
| (i) | the Registration Statement; |
| (ii) | the Underwriting Agreement; |
| (iii) | the form of certificate evidencing the Shares, filed
as Exhibit (d)(1) to the Registration Statement; |
![](image_002.gif) |
April 13, 2015
Page 2
|
|
|
| (iv) | the Certificate of Incorporation of the Company; |
| (v) | the Bylaws of the Company; |
| (vi) | 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 |
| (vii) | resolutions of the board of directors of the Company relating to, among other things, the authorization and issuance of the
Shares. |
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 officers, directors,
employees 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 natural persons and (ii) the legal power and
authority of all persons signing on behalf of the parties to all 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 Underwriting 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 net asset 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 Underwriting 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 and judicial interpretations thereof. We are members of the bar of the State of New York.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus
which forms a part of the Registration Statement. 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
Golub Capital BDC (NASDAQ:GBDC)
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