0001508655false000-00000N-2ASRCATXYesCalculated as the respective high or low closing sales price less net asset value, divided by net asset value (in each case, as of the applicable quarter). Does not reflect intraday trading prices.Net asset value has not yet been reported for this period.Net asset value per share is determined as of the last day in the relevant quarter and therefore may not reflect the net asset value per share on the date of the high and low closing sales prices. The net asset values shown are based on outstanding shares at the end of the relevant quarter.In the event that the securities to which this prospectus relates are sold to or through underwriters, a corresponding prospectus supplement will disclose the applicable sales load (underwriting discount or commission).The related prospectus supplement will disclose the estimated amount of offering expenses, the offering price and the offering expenses borne by us as a percentage of the offering price.The expenses of the dividend reinvestment plan are included in “Other expenses” in the table above. The plan administrator’s fees will be paid by us. There are no brokerage charges or other charges to stockholders who participate in the plan, except that if a participant elects by written notice to the plan administrator to have the plan administrator sell part or all of the shares held by the plan administrator in the participant’s account and remit the proceeds to the participant, the plan administrator is authorized to deduct a $15.00 transaction fee plus a brokerage commission from the proceeds. For additional information, see “Dividend Reinvestment Plan.”The net assets attributable to common stock used to calculate the percentages in this table reflect our net assets of $1,341.6 million as of December 31, 2022.The Management Fee is 1.5% of the average value of our gross assets (including cash and cash equivalents and assets purchased with borrowed amounts) using the values at the end of the two most recently completed calendar quarters, adjusted for any share issuances or repurchases during the period. We may from time to time decide it is appropriate to change the terms of our Investment Advisory Agreement. Under the 1940 Act, any material change to our Investment Advisory Agreement must be submitted to stockholders for approval. See “Management Agreements” in Part I, Item 1 of our 2022 Annual Report and in Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. The Management Fee reflected in the table is calculated by determining the ratio that the Management Fee for the year ended December 31, 2022 bears to our net assets attributable to common stock (rather than our gross assets).From time to time, our Adviser voluntarily has waived certain Management Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Management Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates are based on our actual Management Fees for the year ended December 31, 2022. For the year ended December 31, 2022, Management Fees of $0.4 million were waived consisting solely of Management Fees pursuant to the Leverage Waiver. The Adviser intends to waive a portion of the Management Fee payable under the Investment Advisory Agreement by reducing the Management Fee on assets financed using leverage over 200% asset coverage (in other words, over 1.0x debt to equity) (the “Leverage Waiver”). Pursuant to the Leverage Waiver, the Adviser intends to waive the portion of the Management Fee in excess of an annual rate of 1.0% (0.250% per quarter) on the average value of the Company’s gross assets as of the end of the two most recently completed calendar quarters that exceeds the product of (i) 200% and (ii) the average value of our net asset value at the end of the two most recently completed calendar quarters. For the three and nine months ended September 30, 2023, Management Fees of $0.3 million and $0.8 million have been waived pursuant to the Leverage Waiver. We may have capital gains and interest income that could result in the payment of an Incentive Fee to the Adviser in the twelve months after the date of this prospectus. The Incentive Fee payable in the example below is based upon our actual results for the year ended December 31, 2022 and assumes that the Incentive Fee is 17.5% for all relevant periods. However, the Incentive Fee payable to the Adviser is based on our performance and will not be paid unless we achieve certain goals. The Incentive Fee consists of two parts, as follows: (i) The first component, payable at the end of each quarter in arrears, equals 100% of the pre-Incentive Fee net investment income in excess of a 1.5% quarterly “hurdle rate,” the calculation of which is further explained below, until the Adviser has received 17.5% of the total pre-Incentive Fee net investment income for that quarter and, for pre-Incentive Fee net investment income in excess of 1.82% quarterly, 17.5% of all remaining pre-Incentive Fee net investment income for that quarter. The 100% “catch-up” provision for pre-Incentive Fee net investment income in excess of the 1.5% “hurdle rate” is intended to provide the Adviser with an Incentive Fee of 17.5% on all pre-Incentive Fee net investment income when that amount equals 1.82% in a quarter (7.28% annualized), which is the rate at which catch-up is achieved. Once the “hurdle rate” is reached and catch-up is achieved, 17.5% of any pre-Incentive Fee net investment income in excess of 1.82% in any quarter is payable to the Adviser. Pre-Incentive Fee net investment income means dividends, interest and fee income accrued by us during the calendar quarter, minus our operating expenses for the quarter (including the Management Fee, expenses payable under the Administration Agreement to the Administrator, and any interest expense and dividends paid on any issued and outstanding preferred stock, but excluding the Incentive Fee). Pre-Incentive Fee net investment income includes, in the case of investments with a deferred interest feature (such as original issue discount, debt instruments with pay-in-kind interest and zero coupon securities), accrued income that we may not have received in cash. Pre-Incentive Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses. (ii) The second component, payable at the end of each fiscal year in arrears, equaled 15% through March 31, 2014 and, beginning April 1, 2014, equals a weighted percentage of cumulative realized capital gains from the Company’s inception to the end of that fiscal year, less cumulative realized capital losses and unrealized capital losses. This component of the Incentive Fee is referred to as the Capital Gains Fee. Each year, the fee paid for this component of the Incentive Fee is net of the aggregate amount of any previously paid Capital Gains Fee for prior periods. For capital gains that accrue following March 31, 2014, the Incentive Fee rate is 17.5%. The Company accrues, but does not pay, a capital gains Incentive Fee with respect to unrealized capital gains because a capital gains Incentive Fee would be owed to the Adviser if the Company were to sell the relevant investment and realize a capital gain. The weighted percentage is intended to ensure that for each fiscal year following the completion of the IPO, the portion of the Company’s realized capital gains that accrued prior to March 31, 2014, is subject to an Incentive Fee rate of 15% and the portion of the Company’s realized capital gains that accrued beginning April 1, 2014 is subject to an Incentive Fee rate of 17.5%. As of March 31, 2020, there are no remaining investments that were made prior to April 1, 2014, and as a result, the Incentive Fee rate of 17.5% is applicable to any future realized capital gains.. For purposes of determining whether pre-Incentive Fee net investment income exceeds the hurdle rate, pre-Incentive Fee net investment income is expressed as a rate of return on the value of our net assets at the end of the immediately preceding calendar quarter. Pre-Incentive Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses. Because of the structure of the Incentive Fee, it is possible that we may pay an Incentive Fee in a quarter in which we incur a loss. For example, if we receive pre-Incentive Fee net investment income in excess of the quarterly minimum hurdle rate, we will pay the applicable Incentive Fee even if we have incurred a loss in that quarter due to realized and unrealized capital losses. In addition, because the quarterly minimum hurdle rate is calculated based on our net assets, decreases in our net assets due to realized or unrealized capital losses in any given quarter may increase the likelihood that the hurdle rate is reached and therefore the likelihood of us paying an Incentive Fee for that quarter. Our net investment income used to calculate this component of the Incentive Fee is also included in the amount of our gross assets used to calculate the Management Fee because gross assets are total assets (including cash received) before deducting liabilities (such as declared dividend payments). Section 205(b)(3) of the Advisers Act, as amended, prohibits the Adviser from receiving the payment of fees on unrealized gains until those gains are realized, if ever. There can be no assurance that such unrealized gains will be realized in the future. See Note 3 to our consolidated financial statements in our 2022 Annual Report and our 3Q 2023 Quarterly Report and “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. From time to time, our Adviser has voluntarily waived certain Incentive Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Incentive Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates do not reflect or assume any such waivers.Interest payments on borrowed funds is based on our interest expense for the year ended December 31, 2022 under our credit facilities excluding fees (such as fees on undrawn amounts and amortization of upfront fees) and including the swap-adjusted interest expense related to our 2022 Convertible Notes, 2023 Notes, 2024 Notes and 2026 Notes. This item is based on the assumption that our borrowings and interest costs after an offering will remain similar to those prior to such offering. We may borrow additional funds from time to time to make investments to the extent we determine that the economic situation is conducive to doing so. On October 8, 2018, our stockholders approved the application of the minimum asset coverage ratio of 150% to us, as set forth in Section 61(a)(2) of the 1940 Act, as amended by the SBCAA.Includes our overhead expenses, such as payments under the Administration Agreement for certain expenses incurred by the Adviser, and excise taxes. See “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. The expenses in this table are based on our actual other expenses and excise taxes for the year ended December 31, 2022.Total amount of each class of senior securities outstanding at carrying value, excluding the impact of deferred financing costs and hedge accounting relationships, at the end of the period presented 0001508655 2023-12-22 2023-12-22 0001508655 2021-01-01 2021-03-31 0001508655 2021-04-01 2021-06-30 0001508655 2021-07-01 2021-09-30 0001508655 2021-10-01 2021-12-31 0001508655 2022-01-01 2022-03-31 0001508655 2022-04-01 2022-06-30 0001508655 2022-07-01 2022-09-30 0001508655 2022-10-01 2022-12-31 0001508655 2023-01-01 2023-03-31 0001508655 2023-10-01 2023-12-20 0001508655 2023-04-01 2023-06-30 0001508655 2023-07-01 2023-09-30 0001508655 2021-03-31 0001508655 2021-06-30 0001508655 2021-09-30 0001508655 2021-12-31 0001508655 2022-03-31 0001508655 2022-06-30 0001508655 2022-09-30 0001508655 2022-12-31 0001508655 2023-03-31 0001508655 2023-06-30 0001508655 2023-09-30 0001508655 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SECURITIES AND EXCHANGE COMMISSION
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THE SECURITIES ACT OF 1933 |
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Pre-Effective Amendment No. |
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Post-Effective Amendment No. |
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THE INVESTMENT COMPANY ACT OF 1940 |
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Sixth Street Specialty Lending, Inc.
(Registrant Exact Name as Specified in Charter)
2100 McKinney Avenue, Suite 1500
(Address of Principal Executive Offices)
Registrant’s Telephone Number, including Area Code: (
469)
621-2001
c/o Sixth Street Specialty Lending, Inc.
345 California Street, Suite 3300
Simpson Thacher & Bartlett LLP
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Check box if the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans. |
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Check box 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 (“Securities Act”), other than securities offered in connection with a dividend reinvestment plan. |
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Check box if this Form is a registration statement pursuant to General Instruction A.2 or a post-effective amendment thereto. |
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Check box if this Form is a registration statement pursuant to General Instruction B or a post-effective amendment thereto that will become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act. |
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Check box if this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction B to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act. |
It is proposed that this filing will become effective (check appropriate box)
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when declared effective pursuant to Section 8(c) of the Securities Act |
If appropriate, check the following box:
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This [post-effective] amendment designates a new effective date for a previously filed [post-effective amendment] [registration statement]. |
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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: . |
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This Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: . |
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This Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: . |
Check each box that appropriately characterizes the Registrant:
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Registered Closed-End Fund (closed-end company that is registered under the Investment Company Act of 1940 (“Investment Company Act”)). |
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Business Development Company (closed-end company that intends or has elected to be regulated as a business development company under the Investment Company Act). |
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Interval Fund (Registered Closed-End Fund or a Business Development Company that makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act). |
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A.2 Qualified (qualified to register securities pursuant to General Instruction A.2 of this Form). |
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Well-Known Seasoned Issuer (as defined by Rule 405 under the Securities Act). |
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Emerging Growth Company (as defined by Rule 12b-2 under the Securities Exchange Act of 1934 (“Exchange Act”). |
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If an Emerging Growth Company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. |
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New Registrant (registered or regulated under the Investment Company Act for less than 12 calendar months preceding this filing). |
Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.
Sixth Street Specialty Lending, Inc.
We are a specialty finance company focused on lending to middle-market companies that has elected to be regulated as a business development company under the Investment Company Act of 1940. We seek to generate current income primarily in U.S.-domiciled middle-market companies through direct originations of senior secured loans and, to a lesser extent, originations of mezzanine and unsecured loans and investments in corporate bonds and equity securities. By “middle-market companies,” we mean companies that have annual EBITDA, which we believe is a useful proxy for cash flow, of $10 million to $250 million, although we may invest in larger or smaller companies on occasion As of September 30, 2023, our investment portfolio consisted of investments in 131 portfolio companies (including 42 structured credit investments, which include each series of collateralized loan obligation as a separate portfolio company investment) with an aggregate fair value of $3,113.3 million. We intend to continue to pursue an investment strategy focused primarily on direct origination of loans to middle-market companies domiciled in the United States.
We are an externally-managed,
closed-end,
non-diversified
management investment company. Sixth Street Specialty Lending Advisers, LLC, or the Adviser, acts as our investment adviser and administrator. Our investment decisions are made by our Investment Review Committee, which includes senior personnel of our Adviser and Sixth Street Partners, LLC or “Sixth Street.” Sixth Street is a global investment business with over $60 billion of assets under management as of September 30, 2023.
The companies in our investment portfolio are typically highly leveraged, and, in many cases, our investments in these companies are not rated by any rating agency. If these investments were rated, we believe that most would likely receive a rating of below investment grade (that is, below
BBB-
or Baa3, which is often referred to as “junk”). Our exposure to below investment grade instruments involves certain risks, including speculation with respect to the borrower’s capacity to pay interest and repay principal. The debt investments in our portfolio generally have a significant portion of principal due at the maturity of the investment, which would result in a substantial loss to us if such borrowers are unable to refinance or repay their debt at maturity.
Substantially all of our debt investments have variable interest rates that reset periodically based on interest rate benchmarks such as the London Interbank Offered Rate, the Euro Interbank Offered Rate, the Secured Overnight Financing Rate, the Sterling Overnight Interbank Average Rate, the Federal Funds Effective Rate or the Prime Rate. As a result, significant increases in such interest rate benchmarks in the future would make it more difficult for these borrowers to service their obligations under the debt investments that we hold.
We may offer, from time to time, in one or more offerings or series, our common stock, preferred stock, debt securities, subscription rights to purchase shares of our common stock or warrants representing rights to purchase shares of our common stock, preferred stock or debt securities, which we refer to, collectively, as the “securities.” The preferred stock, debt securities, subscription rights and warrants offered hereby may be
convertible or exchangeable into shares of our common stock. The securities may be offered at prices and on terms to be described in one or more supplements to this prospectus.
In the event we offer common stock, the offering price per share of our common stock less any underwriting discounts or commissions will generally not be less than the net asset value per share of our common stock at the time we make the offering. However, we may issue shares of our common stock pursuant to this prospectus at a price per share that is less than our net asset value per share (i) in connection with a rights offering to our existing stockholders, (ii) with the prior approval of the majority of our outstanding voting securities or (iii) under such other circumstances as the Securities and Exchange Commission may permit.
The securities may be offered directly to one or more purchasers, or through agents designated from time to time by us or to or through underwriters or dealers. Each prospectus supplement relating to an offering will identify any agents or underwriters involved in the sale of the securities, and will disclose any applicable purchase price, fee, discount or commissions arrangement between us and our agents or underwriters or among our underwriters or the basis upon which such amount may be calculated. See “Plan of Distribution.” We will not sell any of the securities pursuant to this registration statement through agents, underwriters or dealers without delivery of this prospectus and a prospectus supplement describing the method and terms of the offering of such securities.
Our common stock is traded on the New York Stock Exchange, or NYSE, under the symbol “TSLX.” On December 20, 2023, the last reported sales price of our common stock on the NYSE was $21.08 per share. The net asset value per share of our common stock at September 30, 2023 (the last date prior to the date of this prospectus for which we reported net asset value) was $16.97.
Investing in our securities involves a high degree of risk. Shares of
closed-end
investment companies, including business development companies, frequently trade at a discount to their net asset values. If our shares trade at a discount to our net asset value, purchasers in any offering will face increased risk of loss. In addition, the companies in which we invest are subject to special risks. Before buying any securities, you should read the discussion of the material risks of investing in our securities, including the risk of leverage, in “
Risk Factors“ beginning on page 24 of this prospectus and in the documents incorporated by reference herein.
This prospectus may not be used to consummate sales of our securities unless accompanied by a prospectus supplement.
Please read this prospectus and any accompanying prospectus supplements, including any information incorporated by reference herein or therein, before investing and keep such documents for future reference. This prospectus and any accompanying prospectus supplements, and the documents incorporated by reference herein or therein, contain important information about us that a prospective investor ought to know before investing in our securities. Information required to be included in a Statement of Additional Information may be found in this prospectus and an accompanying prospectus supplement, as applicable. We also file periodic and current reports, proxy statements and other information about us with the Securities and Exchange Commission. This information is available free of charge by contacting us at 888 7th Avenue, 41st Floor, New York, NY 10106, Attention: TSLX Investor Relations, by emailing us at IRTSLX@sixthstreet.com or visiting our website at
https://sixthstreetspecialtylending.gcs-web.com/.
Information on our website is not incorporated into or a part of this prospectus or any prospectus supplement. The Securities and Exchange Commission also maintains a website at http://www.sec.gov that contains this information.
The Securities and Exchange Commission has not approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is December 22, 2023
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We have not authorized any dealer, salesman or other person to give any information or to make any representation other than those contained in this prospectus, any prospectus supplement to this prospectus or any information that we have incorporated by reference herein or therein. This prospectus and any such supplements do not constitute an offer to sell or a solicitation of any offer to buy any security other than the registered securities to which they relate, nor do they constitute an offer to sell or a solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such an offer or solicitation in such jurisdiction. The information contained in this prospectus and any such supplements is accurate only as of the dates on their respective covers unless the information specifically indicates that another date applies. Our business, financial condition, results of operations and prospects may have changed since then. We will update these documents to reflect material changes only as required by law.
This prospectus is part of an automatic shelf registration statement that we filed with the U.S. Securities and Exchange Commission, or SEC, as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”). Under the shelf registration process, which constitutes a delayed offering in reliance on Rule 415 under the Securities Act, we may offer, from time to time, in one or more offerings of our common stock, preferred stock, debt securities, subscription rights to purchase shares of our common stock, or warrants representing rights to purchase shares of our common stock, preferred stock or debt securities, on terms to be determined at the time of the offering.
The securities may be offered at prices and on terms described in one or more supplements to this prospectus. This prospectus provides you with a general description of the offerings of securities that we may conduct pursuant to this prospectus. Each time we use this prospectus to sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. A prospectus supplement may also add, update or change information contained in this prospectus.
Please read this prospectus and the accompanying prospectus supplement, including any information incorporated herein or therein by reference, before you make an investment decision. You should also read the documents we have referred you to in “Available Information” and “Information Incorporated by Reference” below for information on our company and our consolidated financial statements.
This summary highlights some of the information in this prospectus. It is not complete and may not contain all of the information that you may want to consider. You should read this entire prospectus and any accompanying prospectus supplement, including any information incorporated herein or therein by reference, carefully. In particular, you should read the more detailed information set forth under “Risk Factors” and the consolidated financial statements and the related notes included elsewhere in this prospectus and any accompanying prospectus supplement or incorporated by reference herein or therein.
As used in the prospectus, except where the context suggests otherwise, references to:
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“TSLX,” “Sixth Street Specialty Lending,” “we,” “us,” “our,” the “Company,” and the “Registrant” refer to Sixth Street Specialty Lending, Inc., a Delaware corporation, and its consolidated subsidiaries; |
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the consolidated subsidiaries of Sixth Street Specialty Lending, Inc. refers to TC Lending, LLC, Sixth Street SL SPV, LLC and Sixth Street SL Holding, LLC, each a Delaware limited liability company, and Sixth Street Specialty Lending Sub, LLC, a Cayman Islands limited liability company; |
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“Adviser” refers to Sixth Street Specialty Lending Advisers, LLC, a Delaware limited liability company; and |
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“Sixth Street” refers to Sixth Street Partners, LLC. |
We have elected to be regulated as a business development company, or BDC, under the Investment Company Act of 1940, as amended, or the 1940 Act. In addition, for U.S. federal income tax purposes we have elected to be treated as a regulated investment company, or RIC, under the Internal Revenue Code of 1986, as amended, or the Code.
Sixth Street Specialty Lending
We are a specialty finance company focused on lending to middle-market companies. Since we began our investment activities in July 2011, through September 30, 2023, we have originated more than $28.6 billion aggregate principal amount of investments and retained approximately $9.8 billion aggregate principal amount of these investments on our balance sheet prior to any subsequent exits and repayments. We seek to generate current income primarily in U.S.-domiciled middle-market companies through direct originations of senior secured loans and, to a lesser extent, originations of mezzanine and unsecured loans and investments in corporate bonds and equity securities. By “middle-market companies,” we mean companies that have annual earnings before interest, income taxes, depreciation and amortization, or EBITDA, which we believe is a useful proxy for cash flow, of $10 million to $250 million, although we may invest in larger or smaller companies on occasion. As of September 30, 2023 our core portfolio companies, which excludes certain investments that fall outside of our typical borrower profile and represent 92.8% of our total investments based on fair value, had weighted average annual revenue of $209.0 million and weighted average annual EBITDA of $69.2 million.
We generate revenues primarily in the form of interest income from the investments we hold. In addition, we may generate income from dividends on direct equity investments, capital gains on the sale of investments and various loan origination and other fees.
We have operated as a BDC since we began our investment activities in July 2011, and we are currently one of the largest BDCs by total assets. In conducting our investment activities, we believe that we benefit from the significant scale and resources of our Adviser and its affiliates.
The companies in which we invest use our capital to support organic growth, acquisitions, market or product expansion and recapitalizations (including restructurings). We invest in first-lien debt, second-lien debt, mezzanine and unsecured debt and equity and other investments. Our first-lien debt may include stand-alone first-lien loans; “last out” first-lien loans, which are loans that have a secondary priority behind super-senior “first out” first-lien loans; “unitranche” loans, which are loans that combine features of first-lien, second-lien and mezzanine debt, generally in a first-lien position; and secured corporate bonds with similar features to these categories of first-lien loans. Our second-lien debt may include secured loans, and, to a lesser extent, secured corporate bonds, with a secondary priority behind first-lien debt.
As of September 30, 2023, based on fair value our portfolio consisted of 91.0% first-lien debt investments, 1.3% second-lien debt investments, 1.2% mezzanine debt investments, 4.8% equity and other investments and 1.7% structured credit investments. As of September 30, 2023, 99.7% of our debt investments based on fair value bore interest at floating rates, with 100.0% of these subject to interest rate floors, which we believe helps act as a portfolio-wide hedge against inflation.
As of September 30, 2023, we had investments in 131 portfolio companies (including 42 structured credit investments, which include each series of collateralized loan obligation as a separate portfolio company investment) with an aggregate fair value of $3,113.3 million. For the three months ended September 30, 2023, the principal amount of new investments funded was $151.6 million in eight new portfolio companies and two existing portfolio companies. For this period, we had $158.9 million aggregate principal amount in exits and repayments.
As of December 31, 2022, we had investments in 121 portfolio companies with an aggregate fair value of $2,787.9 million. For the three months ended September 30, 2022, the principal amount of new investments funded was $274.4 million in twenty-five new portfolio companies and six existing portfolio companies. For this period, we had $15.8 million aggregate principal amount in exits and repayments.
As of September 30, 2023, the largest single investment based on fair value represented 2.5% of our total investment portfolio. As of September 30, 2023, the average investment size in each of our portfolio companies was approximately $23.8 million based on fair value. Portfolio companies includes investments in structured products including each series of collateralized loan obligation as a portfolio company investment. When excluding investments in structured products the average investment in our remaining portfolio companies was approximately $34.4 million as of September 30, 2023. As of September 30, 2023, the largest industry represented 15.7% of our total portfolio based on fair value.
Since we began investing in 2011 through September 30, 2023, weighted by capital invested, our exited investments have generated an average realized gross internal rate of return to us of 17.5% (based on total capital invested of $6.9 billion and total proceeds from these exited investments of $8.7 billion). Ninety percent of these exited investments resulted in a realized gross internal rate of return to us of 10% or greater. For a description of how we calculate gross internal rates of return, see the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Results of Operations—Realized Gross Internal Rate of Return” in Part I, Item 2 of our Quarterly Report on Form
10-Q
for the three months ended September 30, 2023 (“3Q 2023 Quarterly Report”), which is incorporated by reference in this prospectus.
Sixth Street Specialty Lending, Inc. is a Delaware corporation formed on July 21, 2010. Sixth Street Specialty Lending Advisers, LLC is our external manager.
Our portfolio is subject to diversification and other requirements because we elected to be regulated as a BDC under the 1940 Act and treated as a RIC for U.S. federal income tax purposes. We made our BDC election on April 15, 2011. We intend to maintain these elections. See “Regulation as a Business Development Company” in Part I, Item 1 of our Annual Report on Form
10-K
for the year ended December 31, 2022 (the “2022 Annual Report”) for more information on these requirements.
Our Adviser is a Delaware limited liability company. Our Adviser acts as our investment adviser and administrator and is a registered investment adviser with the Securities and Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940, as amended, or the Advisers Act.
Our Adviser sources and manages our portfolio through our Investment Team, a dedicated team of investment professionals predominately focused on us. Our Investment Team is led by our Chairman and Chief Executive Officer and our Adviser’s
Co-Chief
Investment Officer Joshua Easterly and our Adviser’s
Co-Chief
Investment Officer Alan Waxman, both of whom have substantial experience in credit origination, underwriting and asset management. Our investment decisions are made by our Investment Review Committee, which includes senior personnel of our Adviser and Sixth Street Partners, LLC or “Sixth Street.”
Sixth Street is a global investment business with over $75 billion of assets under management as of September 30, 2023. Sixth Street’s core platforms include Sixth Street Specialty Lending, Sixth Street Specialty Lending Europe, which is aimed at European middle-market loan originations, Sixth Street TAO, which has the flexibility to invest across all of Sixth Street’s private credit market investments, Sixth Street Opportunities, which focuses on actively managed opportunistic investments across the credit cycle, Sixth Street Credit Market Strategies, which is the firm’s “public-side” credit investment platform focused on investment opportunities in broadly syndicated leveraged loan markets, Sixth Street Growth, which provides financing solutions to growing companies, Sixth Street Fundamental Strategies, which primarily invests in secondary credit, and Sixth Street Agriculture, which invests in niche agricultural opportunities. Sixth Street has a long-term oriented, highly flexible capital base that allows it to invest across industries, geographies, capital structures and asset classes. Sixth Street has extensive experience with highly complex, global public and private investments executed through primary originations, secondary market purchases and restructurings, and has a team of over 520 investment and operating professionals. As of September 30, 2023, sixty-seven (67) of these personnel are dedicated to our business, including fifty-three (53) investment professionals.
Our Adviser consults with Sixth Street in connection with a substantial number of our investments. The Sixth Street platform provides us with a breadth of large and scalable investment resources. We believe we benefit from Sixth Street’s market expertise, insights into industry, sector and macroeconomic trends and intensive due diligence capabilities, which help us discern market conditions that vary across industries and credit cycles, identify favorable investment opportunities and manage our portfolio of investments. Sixth Street and its affiliates will refer all middle-market loan origination activities for companies domiciled in the United States to us and conduct those activities through us. The Adviser will determine whether it would be permissible, advisable or otherwise appropriate for us to pursue a particular investment opportunity allocated to us.
On April 15, 2011, the Company entered into the Investment Advisory Agreement with the Adviser. The Investment Advisory Agreement was subsequently amended on December 12, 2011. Under the terms of the Investment Advisory Agreement, the Adviser provides investment advisory services to the Company. The Adviser’s services under the Investment Advisory Agreement are not exclusive, and the Adviser is free to furnish similar or other services to others so long as its services to the Company are not impaired. Under the terms of the Investment Advisory Agreement, the Company will pay the Adviser the Management Fee and may also pay certain Incentive Fees.
On March 15, 2011, we entered into the Administration Agreement with our Adviser (the “Administration Agreement”). Under the terms of the Administration Agreement, the Adviser acts as our administrator and provides administrative services to us. These services include providing office space, equipment and office services, maintaining financial records, preparing reports to stockholders and reports filed with the SEC, and managing the payment of expenses and the oversight of the performance of administrative and professional services rendered by others. Certain of these services are reimbursable to the Adviser under the terms of the Administration Agreement. In addition, the Adviser is permitted to delegate its duties under the Administration Agreement to affiliates or third parties and we pay or reimburse the Adviser for certain expenses incurred by any such affiliates or third parties for work done on our behalf.
In February 2017, the Board of Directors of the Company and the Adviser entered into an amended and restated administration agreement (the “Administration Agreement”) reflecting certain clarifications to the agreement to provide greater detail regarding the scope of the reimbursable costs and expenses of the Administrator’s services.
In November 2023, the Board renewed the Administration Agreement. Unless earlier terminated as described below, the Administration Agreement will remain in effect until November 2024, and may be extended subject to required approvals. The Administration Agreement may be terminated by either party without penalty on 60 days’ written notice to the other party.
See the section entitled “Administration Agreement” in Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report.
Our investment objective is to generate current income by targeting investments with favorable risk-adjusted returns. We believe the middle-market lending environment provides opportunities for us to meet this objective as a result of a combination of the following factors:
Limited availability of capital for middle-market companies
. We believe that certain structural changes in the market have reduced the amount of capital available to middle-market companies. In particular, we believe there are currently fewer providers of capital to middle-market companies. Traditional middle-market lenders, such as commercial and regional banks and commercial finance companies, have contracted their origination activities and are focusing on more liquid asset classes. At the same time, institutional investors have sought to invest in larger, more liquid offerings, limiting the ability of middle-market companies to raise debt capital through public capital markets. We believe the Basel III Accord and regulations imposed by the Federal Reserve, the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation, or FDIC, significantly increase capital and liquidity requirements for banks, decreasing their capacity to hold
non-investment
grade leveraged loans on their balance sheets. We believe these factors reduce the capacity of traditional lenders to serve this market segment and, as a result, increase the cost of borrowing for middle-market companies.
Strong demand for debt capital
. We believe middle-market companies will continue to require access to debt capital to refinance existing debt, support growth and finance acquisitions. In addition, we believe the large amount of uninvested capital held by funds of private equity firms, estimated by Preqin Ltd., an alternative assets industry data and research company, at over $2.7 trillion as of December 12, 2023, will continue to drive deal activity. We expect that private equity firms will continue to pursue acquisitions and to seek to leverage their equity investments with secured loans provided by companies such as ours.
Attractive investment dynamics
. An imbalance between the supply of, and demand for, middle-market debt capital creates attractive pricing dynamics. The directly negotiated nature of middle-market financings also generally provides more favorable terms to the lender, including stronger covenant and reporting packages, better call protection, and lender-protective change of control provisions. Additionally, we believe BDC managers’ expertise in credit selection and ability to manage through credit cycles has generally resulted in BDCs experiencing lower loss rates than U.S. commercial banks through credit cycles. Further, we believe that historical middle-market default rates have been lower, and recovery rates have been higher, as compared to the larger market capitalization, broadly distributed market, leading to lower cumulative losses.
Conservative capital structures
. Following the credit crisis, which we define broadly as occurring between
mid-2007
and
mid-2009,
borrowers have generally been required to maintain more equity as a percentage of their total capitalization, specifically to protect lenders during periods of economic downturns. With more conservative capital structures, middle-market companies have exhibited higher levels of cash flows available to service their debt. In addition, middle-market companies often are characterized by simpler capital structures than larger borrowers, which facilitates a streamlined underwriting process and improves returns to lenders during a restructuring process.
Specialized lending requirements
. Lending to middle-market companies requires specialized due diligence and underwriting capabilities, as well as extensive ongoing monitoring. Middle-market lending also is generally more labor-intensive than lending to larger companies due to smaller investment sizes and the lack of publicly available information on these companies. We believe the experience and resources of our Adviser and Sixth Street position us more strongly than many capital providers to lend to middle-market companies.
Desirability of partnering with BDCs
. We believe middle-market companies see advantages in raising capital from BDCs. BDCs have the ability to offer attractive financing structures, including unitranche loans and
“one-stop”
financings and can provide a valuable combination of flexibility to develop loans that reflect each borrower’s distinct situation, long-term relationship focus and reliability as a potential source of future capital.
Competitive Strengths and Core Competencies
Leading platform and access to proprietary deal flow
. The substantial majority of our investments are not intermediated and are originated without the assistance of investment banks or other traditional Wall Street sources. Our Adviser has a dedicated team of 53 investment professionals responsible for originating, underwriting, executing and managing the assets of our direct lending transactions. This team is responsible for sourcing and executing opportunities directly, while leveraging the resources and expertise of the Sixth Street platform. The senior members of our Investment Team have over 450 years of collective experience as commercial dealmakers.
In addition to executing direct calling campaigns on companies based on the Adviser’s sector and macroeconomic views, our Investment Team also maintains direct contact with financial sponsors, banks, corporate advisory firms, industry consultants, attorneys, investment banks, “club” investors and other potential sources of lending opportunities. By sourcing through multiple channels, we believe we are able to generate investment opportunities that have more attractive risk-adjusted return characteristics than by relying solely on origination flow from investment banks or other intermediaries.
In addition, our Adviser draws upon the resources of Sixth Street in underwriting transactions, performing due diligence, managing assets and optimizing our operations as a public company. Access to Sixth Street resources complements our Adviser’s view of markets and provides insight into important cyclical patterns.
Disciplined investment and underwriting process
. Through our Adviser, we seek to achieve the highest risk-adjusted returns available as opposed to the highest absolute return available. Our investment approach seeks to
combine a rigorous analysis of macroeconomic and market factors with a deep understanding of individual companies and their assets, management and prospects. We believe four factors distinguish our investment approach:
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. Our broad middle-market focus and our Adviser’s integrated position within Sixth Street allow us to determine current market opportunities and identify relative value. |
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. The risk profile of our portfolio evolves across credit cycles as credit tightens and loosens. During periods when risk premiums are tight and pricing alone may not reflect the possibility for volatility, we typically focus on investing at a senior position in deals that permit us to control duration (that is, price sensitivity as a function of time and changes in interest rates, expressed as a number of years). Conversely, during periods when risk premiums are wide, we seek to capture an incremental risk premium by offering more junior instruments that have higher rates and longer durations. |
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Disciplined four-tiered investment framework . Through our Adviser, we perform detailed company-specific analysis focusing on a four-tiered investment framework: |
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Business and sector selection . We focus on companies with enterprise value between $50 million and $1 billion. When reviewing potential investments, we seek to invest in businesses with high marginal cash flow, recurring revenue streams and where we believe credit quality will improve over time. We look for portfolio companies that we think have a sustainable competitive advantage in growing industries or distressed situations. We also seek companies where our investment will have a low ratio. We currently do not limit our focus to any specific industry and we may invest in larger or smaller companies. |
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. We focus on investing at the top of the capital structure and protecting that position. We carefully diligence and structure investments to include strong investor covenants. As a result, we structure investments with a view to creating opportunities for early intervention in the event of non-performance or stress. In addition, we seek to retain effective voting control in investments over the loans or particular class of securities in which we invest through maintaining affirmative voting positions or negotiating consent rights that allow us to retain a blocking position. We also aim for our loans to mature on a medium term, between two to six years after origination. |
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. We focus on, among other deal dynamics, direct origination of investments, where we identify and lead the investment transaction. We seek transactions that are too small for the traditional high yield market. We look to invest in companies that value our commitment and ability to originate an investment that meets their goals and fits within their existing capital structure. |
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. We seek to mitigate non-credit-related risk on our returns in several ways, including call protection provisions to protect future payment income. In addition, most of our investments are floating rate in nature, which we believe helps act as a portfolio-wide hedge against inflation. |
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Robust and active investment management . Our Adviser rigorously monitors the credit profile of portfolio investments, with the aim of proactively identifying sector and operational issues and carefully managing risks. The information gathered on market trends through this process also informs our underwriting for new loans. |
We tailor investments rather than focusing only on driving investment volume.
Carefully constructed, existing portfolio consisting of predominantly senior, floating rate loans across a broad range of industries and borrowers.
Since we began investing in July 2011, through September 30, 2023, we have originated more than $28.6 billion aggregate principal amount of investments. As of September 30, 2023, our investment portfolio consisted of investments in 131 portfolio companies (including 42 structured credit
investments, which include each series of collateralized loan obligation as a separate portfolio company investment) with an aggregate fair value of $3,113.3 million that we believe exhibits strong credit quality and broad industry composition. As of September 30, 2023, 99.7% of our debt investments based on fair value bore interest at floating rates, with 100.0% of these subject to interest rate floors, and 91.0% of the fair value of our portfolio was invested in first-lien debt investments. We believe this portfolio will allow us to generate meaningful investment income, and consequently dividend income, for our stockholders.
Experienced management team
. The Adviser has a highly experienced management team consisting of nine Sixth Street Partners and nine Sixth Street Managing Directors, with deep experience identifying and executing transactions across a broad range of industries and types of financings. Over their careers, our team has developed unique relationships and access to proprietary sourcing and servicing channels. The team includes the founder of the Goldman Sachs Specialty Lending Group, Alan Waxman, who managed the group from its inception in 2003 through 2009, and other senior members, such as Joshua Easterly, who was
Co-head
from 2006 through 2010. The team also includes Michael Fishman, who, as National Director of Loan Originations at Wells Fargo Capital Finance, oversaw primary and secondary lending, loan distribution and syndications, strategic transactions and new lending products from 2000 to 2011, and Bo Stanley, who brings expertise in the software, payment systems, data infrastructure and business services sectors. Our Adviser’s senior team also has experience managing us as a BDC since we began our investment activities in July 2011. We believe that the broad knowledge of this group from investing across asset classes through numerous credit cycles provides us with sound decision-making and invaluable insights into the investment process.
Aligned investment professionals
. We believe our investment professionals are aligned with our investment objective. The compensation structure for our investment professionals is based on our returns, as opposed to transaction volume, which we believe fosters a focus on credit quality when originating investments.
Operating and Regulatory Structure
The Adviser manages our investment activities under the direction of our board of directors, or the Board. A majority of our Board members are not “interested persons” of us, the Adviser and our respective affiliates, as such term is defined under Section 2(a)(19) of the 1940 Act.
As a BDC, we are required to comply with numerous regulatory requirements:
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. Regulations under the 1940 Act limit our ability to use borrowing, also known as leverage, in significant respects. In accordance with the 1940 Act, with certain limitations, we are allowed to borrow amounts such that our asset coverage, as defined in the 1940 Act, is at least 150% after such borrowing. On October 8, 2018, our stockholders approved the application of the minimum asset coverage ratio of 150% to us, as set forth in Section 61(a)(2) of the 1940 Act, as amended by the SBCAA. As a result and subject to certain additional disclosure requirements, as of October 9, 2018, our minimum asset coverage ratio was reduced from 200% to 150%. See “Regulation as a Business Development Company” in Part I, Item 1 of our 2022 Annual Report. |
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. As a BDC, we are required to invest at least 70% of our total assets in qualifying assets, which generally include securities of “eligible portfolio companies,” cash, cash equivalents, U.S. government securities and high-quality debt instruments maturing in one year or less from the time of investment. “Eligible portfolio companies” are defined in the 1940 Act as: |
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private domestic operating companies; |
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public domestic operating companies whose securities are not listed on a national securities exchange (e.g., the NYSE Amex Equities and The NASDAQ Global Market) or registered under the Securities Exchange Act of 1934, as amended, or the Exchange Act; and |
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public domestic operating companies having a market capitalization of less than $250 million. |
Public domestic operating companies whose securities are quoted on the
bulletin board and through OTC Markets Group, Inc. are not listed on a national securities exchange and, as a result, are eligible portfolio companies.
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. We have elected to be treated as a RIC for U.S. federal income tax purposes. To maintain our status as a RIC and to avoid having our earnings subject to corporate-level U.S. federal income taxation, we must satisfy certain source of income, asset diversification and distribution requirements. |
See “Material U.S. Federal Income Tax Considerations.”
Leverage increases the potential for gain and loss on amounts invested and, as a result, increases the risks associated with investing in our securities. The costs associated with our borrowings, including any increase in the fees payable to the Adviser, are borne by our stockholders. Any decision on our part to use borrowings depends upon our assessment of the attractiveness of available investment opportunities in relation to the costs and perceived risks of such leverage.
On October 8, 2018, our stockholders approved the application of the minimum asset coverage ratio of 150% to us, as set forth in Section 61(a)(2) of the 1940 Act, as amended by the SBCAA. As a result and subject to certain additional disclosure requirements, as of October 9, 2018, our minimum asset coverage ratio was reduced from 200% to 150%. In other words, pursuant to Section 61(a) of the 1940 Act, as amended by the SBCAA, we are permitted to potentially increase our maximum
ratio from an effective level of
to
The Adviser intends to waive a portion of the Management Fee payable under the Investment Advisory Agreement by reducing the Management Fee on assets financed using leverage over 200% asset coverage (in other words, over 1.0x debt to equity). Pursuant to the waiver, the Adviser intends to waive the portion of the Management Fee in excess of an annual rate of 1.0% (0.250% per quarter) on the average value of our gross assets as of the end of the two most recently completed calendar quarters that exceeds the product of (i) 200% and (ii) the average value of our net asset value at the end of the two most recently completed calendar quarters. For the three and nine months ended September 30, 2023, Management Fees of $0.3 million and $0.8 million, respectively, have been waived pursuant to the Leverage Waiver. For the three and nine months ended September 30, 2022, Management Fees of $0.2 million have been waived pursuant to the Leverage Waiver.
While as a BDC the amount of leverage that we are permitted to use is limited in significant respects, we use leverage to increase our ability to make investments. The amount of leverage we use in any period depends on a variety of factors, including cash available for investing, the cost of financing and general economic and market conditions, however, under the 1940 Act, our total borrowings are limited so that our asset coverage ratio cannot fall below 150% immediately after any borrowing, as defined in the 1940 Act. In any period, our interest expense will depend largely on the extent of our borrowing and we expect interest expense will increase as we increase leverage over time within the limits of the 1940 Act. In addition, we may dedicate assets as collateral to financing facilities from time to time.
See “Business-General—Our Company”; and “Business-General-Regulation as a Business Development Company” in Part I, Item 1 of our 2022 Annual Report, as well as “Risk Factors—Legislation allows us to incur additional leverage,” “Risk Factors—We borrow money, which magnifies the potential for gain or loss and increases the risk of investing in us,” “Risk Factors—Regulations governing our operation as a BDC affect our ability to, and the way in which we, raise additional capital,” “Risk Factors—Our indebtedness could adversely affect our business, financial conditions or results of operations,” and “Risk Factors—Even in the event the value of your investment declines, the Management Fee and, in certain circumstances, the Incentive Fee will still be payable to the Adviser.” in Part II, Item 1A of our 3Q 2023 Quarterly Report.
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Certain members of the Adviser’s senior management and the Investment Review Committee are and will continue to be active in other investment funds affiliated with Sixth Street and its affiliates that pursue investment opportunities that could overlap with those pursued by us. However, the Adviser and its affiliates intend to allocate investment opportunities in a fair and equitable manner in accordance with their allocation principles and are obligated to refer any investments to us, by means of our Adviser, that fit within certain criteria that our Board may establish from time to time (such criteria, the “Board Established Criteria”). If no Board Established Criteria are in effect, then we will be notified of all such potential investment opportunities that fall within our current investment objective and principal investment strategies. The Adviser will determine whether it would be permissible, advisable or otherwise appropriate for us to pursue a particular investment opportunity referred to us for inclusion in our portfolio. For example, certain investment opportunities which otherwise fit within our investment strategies and objectives and any Board Established Criteria may not be suitable for us if they would cause us to violate asset coverage or concentration limitations imposed by the 1940 Act, the Code or the Amended Order (as defined below), be ineligible for financing under our financing arrangements, pose adverse legal, regulatory or tax risks, constrain our resources to make future investments, involve inappropriate investment risk or otherwise be inappropriate or inadvisable as an investment for us. If the Adviser deems participation in an investment referred to us to be appropriate, it will determine an appropriate size for our investment. If the aggregate interest in an investment opportunity across Sixth Street funds or investment vehicles, including us, exceeds the size of the opportunity, the Adviser would allocate to us our
pro-rata
share of the investment opportunity based on the size of each respective participating Sixth Street funds’ or investment vehicles’ demand for such opportunity.
While we seek to generate current income primarily in U.S.-domiciled middle-market companies through direct originations of senior secured loans, we may also invest up to 30% of our portfolio opportunistically in securities or other instruments of issuers not deemed eligible portfolio companies under the 1940 Act. These opportunities may include, among other things, debt issued by companies located outside the United States, publicly and privately traded debt and equity securities of companies listed on a national securities exchange with a market capitalization of $250 million or more, certain high yield bonds and other instruments or assets (including consumer and commercial loans). Many of these opportunities may be required to be offered to, or may be otherwise suitable for, other Sixth Street funds or investment vehicles, in which case the scope or size of opportunities otherwise available to us may be adversely affected or reduced. In the event that an investment opportunity falls outside of our Board Established Criteria and Sixth Street is not required to, and otherwise determines not to, direct these investment opportunities to an affiliated fund, we may be permitted to take them. The decision to allocate an opportunity as between us and other Sixth Street vehicles will take into account various factors that Sixth Street and our Adviser deem appropriate.
Our ability to pursue investment opportunities other than those that meet our Board Established Criteria is subject to the allocation decisions by Sixth Street senior professionals. Such opportunities may be required to be offered to, or may be otherwise suitable for, other Sixth Street funds or investment vehicles. As a result, the Adviser and its affiliates may face conflicts in allocating investment opportunities between us and those other entities. It is possible that we may not be given the opportunity to participate in certain investments made by Sixth Street vehicles that would otherwise be suitable for us if the investment falls outside of our Board Established Criteria. Sixth Street has organized separate investment vehicles, aimed specifically at middle-market loan originations and may in the future organize vehicles aimed at other loan origination opportunities outside our primary focus (for example, based on opportunity size or geography).
See “Certain Relationships and Related Party Transactions” in our Definitive Proxy Statement on Schedule 14A relating to our 2023 Annual Meeting of Stockholders filed with the SEC on April 13, 2023 (“2023 Annual Proxy”), and such section is incorporated by reference in this prospectus.
9
On December 16, 2014, we were granted an exemptive order from the SEC (the “Prior Order”) that allows us to
co-invest,
subject to certain conditions and to the extent the size of an investment opportunity exceeds the amount our Adviser has independently determined is appropriate to invest, with certain of our affiliates (including affiliates of Sixth Street).
On January 16, 2020, we filed a further application for
co-investment
exemptive relief with the SEC to better align our existing
co-investment
relief with more recent SEC exemptive orders. On August 3, 2022, the SEC granted the new order (the “Amended Order”) in response to our application. The Amended Order superseded the Prior Order, and updated the conditions pursuant to which we could
co-invest
with certain of our affiliates (including affiliates of Sixth Street) in investment opportunities that fall within our Board Established Criteria.
We believe our ability to
co-invest
with Sixth Street affiliates is particularly useful where we identify larger capital commitments than otherwise would be appropriate for us. We expect that with the ability to
co-invest
with Sixth Street affiliates we will continue to be able to provide
“one-stop”
financing to a potential portfolio company in these circumstances, which may allow us to capture opportunities where we alone could not commit the full amount of required capital or would have to spend additional time to locate unaffiliated
co-investors.
See “Regulation as a Business Development Company-Transactions with our Affiliates” in our 2022 Annual Report, and such section is incorporated by reference in this prospectus.
See “Certain Relationships and Related Party Transactions—Exemptive Order” in our 2023 Annual Proxy, and such section is incorporated by reference in this prospectus.
On August 4, 2015, the Company’s Board authorized the Company to acquire up to $50 million in aggregate of the Company’s common stock from time to time over an initial six month period, and has continued to authorize the refreshment of the $50 million amount authorized under and extension of the stock repurchase program prior to its expiration since that time, most recently as of November 15, 2023. The amount and timing of stock repurchases under the program may vary depending on market conditions, and no assurance can be given that any particular amount of common stock will be repurchased.
Potential investors should be aware that an investment in our securities involves risk. We cannot assure you that our objectives will be achieved or guarantee a return on invested capital. In addition, there will be occasions when the Adviser and its affiliates may encounter potential conflicts of interest. See “Risk Factors” in this prospectus, our 2022 Annual Report and our 3Q 2023 Quarterly Report, as well as the other documents that are incorporated by reference in this prospectus or in any prospectus supplement, for a description of these and other risks relating to our business and investments in our securities, including that:
Risks Related to Our Business and Structure
| |
• |
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We are dependent upon management personnel of the Adviser, Sixth Street and their affiliates for our future success. |
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• |
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We are subject to significant regulations governing our operation as a BDC, which affect our ability to, and the way in which we, raise additional capital. Changes in regulation could adversely affect our business. |
10
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• |
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We borrow money, which magnifies the potential for gain or loss and increases the risk of investing in us. |
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• |
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We operate in a highly competitive market for investment opportunities. |
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• |
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If we are unable to source investments, access financing or manage future growth effectively, we may be unable to achieve our investment objective. |
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• |
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Even in the event the value of your investment declines, the Management Fee and, in certain circumstances, the Incentive Fee will still be payable to the Adviser. |
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• |
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To the extent that we do not realize income or choose not to retain after-tax realized net capital gains, we will have a greater need for additional capital to fund our investments and operating expenses. |
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• |
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We will be subject to corporate-level U.S. federal income tax if we are unable to maintain our qualification as a RIC under Subchapter M of the Code, including as a result of our failure to satisfy the RIC distribution requirements. |
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• |
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We can be expected to retain some income and capital gains in excess of what is permissible for excise tax purposes and such amounts will be subject to a nondeductible 4% U.S. federal excise tax. |
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• |
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Our Adviser and its affiliates, officers and employees may face certain conflicts of interest. |
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• |
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Our Adviser can resign on 60 days’ notice. We may not be able to find a suitable replacement within that time, resulting in a disruption in our operations and a loss of the benefits from our relationship with Sixth Street. Any new investment advisory agreement would require stockholder approval. |
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• |
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The Adviser’s liability is limited under the Investment Advisory Agreement, and we are required to indemnify the Adviser against certain liabilities, which may lead the Adviser to act in a riskier manner on our behalf than it would when acting for its own account. |
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• |
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Any failure to maintain our status as a BDC would reduce our operating flexibility. |
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• |
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We incur significant costs as a result of being a publicly traded company. |
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• |
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Provisions of the General Corporation Law of the State of Delaware and our certificate of incorporation and bylaws could deter takeover attempts and have an adverse effect on the price of our common stock. |
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• |
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Certain investors are limited in their ability to make significant investments in us. |
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• |
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Cybersecurity risks and cyber incidents may adversely affect our business or those of our portfolio companies. |
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• |
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Our Board may change our investment objective, operating policies and strategies without prior notice or stockholder approval. |
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• |
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The interest rates of our debt investments to our portfolio companies and our indebtedness that extend beyond 2023 might be subject to change based on recent regulatory changes. |
Risks Related to Economic Conditions
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• |
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The COVID-19 pandemic has materially and adversely affected, and is likely to continue to materially and adversely affect, our portfolio companies and the results of our operations, including our financial results. |
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• |
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The current state of the economy and financial markets increases the likelihood of adverse effects on our financial position and results of operations. |
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• |
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Uncertainty about financial stability could have a significant adverse effect on our business, results of operations and financial condition. |
11
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• |
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Economic recessions or downturns could impair our portfolio companies and harm our operating results. |
Risks Related to Our Portfolio Company Investments
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• |
|
Our investments are very risky and highly speculative. |
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• |
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The value of most of our portfolio securities will not have a readily available market price and we value these securities at fair value as determined in good faith by our Board, which valuation is inherently subjective, may not reflect what we may actually realize for the sale of the investment and could result in a conflict of interest with the Adviser. |
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• |
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The lack of liquidity in our investments may adversely affect our business. |
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• |
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Our portfolio may be focused on a limited number of portfolio companies or industries, which will subject us to a risk of significant loss if any of these companies defaults on its obligations under any of its debt instruments or if there is a downturn in a particular industry. |
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• |
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We may securitize certain of our investments, which may subject us to certain structured financing risks. |
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• |
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Because we generally do not hold controlling interests in our portfolio companies, we may not be in a position to exercise control over those portfolio companies or prevent decisions by management of those portfolio companies that could decrease the value of our investments. |
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• |
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We are exposed to risks associated with changes in interest rates. |
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• |
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We may not be able to realize expected returns on our invested capital. |
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• |
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By originating loans to companies that are experiencing significant financial or business difficulties, we may be exposed to distressed lending risks. |
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• |
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Our portfolio companies in some cases may incur debt or issue equity securities that rank equally with, or senior to, our investments in those companies and we may be exposed to special risks associated with bankruptcy cases. |
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• |
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Our failure to make follow-on investments in our portfolio companies could impair the value of our investments. |
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• |
|
Our ability to enter into transactions with our affiliates is restricted. |
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• |
|
Any acquisitions or strategic investments that we pursue are subject to risks and uncertainties. |
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• |
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We cannot guarantee that we will be able to obtain various required licenses in U.S. states or in any other jurisdiction where they may be required in the future. |
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• |
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Our investments in foreign companies may involve significant risks in addition to the risks inherent in U.S. investments. |
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• |
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We expose ourselves to risks when we engage in hedging transactions. |
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• |
|
The new market structure applicable to derivatives imposed by the Dodd-Frank Act may affect our ability to use (“OTC”) derivatives for hedging purposes. |
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• |
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Our portfolio investments may present special tax issues, and there are certain risks associated with holding debt obligations that have original issue discount or interest. |
Risks Related to Our Securities
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• |
|
There is a risk that investors in our common stock may not receive dividends or that our dividends may not grow over time. |
12
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• |
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Investing in our securities may involve a high degree of risk and the market price of our common stock may fluctuate significantly and could decline. |
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• |
|
Our stockholders will experience dilution in their ownership percentage if they opt out of our dividend reinvestment plan. |
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• |
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Purchases of our common stock by us under the Company 10b5-1 Plan may result in dilution to our net asset value per share and the price of our common stock being higher than the price that otherwise might exist in the open market. |
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• |
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We are highly dependent on information systems and systems failures could significantly disrupt our business, which may, in turn, negatively affect the market price of our common stock and our ability to pay dividend. |
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• |
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Changes in laws or regulations governing our operations may adversely affect our business. |
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• |
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The effect of global climate change may impact the operations of our portfolio companies. |
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• |
|
Legislation allows us to incur additional leverage. |
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• |
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We borrow money, which magnifies the potential for gain or loss and increases the risk of investing in us. |
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• |
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Regulations governing our operation as a BDC affect our ability to, and the way in which we, raise additional capital. |
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• |
|
Our indebtedness could adversely affect our business, financial conditions or results of operations. |
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• |
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Even in the event the value of your investment declines, the Management Fee and, in certain circumstances, the Incentive Fee will still be payable to the Adviser. |
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• |
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We will have broad discretion over the use of proceeds of any offering made pursuant to this prospectus, to the extent it is successful. |
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• |
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The net asset value per share of our common stock may be diluted if we sell or otherwise issue shares of our common stock at prices below the then-current net asset value per share of our common stock. |
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• |
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Your interest in us may be diluted if you do not fully exercise your subscription rights in any rights offering. In addition, if the subscription price is less than our net asset value per share, then you will experience an immediate dilution of the aggregate net asset value of your shares. |
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• |
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We may in the future determine to issue preferred stock, which could adversely affect the market value of our common stock and cause the net asset value and market value of our common stock to be more volatile. |
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• |
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Holders of any preferred stock we might issue would have the right to elect members of the board of directors and class voting rights on certain matters. |
Our principal executive offices are located at 2100 McKinney Avenue, Suite 1500, Dallas, TX 75201 and our telephone number is (469)
621-3001.
Our corporate website is located at https://sixthstreetspecialtylending.com. Information on our website is not incorporated into or a part of this prospectus.
13
We may offer, from time to time, in one or more offerings or series, our common stock, preferred stock, debt securities, subscription rights to purchase shares of our common stock, or warrants representing rights to purchase shares of our common stock, preferred stock or debt securities, on terms to be determined at the time of the offering. We will offer our securities at prices and on terms to be set forth in one or more supplements to this prospectus. The offering price per share of our common stock, less any underwriting commissions or discounts, generally will not be less than the net asset value per share of our common stock at the time of an offering. However, we may issue shares of our common stock pursuant to this prospectus at a price per share that is less than our net asset value per share (a) in connection with a rights offering to our existing stockholders, (b) with the prior approval of the majority of our outstanding voting securities or (c) under such other circumstances as the SEC may permit. Any such issuance of shares of our common stock at a price per share below the net asset value per share of our common stock may be dilutive to the net asset value of our common stock. See “Risk Factors—Risks Related to Offerings Pursuant to This Prospectus.”
Pursuant to approval granted at a special meeting of stockholders held on May 25, 2023, we are currently permitted to sell or otherwise issue shares of our common stock at a price below our then-current net asset value per share, subject to the approval of our Board and certain other conditions. Such stockholder approval expires on May 25, 2024. We intend to propose the extension of this approval in future years.
We may offer our securities directly to one or more purchasers, including existing stockholders in a rights offering by us, through agents that we designate from time to time or to or through underwriters or dealers. The prospectus supplement relating to each offering will identify any agents or underwriters involved in the sale of our securities, and will set forth any applicable purchase price, fee, commission or discount arrangement between us and the agents or underwriters or among the underwriters or the basis upon which such amount may be calculated. See “Plan of Distribution.” We may not sell any of the securities pursuant to this registration statement through agents, underwriters or dealers without delivery of this prospectus and a prospectus supplement describing the method and terms of the offering of our securities.
Set forth below is additional information regarding offerings of our securities:
Unless otherwise specified in a prospectus supplement, we intend to use the net proceeds from the sale of our securities for general corporate purposes, which may include, among other things, investing in portfolio companies in accordance with our investment objective and repaying indebtedness (which will be subject to reborrowing).
Each supplement to this prospectus relating to an offering will more fully identify the use of the proceeds from such offering. See “Use of Proceeds.”
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“TSLX” |
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| Distributions |
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To the extent we have earnings available for distribution, we expect to continue distributing quarterly dividends to our stockholders. The specific tax characteristics of our distributions will be reported to stockholders after the end of the calendar year. Future quarterly dividends, if any, will be determined by our Board. See “Price Range of Common Stock and Distributions.” |
14
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To maintain our tax treatment as a RIC, we must make certain distributions. See “Material U.S. Federal Income Tax Considerations-Regulated Investment Company Classification.” |
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Our Board is divided into three classes of directors serving staggered three-year terms. This structure is intended to provide us with a greater likelihood of continuity of management, which may be necessary for us to realize the full value of our investments. A staggered board of directors also may serve to deter hostile takeovers or proxy contests, as may certain other measures adopted by us. See “Description of Our Capital Stock—Anti-Takeover Provisions.” |
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As a BDC, we are permitted under the 1940 Act to borrow funds or issue senior securities to finance a portion of our investments. As a result, we are exposed to the risks of leverage, which may be considered a speculative investment technique. Leverage increases the potential for gain and loss on amounts invested and, as a result, increases the risks associated with investing in our securities. The costs associated with our borrowings, including any increase in the fees payable to the Adviser, are borne by our stockholders. Any decision on our part to use borrowings depends upon our assessment of the attractiveness of available investment opportunities in relation to the costs and perceived risks of such leverage. See “Regulation as a Business Development Company” in Part I, Item 1 of our 2022 Annual Report. |
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Dividend Reinvestment Plan |
|
We have adopted a dividend reinvestment plan for our stockholders, which is an “opt out” dividend reinvestment plan. Under this plan, if we declare a cash dividend or other distribution, our stockholders who have not elected to “opt out” of our dividend reinvestment plan will have their cash distribution automatically reinvested in additional shares of our common stock, rather than receiving the cash distribution. If a stockholder elects to “opt out,” that stockholder will receive cash dividends or other distributions. |
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We have elected to be treated as a RIC for U.S. federal income tax purposes. Our status as a RIC will enable us to deduct qualifying distributions to our stockholders, so that we will be subject to corporate-level U.S. federal income taxation only in respect of earnings that we retain and do not distribute. |
To maintain our status as a RIC and to avoid being subject to corporate-level U.S. federal income taxation on our earnings, we must, among other things:
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• |
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maintain our election under the 1940 Act to be treated as a BDC; |
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• |
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derive in each taxable year at least 90% of our gross income from dividends, interest, gains from the sale or other disposition of stock or securities and other specified categories of investment income; and |
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• |
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maintain diversified holdings. |
15
In addition, we must distribute (or be treated as distributing) in each taxable year dividends for tax purposes equal to at least 90% of our investment company taxable income and net
tax-exempt
income for that taxable year.
As a RIC, we generally will not be subject to corporate-level U.S. federal income tax on our investment company taxable income and net capital gains that we distribute to stockholders. If we fail to distribute our investment company taxable income or net capital gains on a timely basis, we will be subject to a nondeductible 4% U.S. federal excise tax. We can be expected to carry forward investment company taxable income in excess of current year distributions into the next tax year and pay a 4% excise tax on such income. We elected to retain a portion of income and capital gains for the nine months ended September 30, 2023. For the three and nine months ended September 30, 2023 we recorded a net expense of $0.5 million and $1.8 million, respectively, for U.S. federal excise tax and other taxes. For the three and nine months ended September 30, 2022, the Company recorded a net expense of $0.4 million and $1.5 million, respectively, for U.S. federal excise tax and other taxes and for the calendar years ended December 31, 2022 and 2021 and we recorded a net expense of, $2.6 million and $0.4 million, respectively, for U.S. federal excise tax as a result. Any carryover of investment company taxable income or net capital gains must be timely declared and distributed as a dividend in the taxable year following the taxable year in which the income or gains were earned. See “Price Range of Common Stock and Distributions” and “Material U.S. Federal Income Tax Considerations.”
Stockholders who receive dividends and other distributions in the form of shares of common stock generally are subject to the same U.S. federal tax consequences as stockholders who elect to receive their distributions in cash; however, since their cash dividends will be reinvested, those stockholders will not receive cash with which to pay any applicable taxes on reinvested dividends. See “Dividend Reinvestment Plan.”
Our Adviser serves as our investment adviser and our administrator. For more information regarding our Adviser and Sixth Street and our contractual arrangements with these companies, see “Management Agreements” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report.
Shares of
closed-end
investment companies, including BDCs, frequently trade at a discount to their net asset value. We are not generally able to issue and sell our common stock at a price below our net asset value per share except (a) in connection with a rights offering to our existing stockholders, (b) with the prior approval of the majority of our outstanding voting securities or (c) under such other circumstances as the SEC may permit. The risk that our shares may trade at a discount to our net asset value is separate and distinct from the risk that our net asset value per share may decline. We cannot predict whether our shares will trade at a price per share above, at or below net asset value per share. See “Risk Factors-Risks Related to Offerings Pursuant to This Prospectus.”
We have filed with the SEC a registration statement on Form
N-2,
of which this prospectus is a part, under the Securities Act. This registration statement contains additional information about us and the securities being offered by this prospectus. We are also required to file periodic reports, current reports, proxy statements and other information with the SEC.
We maintain a website at https://sixthstreetspecialtylending.com and make all of our periodic and current reports, proxy statements and other information available, free of charge, on or through our website. Information
16
on our website is not incorporated into or part of this prospectus. You may also obtain such information free of charge by contacting us in writing at 888 7th Avenue, 41st Floor, New York, NY 10106, Attention: TSLX Investor Relations, or by emailing us at IRTSLX@sixthstreet.com.
Information Incorporated by Reference
The rules of the SEC allow us to incorporate by reference information into this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. See “Information Incorporated by Reference” for more information.
17
The following table is intended to assist you in understanding the costs and expenses that an investor in our common stock will bear directly or indirectly in the twelve months after the date of this prospectus, based on the assumptions set forth below. We caution you that some of the percentages indicated in the table below are estimates and may vary. The following table should not be considered a representation of our future expenses, which may be greater or less than shown. Future expenses will depend on many factors, including our use of leverage, which may vary periodically depending on market conditions, our portfolio composition and our Adviser’s assessment of risks and returns. However, our total borrowings are limited under the 1940 Act so that we may not incur any additional leverage if doing so would cause our asset coverage ratio to fall below 150%, as defined in the 1940 Act. Except where the context suggests otherwise, whenever this prospectus contains a reference to fees or expenses paid by “us,” the “Company” or “Sixth Street Specialty Lending, Inc.” or says that “we” will pay fees or expenses, stockholders will indirectly bear these fees or expenses as investors in Sixth Street Specialty Lending, Inc.
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Stockholder transaction expenses (as a percentage of offering price): |
|
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|
|
|
|
|
| Sales load |
|
|
— |
|
|
|
(1 |
) |
| Offering expenses |
|
|
— |
|
|
|
(2 |
) |
| Dividend reinvestment plan expenses |
|
|
|
|
|
|
(3 |
) |
|
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|
|
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Estimated annual expenses ( as a percentage of net assets attributable to common stock) (4) : |
|
|
|
|
|
|
|
|
| Management Fee payable under the Investment Advisory Agreement |
|
|
2.97 |
% |
|
|
(5 |
) |
| Incentive Fee payable under the Investment Advisory Agreement |
|
|
2.49 |
|
|
|
(6 |
) |
| Interest payments on borrowed funds |
|
|
4.17 |
|
|
|
(7 |
) |
| Other expenses |
|
|
1.20 |
|
|
|
(8 |
) |
| Total annual expenses |
|
|
10.83 |
%
|
|
|
|
|
| (1) |
In the event that the securities to which this prospectus relates are sold to or through underwriters, a corresponding prospectus supplement will disclose the applicable sales load (underwriting discount or commission). |
| (2) |
The related prospectus supplement will disclose the estimated amount of offering expenses, the offering price and the offering expenses borne by us as a percentage of the offering price. |
| (3) |
The expenses of the dividend reinvestment plan are included in “Other expenses” in the table above. The plan administrator’s fees will be paid by us. There are no brokerage charges or other charges to stockholders who participate in the plan, except that if a participant elects by written notice to the plan administrator to have the plan administrator sell part or all of the shares held by the plan administrator in the participant’s account and remit the proceeds to the participant, the plan administrator is authorized to deduct a $15.00 transaction fee plus a brokerage commission from the proceeds. For additional information, see “Dividend Reinvestment Plan.” |
| (4) |
The net assets attributable to common stock used to calculate the percentages in this table reflect our net assets of $1,341.6 million as of December 31, 2022. |
| (5) |
The Management Fee is 1.5% of the average value of our gross assets (including cash and cash equivalents and assets purchased with borrowed amounts) using the values at the end of the two most recently completed calendar quarters, adjusted for any share issuances or repurchases during the period. We may from time to time decide it is appropriate to change the terms of our Investment Advisory Agreement. Under the 1940 Act, any material change to our Investment Advisory Agreement must be submitted to stockholders for approval. See “Management Agreements” in Part I, Item 1 of our 2022 Annual Report and in Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. |
18
The Management Fee reflected in the table is calculated by determining the ratio that the Management Fee for the year ended December 31, 2022 bears to our net assets attributable to common stock (rather than our gross assets).
From time to time, our Adviser voluntarily has waived certain Management Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Management Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates are based on our actual Management Fees for the year ended December 31, 2022. For the year ended December 31, 2022, Management Fees of $0.4 million were waived consisting solely of Management Fees pursuant to the Leverage Waiver.
The Adviser intends to waive a portion of the Management Fee payable under the Investment Advisory Agreement by reducing the Management Fee on assets financed using leverage over 200% asset coverage (in other words, over 1.0x debt to equity) (the “Leverage Waiver”). Pursuant to the Leverage Waiver, the Adviser intends to waive the portion of the Management Fee in excess of an annual rate of 1.0% (0.250% per quarter) on the average value of the Company’s gross assets as of the end of the two most recently completed calendar quarters that exceeds the product of (i) 200% and (ii) the average value of our net asset value at the end of the two most recently completed calendar quarters. For the three and nine months ended September 30, 2023, Management Fees of $0.3 million and $0.8 million have been waived pursuant to the Leverage Waiver. We may have capital gains and interest income that could result in the payment of an Incentive Fee to the Adviser in the twelve months after the date of this prospectus. The Incentive Fee payable in the example below is based upon our actual results for the year ended December 31, 2022 and assumes that the Incentive Fee is 17.5% for all relevant periods. However, the Incentive Fee payable to the Adviser is based on our performance and will not be paid unless we achieve certain goals.
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The Incentive Fee consists of two parts, as follows: |
(i) The first component, payable at the end of each quarter in arrears, equals 100% of the
pre-Incentive
Fee net investment income in excess of a 1.5% quarterly “hurdle rate,” the calculation of which is further explained below, until the Adviser has received 17.5% of the total
pre-Incentive
Fee net investment income for that quarter and, for
pre-Incentive
Fee net investment income in excess of 1.82% quarterly, 17.5% of all remaining
pre-Incentive
Fee net investment income for that quarter. The 100%
“catch-up”
provision for
pre-Incentive
Fee net investment income in excess of the 1.5% “hurdle rate” is intended to provide the Adviser with an Incentive Fee of 17.5% on all
pre-Incentive
Fee net investment income when that amount equals 1.82% in a quarter (7.28% annualized), which is the rate at which
catch-up
is achieved. Once the “hurdle rate” is reached and
catch-up
is achieved, 17.5% of any
pre-Incentive
Fee net investment income in excess of 1.82% in any quarter is payable to the Adviser.
Pre-Incentive
Fee net investment income means dividends, interest and fee income accrued by us during the calendar quarter, minus our operating expenses for the quarter (including the Management Fee, expenses payable under the Administration Agreement to the Administrator, and any interest expense and dividends paid on any issued and outstanding preferred stock, but excluding the Incentive Fee).
Pre-Incentive
Fee net investment income includes, in the case of investments with a deferred interest feature (such as original issue discount, debt instruments with
interest and zero coupon securities), accrued income that we may not have received in cash.
Pre-Incentive
Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses.
(ii) The second component, payable at the end of each fiscal year in arrears, equaled 15% through March 31, 2014 and, beginning April 1, 2014, equals a weighted percentage of cumulative realized capital gains from the Company’s inception to the end of that fiscal year, less cumulative realized capital losses and unrealized
19
capital losses. This component of the Incentive Fee is referred to as the Capital Gains Fee. Each year, the fee paid for
this component of the Incentive Fee is net of the aggregate amount of any previously paid Capital Gains Fee for prior periods. For capital gains that accrue following March 31, 2014, the Incentive Fee rate is 17.5%. The Company accrues, but does not pay, a capital gains Incentive Fee with respect to unrealized capital gains because a capital gains Incentive Fee would be owed to the Adviser if the Company were to sell the relevant investment and realize a capital gain. The weighted percentage is intended to ensure that for each fiscal year following the completion of the IPO, the portion of the Company’s realized capital gains that accrued prior to March 31, 2014, is subject to an Incentive Fee rate of 15% and the portion of the Company’s realized capital gains that accrued beginning April 1, 2014 is subject to an Incentive Fee rate of 17.5%. As of March 31, 2020, there are no remaining investments that were made prior to April 1, 2014, and as a result, the Incentive Fee rate of 17.5% is applicable to any future realized capital gains..
For purposes of determining whether
pre-Incentive
Fee net investment income exceeds the hurdle rate,
pre-Incentive
Fee net investment income is expressed as a rate of return on the value of our net assets at the end of the immediately preceding calendar quarter.
Pre-Incentive
Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses. Because of the structure of the Incentive Fee, it is possible that we may pay an Incentive Fee in a quarter in which we incur a loss. For example, if we receive
pre-Incentive
Fee net investment income in excess of the quarterly minimum hurdle rate, we will pay the applicable Incentive Fee even if we have incurred a loss in that quarter due to realized and unrealized capital losses. In addition, because the quarterly minimum hurdle rate is calculated based on our net assets, decreases in our net assets due to realized or unrealized capital losses in any given quarter may increase the likelihood that the hurdle rate is reached and therefore the likelihood of us paying an Incentive Fee for that quarter. Our net investment income used to calculate this component of the Incentive Fee is also included in the amount of our gross assets used to calculate the Management Fee because gross assets are total assets (including cash received) before deducting liabilities (such as declared dividend payments).
Section 205(b)(3) of the Advisers Act, as amended, prohibits the Adviser from receiving the payment of fees on unrealized gains until those gains are realized, if ever. There can be no assurance that such unrealized gains will be realized in the future.
See Note 3 to our consolidated financial statements in our 2022 Annual Report and our 3Q 2023 Quarterly Report and “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report.
From time to time, our Adviser has voluntarily waived certain Incentive Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Incentive Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates do not reflect or assume any such waivers.
| (7) |
Interest payments on borrowed funds is based on our interest expense for the year ended December 31, 2022 under our credit facilities excluding fees (such as fees on undrawn amounts and amortization of upfront fees) and including the swap-adjusted interest expense related to our 2022 Convertible Notes, 2023 Notes, 2024 Notes and 2026 Notes. This item is based on the assumption that our borrowings and interest costs after an offering will remain similar to those prior to such offering. We may borrow additional funds from time to time to make investments to the extent we determine that the economic situation is conducive to doing so. On October 8, 2018, our stockholders approved the application of the minimum asset coverage ratio of 150% to us, as set forth in Section 61(a)(2) of the 1940 Act, as amended by the SBCAA. |
20
| ( 8) |
Includes our overhead expenses, such as payments under the Administration Agreement for certain expenses incurred by the Adviser, and excise taxes. See “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. The expenses in this table are based on our actual other expenses and excise taxes for the year ended December 31, 2022. |
The following example demonstrates the projected dollar amount of total cumulative expe
n
ses over various periods with respect to a hypothetical investment in our common stock. In calculating the following expense amounts, we have assumed we would have no additional leverage and that our annual operating expenses would remain at the levels set forth in the table above. The Incentive Fee payable in the example below assumes that the Incentive Fee is 17.5% for all relevant periods. Transaction expenses are not included in the following example. In the event that shares to which this prospectus relates are sold to or through underwriters, a corresponding prospectus supplement will restate this example to reflect the applicable sales load and offering expenses.
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| |
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You would pay the following expenses on a $1,000 common stock investment, assuming a 5% annual return from realized capital gains |
|
$ |
92 |
|
|
$ |
265 |
|
|
$ |
423 |
|
|
$ |
765 |
|
The foregoing table is to assist you in understanding the various costs and expenses that an investor in our common stock will bear directly or indirectly. While the example assumes, as required by the SEC, a 5% annual return, our performance will vary and may result in a return greater or less than 5%. Because the income portion of the Incentive Fee under the Investment Advisory Agreement is unlikely to be significant assuming a 5% annual return, the example assumes that the 5% annual return will be generated entirely through the realization of capital gains on our assets and, as a result, will trigger the payment of the capital gains portion of the Incentive Fee under the Investment Advisory Agreement. The income portion of the Incentive Fee under the Investment Advisory Agreement, which, assuming a 5% annual return, would either not be payable or have an immaterial impact on the expense amounts shown above, is not included in the example. If we achieve sufficient returns on our investments, including through the realization of capital gains, to trigger an Incentive Fee of a material amount, our expenses, and returns to our investors, would be higher. In addition, while the example assumes reinvestment of all dividends and distributions at net asset value, under certain circumstances, reinvestment of dividends and other distributions under our dividend reinvestment plan may occur at a price per share that differs from net asset value. See “Dividend Reinvestment Plan” for additional information regarding our dividend reinvestment
plan.
This example and the expenses in the table above should not be considered a representation of our future expenses, and actual expenses (including the cost of debt, if any, and other expenses) may be greater or less than those shown.
21
The financial data set forth in the following table as of and for the years ended December 31, 2022, 2021, 2020, 2019, 2018, 2017, 2016, 2015, 2014 and 2013 are derived from our consolidated financial statements, which have been audited by KPMG LLP, an independent registered public accounting firm whose reports thereon are incorporated by reference in this prospectus, certain documents incorporated by reference in this prospectus or the accompanying prospectus supplement, or our Annual Reports on Form 10-K filed with the SEC, which may be obtained from www.sec.gov or upon request. The financial data set forth in the following table as of and for the nine months ended September 30, 2023, is derived from our unaudited financial statements, but in the opinion of management, reflects all adjustments (consisting only of normal recurring adjustments) that are necessary to present fairly the results of such interim period. Interim results as of and for the nine months ended September 30, 2023, are not necessarily indicative of the results that may be expected for the year ending December 31, 2023. You should read these financial highlights in conjunction with our consolidated financial statements and notes thereto and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” incorporated by reference into this prospectus, any documents incorporated by reference in this prospectus or the accompanying prospectus supplement, or our Annual Reports on
Form 10-K
filed with the SEC.
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|
Nine Months
Ended
September 30,
2023 |
|
|
Year Ended
December 31,
2022 |
|
|
Year Ended
December 31,
2021 |
|
|
Year Ended
December 31,
2020 |
|
|
Year Ended
December 31,
2019 |
|
|
Year Ended
December 31,
2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net asset value, beginning of period |
|
$ |
16.48 |
|
|
$ |
16.84 |
|
|
$ |
17.16 |
|
|
$ |
16.83 |
|
|
$ |
16.25 |
|
|
$ |
16.09 |
|
|
|
|
1.68 |
|
|
|
2.13 |
|
|
|
1.97 |
|
|
|
2.19 |
|
|
|
1.94 |
|
|
|
2.25 |
|
Net realized and unrealized gains (losses) (1) |
|
|
0.35 |
|
|
|
(0.75 |
) |
|
|
0.96 |
|
|
|
0.46 |
|
|
|
0.40 |
|
|
|
(0.39 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.03 |
|
|
|
1.38 |
|
|
|
2.93 |
|
|
|
2.65 |
|
|
|
2.34 |
|
|
|
1.86 |
|
Issuance of common stock, net of offering costs (2) |
|
|
0.03 |
|
|
|
0.04 |
|
|
|
0.31 |
|
|
|
0.01 |
|
|
|
0.04 |
|
|
|
0.08 |
|
Settlement of 2022 Convertible Notes (2) |
|
|
— |
|
|
|
0.08 |
|
|
|
0.03 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Repurchase of common stock (2) |
|
|
— |
|
|
|
(0.02 |
) |
|
|
— |
|
|
|
0.01 |
|
|
|
— |
|
|
|
— |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(0.01 |
) |
|
|
— |
|
|
|
— |
|
Dividends declared from net investment income (2) |
|
|
— |
|
|
|
(1.59 |
) |
|
|
(2.80 |
) |
|
|
(2.07 |
) |
|
|
(1.81 |
) |
|
|
(1.77 |
) |
Dividends declared from realized gains (2) |
|
|
(1.57 |
) |
|
|
(0.25 |
) |
|
|
(0.79 |
) |
|
|
(0.23 |
) |
|
|
— |
|
|
|
(0.01 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total increase/(decrease) in net assets |
|
|
0.49 |
|
|
|
(0.36 |
) |
|
|
(0.32 |
) |
|
|
0.33 |
|
|
|
0.58 |
|
|
|
0.16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Asset Value, End of Period |
|
$ |
16.97 |
|
|
$ |
16.48 |
|
|
$ |
16.84 |
|
|
$ |
17.16 |
|
|
$ |
16.83 |
|
|
$ |
16.25 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
December 31,
2017 |
|
|
Year Ended
December 31,
2016 |
|
|
Year Ended
December 31,
2015 |
|
|
Year Ended
December 31,
2014 |
|
|
Year Ended
December 31,
2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net asset value, beginning of period |
|
$ |
15.95 |
|
|
$ |
15.15 |
|
|
$ |
15.53 |
|
|
$ |
15.52 |
|
|
$ |
15.19 |
|
|
|
|
2.00 |
|
|
|
1.83 |
|
|
|
1.76 |
|
|
|
2.07 |
|
|
|
1.66 |
|
Net realized and unrealized gains (losses) (1) |
|
|
(0.14 |
) |
|
|
0.51 |
|
|
|
(0.58 |
) |
|
|
(0.33 |
) |
|
|
0.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.86 |
|
|
|
2.34 |
|
|
|
1.18 |
|
|
|
1.74 |
|
|
|
1.89 |
|
Issuance of common stock, net of offering costs (2) |
|
|
0.03 |
|
|
|
0.03 |
|
|
|
— |
|
|
|
(0.20 |
) |
|
|
— |
|
Settlement of 2022 Convertible Notes (2) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Repurchase of common stock (2) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Dividends declared from net investment income (2) |
|
|
(1.53 |
) |
|
|
(1.39 |
) |
|
|
(1.15 |
) |
|
|
(1.51 |
) |
|
|
(1.36 |
) |
Dividends declared from realized gains (2) |
|
|
(0.22 |
) |
|
|
(0.17 |
) |
|
|
(0.41 |
) |
|
|
(0.02 |
) |
|
|
(0.20 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total increase/(decrease) in net assets |
|
|
0.14 |
|
|
|
0.81 |
|
|
|
(0.38 |
) |
|
|
0.01 |
|
|
|
0.33 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Asset Value, End of Period |
|
$ |
16.09 |
|
|
$ |
15.95 |
|
|
$ |
15.15 |
|
|
$ |
15.53 |
|
|
$ |
15.52 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Nine Months
Ended
September 30,
2023 |
|
|
Year Ended
December 31,
2022 |
|
|
Year Ended
December 31,
2021 |
|
|
Year Ended
December 31,
2020 |
|
|
Year Ended
December 31,
2019 |
|
|
Year Ended
December 31,
2018 |
|
Per share market value at end of period |
|
$ |
20.44 |
|
|
$ |
17.80 |
|
|
$ |
23.39 |
|
|
$ |
20.75 |
|
|
$ |
21.47 |
|
|
$ |
18.09 |
|
Total return based on market value with reinvestment of dividends (3) |
|
|
23.65 |
% |
|
|
(15.78 |
)% |
|
|
32.80 |
% |
|
|
11.24 |
% |
|
|
30.57 |
% |
|
|
4.24 |
% |
Total return based on market value (4) |
|
|
25.14 |
% |
|
|
(16.03 |
)% |
|
|
30.02 |
% |
|
|
7.36 |
% |
|
|
28.69 |
% |
|
|
0.35 |
% |
Total return based on net asset value (5) |
|
|
12.49 |
% |
|
|
8.79 |
% |
|
|
19.06 |
% |
|
|
15.63 |
% |
|
|
14.71 |
% |
|
|
12.06 |
% |
Shares Outstanding, End of Period |
|
|
87,546,498 |
|
|
|
81,389,287 |
|
|
|
75,771,542 |
|
|
|
67,684,209 |
|
|
|
66,524,591 |
|
|
|
65,412,817 |
|
Ratios / Supplemental Data (6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of net expenses to average net assets (7) |
|
|
16.71 |
% |
|
|
11.05 |
% |
|
|
11.17 |
% |
|
|
11.10 |
% |
|
|
11.27 |
% |
|
|
11.32 |
% |
Ratio of net investment income to average net assets |
|
|
13.39 |
% |
|
|
12.85 |
% |
|
|
11.67 |
% |
|
|
13.26 |
% |
|
|
11.73 |
% |
|
|
13.80 |
% |
Portfolio turnover |
|
|
16.12 |
% |
|
|
26.67 |
% |
|
|
44.23 |
% |
|
|
41.88 |
% |
|
|
30.89 |
% |
|
|
44.57 |
% |
Net assets, end of period |
|
$ |
1,485,822 |
|
|
$ |
1,341,569 |
|
|
$ |
1,275,848 |
|
|
$ |
1,161,315 |
|
|
$ |
1,119,297 |
|
|
$ |
1,063,202 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Year Ended
December 31,
2017 |
|
|
Year Ended
December 31,
2016 |
|
|
Year Ended
December 31,
2015 |
|
|
Year Ended
December 31,
2014 |
|
|
Year Ended
December 31,
2013 |
|
Per share market value at end of period |
|
$ |
19.80 |
|
|
$ |
18.68 |
|
|
$ |
16.22 |
|
|
$ |
16.82 |
|
|
|
— |
|
Total return based on market value with reinvestment of dividends (3) |
|
|
15.75 |
% |
|
|
26.74 |
% |
|
|
5.75 |
% |
|
|
12.28 |
% |
|
|
— |
|
Total return based on market value (4) |
|
|
15.36 |
% |
|
|
24.78 |
% |
|
|
5.71 |
% |
|
|
14.69 |
% |
|
|
— |
|
Total return based on net asset value (5) |
|
|
11.87 |
% |
|
|
15.54 |
% |
|
|
7.62 |
% |
|
|
9.92 |
% |
|
|
12.44 |
% |
Shares Outstanding, End of Period |
|
|
60,247,201 |
|
|
|
59,716,205 |
|
|
|
54,163,960 |
|
|
|
53,797,358 |
|
|
|
37,026,023 |
|
Ratios / Supplemental Data (6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of net expenses to average net assets (7) |
|
|
9.41 |
% |
|
|
9.39 |
% |
|
|
9.31 |
% |
|
|
7.56 |
% |
|
|
6.60 |
% |
Ratio of net investment income to average net assets |
|
|
12.49 |
% |
|
|
11.84 |
% |
|
|
11.35 |
% |
|
|
13.42 |
% |
|
|
10.80 |
% |
Portfolio turnover |
|
|
58.08 |
% |
|
|
37.40 |
% |
|
|
34.51 |
% |
|
|
53.16 |
% |
|
|
26.97 |
% |
Net assets, end of period |
|
$ |
969,284 |
|
|
$ |
952,212 |
|
|
$ |
820,741 |
|
|
$ |
835,405 |
|
|
$ |
574,696 |
|
| (1) |
The per share data was derived by using the weighted average shares outstanding during the period. |
| (2) |
The per share data was derived by using the actual shares outstanding at the date of the relevant transactions. |
| (3) |
Total return based on market value with dividends reinvested is calculated as the change in market value per share during the period plus declared dividends per share, assuming reinvestment of dividends, divided by the beginning market value per share. |
| (4) |
Total return based on market value is calculated as the change in market value per share during the period plus declared dividends per share, divided by the beginning market value per share. |
| (5) |
Total return based on net asset value is calculated as the change in net asset value per share during the period plus declared dividends per share, divided by the beginning net asset value per share. |
| (6) |
The ratios reflect an annualized amount. |
| (7) |
The ratio of net expenses to average net assets in the table above reflects the Adviser’s waivers of its right to receive a portion of the Management Fee pursuant to the Leverage Waiver for the nine months ended September 30, 2023. Excluding the effects of the waivers, the ratio of net expenses to average net assets would have been 16.79%, for the nine months ended September 30, 2023. The ratio of net expenses to average net assets in the table above reflects the Adviser’s waivers of its right to receive a portion of the Management Fee pursuant to the Leverage Waiver for the years ended December 31, 2022 and 2021 and the Adviser’s waivers of its right to receive a portion of the Management and Incentive Fees with respect to the Company’s ownership of shares of common stock of Oxford Square Capital Corp. and Triangle Capital Corp for the year ended December 31, 2018. Excluding the effects of the waivers, the ratio of net expenses to average net assets would have been 11.08%, 11.19% and 11.33% for the years ended December 31, 2022, 2021 and 2018, respectively. The Adviser did not waive any Management Fees or Incentive Fees for the years ended December 31, 2020 and 2019. Excluding the effects of the waivers, the ratio of net expenses to average net assets would have been 9.42%, 9.43% and 9.33% for the years ended December 31, 2017, 2016 and 2015, respectively. For the years ended December 31, 2014 and 2013, the Company did not own any shares of common stock of TICC Capital Corp. or Triangle Capital Corp. For the years ended December 31, 2014 and 2013, the ratio of net expenses to average net assets in the table above reflects the Adviser’s waivers of its right to receive a portion of the Management Fee prior to the Company’s IPO. Excluding the effects of the waiver, the ratio of net expenses to average net assets would have been 7.88%, and 7.94% for the years ended December 31, 2014 and 2013, respectively. |
| (8) |
Table may not sum due to rounding. |
23
Investing in our securities involves a number of significant risks. You should carefully consider the risks set out below and described in Part I, Item 1A, “Risk Factors,” in our 2022 Annual Report and Part I, Item IA, “Risk Factors,” in our quarterly report on Form
10-Q
for the three months ended March 31, 2023 (the “1Q 2023 Quarterly Report”), in our quarterly report on Form
10-Q
for the three months ended June 30, 2023 (the “2Q 2023 Quarterly Report”), and in our 3Q 2023 Quarterly Report, which are incorporated by reference in this prospectus, together with the other information set forth in this prospectus or in any prospectus supplement and in the other documents that we include or incorporate by reference into this prospectus before making a decision about investing in our securities. The risks and uncertainties set out below and discussed in our 2022 Annual Report, 1Q 2023 Quarterly Report, 2Q 2023 Quarterly Report, and 3Q 2023 Quarterly Report are not the only ones we face. Additional risks and uncertainties not presently known to us or not presently deemed material by us may also materially and adversely affect our business, financial condition and results of operations. In such case, our net asset value and the trading price of our securities could decline, and you may lose all or part of your investment.
Risks Related to Offerings Pursuant to This Prospectus
We will have broad discretion over the use of proceeds of any offering made pursuant to this prospectus, to the extent it is successful.
We will have significant flexibility in applying the proceeds of any offering made pursuant to this prospectus. For example, we may pay operating expenses from net proceeds, which could limit our ability to achieve our investment objective.
The net asset value per share of our common stock may be diluted if we sell or otherwise issue shares of our common stock at prices below the then-current net asset value per share of our common stock.
Pursuant to approval granted at a special meeting of stockholders held on May 25, 2023, we are currently permitted to sell or otherwise issue shares of our common stock at a price below our then-current net asset value per share, subject to the approval of our Board and certain other conditions. Such stockholder approval expires on May 25, 2024. We intend to propose the extension of this approval in future years.
Any decision to sell or otherwise issue shares of our common stock below our then-current net asset value per share would be subject to the determination by our board of directors that such issuance or sale is in our and our stockholders’ best interests.
If we were to sell or otherwise issue shares of our common stock below our then-current net asset value per share, such issuances or sales would result in an immediate dilution to the net asset value per share of our common stock. This dilution would occur as a result of the issuance or sale of shares at a price below the then-current net asset value per share of our common stock and a proportionately greater decrease in the stockholders’ interest in our earnings and assets and their voting interest in us than the increase in our assets resulting from such issuance or sale. Because the number of shares of common stock that could be so issued and the timing of any issuance is not currently known, the actual dilutive effect cannot be predicted.
Further, if our current stockholders do not purchase any shares to maintain their percentage interest, regardless of whether such offering is above or below the then-current net asset value per share, their voting power will be diluted. For additional information and hypothetical examples of these risks, see “Sales of Common Stock Below Net Asset Value” and the prospectus supplement pursuant to which such sale is made.
Your interest in us may be diluted if you do not fully exercise your subscription rights in any rights offering. In addition, if the subscription price is less than our net asset value per share, then you will experience an immediate dilution of the aggregate net asset value of your shares.
In the event we issue subscription rights, stockholders who do not fully exercise their subscription rights should expect that they will, at the completion of a rights offering pursuant to this prospectus, own a smaller proportional interest in us than would otherwise be the case if they fully exercised their rights. We cannot state precisely the amount of any such dilution in share ownership because we do not know at this time what proportion of the shares will be purchased as a result of such rights offering.
In addition, if the subscription price is less than the net asset value per share of our common stock, then our stockholders would experience an immediate dilution of the aggregate net asset value of their shares as a result of the offering. The amount of any decrease in net asset value is not predictable because it is not known at this time what the subscription price and net asset value per share will be on the expiration date of a rights offering or what proportion of the shares will be purchased as a result of such rights offering. Such dilution could be substantial.
We may in the future determine to issue preferred stock, which could adversely affect the market value of our common stock and cause the net asset value and market value of our common stock to be more volatile.
The issuance of shares of preferred stock with dividend or conversion rights, liquidation preferences or other economic terms favorable to the holders of preferred stock could adversely affect the market price for our common stock by making an investment in the common stock less attractive and could make the net asset value and market value of our common stock more volatile. Payment of dividends and repayment of the liquidation preference of preferred stock would take preference over any dividends or other payments to our common stockholders, and holders of preferred stock would not be subject to any of our expenses or losses and would not be entitled to participate in any income or appreciation in excess of their stated preference (other than convertible preferred stock that converts into common stock). If the dividend rate on the preferred stock were to approach the net rate of return on our investment portfolio, the benefit of leverage to the holders of the common stock would be reduced. If the dividend rate on the preferred stock were to exceed the net rate of return on our portfolio, the leverage would result in a lower rate of return to the holders of common stock than if we had not issued preferred stock. Any decline in the net asset value of our investments would be borne entirely by the holders of common stock. Therefore, if the market value of our portfolio were to decline, the leverage would result in a greater decrease in net asset value to the holders of common stock than if we were not leveraged through the issuance of preferred stock. This greater net asset value decrease would also tend to cause a greater decline in the market price for the common stock. We might be in danger of failing to maintain the required asset coverage of the preferred stock or of losing our ratings on the preferred stock or, in an extreme case, our current investment income might not be sufficient to meet the dividend requirements on the preferred stock. In order to counteract such an event, we might need to liquidate investments in order to fund a redemption of some or all of the preferred stock. In addition, under the 1940 Act, preferred stock constitutes a “senior security” for purposes of the asset coverage test.
Holders of any preferred stock we might issue would have the right to elect members of the board of directors and class voting rights on certain matters.
Holders of any preferred stock we might issue, voting separately as a single class, would have the right to elect two members of the Board at all times and in the event dividends become two full years in arrears would have the right to elect a majority of the directors until such arrearage is completely eliminated. In addition, preferred stockholders may have class voting rights on certain matters, including changes in fundamental investment restrictions and conversion to
open-end
status, and, accordingly, could veto any such changes. Restrictions imposed on the declarations and payment of dividends or other distributions to the holders of our common stock and preferred stock, both by the 1940 Act and by requirements imposed by rating agencies or the terms of our credit facilities, might impair our ability to maintain our qualification as a RIC for federal income
tax purposes. While we would intend to redeem our preferred stock to the extent necessary to enable us to distribute our income as required to maintain our qualification as a RIC, there can be no assurance that such actions could be effected in time to meet the tax requirements.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve substantial risks and uncertainties. These forward-looking statements are not historical facts, but rather are based on current expectations, estimates and projections about us, our current and prospective portfolio investments, our industry, our beliefs, and our assumptions. Words such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “would,” “should,” “targets,” “projects,” and variations of these words and similar expressions are intended to identify forward-looking statements. These statements are not guarantees of future performance and are subject to risks, uncertainties, and other factors, some of which are beyond our control and difficult to predict, that could cause actual results to differ materially from those expressed or forecasted in the forward-looking statements.
In addition to factors identified elsewhere in this prospectus and the documents incorporated by reference herein, the following factors, among others, could cause actual results to differ materially from forward-looking statements or historical performance:
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• |
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an economic downturn could impair our portfolio companies’ abilities to continue to operate, which could lead to the loss of some or all of our investments in those portfolio companies; |
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• |
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such an economic downturn could disproportionately impact the companies in which we have invested and others that we intend to target for investment, potentially causing us to experience a decrease in investment opportunities and diminished demand for capital from these companies; |
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• |
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such an economic downturn could also impact availability and pricing of our financing; |
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• |
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an inability to access the capital markets could impair our ability to raise capital and our investment activities; |
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• |
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inflation could negatively impact our business, including our ability to access the debt markets on favorable terms, or could negatively impact our portfolio companies; and |
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• |
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the risks, uncertainties and other factors we identify in the section entitled “Risk Factors” in this prospectus and in Part I, Item 1A of our 2022 Annual Report and Part II, Item 1A of our 3Q 2023 Quarterly Report, and those discussed in other documents we file with the SEC. |
Although we believe that the assumptions on which these forward-looking statements are based are reasonable, some of those assumptions are based on the work of third parties and any of those assumptions could prove to be inaccurate; as a result, forward-looking statements based on those assumptions also could prove to be inaccurate. In light of these and other uncertainties, the inclusion of a projection or forward-looking statement in this prospectus should not be regarded as a representation by us that our plans and objectives will be achieved. These risks and uncertainties include, among other things, those described or identified in the section entitled “Risk Factors” in this prospectus and in Part I, Item 1A and Part II, Item 1A of our 3Q 2023 Quarterly Report, and in our 2022 Annual Report and those discussed in other documents we file with the SEC and elsewhere in this prospectus and the documents incorporated by reference herein. You should not place undue reliance on these forward-looking statements, which apply only as of the date of this prospectus. We do not undertake any obligation to update or revise any forward-looking statements or any other information contained herein or therein, except as required by applicable law. You should understand that, under Section 27A(b)(2)(B) of the Securities Act and Section 21E(b)(2)(B) of the Exchange Act, the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, which preclude civil liability for certain forward-looking statements, do not apply to the forward-looking statements made in connection with any offering of securities pursuant to this prospectus.
The “TSLX” and “TAO” marks are marks of Sixth Street.
Unless otherwise specified in a prospectus supplement, we intend to use the net proceeds from the sale of our securities pursuant to this prospectus for general corporate purposes, which may include investing in portfolio companies in accordance with our investment objective and strategies described in this prospectus and repaying indebtedness (which will be subject to reborrowing). The supplement to this prospectus relating to an offering will more fully identify the use of the proceeds from such offering.
We estimate that it will take less than three months for us to substantially invest the net proceeds of any offering made pursuant to this prospectus, depending on the availability of attractive opportunities, market conditions and the amount raised.
Proceeds not immediately used for new investments or the temporary repayment of debt will be invested primarily in cash, cash equivalents, U.S. government securities and other high-quality investments that mature in one year or less from the date of investment. These securities may have lower yields than the types of investments we would typically make in accordance with our investment objective and, accordingly, may result in lower dividends, if any, during such period.
PRICE RANGE OF COMMON STOCK AND DISTRIBUTIONS
Our common stock is traded on the NYSE under the symbol “TSLX.” Our common stock has historically traded at prices both above and below our net asset value per share. It is not possible to predict whether our common stock will trade at a price per share at, above or below net asset value per share. See “Risk Factors—Risks Related to Offerings Pursuant to This Prospectus.”
The following table sets forth the net asset value per share of our common stock, the range of high and low closing sales prices of our common stock reported on the NYSE, the closing sales price as a premium (discount) to net asset value and the dividends declared by us in each fiscal quarter for the year ending December 31, 2023, and for the years ended December 31, 2022 and December 31, 2021. On December 20, 2023, the last reported closing sales price of our common stock on the NYSE was $21.08 per share, which represented a premium of approximately 24.2% to the net asset value per share reported by us as of September 30, 2023, the last date prior to the date of this prospectus for which we reported net asset value.
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High Sales Price to Net Asset Value (2) |
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|
Low Sales
Price to
Net Asset
Value |
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|
| |
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Year ended December 31, 2021 |
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|
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|
|
|
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|
|
|
|
|
$ |
16.47 |
|
|
$ |
22.76 |
|
|
$ |
20.46 |
|
|
|
38.2 |
% |
|
|
24.2 |
% |
|
$ |
1.71 |
|
|
|
|
16.85 |
|
|
|
22.78 |
|
|
|
20.80 |
|
|
|
35.2 |
% |
|
|
23.4 |
% |
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|
0.47 |
|
|
|
|
17.18 |
|
|
|
23.97 |
|
|
|
21.13 |
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|
39.5 |
% |
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|
23.0 |
% |
|
|
0.43 |
|
|
|
|
16.84 |
|
|
|
24.74 |
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|
21.97 |
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|
47.0 |
% |
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30.5 |
% |
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|
0.98 |
|
Year ended December 31, 2022 |
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$ |
16.88 |
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$ |
24.27 |
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|
$ |
22.40 |
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|
43.8 |
% |
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|
23.0 |
% |
|
$ |
0.52 |
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|
16.27 |
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|
23.64 |
|
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|
18.09 |
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45.3 |
% |
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|
11.2 |
% |
|
|
0.45 |
|
|
|
|
16.36 |
|
|
|
19.64 |
|
|
|
6.13 |
|
|
|
19.9 |
% |
|
|
(1.4 |
)% |
|
|
0.42 |
|
|
|
|
16.48 |
|
|
|
19.14 |
|
|
|
16.56 |
|
|
|
16.1 |
% |
|
|
0.5 |
% |
|
|
0.45 |
|
Year ending December 31, 2023 |
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$ |
16.59 |
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$ |
19.83 |
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$ |
16.86 |
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19.5 |
% |
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|
1.6 |
% |
|
$ |
0.55 |
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16.74 |
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20.08 |
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17.31 |
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20.0 |
% |
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3.4 |
% |
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|
0.50 |
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|
16.97 |
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20.97 |
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19.02 |
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23.6 |
% |
|
|
12.1 |
% |
|
|
0.52 |
|
Fourth Quarter (through December 20, 2023 ) |
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* |
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21.49 |
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19.05 |
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* |
% |
|
|
* |
% |
|
|
0.53 |
|
| (1) |
Net asset value per share is determined as of the last day in the relevant quarter and therefore may not reflect the net asset value per share on the date of the high and low closing sales prices. The net asset values shown are based on outstanding shares at the end of the relevant quarter. |
| (2) |
Calculated as the respective high or low closing sales price less net asset value, divided by net asset value (in each case, as of the applicable quarter). Does not reflect intraday trading prices. |
| (3) |
Represents the dividends declared in the relevant quarter. |
| * |
Net asset value has not yet been reported for this period. |
To the extent we have earnings available for distribution, we expect to continue distributing quarterly dividends to our stockholders. Our quarterly dividends, if any, will be determined by our Board. Any dividends to our stockholders will be declared out of assets legally available for distribution.
The following tables summarize dividends declared during the nine months ended September 30, 2023 and years ended December 31, 2022 and 2021:
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Nine Months Ended September 30, 2023 |
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Date Declared |
|
Dividend |
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|
Record Date |
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Payment Date |
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|
Dividend
per Share |
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February 16, 2023 |
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|
Supplemental |
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February 28, 2023 |
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March 20, 2023 |
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$ |
0.09 |
|
February 16, 2023 |
|
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Base |
|
|
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March 15, 2023 |
|
|
|
March 31, 2023 |
|
|
|
0.46 |
|
May 8, 2023 |
|
|
Supplemental |
|
|
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May 31, 2023 |
|
|
|
June 20, 2023 |
|
|
|
0.04 |
|
May 8, 2023 |
|
|
Base |
|
|
|
June 15, 2023 |
|
|
|
June 30, 2023 |
|
|
|
0.46 |
|
August 3, 2023 |
|
|
Supplemental |
|
|
|
August 31, 2023 |
|
|
|
September 20, 2023 |
|
|
|
0.06 |
|
August 3, 2023 |
|
|
Base |
|
|
|
September 15, 2023 |
|
|
|
September 29, 2023 |
|
|
|
0.46 |
|
|
|
|
|
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|
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|
|
|
|
|
|
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Total Dividends Declared |
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|
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$ |
1.57 |
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| |
|
Year Ended December 31, 2022 |
|
Date Declared |
|
Dividend |
|
|
Record Date |
|
|
Payment Date |
|
|
Dividend
per Share |
|
| February 17, 2022 |
|
|
Supplemental |
|
|
|
February 28, 2022 |
|
|
|
March 31, 2022 |
|
|
$ |
0.11 |
|
| February 17, 2022 |
|
|
Base |
|
|
|
March 15, 2022 |
|
|
|
April 18, 2022 |
|
|
|
0.41 |
|
| May 3, 2022 |
|
|
Supplemental |
|
|
|
May 31, 2022 |
|
|
|
September 30, 2022 |
|
|
|
0.04 |
|
| May 3, 2022 |
|
|
Base |
|
|
|
June 15, 2022 |
|
|
|
July 15, 2022 |
|
|
|
0.41 |
|
| August 2, 2022 |
|
|
Base |
|
|
|
September 15, 2022 |
|
|
|
September 30, 2022 |
|
|
|
0.42 |
|
| November 1, 2022 |
|
|
Base |
|
|
|
December 15, 2022 |
|
|
|
December 30, 2022 |
|
|
|
0.45 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total Dividends Declared |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1.84 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
| |
|
Year Ended December 31, 2021 |
|
Date Declared |
|
Dividend |
|
|
Record Date |
|
|
Payment Date |
|
|
Dividend
per Share |
|
February 17, 2021 |
|
|
Supplemental |
|
|
|
February 26, 2021 |
|
|
|
March 31, 2021 |
|
|
$ |
0.05 |
|
February 17, 2021 |
|
|
Base |
|
|
|
March 15, 2021 |
|
|
|
April 15, 2021 |
|
|
|
0.41 |
|
February 17, 2021 |
|
|
Special |
|
|
|
March 25, 2021 |
|
|
|
April 8, 2021 |
|
|
|
1.25 |
|
May 4, 2021 |
|
|
Supplemental |
|
|
|
May 28, 2021 |
|
|
|
June 30, 2021 |
|
|
|
0.06 |
|
May 4, 2021 |
|
|
Base |
|
|
|
June 15, 2021 |
|
|
|
July 15, 2021 |
|
|
|
0.41 |
|
August 3, 2021 |
|
|
Supplemental |
|
|
|
August 31, 2021 |
|
|
|
September 30, 2021 |
|
|
|
0.02 |
|
August 3, 2021 |
|
|
Base |
|
|
|
September 15, 2021 |
|
|
|
October 15, 2021 |
|
|
|
0.41 |
|
November 2, 2021 |
|
|
Supplemental |
|
|
|
November 30, 2021 |
|
|
|
December 31, 2021 |
|
|
|
0.07 |
|
November 2, 2021 |
|
|
Special |
|
|
|
December 7, 2021 |
|
|
|
December 20, 2021 |
|
|
|
0.50 |
|
November 2, 2021 |
|
|
Base |
|
|
|
December 15, 2021 |
|
|
|
January 14, 2022 |
|
|
|
0.41 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Dividends Declared |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
3.59 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The dividends declared during the nine months ended September 30, 2023 were derived from net investment income, determined on a tax basis. The dividends declared during the year ended December 31, 2022 were derived from net investment income and net realized capital gains, determined on a tax basis.
To the extent that the amounts distributed by us are in excess of our current and accumulated earnings and profits, such excess distributions will be treated first as a return of capital to the extent of a stockholder’s tax basis in his or her shares and then as capital gain. Reducing a stockholder’s tax basis will have the effect of increasing his or her gain (or reducing loss) on a subsequent sale of shares. The specific tax characteristics of the dividend will be reported to stockholders after the end of the calendar year.
To be treated as a regulated investment company, or a RIC, for U.S. federal income tax purposes and therefore to avoid being subject to corporate-level U.S. federal income taxation of our earnings, we must
30
distribute (or be treated as distributing) in each taxable year dividends for tax purposes equal to at least 90% of our investment company taxable income (as defined by the Code) and 90% of our net
tax-exempt
income to our stockholders in that taxable year. In addition, we generally will be subject to a nondeductible U.S. federal excise tax equal to 4% of the amount by which our distributions for a calendar year are less than the sum of:
| |
• |
|
98% of our net ordinary income, excluding certain ordinary gains and losses, recognized during such calendar year; |
| |
• |
|
98.2% of our capital gain net income, adjusted for certain ordinary gains and losses, recognized for the twelve-month period ending on October 31 of such calendar year; and |
| |
• |
|
100% of income or gains recognized, but not distributed, in preceding years. |
For these purposes, we will be deemed to have distributed any net ordinary taxable income or capital gain net income on which we have paid U.S. federal income tax. Depending on the level of taxable income earned in a calendar year, we may choose to carry forward taxable income for distribution in the following calendar year, and pay any applicable U.S. federal excise tax. We elected to retain a portion of income and capital gains for the nine months ended September 30, 2023 and for calendar years ended December 31, 2022 and 2021 for purposes of additional liquidity and we recorded a net expense of $1.8 million for the nine months ended September 30, 2023 and $2.2 million and $0.7 million for the years ended December 31, 2022, and December 31, 2021, respectively, for U.S. federal excise tax as a result. We cannot assure you that we will achieve results that will permit the payment of any dividends. See “Risk Factors—Risks Related to Our Business and Structure—We will be subject to corporate-level U.S. federal income tax if we are unable to maintain our qualification as a RIC under Subchapter M of the Code, including as a result of our failure to satisfy the RIC distribution requirements” in Part I, Item 1A of our 2022 Annual Report.
We also intend to distribute net capital gains (that is, net long-term capital gains in excess of net short-term capital losses), if any, at least annually out of the assets legally available for such distributions. However, we may decide in the future to retain such net capital gains for investment and elect to treat such gains as deemed distributions to our stockholders. If this happens, our stockholders will be treated for U.S. federal income tax purposes as if they had received an actual distribution of the net capital gains that we retain and they reinvested the net
after-tax
proceeds in us. In this situation, our stockholders would be eligible to claim a tax credit (or, in certain circumstances, a tax refund) equal to their allocable share of the tax we paid on the capital gains deemed distributed to them. See “Material U.S. Federal Income Tax Considerations.” We cannot assure you that we will achieve results that will permit us to pay any cash dividends or that we will not be limited in our ability to pay dividen
d
s under the asset coverage test applicable to us under the 1940 Act.
Unless our common stockholders elect to receive their dividends in cash, we intend to make such distributions in additional shares of our common stock under our dividend reinvestment plan. See “Dividend Reinvestment Plan.”
Information about our senior securities is shown as of the dates indicated in the below table
. The report of our independent registered public accounting firm, KPMG LLP, on the senior securities table as of December 31, 2022 is included in our 2022 Annual Report and is incorporated by reference to the registration statement of which this prospectus is a part.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
Revolving Credit Facilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
758.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
719.3 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
316.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
472.3 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
495.7 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
187.5 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
486.8 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
578.7 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
540.3 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
283.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
432.3 |
|
|
|
2,329.5 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.3 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.1 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
112.5 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
111.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
100.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
142.5 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.9 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.7 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
347.1 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.8 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.1 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
297.2 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.8 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.5 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.1 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
(1) |
Total amount of each class of senior securities outstanding at carrying value, excluding the impact of deferred financing costs and hedge accounting relationships, at the end of the period presented |
The table set forth below contains certain information as of September 30, 2023 for each portfolio company in which we had an investment. Other than these investments, our only formal relationships with our portfolio companies are the managerial assistance that we may provide upon request and any board observer or participation rights we may receive in connection with our investment. In this table, we have further specified our descriptions of certain investments to indicate whether they are Debt Investments such as first-lien or second-lien loans, unsecured notes, or bonds, or they are Equity or Other Investments such as common equity, preferred equity, or equity warrants. We either originated or purchased in the secondary market the Debt Investments and Equity or Other Investments in our current portfolio.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bestpass, Inc. (3)(5) 500 New Karner Road Albany, NY 12205 USA |
|
First-lien loan ($39,900 par, due 5/2029) |
|
|
5/26/2023 |
|
|
|
SOFR + 5.75 |
% |
|
|
11.07 |
% |
|
$ |
38,810 |
|
|
$ |
39,202 |
|
|
|
2.6 |
% |
|
|
|
|
Carlstar Group, LLC (3) 725 Cool Springs Boulevard Suite 500 Franklin, TN 37067 USA |
|
First-lien loan ($26,118 par, due 7/2027) |
|
|
7/8/2022 |
|
|
|
SOFR + 6.60 |
% |
|
|
11.92 |
% |
|
|
25,508 |
|
|
|
26,378 |
|
|
|
1.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
64,318 |
|
|
|
65,580 |
|
|
|
4.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acceo Solutions, Inc. (3)(4)(5) 75, Queen Street Suite 6100 Montreal, Quebec H3C 2N6 Canada |
|
First-lien loan (CAD 57,353 par, due 10/2025) |
|
|
7/6/2018 |
|
|
|
C + 4.75 |
% |
|
|
10.14 |
% |
|
|
43,340 |
|
|
|
42,633
|
|
|
|
2.9 |
% |
|
|
|
|
Alpha Midco, Inc. (3)(5) 3933 Lake Washington Blvd NE #350 Kirkland, WA 98033 USA |
|
First-lien loan ($68,794 par, due 8/2025) |
|
|
8/15/2019 |
|
|
|
SOFR + 7.65 |
% |
|
|
12.99 |
% |
|
|
68,125 |
|
|
|
69,660 |
|
|
|
4.7 |
% |
|
|
|
|
BCTO Ignition Purchaser, Inc. (3) 1801 West End Ave Suite 300 Nashville, TN 37203 USA |
|
First-lien holdco loan ($30,913 par, due 10/2030) |
|
|
4/18/2023 |
|
|
|
SOFR + 9.00 |
% |
|
|
14.31
|
%
|
|
|
30,045 |
|
|
|
30,449 |
|
|
|
2.0 |
% |
|
|
|
|
Dye & Durham Corp. (3)(4) 25 York Street Suite 1100 Toronto, Ontario M5J 2V5 Canada |
|
First-lien loan (CAD 36,778 par, due 12/2027) |
|
|
12/3/2021 |
|
|
|
C + 5.75 |
% |
|
|
11.26 |
% |
|
|
28,026 |
|
|
|
27,483
|
|
|
|
1.8 |
% |
|
|
|
|
|
|
First-lien revolving loan (CAD 1,086 par, due 12/2026) |
|
|
12/3/2021 |
|
|
|
C + 5.75 |
% |
|
|
11.26 |
% |
|
|
715 |
|
|
|
804
|
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ExtraHop Networks, Inc. (3)(5) 520 Pike St Suite 1600 Seattle, WA 98101 USA |
|
First-lien loan ($64,162 par, due 7/2027) |
|
|
7/22/2021 |
|
|
|
SOFR + 7.60 |
% |
|
|
12.92 |
% |
|
|
63,157 |
|
|
|
63,681 |
|
|
|
4.3 |
% |
|
|
|
|
ForeScout Technologies, Inc. (3) 300 Santana Row Suite 400 San Jose, CA 95128 USA |
|
First-lien loan ($2,788 par, due 8/2026) |
|
|
7/1/2022 |
|
|
|
SOFR + 9.10 |
% |
|
|
14.49
|
%
|
|
|
2,737 |
|
|
|
2,803 |
|
|
|
0.2 |
% |
|
|
|
|
|
|
First-lien loan ($2,566 par, due 8/2026) |
|
|
8/17/2020 |
|
|
|
SOFR + 9.10 |
% |
|
|
14.49
|
%
|
|
|
2,554 |
|
|
|
2,572 |
|
|
|
0.2 |
% |
|
|
|
|
Galileo Parent, Inc. (3) Prudential Tower, 800 Boylston Street Boston, MA 02199 USA |
|
First-lien loan ($64,904 par, due 5/2030) |
|
|
5/3/2023 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.64 |
% |
|
|
63,030 |
|
|
|
63,930 |
|
|
|
4.3 |
% |
|
|
|
|
|
|
First-lien revolving loan ($4,471 par, due 5/2029) |
|
|
5/3/2023 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.64 |
% |
|
|
4,189 |
|
|
|
4,320 |
|
|
|
0.3 |
% |
|
|
|
|
Hornetsecurity Holding GmbH (3)(4) Am Listholze 78
30177 Hanover
Germany |
|
First-lien loan (EUR 3,335 par, due 11/2029) |
|
|
11/14/2022 |
|
|
|
E + 6.50 |
% |
|
|
10.30 |
% |
|
|
3,150 |
|
|
|
3,335
|
|
|
|
0.2 |
% |
|
|
|
|
Information Clearinghouse, LLC and MS Market Service, LLC (3)(5) 310 East Shore Road Great Neck, NY 11023 USA |
|
First-lien loan ($17,685 par, due 12/2026) |
|
|
12/20/2021 |
|
|
|
SOFR + 6.65 |
% |
|
|
12.05 |
% |
|
|
17,361 |
|
|
|
17,596 |
|
|
|
1.2 |
% |
|
|
|
|
Mitnick Corporate Purchaser, Inc. (3)(9) 197 East University Drive Auburn, AL 36832 USA |
|
First-lien loan ($330 par, due 5/2029) |
|
|
5/2/2022 |
|
|
|
SOFR + 4.60 |
% |
|
|
9.97 |
% |
|
|
330 |
|
|
|
317 |
|
|
|
0.0 |
% |
|
|
|
|
Netwrix Corp. (3) 6160 Warren Parkway Suite 100 Frisco, TX 75034 USA |
|
First-lien loan ($36,456 par, due 6/2029) |
|
|
6/9/2022 |
|
|
|
SOFR + 5.00 |
% |
|
|
10.30 |
% |
|
|
35,952 |
|
|
|
36,456 |
|
|
|
2.5 |
% |
|
|
|
|
|
|
First-lien revolving loan ($718 par, due 6/2029) |
|
|
6/9/2022 |
|
|
|
SOFR + 5.00 |
% |
|
|
10.24 |
% |
|
|
682 |
|
|
|
718 |
|
|
|
0.0 |
% |
|
|
|
|
OutSystems Luxco SARL (3)(4)(5) 55 Thomson Place 2nd Floor Boston, MA 02210 USA |
|
First-lien loan (EUR 3,180 par, due 12/2028) |
|
|
12/8/2022 |
|
|
|
E + 5.75 |
% |
|
|
9.72 |
% |
|
|
3,083 |
|
|
|
3,180
|
|
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ReliaQuest Holdings, LLC (3)(5) 777 South Harbour Island Boulevard Suite 500 Tampa, FL 33602 USA |
|
First-lien loan ($76,220 par, due 10/2026) |
|
|
10/8/2020 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.62 |
% |
|
|
75,271 |
|
|
|
77,172 |
|
|
|
5.2 |
% |
|
|
|
|
Wrangler TopCo, LLC (3) 555 California Street Suite 2900 San Francisco, CA 94104 USA |
|
First-lien loan ($4,153 par, due 7/2029) |
|
|
7/7/2023 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.88 |
% |
|
|
4,041 |
|
|
|
4,095 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
445,788 |
|
|
|
451,204 |
|
|
|
30.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Erling Lux Bidco SARL (3)(4) 1-3 Boulevard De La Foire 1528 Luxembourg Luxembourg |
|
First-lien loan (EUR 9,625 par, due 9/2028) |
|
|
9/6/2022 |
|
|
|
E + 6.75 |
% |
|
|
10.61 |
% |
|
|
9,514 |
|
|
|
10,257
|
|
|
|
0.7 |
% |
|
|
|
|
|
|
First-lien loan (GBP 10,217 par, due 9/2028) |
|
|
9/6/2022 |
|
|
|
S + 6.75 |
% |
|
|
11.94 |
% |
|
|
11,276 |
|
|
|
12,533
|
|
|
|
0.8 |
% |
|
|
|
|
|
|
First-lien revolving loan (GBP 312 par, due 9/2028) |
|
|
9/6/2022 |
|
|
|
S + 6.75 |
% |
|
|
11.94 |
% |
|
|
400 |
|
|
|
382
|
|
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,190 |
|
|
|
23,172 |
|
|
|
1.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banyan Software Holdings, LLC (3)(4) 303 Perimeter Center North Suite 450 Atlanta, GA 30346 USA |
|
First-lien loan ($19,850 par, due 10/2026) |
|
|
1/27/2023 |
|
|
|
SOFR + 7.35 |
% |
|
|
12.67 |
% |
|
|
18,803 |
|
|
|
19,651 |
|
|
|
1.3 |
% |
|
|
|
|
Celtra Technologies, Inc. (3)(5) 545 Boylston Street 11th Floor Boston, MA 02116 USA |
|
First-lien loan ($34,256 par, due 11/2026) |
|
|
11/19/2021 |
|
|
|
SOFR + 7.10 |
% |
|
|
12.42 |
% |
|
|
33,521 |
|
|
|
33,742 |
|
|
|
2.3 |
% |
|
|
|
|
IntelePeer Holdings, Inc.
155 Bovet Rd.
Suite 405
San Mateo, CA 94402
USA |
|
First-lien loan ($33,925 par, due 12/2024) (3) |
|
|
12/2/2019 |
|
|
|
SOFR + 8.40 |
% |
|
|
13.79 |
% |
|
|
33,899 |
|
|
|
33,586 |
|
|
|
2.3 |
% |
|
|
|
|
|
|
Convertible note ($4,619 par, due 5/2028) |
|
|
5/12/2021 |
|
|
|
7.00 |
% |
|
|
7.00
|
%
|
|
|
4,590 |
|
|
|
4,803 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
90,813 |
|
|
|
91,782 |
|
|
|
6.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Astra Acquisition Corp. (3) 5201 Congress Ave. Boca Raton, FL 33487 |
|
Second-lien loan ($43,479 par, due 10/2029) |
|
|
10/25/2021 |
|
|
|
SOFR + 8.99 |
% |
|
|
14.53 |
% |
|
|
42,796 |
|
|
|
34,566 |
|
|
|
2.3 |
% |
|
|
|
|
Destiny Solutions Parent Holding Company (3)(5) 1320 Flynn Road, Suite 100 Camarillo, CA 93012 |
|
First-lien loan ($59,700 par, due 6/2026) |
|
|
6/8/2021 |
|
|
|
SOFR + 5.85 |
% |
|
|
11.17 |
% |
|
|
58,941 |
|
|
|
59,103 |
|
|
|
4.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EMS Linq, Inc. (3) 2528 INDEPENDENCE BLVD STE 200 WILMINGTON NC 28412-2591 |
|
First-lien loan ($56,216 par, due 12/2027) |
|
|
12/22/2021 |
|
|
|
SOFR + 6.35 |
% |
|
|
11.67 |
% |
|
|
55,240 |
|
|
|
54,916 |
|
|
|
3.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
156,977 |
|
|
|
148,585 |
|
|
|
10.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alaska Bidco Oy (3)(4) Linnoitustie 6 02600, Norway |
|
First-lien loan (EUR 727 par, due 5/2030) |
|
|
5/30/2023 |
|
|
|
E + 6.25 |
% |
|
|
10.39 |
% |
|
|
754 |
|
|
|
763
|
|
|
|
0.1 |
% |
|
|
|
|
BCTO Bluebill Buyer, Inc. (3)(5) 6100 W. 96th Street, Suite 100 Indianapolis, IN 46278 |
|
First-lien loan ($28,164 par, due 7/2029) |
|
|
7/20/2023 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.64 |
% |
|
|
27,122 |
|
|
|
27,319 |
|
|
|
1.8 |
% |
|
|
|
|
BTRS Holdings, Inc. (3) 1009 Lenox Drive, Suite 101 Lawrenceville, NJ 08648 |
|
First-lien loan ($46,580 par, due 12/2028) |
|
|
12/16/2022 |
|
|
|
SOFR + 8.00 |
% |
|
|
13.41 |
% |
|
|
45,277 |
|
|
|
46,323 |
|
|
|
3.1 |
% |
|
|
|
|
Bear OpCo, LLC (3)(5) 5435 Corporate Drive, Suite 300 Troy, MI 48098 |
|
First-lien loan ($21,082 par, due 10/2024) |
|
|
10/10/2019 |
|
|
|
SOFR + 7.65 |
% |
|
|
12.97 |
% |
|
|
20,953 |
|
|
|
21,345 |
|
|
|
1.4 |
% |
|
|
|
|
BlueSnap, Inc. (3)(5) 800 South Street Suite 640 Waltham, MA 02453 |
|
First-lien loan ($42,000 par, due 10/2024) |
|
|
10/25/2019 |
|
|
|
SOFR + 7.15 |
% |
|
|
12.54 |
% |
|
|
41,786 |
|
|
|
42,223 |
|
|
|
2.8 |
% |
|
|
|
|
Ibis Intermediate Co. (3)(5) 485 Lexington Ave, 20th Floor New York, NY 10017 |
|
First-lien loan ($1,514 par, due 5/2027) |
|
|
5/28/2021 |
|
|
|
SOFR + 4.65 |
% |
|
|
10.07 |
% |
|
|
1,359 |
|
|
|
1,593 |
|
|
|
0.1 |
% |
|
|
|
|
Ibis US Blocker Co. (3) 485 Lexington Ave, 20th Floor New York, NY 10017 |
|
First-lien loan ($15,419 par, due 5/2028) |
|
|
5/28/2021 |
|
|
|
SOFR + 8.40 |
% |
|
|
13.82
|
%
|
|
|
15,196 |
|
|
|
15,342 |
|
|
|
1.0 |
% |
|
|
|
|
Kyriba Corp. (3) 4435 Eastgate Mall, Suite 200 San Diego, CA 92121 |
|
First-lien loan ($20,382 par, due 4/2025) |
|
|
4/9/2019 |
|
|
|
SOFR + 9.25 |
% |
|
|
14.72
|
%
|
|
|
20,255 |
|
|
|
20,433 |
|
|
|
1.4 |
% |
|
|
|
|
|
|
First-lien loan (EUR 10,617 par, due 4/2025) |
|
|
4/9/2019 |
|
|
|
E + 9.00 |
% |
|
|
13.14
|
%
|
|
|
11,782 |
|
|
|
11,269
|
|
|
|
0.8 |
% |
|
|
|
|
|
|
First-lien revolving loan ($1,411 par, due 4/2025) |
|
|
4/9/2019 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.97 |
% |
|
|
1,399 |
|
|
|
1,415 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
First-lien revolving loan (EUR 336 par, due 4/2025) |
|
|
4/9/2019 |
|
|
|
E + 7.25 |
% |
|
|
11.39 |
% |
|
|
374 |
|
|
|
356
|
|
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Passport Labs, Inc.
128 S Tryon St, Ste 1000
Charlotte, NC 28202 |
|
First-lien loan ($24,349 par, due 4/2026) (3) |
|
|
4/28/2021 |
|
|
|
SOFR + 8.40 |
% |
|
|
13.79 |
% |
|
|
24,174 |
|
|
|
24,294 |
|
|
|
1.6 |
% |
|
|
|
|
|
|
Convertible Promissory Note A ($694 par, due 9/2024) |
|
|
3/2/2023 |
|
|
|
8.00 |
% |
|
|
8.00 |
% |
|
|
694 |
|
|
|
943 |
|
|
|
0.1 |
% |
|
|
|
|
Ping Identity Holding Corp. (3) 1001 17th Street, Suite 100 Denver, CO 80202 |
|
First-lien loan ($22,727 par, due 10/2029) |
|
|
10/17/2022 |
|
|
|
SOFR + 7.00 |
% |
|
|
12.32 |
% |
|
|
22,165 |
|
|
|
23,040 |
|
|
|
1.6 |
% |
|
|
|
|
PrimeRevenue, Inc. (3) 600 Peachtree St NE, Suite 4400 Atlanta, GA 30308 |
|
First-lien loan ($15,007 par, due 12/2024) |
|
|
12/31/2018 |
|
|
|
SOFR + 7.15 |
% |
|
|
12.55 |
% |
|
|
14,997 |
|
|
|
15,113 |
|
|
|
1.0 |
% |
|
|
|
|
TradingScreen, Inc. (3)(5) 1 Penn Plaza, 49th Fl New York, NY 10119 |
|
First-lien loan ($47,318 par, due 4/2027) |
|
|
4/30/2021 |
|
|
|
SOFR + 6.35 |
% |
|
|
11.72 |
% |
|
|
46,421 |
|
|
|
47,081 |
|
|
|
3.2 |
% |
|
|
|
|
Volante Technologies, Inc.
Harborside 5
185 Hudson Street, #1605
Jersey City, NJ 07311 |
|
First-lien loan ($2,500 par, due 9/2028) |
|
|
9/29/2023 |
|
|
|
16.50 |
% |
|
|
16.50
|
%
|
|
|
2,438 |
|
|
|
2,438 |
|
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
297,146 |
|
|
|
301,290 |
|
|
|
20.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BCTO Ace Purchaser, Inc. (3) 3675 Mt. Diablo Boulevard, Suite 100B Lafayette, CA 94549 |
|
First-lien loan ($69,231 par, due 11/2027) (5) |
|
|
11/23/2020 |
|
|
|
SOFR + 8.45 |
% |
|
|
13.87 |
% |
|
|
68,271 |
|
|
|
69,577 |
|
|
|
4.7 |
% |
|
|
|
|
|
|
Second-lien loan ($5,401 par, due 1/2030) |
|
|
1/23/2023 |
|
|
|
SOFR + 10.70 |
% |
|
|
16.05
|
%
|
|
|
5,266 |
|
|
|
5,374 |
|
|
|
0.4 |
% |
|
|
|
|
Edge Bidco B.V (3)(4)(5) De Lairessestraat 145 1075 HJ Amsterdam |
|
First-lien loan (EUR 3,520 par, due 2/2029) |
|
|
2/24/2023 |
|
|
|
E + 7.00 |
% |
|
|
10.97
|
%
|
|
|
3,590 |
|
|
|
3,727
|
|
|
|
0.3 |
% |
|
|
|
|
Homecare Software Solutions, LLC (3)(5) 130 West 42nd Street 2nd Floor New York, NY 10036 |
|
First-lien loan ($65,000 par, due 10/2026) |
|
|
10/6/2021 |
|
|
|
SOFR + 5.70 |
% |
|
|
11.03 |
% |
|
|
63,942 |
|
|
|
64,675 |
|
|
|
4.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Merative L.P. (3)(5) 100 Phoenix Drive Ann Arbor, MI 48108 |
|
First-lien loan ($70,103 par, due 6/2028) |
|
|
6/30/2022 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.65 |
% |
|
|
68,127 |
|
|
|
69,052 |
|
|
|
4.6 |
% |
|
|
|
|
Raptor US Buyer II Corp. (3) 205 West Wacker Drive, Suite 1800 Chicago, IL 60606 |
|
First-lien loan ($15,609 par, due 3/2029) |
|
|
3/24/2023 |
|
|
|
SOFR + 6.75 |
% |
|
|
12.14 |
% |
|
|
15,083 |
|
|
|
15,413 |
|
|
|
1.0 |
% |
|
|
|
|
SL Buyer Corp. (3)(5)
111 South Wood Avenue Iselin, NJ 08830
|
|
First-lien loan ($31,475 par, due 7/2029) |
|
|
7/7/2023 |
|
|
|
SOFR + 7.00 |
% |
|
|
12.32 |
% |
|
|
30,096 |
|
|
|
30,520 |
|
|
|
2.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
254,375 |
|
|
|
258,338 |
|
|
|
17.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hotel, Gaming and Leisure |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASG II, LLC (3)(5) Walnut Creek, CA 94596 USA |
|
First-lien loan ($60,693 par, due 5/2028) |
|
|
5/25/2022 |
|
|
|
SOFR + 6.40 |
% |
|
|
11.77 |
% |
|
|
59,414 |
|
|
|
60,693 |
|
|
|
4.1 |
% |
|
|
|
|
IRGSE Holding Corp. (3)(6) 1555 Palm Beach Lake Blvd Unit 1105 West Palm Beach, FL 33401 USA |
|
First-lien loan ($30,261 par, due 6/2024) |
|
|
9/29/2015 |
|
|
|
SOFR + 9.65 |
% |
|
|
15.04 |
% |
|
|
28,594 |
|
|
|
30,034 |
|
|
|
2.0 |
% |
|
|
|
|
|
|
First-lien revolving loan ($24,752 par, due 6/2024) |
|
|
9/29/2015 |
|
|
|
SOFR + 9.65 |
% |
|
|
15.04 |
% |
|
|
24,752 |
|
|
|
24,564 |
|
|
|
1.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
112,760 |
|
|
|
115,291 |
|
|
|
7.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Human Resource Support Services |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Axonify, Inc. (3)(4)(5) 450 Phillip St Waterloo, Ontario N2L 5J2 Canada |
|
First-lien loan ($40,920 par, due 5/2027) |
|
|
5/5/2021 |
|
|
|
SOFR + 7.65 |
% |
|
|
13.02 |
% |
|
|
40,312 |
|
|
|
40,920 |
|
|
|
2.7 |
% |
|
|
|
|
bswift, LLC (3)(5) 500 W. Monroe Suite 3800 Chicago, IL 60661 USA |
|
First-lien loan ($44,470 par, due 11/2028) |
|
|
11/7/2022 |
|
|
|
SOFR + 6.63 |
% |
|
|
11.91 |
% |
|
|
43,287 |
|
|
|
44,582 |
|
|
|
3.0 |
% |
|
|
|
|
Elysian Finco Ltd. (3)(4)(5) 27-28 Clements Lane London EC4N 7AE United Kingdom |
|
First-lien loan ($18,955 par, due 1/2028) |
|
|
1/31/2022 |
|
|
|
SOFR + 6.65 |
% |
|
|
11.95 |
% |
|
|
18,528 |
|
|
|
19,356 |
|
|
|
1.3 |
% |
|
|
|
|
Employment Hero Holdings Pty Ltd. (3)(4) Level 2, 441 Kent Street Sydney, New South Wales 2000 Australia |
|
First-lien loan (AUD 32,270 par, due 12/2026) |
|
|
12/6/2021 |
|
|
|
B + 6.50 |
% |
|
|
10.72 |
% |
|
|
34,791 |
|
|
|
32,067
|
|
|
|
2.2 |
% |
|
|
|
|
HireVue, Inc. (3) 10876 South River Front Parkway Suite 500 South Jordan, UT 84095 USA |
|
First-lien loan ($54,113 par, due 5/2029) |
|
|
5/3/2023 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.34 |
% |
|
|
52,422 |
|
|
|
53,350 |
|
|
|
3.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PageUp People, Ltd. (3)(4)(5) Suite S5051, Level 5, 447 Collins Street Melbourne, Victoria 3000 Australia |
|
First-lien loan (AUD 13,916 par, due 12/2025) |
|
|
1/11/2018 |
|
|
|
B + 5.25 |
% |
|
|
9.36 |
% |
|
|
10,500 |
|
|
|
8,982
|
|
|
|
0.6 |
% |
|
|
|
|
|
|
First-lien loan (GBP 3,258 par, due 12/2025) |
|
|
10/28/2021 |
|
|
|
S + 5.28 |
% |
|
|
10.47 |
% |
|
|
4,487 |
|
|
|
3,976
|
|
|
|
0.3 |
% |
|
|
|
|
|
|
First-lien loan ($11,441 par, due 12/2025) |
|
|
10/28/2021 |
|
|
|
SOFR + 5.35 |
% |
|
|
10.67 |
% |
|
|
11,431 |
|
|
|
11,441 |
|
|
|
0.8 |
% |
|
|
|
|
PayScale Holdings, Inc. (3)(5) 255 S King Street Ste 800 Seattle, WA 98104 USA |
|
First-lien loan ($71,379 par, due 5/2027) |
|
|
5/3/2019 |
|
|
|
SOFR + 6.35 |
% |
|
|
11.74 |
% |
|
|
70,985 |
|
|
|
71,379 |
|
|
|
4.8 |
% |
|
|
|
|
PrimePay Intermediate, LLC (3)(5) 1487 Dunwoody Drive West Chester, PA 19380 USA |
|
First-lien loan ($34,462 par, due 12/2026) |
|
|
12/17/2021 |
|
|
|
SOFR + 7.15 |
% |
|
|
12.54 |
% |
|
|
33,697 |
|
|
|
34,290 |
|
|
|
2.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
320,440 |
|
|
|
320,343 |
|
|
|
21.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Disco Parent, Inc. (3) 22 Boston Wharf Road Boston, MA 02210 USA |
|
First-lien loan ($4,545 par, due 3/2029) |
|
|
3/30/2023 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.92 |
% |
|
|
4,431 |
|
|
|
4,495 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arrow Buyer, Inc. (3) 12 East 49th Street Tower 49 New York, NY 10017 USA |
|
First-lien loan ($33,125 par, due 7/2030) |
|
|
6/30/2023 |
|
|
|
SOFR + 6.50 |
% |
|
|
11.89 |
% |
|
|
32,225 |
|
|
|
32,514 |
|
|
|
2.2 |
% |
|
|
|
|
Bayshore Intermediate #2, L.P. (3) 1400 Liberty Ridge Drive Chesterbrook, PA 19087 USA |
|
First-lien loan ($35,464 par, due 10/2028) |
|
|
10/1/2021 |
|
|
|
SOFR + 7.60 |
% |
|
|
13.00
|
%
|
|
|
34,947 |
|
|
|
35,198 |
|
|
|
2.4 |
% |
|
|
|
|
|
|
First-lien revolving loan ($480 par, due 10/2027) |
|
|
10/1/2021 |
|
|
|
SOFR + 6.60 |
% |
|
|
11.87 |
% |
|
|
444 |
|
|
|
461 |
|
|
|
0.0 |
% |
|
|
|
|
Coupa Holdings, LLC (3) 1855 S. Grant Street San Mateo, CA 94402 USA |
|
First-lien loan ($43,191 par, due 2/2030) |
|
|
2/27/2023 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.82 |
% |
|
|
42,092 |
|
|
|
43,066 |
|
|
|
2.9 |
% |
|
|
|
|
CrunchTime Information, Systems, Inc. (3)(5) 129 Portland Street Boston, MA 02114 USA |
|
First-lien loan ($59,651 par, due 6/2028) |
|
|
6/17/2022 |
|
|
|
SOFR + 6.00 |
% |
|
|
11.32 |
% |
|
|
58,579 |
|
|
|
59,651 |
|
|
|
4.0 |
% |
|
|
|
|
EDB Parent, LLC (3)(5) 34 Crosby Drive Suite 201, CORPORATION TRUST CENTER 1209 ORANGE ST Bedford, MA 01730 USA |
|
First-lien loan ($61,858 par, due 7/2028) |
|
|
7/7/2022 |
|
|
|
SOFR + 6.75 |
% |
|
|
12.14 |
% |
|
|
60,612 |
|
|
|
61,394 |
|
|
|
4.1 |
% |
|
|
|
|
40
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Higher Logic, LLC (3)(5) 1919 North Lynn Street Suite 500 Arlington, VA 22209 USA |
|
First-lien loan ($53,658 par, due 1/2025) |
|
|
6/18/2018 |
|
|
|
SOFR + 6.75 |
% |
|
|
12.14 |
% |
|
|
53,464 |
|
|
|
53,792 |
|
|
|
3.6 |
% |
|
|
|
|
LeanTaaS Holdings, Inc. (3)(5) 471 El Camino Real Suite 230 Santa Clara, CA 95050 USA |
|
First-lien loan ($35,413 par, due 7/2028) |
|
|
7/12/2022 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.89 |
% |
|
|
34,602 |
|
|
|
35,556 |
|
|
|
2.4 |
% |
|
|
|
|
Lithium Technologies, LLC (3) One World Trade Center Suite 46D New York, NY 10007 USA |
|
First-lien loan ($57,009 par, due 1/2025) |
|
|
10/3/2017 |
|
|
|
SOFR + 9.00 |
% |
|
|
14.37
|
%
|
|
|
56,996 |
|
|
|
55,726 |
|
|
|
3.8 |
% |
|
|
|
|
Lucidworks, Inc. (3)(5) 235 Montgomery Street Suite 500 San Francisco, CA 94104 USA |
|
First-lien loan ($8,764 par, due 2/2027) |
|
|
2/11/2022 |
|
|
|
SOFR + 7.50 |
% |
|
|
12.82
|
%
|
|
|
8,763 |
|
|
|
8,717 |
|
|
|
0.6 |
% |
|
|
|
|
Piano Software, Inc. (3)(5) One World Trade Center Suite 46D New York, NY 10007 USA |
|
First-lien loan ($51,218 par, due 2/2026) |
|
|
2/25/2021 |
|
|
|
SOFR + 7.10 |
% |
|
|
12.42 |
% |
|
|
50,545 |
|
|
|
50,706 |
|
|
|
3.3 |
% |
|
|
|
|
SMA Technologies Holdings, LLC (3)(5) 14237 East Sam Houston Pawkway N. Suite 200-314 Houston, TX 77044 USA |
|
First-lien loan ($36,833 par, due 10/2028) |
|
|
10/31/2022 |
|
|
|
SOFR + 6.75 |
% |
|
|
12.07 |
% |
|
|
35,406 |
|
|
|
36,649 |
|
|
|
2.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
468,675 |
|
|
|
473,430 |
|
|
|
31.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASP Unifrax Holdings, Inc. (9) 600 Riverwalk Parkway Suite 120 Tonawanda, NY 14150 USA |
|
First-lien loan ($1,133 par, due 12/2025) (3) |
|
|
8/25/2023 |
|
|
|
SOFR + 3.90 |
% |
|
|
9.29 |
% |
|
|
1,051 |
|
|
|
1,055 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
First-lien loan (EUR 364 par, due 12/2025) (3) |
|
|
9/14/2023 |
|
|
|
E + 3.75 |
% |
|
|
7.72 |
% |
|
|
357 |
|
|
|
354
|
|
|
|
0.0 |
% |
|
|
|
|
|
|
Unsecured Note ($227 par, due 9/2029) |
|
|
8/31/2023 |
|
|
|
7.50 |
% |
|
|
7.50 |
% |
|
|
119 |
|
|
|
123 |
|
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Avalara, Inc (3) 255 South King Street #1200 Seattle, WA 98104 |
|
First-lien loan ($38,636 par, due 10/2028) |
|
|
10/19/2022 |
|
|
|
SOFR + 7.25 |
% |
|
|
12.64 |
% |
|
|
37,701 |
|
|
|
38,424 |
|
|
|
2.6 |
% |
|
|
|
|
Skylark UK DebtCo Limited (3)(4) 4th Floor 100 Pall Mall London SW1Y 5NQ United Kingdom |
|
First-lien loan ($16,340 par, due 9/2030) |
|
|
9/7/2023 |
|
|
|
SOFR + 6.25 |
% |
|
|
11.65 |
% |
|
|
15,705 |
|
|
|
15,697 |
|
|
|
1.1 |
% |
|
|
|
|
|
|
First-lien loan (EUR 4,851 par, due 9/2030) |
|
|
9/7/2023 |
|
|
|
E + 6.25 |
% |
|
|
10.08 |
% |
|
|
5,051 |
|
|
|
5,021
|
|
|
|
0.3 |
% |
|
|
|
|
|
|
First-lien loan (GBP 16,640 par, due 9/2030) |
|
|
9/7/2023 |
|
|
|
S + 6.25 |
% |
|
|
11.44 |
% |
|
|
20,194 |
|
|
|
19,852
|
|
|
|
1.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80,178 |
|
|
|
80,526 |
|
|
|
5.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USR Parent, Inc. (3)(5) 500 Staples Drive MS: E5A Framingham, MA 01702 |
|
ABL FILO term loan ($17,500 par, due 4/2027) |
|
|
4/25/2022 |
|
|
|
SOFR + 6.50 |
% |
|
|
11.83 |
% |
|
|
17,185 |
|
|
|
17,369 |
|
|
|
1.2 |
% |
|
|
|
|
Oil, Gas and Consumable Fuels |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Laramie Energy, LLC (3) 730 17th Street Denver, CO 80202 |
|
First-lien loan ($27,317 par, due 2/2027) |
|
|
2/21/2023 |
|
|
|
SOFR + 7.10 |
% |
|
|
12.42 |
% |
|
|
26,724 |
|
|
|
27,055 |
|
|
|
1.8 |
% |
|
|
|
|
Murchison Oil and Gas, LLC (3) 1100 Mira Vista Plano, TX 79093 |
|
First-lien loan ($29,478 par, due 6/2026) |
|
|
6/30/2022 |
|
|
|
SOFR + 8.65 |
% |
|
|
14.04 |
% |
|
|
28,986 |
|
|
|
29,887 |
|
|
|
2.0 |
% |
|
|
|
|
TRP Assets, LLC (3) 1111 Louisiana Street Suite 4550 Houston, TX |
|
First-lien loan ($65,000 par, due 12/2025) |
|
|
12/3/2021 |
|
|
|
SOFR + 7.76 |
% |
|
|
13.15 |
% |
|
|
64,299 |
|
|
|
67,310 |
|
|
|
4.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
120,009 |
|
|
|
124,252 |
|
|
|
8.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
Omnigo Software, LLC (3)(5) 10430 Baur Boulevard Saint Louis, MO 63132 |
|
First-lien loan ($40,045 par, due 3/2026) |
|
|
3/31/2021 |
|
|
|
SOFR + 6.60 |
% |
|
|
11.92 |
% |
|
|
39,492 |
|
|
|
39,745 |
|
|
|
2.7 |
% |
|
|
|
|
Retail and Consumer Products |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
99 Cents Only Stores LLC (3) 4000 Union Pacific Avenue Commerce, CA 90023 |
|
ABL FILO term loan ($25,000 par, due 5/2025) |
|
|
9/6/2017 |
|
|
|
SOFR + 8.65 |
% |
|
|
14.05 |
% |
|
|
24,845 |
|
|
|
25,000 |
|
|
|
1.7 |
% |
|
|
|
|
American Achievement, Corp. (3)(14) 1550 W Mockingbird Lane Dallas, TX 75235 |
|
First-lien loan ($27,089 par, due 9/2026) |
|
|
9/30/2015 |
|
|
|
SOFR + 6.35 |
% |
|
|
11.68
|
%
|
|
|
26,260 |
|
|
|
20,452 |
|
|
|
1.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
| |
|
Investment |
|
Initial
Acquisition
Date |
|
|
Reference
Rate and
Spread |
|
|
Interest Rate |
|
|
|
|
|
|
|
|
Percentage
of Net Assets |
|
|
Percentage
of
Class Held |
|
|
|
First-lien loan ($1,355 par, due 9/2026) |
|
|
6/10/2021 |
|
|
|
SOFR + 14.10 |
% |
|
|
19.43
(incl. 18.93% PIK) |
%
|
|
|
1,355 |
|
|
|
102 |
|
|
|
0.0 |
% |
|
|
|
|
|
|
Subordinated note ($4,740 par, due 9/2026) |
|
|
3/16/2021 |
|
|
|
SOFR + 1.15 |
% |
|
|
6.40
PIK |
%
|
|
|
545 |
|
|
|
71 |
|
|
|
0.0 |
% |
|
|
|
|
Bed Bath and Beyond Inc. (3)(15) 650 Liberty Avenue Union, NJ 07083 |
|
ABL FILO term loan ($15,375 par, due 8/2027) |
|
|
9/2/2022 |
|
|
|
SOFR + 9.90 |
% |
|
|
15.22 |
% |
|
|
15,055 |
|
|
|
15,029 |
|
|
|
1.0 |
% |
|
|
|
|
|
|
Roll Up DIP term loan ($25,914 par, due 9/2024) |
|
|
4/24/2023 |
|
|
|
SOFR + 7.90 |
% |
|
|
13.22
(incl. 13.22% PIK) |
%
|
|
|
25,914 |
|
|
|
25,331 |
|
|
|
1.7 |
% |
|
|
|
|
|
|
Super-Priority DIP term loan ($4,946 par, due 9/2024) |
|
|
4/24/2023 |
|
|
|
SOFR + 7.90 |
% |
|
|
13.22 |
% |
|
|
4,946 |
|
|
|
4,835 |
|
|
|
0.3 |
% |
|
|
|
|
Cordance Operations, LLC (3) 16 W. Martin Street Raleigh, NC 27601 |
|
First-lien loan ($47,006 par, due 7/2028) |
|
|
7/25/2022 |
|
|
|
SOFR + 9.25 |
% |
|
|
14.62 |
% |
|
|
46,095 |
|
|
|
47,006 |
|
|
|
3.1 |
% |
|
|
|
|
Neuintel, LLC (3)(5) 20 Pacifica Suite 1000 Irvine, CA 92618 |
|
First-lien loan ($57,701 par, due 12/2026) |
|
|
12/20/2021 |
|
|
|
SOFR + 7.65 |
% |
|
|
13.02 |
% |
|
|
56,869 |
|
|
|
57,990 |
|
|
|
3.9 |
% |
|
|
|
|
Project P Intermediate 2, LLC (3) 461 Nott Street Schenectady, NY 12308 |
|
ABL FILO term loan ($71,250 par, due 5/2026) |
|
|
11/8/2021 |
|
|
|
SOFR + 8.10 |
% |
|
|
13.42 |
% |
|
|
70,344 |
|
|
|
72,141 |
|
|
|
4.9 |
% |
|
|
|
|
Rapid Data GmbH Unternehmensberatung (3)(4) Agricolastr. 54 30952 Ronnenberg, Germany |
|
First-lien loan (EUR 4,495 par, due 7/2029) |
|
|
7/11/2023 |
|
|
|
E + 6.50 |
% |
|
|
10.15 |
% |
|
|
4,666 |
|
|
|
4,625
(EUR 4,368 |
) |
|
|
0.3 |
% |
|
|
|
|
Tango Management Consulting, LLC (3)(5) 9797 Rombauer Road Suite #450 Dallas, TX 75019 |
|
First-lien loan ($54,052 par, due 12/2027) |
|
|
12/1/2021 |
|
|
|
SOFR + 6.85 |
% |
|
|
12.18 |
% |
|
|
53,318 |
|
|
|
53,512 |
|
|
|
3.6 |
% |
|
|
|
|
|
|
First-lien revolving loan ($9 par, due 12/2027) |
|
|
12/1/2021 |
|
|
|
P + 6.85 |
% |
|
|
15.25 |
% |
|
|
(56 |
) |
|
|
(29 |
) |
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
330,156 |
|
|
|
326,065 |
|
|
|
21.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Transportation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Project44, Inc. (3)(5) 222 W Merchandise Mart Plaza Suite 1744 Chicago, IL 60654 |
|
First-lien loan ($35,139 par, due 11/2027) |
|
|
11/12/2021 |
|
|
|
SOFR + 6.40 |
% |
|
|
11.76 |
% |
|
|
34,210 |
|
|
|
34,864 |
|
|
|
2.3 |
% |
|
|
|
|
Marcura Equities LTD (3)(4) Highdown House Yeoman Way Worthing, West Sussex BN99 3HH United Kingdom |
|
First-lien loan ($31,667 par, due 8/2029) |
|
|
8/11/2023 |
|
|
|
SOFR + 7.75 |
% |
|
|
13.14
(incl. 4.25% PIK) |
%
|
|
|
30,641 |
|
|
|
31,146 |
|
|
|
2.1 |
% |
|
|
|
|
43
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First-lien revolving loan ($1,667 par, due 8/2029) |
|
|
8/11/2023 |
|
|
|
SOFR + 7.00 |
% |
|
|
12.39 |
% |
|
|
1,585 |
|
|
|
1,625 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
66,436 |
|
|
|
67,635 |
|
|
|
4.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,890,369 |
|
|
|
2,909,102 |
|
|
|
195.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity and Other Investments |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dye & Durham, Ltd. (4)(10) 25 York Street
Suite 1100
Toronto, Ontario M5J 2V5
Canada |
|
Common Shares (126,968 shares) |
|
|
12/3/2021 |
|
|
|
|
|
|
|
|
|
|
|
3,909 |
|
|
|
1,248
|
|
|
|
0.1 |
% |
|
|
0.2 |
% |
Mitnick TA Aggregator, LP (11)(13) 197 East University Drive Auburn, AL 36832 USA |
|
Membership Interest (0.43% ownership) |
|
|
5/2/2022 |
|
|
|
|
|
|
|
|
|
|
|
5,243 |
|
|
|
5,243 |
|
|
|
0.4 |
% |
|
|
0.4 |
% |
ReliaQuest, LLC (11)(13) 777 South Harbour Island Boulevard Suite 500 Tampa, FL 33602 USA |
|
Class A-1 Units (567,683 units) |
|
|
11/23/2021 |
|
|
|
|
|
|
|
|
|
|
|
1,120 |
|
|
|
1,324 |
|
|
|
0.1 |
% |
|
|
3.2 |
% |
|
|
Class A-2 Units (2,580 units) |
|
|
6/21/2022 |
|
|
|
|
|
|
|
|
|
|
|
6 |
|
|
|
8 |
|
|
|
0.0 |
% |
|
|
0.1 |
% |
Sprinklr, Inc. (10)(11) 29 West 35th Street 7th Floor New York, NY 10001 |
|
Common Shares (315,005 shares) |
|
|
6/24/2021 |
|
|
|
|
|
|
|
|
|
|
|
2,716 |
|
|
|
4,360 |
|
|
|
0.3 |
% |
|
|
0.2 |
% |
Warrior TopCo LP (11)(12) 9171 Towne Center Drive Suite 200 San Diego, CA 92122 |
|
Class A Units (423,728 units) |
|
|
7/7/2023 |
|
|
|
|
|
|
|
|
|
|
|
424 |
|
|
|
424 |
|
|
|
0.0 |
% |
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,418 |
|
|
|
12,607 |
|
|
|
0.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Celtra Technologies, Inc. (11) 545 Boylston Street 11th Floor Boston, MA 02116 USA |
|
Class A Units (1,250,000 units) |
|
|
11/19/2021 |
|
|
|
|
|
|
|
|
|
|
|
1,250 |
|
|
|
1,250 |
|
|
|
0.1 |
% |
|
|
1.6 |
% |
IntelePeer Holdings, Inc. (11) 155 Bovet Rd. Suite 405 San Mateo, CA 94402 USA |
|
Series C Preferred Shares (1,816,295 shares) |
|
|
4/8/2021 |
|
|
|
|
|
|
|
|
|
|
|
1,816 |
|
|
|
1,866 |
|
|
|
0.1 |
% |
|
|
8.2 |
% |
|
|
Series D Preferred Shares (1,598,874 shares) |
|
|
4/8/2021 |
|
|
|
|
|
|
|
|
|
|
|
2,925 |
|
|
|
2,004 |
|
|
|
0.1 |
% |
|
|
4.1 |
% |
|
|
|
|
|
2/28/2020 |
|
|
|
|
|
|
|
|
|
|
|
183 |
|
|
|
— |
|
|
|
0.0 |
% |
|
|
11.7 |
% |
|
|
|
|
|
4/8/2021 |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
— |
|
|
|
0.0 |
% |
|
|
4.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,174 |
|
|
|
5,120 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Astra 2L Holdings II LLC (11) 5201 Congress Ave. Boca Raton, FL 33487 |
|
Membership Interest (10.17% ownership) |
|
|
1/13/2022 |
|
|
|
|
|
|
|
|
|
|
|
3,255 |
|
|
|
594 |
|
|
|
0.0 |
% |
|
|
10.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EMS Linq, Inc. (11) 2528 INDEPENDENCE BLVD STE 200 WILMINGTON NC 28412-2591 |
|
Class B Units (5,522,526 units) |
|
|
12/22/2021 |
|
|
|
|
|
|
|
|
|
|
|
5,523 |
|
|
|
4,763 |
|
|
|
0.4 |
% |
|
|
15.9 |
% |
RMCF IV CIV XXXV, LP. (11) 1320 Flynn Road, Suite 100 Camarillo, CA 93012 |
|
Partnership Interest (11.94% ownership) |
|
|
6/8/2021 |
|
|
|
|
|
|
|
|
|
|
|
1,000 |
|
|
|
1,410 |
|
|
|
0.1 |
% |
|
|
11.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,778 |
|
|
|
6,767 |
|
|
|
0.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AvidXchange, Inc. (10)(11) 1210 AvidXchange Lane Charlotte, NC 28206 |
|
Common Shares (50,179 shares) |
|
|
10/15/2021 |
|
|
|
|
|
|
|
|
|
|
|
256 |
|
|
|
476 |
|
|
|
0.0 |
% |
|
|
0.0 |
% |
Newport Parent Holdings, LP (11) 58 Durham Road DH3 2QJ |
|
Class A-2 Units (131,569 units) |
|
|
12/10/2020 |
|
|
|
|
|
|
|
|
|
|
|
4,177 |
|
|
|
9,607 |
|
|
|
0.6 |
% |
|
|
1.3 |
% |
Oxford Square Capital Corp. (4)(10) 8 Sound Shore Drive Suite 255 Suite 255 Greenwich, CT 06830 |
|
Common Shares (1,620 shares) |
|
|
8/5/2015 |
|
|
|
|
|
|
|
|
|
|
|
6 |
|
|
|
5 |
|
|
|
0.0 |
% |
|
|
0.0 |
% |
Passport Labs, Inc. (11) 128 S Tryon St, Ste 1000 Charlotte, NC 28202 |
|
|
|
|
4/28/2021 |
|
|
|
|
|
|
|
|
|
|
|
192 |
|
|
|
2 |
|
|
|
0.0 |
% |
|
|
16.4 |
% |
TradingScreen, Inc. (11)(13) 1 Penn Plaza, 49th Fl New York, NY 10119 |
|
Class A Units (600,000 units) |
|
|
5/14/2021 |
|
|
|
|
|
|
|
|
|
|
|
600 |
|
|
|
600 |
|
|
|
0.1 |
% |
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,231 |
|
|
|
10,690 |
|
|
|
0.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Caris Life Sciences, Inc. (11) 750 W John Carpenter Fwy Suite 800 Irving, TX 75039 |
|
Series C Preferred Shares (1,915,114 shares) |
|
|
10/13/2020 |
|
|
|
|
|
|
|
|
|
|
|
3,500 |
|
|
|
6,703 |
|
|
|
0.5 |
% |
|
|
1.6 |
% |
|
|
Series D Preferred Shares (1,240,740 shares) |
|
|
5/11/2021 |
|
|
|
|
|
|
|
|
|
|
|
10,050 |
|
|
|
9,573 |
|
|
|
0.6 |
% |
|
|
1.2 |
% |
|
|
|
|
|
9/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
192 |
|
|
|
1,196 |
|
|
|
0.1 |
% |
|
|
5.0 |
% |
|
|
|
|
|
4/2/2020 |
|
|
|
|
|
|
|
|
|
|
|
250 |
|
|
|
893 |
|
|
|
0.1 |
% |
|
|
5.0 |
% |
Merative L.P. (11)(13) 100 Phoenix Drive Ann Arbor, MI 48108 |
|
|
|
|
6/30/2022 |
|
|
|
|
|
|
|
|
|
|
|
9,897 |
|
|
|
9,897 |
|
|
|
0.7 |
% |
|
|
16.5 |
% |
Raptor US Buyer II Corp. (11)(12) 205 West Wacker Drive, Suite 1800 Chicago, IL 60606 |
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
0.6 |
% |
|
|
|
|
|
3/24/2023 |
|
|
|
|
|
|
|
|
|
|
|
203 |
|
|
|
203 |
|
|
|
0.0 |
% |
|
|
34.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,919 |
|
|
|
30,292 |
|
|
|
2.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hotel, Gaming and Leisure |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IRGSE Holding Corp. (7)(11) 1555 Palm Beach Lake Blvd Unit 1105 West Palm Beach, FL 33401 USA |
|
Class A Units (33,790,171 units) |
|
|
12/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
21,842 |
|
|
|
6,336 |
|
|
|
0.4 |
% |
|
|
100.0 |
% |
|
|
Class C-1 Units (8,800,000 units) |
|
|
12/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
100 |
|
|
|
43 |
|
|
|
0.0 |
% |
|
|
86.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,942 |
|
|
|
6,379 |
|
|
|
0.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Human Resource Support Services |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Axonify, Inc. (4)(11)(13) 450 Phillip St Waterloo, Ontario N2L 5J2 Canada |
|
Class A-1 Units (3,780,000 units) |
|
|
5/5/2021 |
|
|
|
|
|
|
|
|
|
|
|
3,780 |
|
|
|
3,837 |
|
|
|
0.3 |
% |
|
|
1.8 |
% |
bswift, LLC (11)(12) 500 W. Monroe Suite 3800 Chicago, IL 60661 USA |
|
Class A-1 Units (2,393,509 units) |
|
|
11/7/2022 |
|
|
|
|
|
|
|
|
|
|
|
2,394 |
|
|
|
2,394 |
|
|
|
0.2 |
% |
|
|
0.5 |
% |
DaySmart Holdings, LLC (11)(13) 312 Soutg State Street Fl 2 Ann Arbor, MI 48104 |
|
Class A Units (166,811 units) |
|
|
10/1/2019 |
|
|
|
|
|
|
|
|
|
|
|
1,347 |
|
|
|
2,030 |
|
|
|
0.1 |
% |
|
|
1.2 |
% |
Employment Hero Holdings Pty Ltd. (4)(11) Level 2, 441 Kent Street Sydney, New South Wales 2000 Australia |
|
Series E Preferred Shares (113,250 shares) |
|
|
3/1/2022 |
|
|
|
|
|
|
|
|
|
|
|
2,134 |
|
|
|
2,493
(AUD 3,862) |
|
|
|
0.2 |
% |
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,655 |
|
|
|
10,754 |
|
|
|
0.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bayshore Intermediate #2, L.P. (11)(13) 1400 Liberty Ridge Drive Chesterbrook, PA 19087 USA |
|
Co-Invest Common Units (8,837,008 units) |
|
|
10/1/2021 |
|
|
|
|
|
|
|
|
|
|
|
8,837 |
|
|
|
8,152 |
|
|
|
0.5 |
% |
|
|
0.4 |
% |
|
|
Co-Invest 2 Common Units (3,493,701 units) |
|
|
10/1/2021 |
|
|
|
|
|
|
|
|
|
|
|
3,494 |
|
|
|
3,223 |
|
|
|
0.2 |
% |
|
|
0.4 |
% |
Lucidworks, Inc. (11) 235 Montgomery Street Suite 500 San Francisco, CA 94104 USA |
|
Series F Preferred Shares (199,054 shares) |
|
|
8/2/2019 |
|
|
|
|
|
|
|
|
|
|
|
800 |
|
|
|
800 |
|
|
|
0.1 |
% |
|
|
1.5 |
% |
Piano Software, Inc. (11) One World Trade Center Suite 46D New York, NY 10007 USA |
|
Series C-1 Preferred Shares (418,527 shares) |
|
|
12/22/2021 |
|
|
|
|
|
|
|
|
|
|
|
3,000 |
|
|
|
3,000 |
|
|
|
0.2 |
% |
|
|
24.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series C-2 Preferred Shares (27,588 shares) (12) |
|
|
11/18/2022 |
|
|
|
|
|
|
|
|
|
|
|
198 |
|
|
|
198 |
|
|
|
0.0 |
% |
|
|
2.1 |
% |
SMA Technologies Holdings, LLC (11)(12) 14237 East Sam Houston Pawkway N. Suite 200-314 Houston, TX 77044 USA |
|
Class A Units (1,300 shares) |
|
|
11/21/2022 |
|
|
|
|
|
|
|
|
|
|
|
1,300 |
|
|
|
1,300 |
|
|
|
0.1 |
% |
|
|
1.3 |
% |
|
|
Class B Units (923,250 shares) |
|
|
11/21/2022 |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
— |
|
|
|
0.0 |
% |
|
|
1.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,629 |
|
|
|
16,673 |
|
|
|
1.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Validity, Inc. (11) 100 Summer St Suite 2900 Boston, MA 02110 |
|
Series A Preferred Shares (3,840,000 shares) |
|
|
5/31/2018 |
|
|
|
|
|
|
|
|
|
|
|
3,840 |
|
|
|
10,944 |
|
|
|
0.7 |
% |
|
|
3.1 |
% |
Oil, Gas and Consumable Fuels |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Murchison Oil and Gas, LLC (13) 1100 Mira Vista Plano, TX 79093 |
|
|
|
|
6/30/2022 |
|
|
|
|
|
|
|
|
|
|
|
13,355 |
|
|
|
14,891 |
|
|
|
1.0 |
% |
|
|
16.3 |
% |
TRP Assets, LLC (11)(13) 1111 Louisiana Street Suite 4550 Houston, TX |
|
Partnership Interest (1.89% ownership) |
|
|
8/25/2022 |
|
|
|
|
|
|
|
|
|
|
|
8,732 |
|
|
|
11,811 |
|
|
|
0.8 |
% |
|
|
1.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,087 |
|
|
|
26,702 |
|
|
|
1.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TherapeuticsMD, Inc. (4)(11) 3 Second Street, Suite 206 Jersey City, NJ |
|
|
|
|
8/5/2020 |
|
|
|
|
|
|
|
|
|
|
|
1,029 |
|
|
|
— |
|
|
|
0.0 |
% |
|
|
|
|
Retail and Consumer Products |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
American Achievement, Corp. (11) 1550 W Mockingbird Lane Dallas, TX 75235 |
|
Class A Units (687 units) |
|
|
3/16/2021 |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
50 |
|
|
|
0.0 |
% |
|
|
3.8 |
% |
Copper Bidco, LLC
951 Yamato Road
Suite 220
Boca Raton, FL 33431 |
|
Trust Certificates (132,928 Certificates) |
|
|
12/7/2020 |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
7 |
|
|
|
0.0 |
% |
|
|
1.3 |
% |
|
|
Trust Certificates (996,958 Certificates) (9) |
|
|
1/30/2021 |
|
|
|
|
|
|
|
|
|
|
|
2,589 |
|
|
|
10,727 |
|
|
|
0.7 |
% |
|
|
1.3 |
% |
Neuintel, LLC (11)(13) 20 Pacifica Suite 1000 Irvine, CA 92618 |
|
Class A Units (1,176,494 units) |
|
|
12/21/2021 |
|
|
|
|
|
|
|
|
|
|
|
3,000 |
|
|
|
2,468 |
|
|
|
0.2 |
% |
|
|
1.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,589 |
|
|
|
13,252 |
|
|
|
0.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allegro CLO Ltd, Series 2018-1A, (3)(4)(9) 100 West Putnam Ave, Third Floor, Greenwich, CT 06830 |
|
Structured Credit ($1,000 par, due 6/2031) |
|
|
5/26/2022 |
|
|
|
SOFR + 3.11 |
% |
|
|
8.42 |
% |
|
|
973 |
|
|
|
953 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
American Money Management Corp CLO Ltd, Series 2016-18A (3)(4)(9) 301 East Fourth Street, 38 Th Floor, Cincinnati, OH 45202 |
|
Structured Credit ($1,500 par, due 5/2031) |
|
|
6/22/2022 |
|
|
|
SOFR + 3.31 |
% |
|
|
8.70 |
% |
|
|
1,356 |
|
|
|
1,455 |
|
|
|
0.1 |
% |
|
|
Ares CLO Ltd, Series 2021-59A (3)(4)(9) 245 Park Ave 44th floor, New York, NY 10167 |
|
Structured Credit ($1,000 par, due 4/2034) |
|
|
6/23/2022 |
|
|
|
SOFR + 6.51 |
% |
|
|
11.86 |
% |
|
|
897 |
|
|
|
906 |
|
|
|
0.0 |
% |
|
|
Ares Loan Funding I Ltd, Series 2021-ALFA, Class E (3)(4)(9) 245 Park Ave 44th floor, New York, NY 10167 |
|
Structured Credit ($1,000 par, due 10/2034) |
|
|
6/24/2022 |
|
|
|
SOFR + 6.96 |
% |
|
|
12.27 |
% |
|
|
943 |
|
|
|
925 |
|
|
|
0.0 |
% |
|
|
Bain Capital Credit CLO Ltd, Series 2018-1A (3)(4)(9) 200 Clarendon St, Boston, MA 02116 |
|
Structured Credit ($500 par, due 4/2031) |
|
|
10/15/2020 |
|
|
|
SOFR + 5.61 |
% |
|
|
10.96 |
% |
|
|
428 |
|
|
|
421 |
|
|
|
0.0 |
% |
|
|
Battalion CLO Ltd, Series 2021-21A (3)(4)(9) 399 Park Avenue, 16th Floor, New York, NY 10022 |
|
Structured Credit ($1,300 par, due 7/2034) |
|
|
7/13/2022 |
|
|
|
SOFR + 3.56 |
% |
|
|
8.87 |
% |
|
|
1,167 |
|
|
|
1,222 |
|
|
|
0.1 |
% |
|
|
Benefit Street Partners CLO Ltd, Series 2015-BR (3)(4)(9) 9 W 57th St #4920, New York, NY 10019 |
|
Structured Credit ($2,500 par, due 7/2034) |
|
|
7/13/2022 |
|
|
|
SOFR + 4.11 |
% |
|
|
9.44 |
% |
|
|
2,190 |
|
|
|
2,500 |
|
|
|
0.2 |
% |
|
|
Benefit Street Partners CLO Ltd, Series 2015-8A (3)(4)(9) 9 W 57th St #4920, New York, NY 10019 |
|
Structured Credit ($1,425 par, due 1/2031) |
|
|
9/13/2022 |
|
|
|
SOFR + 3.01 |
% |
|
|
8.34 |
% |
|
|
1,282 |
|
|
|
1,334 |
|
|
|
0.1 |
% |
|
|
Carlyle Global Market Strategies CLO Ltd, Series 2014-4RA (3)(4)(9) 1001 Pennsylvania Avenue NW Washington, DC |
|
Structured Credit ($1,000 par, due 7/2030) |
|
|
5/26/2022 |
|
|
|
SOFR + 3.16 |
% |
|
|
8.47 |
% |
|
|
917 |
|
|
|
928 |
|
|
|
0.1 |
% |
|
|
Carlyle Global Market Strategies CLO Ltd, Series 2016-1, Ltd (3)(4)(9) 1001 Pennsylvania Avenue NW Washington, DC |
|
Structured Credit ($1,600 par, due 4/2034) |
|
|
2/15/2023 |
|
|
|
SOFR + 6.86 |
% |
|
|
12.19 |
% |
|
|
1,427 |
|
|
|
1,467 |
|
|
|
0.1 |
% |
|
|
Carlyle Global Market Strategies CLO Ltd, Series 2018-1A (3)(4)(9) 1001 Pennsylvania Avenue NW Washington, DC |
|
Structured Credit ($1,550 par, due 4/2031) |
|
|
8/11/2020 |
|
|
|
SOFR + 6.01 |
% |
|
|
11.34 |
% |
|
|
1,259 |
|
|
|
1,386 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CarVal CLO III Ltd, Series 2019-2A (3)(4)(9) 1601 Utica Avenue South, Suite 1000. Minneapolis, MN 55416 |
|
Structured Credit ($1,000 par, due 7/2032) |
|
|
6/30/2022 |
|
|
|
SOFR + 6.70 |
% |
|
|
12.03 |
% |
|
|
901 |
|
|
|
957 |
|
|
|
0.1 |
% |
|
|
Cedar Funding CLO Ltd, Series 2018-7A (3)(4)(9) 1201 Wills Street, Suite 800. Baltimore, MD 21231 |
|
Structured Credit ($1,000 par, due 1/2031) |
|
|
7/21/2022 |
|
|
|
SOFR + 4.81 |
% |
|
|
10.14 |
% |
|
|
871 |
|
|
|
867 |
|
|
|
0.0 |
% |
|
|
CIFC CLO Ltd, Series 2018-3A (3)(4)(9) 1 SE 3rd Avenue, Suite 1660, Miami, FL 33131 |
|
Structured Credit ($1,000 par, due 7/2031) |
|
|
6/16/2022 |
|
|
|
SOFR + 5.76 |
% |
|
|
11.07 |
% |
|
|
902 |
|
|
|
928 |
|
|
|
0.1 |
% |
|
|
CIFC CLO Ltd, Series 2021-4A (3)(4)(9) 1 SE 3rd Avenue, Suite 1660, Miami, FL 33131 |
|
Structured Credit ($1,000 par, due 7/2033) |
|
|
7/14/2022 |
|
|
|
SOFR + 6.26 |
% |
|
|
11.57 |
% |
|
|
899 |
|
|
|
950 |
|
|
|
0.1 |
% |
|
|
Crown Point CLO Ltd, Series 2021-10A (3)(4)(9) 810 7th Ave, New York, NY 10019 |
|
Structured Credit ($1,000 par, due 7/2034) |
|
|
6/14/2022 |
|
|
|
SOFR + 7.11 |
% |
|
|
12.44 |
% |
|
|
903 |
|
|
|
925 |
|
|
|
0.1 |
% |
|
|
Dryden Senior Loan Fund, Series 2018-55A (3)(4)(9)
655 Broad Street Newark, NJ 07102
|
|
Structured Credit ($1,000 par, due 4/2031) |
|
|
7/25/2022 |
|
|
|
SOFR + 3.11 |
% |
|
|
8.42 |
% |
|
|
925 |
|
|
|
928 |
|
|
|
0.1 |
% |
|
|
Dryden Senior Loan Fund, Series 2020-86A (3)(4)(9) 655 Broad Street Newark, NJ 07102 |
|
Structured Credit ($1,500 par, due 7/2034) |
|
|
8/17/2022 |
|
|
|
SOFR + 6.76 |
% |
|
|
12.07 |
% |
|
|
1,451 |
|
|
|
1,358 |
|
|
|
0.1 |
% |
|
|
Eaton CLO Ltd, Series 2015-1A (3)(4)(9) wo International Place, Suite 1400 Boston, MA 02110 |
|
Structured Credit ($2,500 par, due 1/2030) |
|
|
6/23/2022 |
|
|
|
SOFR + 2.76 |
% |
|
|
8.09 |
% |
|
|
2,252 |
|
|
|
2,394 |
|
|
|
0.2 |
% |
|
|
Eaton CLO Ltd, Series 2020-1A (3)(4)(9) wo International Place, Suite 1400 Boston, MA 02110 |
|
Structured Credit ($1,000 par, due 10/2034) |
|
|
8/11/2022 |
|
|
|
SOFR + 6.51 |
% |
|
|
11.82 |
% |
|
|
934 |
|
|
|
962 |
|
|
|
0.1 |
% |
|
|
GoldenTree CLO Ltd, Series 2020-7A (3)(4)(9) 300 Park Avenue New York, NY 10022 |
|
Structured Credit ($1,000 par, due 4/2034) |
|
|
6/17/2022 |
|
|
|
SOFR + 6.76 |
% |
|
|
12.09 |
% |
|
|
921 |
|
|
|
984 |
|
|
|
0.1 |
% |
|
|
Gulf Stream Meridian, Series 2021-4A (3)(4)(9) 4201 Congress Street, Charlotte NC 28209 |
|
Structured Credit ($1,015 par, due 7/2034) |
|
|
6/3/2022 |
|
|
|
SOFR + 6.61 |
% |
|
|
11.98 |
% |
|
|
941 |
|
|
|
920 |
|
|
|
0.0 |
% |
|
|
Gulf Stream Meridian, Series 2021-6A (3)(4)(9) 4201 Congress Street, Charlotte NC 28209 |
|
Structured Credit ($2,000 par, due 1/2037) |
|
|
9/12/2022 |
|
|
|
SOFR + 6.62 |
% |
|
|
11.93 |
% |
|
|
1,849 |
|
|
|
1,785 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson Mill CLO Ltd, Series 2015-1A (3)(4)(9) 151 W 42nd St 29th Floor, New York, NY 10036 |
|
Structured Credit ($1,000 par, due 10/2031) |
|
|
5/23/2022 |
|
|
|
SOFR + 3.81 |
% |
|
|
9.14 |
% |
|
|
906 |
|
|
|
937 |
|
|
|
0.0 |
% |
|
|
KKR CLO Ltd, 49A (3)(4)(9) 30 Hudson Yards, New York, NY 10001 |
|
Structured Credit ($1,000 par, due 7/2035) |
|
|
6/2/2022 |
|
|
|
SOFR + 8.26 |
% |
|
|
13.33 |
% |
|
|
977 |
|
|
|
959 |
|
|
|
0.1 |
% |
|
|
Madison Park CLO, Series 2018-28A (3)(4)(9) 11 Madison Ave, New York, NY 10010 |
|
Structured Credit ($1,000 par, due 7/2030) |
|
|
6/28/2022 |
|
|
|
SOFR + 5.51 |
% |
|
|
10.82 |
% |
|
|
908 |
|
|
|
948 |
|
|
|
0.0 |
% |
|
|
Magnetite CLO Ltd, Series 2021-30A (3)(4)(9) 50 Hudson Yards, New York, NY 10001 |
|
Structured Credit ($1,000 par, due 10/2034) |
|
|
6/13/2022 |
|
|
|
SOFR + 6.46 |
% |
|
|
11.81 |
% |
|
|
919 |
|
|
|
956 |
|
|
|
0.1 |
% |
|
|
MidOcean Credit CLO Ltd, Series 2016-6A (3)(4)(9)
320 Park Avenue Suite 1600 New York, NY 10022 USA
|
|
Structured Credit ($3,500 par, due 4/2033) |
|
|
5/23/2022 |
|
|
|
SOFR + 3.78 |
% |
|
|
9.11 |
% |
|
|
3,165 |
|
|
|
3,231 |
|
|
|
0.2 |
% |
|
|
MidOcean Credit CLO Ltd, Series 2018-9A (3)(4)(9) 320 Park Avenue Suite 1600 New York, NY 10022 USA |
|
Structured Credit ($1,100 par, due 7/2031) |
|
|
6/1/2022 |
|
|
|
SOFR + 6.31 |
% |
|
|
11.64 |
% |
|
|
964 |
|
|
|
952 |
|
|
|
0.1 |
% |
|
|
Octagon 57 LLC, Series 2021-1A (3)(4)(9) 250 Park Ave, New York, NY 10177 |
|
Structured Credit ($1,000 par, due 10/2034) |
|
|
5/24/2022 |
|
|
|
SOFR + 6.86 |
% |
|
|
12.17 |
% |
|
|
949 |
|
|
|
916 |
|
|
|
0.0 |
% |
|
|
Octagon Investment Partners 18 Ltd, Series 2018-18A (3)(4)(9) 250 Park Ave, New York, NY 10177 |
|
Structured Credit ($1,000 par, due 4/2031) |
|
|
7/26/2022 |
|
|
|
SOFR + 2.96 |
% |
|
|
8.27 |
% |
|
|
911 |
|
|
|
925 |
|
|
|
0.1 |
% |
|
|
Octagon Investment Partners 38 Ltd, Series 2018-1A (3)(4)(9) 250 Park Ave, New York, NY 10177 |
|
Structured Credit ($2,800 par, due 7/2030) |
|
|
9/20/2022 |
|
|
|
SOFR + 3.21 |
% |
|
|
8.54 |
% |
|
|
2,489 |
|
|
|
2,620 |
|
|
|
0.2 |
% |
|
|
Park Avenue Institutional Advisers CLO Ltd, Series 2018-1A (3)(4)(9) 7 Hanover Square, New York, NY 10004 |
|
Structured Credit ($1,000 par, due 10/2031) |
|
|
9/23/2022 |
|
|
|
SOFR + 3.59 |
% |
|
|
8.92 |
% |
|
|
868 |
|
|
|
922 |
|
|
|
0.0 |
% |
|
|
Pikes Peak CLO, Series 2021-9A (3)(4)(9) 1114 6th Ave, New York, NY 10036 |
|
Structured Credit ($2,000 par, due 10/2034) |
|
|
8/31/2022 |
|
|
|
SOFR + 6.84 |
% |
|
|
12.20 |
% |
|
|
1,782 |
|
|
|
1,894 |
|
|
|
0.1 |
% |
|
|
RR Ltd, Series 2020-8A (3)(4)(9) 126 East 56th Street, New York, New York 10022 |
|
Structured Credit ($1,000 par, due 4/2033) |
|
|
8/22/2022 |
|
|
|
SOFR + 6.66 |
% |
|
|
11.97 |
% |
|
|
954 |
|
|
|
980 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signal Peak CLO LLC, Series 2018-5A (3)(4)(9) 280 Park Avenue, 40 West New York, NY 10017 |
|
Structured Credit ($333 par, due 4/2031) |
|
|
8/9/2022 |
|
|
|
SOFR + 5.91 |
% |
|
|
11.26 |
% |
|
|
301 |
|
|
|
297 |
|
|
|
0.0 |
% |
|
|
|
|
Southwick Park CLO Ltd, Series 2019-4A (3)(4)(9)
345 PARK AVENUE NEW YORK, NY 10154
|
|
Structured Credit ($1,000 par, due 7/2032) |
|
|
5/25/2022 |
|
|
|
SOFR + 6.51 |
% |
|
|
11.84 |
% |
|
|
931 |
|
|
|
925 |
|
|
|
0.0 |
% |
|
|
|
|
Stewart Park CLO Ltd, Series 2015-1A (3)(4)(9) 345 PARK AVENUE NEW YORK NY 10154 |
|
Structured Credit ($1,000 par, due 1/2030) |
|
|
7/25/2022 |
|
|
|
SOFR + 2.86 |
% |
|
|
8.17 |
% |
|
|
926 |
|
|
|
922 |
|
|
|
0.0 |
% |
|
|
|
|
Voya CLO Ltd, Series 2018-3A (3)(4)(9)
230 Park Ave, United States
|
|
Structured Credit ($2,750 par, due 10/2031) |
|
|
6/22/2022 |
|
|
|
SOFR + 6.01 |
% |
|
|
11.32 |
% |
|
|
2,435 |
|
|
|
2,391 |
|
|
|
0.2 |
% |
|
|
|
|
Wind River CLO Ltd, Series 2014-2A (3)(4)(9) 1345 Avenue of the Americas. New York, NY 10105. |
|
Structured Credit ($1,500 par, due 1/2031) |
|
|
6/23/2022 |
|
|
|
SOFR + 3.16 |
% |
|
|
8.47 |
% |
|
|
1,405 |
|
|
|
1,339 |
|
|
|
0.1 |
% |
|
|
|
|
Wind River CLO Ltd, Series 2017-1A (3)(4)(9)
1345 Avenue of the Americas. New York, NY 10105.
|
|
Structured Credit ($3,000 par, due 4/2036) |
|
|
7/14/2022 |
|
|
|
SOFR + 3.98 |
% |
|
|
9.29 |
% |
|
|
2,630 |
|
|
|
2,721 |
|
|
|
0.2 |
% |
|
|
|
|
Wind River CLO Ltd, Series 2018-3A (3)(4)(9) 1345 Avenue of the Americas. New York, NY 10105. |
|
Structured Credit ($2,000 par, due 1/2031) |
|
|
12/12/2022 |
|
|
|
SOFR + 5.91 |
% |
|
|
11.24 |
% |
|
|
1,710 |
|
|
|
1,705 |
|
|
|
0.1 |
% |
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,718 |
|
|
|
53,995 |
|
|
|
3.6 |
% |
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Equity and Other Investments |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
195,009 |
|
|
|
204,175 |
|
|
|
13.7 |
% |
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
3,085,378 |
|
|
$ |
3,113,277 |
|
|
|
209.5 |
% |
|
|
|
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| (1) |
Certain portfolio company investments are subject to contractual restrictions on sales. |
| (2) |
The amortized cost represents the original cost adjusted for the amortization of discounts and premiums, as applicable, on debt investments using the effective interest method. |
| (3) |
Investment contains a variable rate structure, subject to an interest rate floor. Variable rate investments bear interest at a rate that may be determined by reference to either Euro Interbank Offer Rate (“Euribor” or “E”), Canadian Dollar Offered Rate (“CDOR” or “C”), Secured Overnight Financing Rate (“SOFR”) which may also contain a credit spread adjustment depending on the tenor election, Bank Bill Swap Bid Rate (“BBSY” or “B”), Sterling Overnight Interbank Average Rate (“SONIA” or “S”) or an alternate base rate (which can include the Federal Funds Effective Rate or the Prime Rate or “P”), all of which include an available tenor, selected at the borrower’s option, which reset periodically based on the terms of the credit agreement. For investments with multiple interest rate contracts, the interest rate shown is the weighted average interest rate in effect at September 30, 2023. |
| (4) |
This portfolio company is not a qualifying asset under Section 55(a) of the Investment Company Act of 1940, as amended (the “1940 Act”). Under the 1940 Act, the Company may not acquire any non-qualifying |
|
asset unless, at the time such acquisition is made, qualifying assets represent at least 70% of total assets. Non-qualifying assets represented 11.0% of total assets as of September 30, 2023. |
| (5) |
In addition to the interest earned based on the stated interest rate of this investment, which is the amount reflected in this schedule, the Company may be entitled to receive additional interest as a result of an arrangement with other members in the syndicate to the extent an investment has been allocated to “first out” and “last out” tranches, whereby the “first out” tranche will have priority as to the “last out” tranche with respect to payments of principal, interest and any amounts due thereunder and the Company holds the “last out” tranche. |
| (6) |
Under the 1940 Act, the Company is deemed to be both an “Affiliated Person” of and “Control,” as such terms are defined in the 1940 Act, this portfolio company, as the Company owns more than 25% of the portfolio company’s outstanding voting securities or has the power to exercise control over management or policies of such portfolio company (including through a management agreement). Transactions during the nine months ended September 30, 2023 in which the Company was an Affiliated Person of and was deemed to Control a portfolio company are as follows: |
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Fair Value at
December 31,
2022 |
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|
|
|
|
Net Change
In Unrealized
Gain/(Loss) |
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|
|
|
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|
Fair Value at
September 30,
2023 |
|
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|
|
|
|
|
$ |
70,755 |
|
|
$ |
8,005 |
|
|
$ |
— |
|
|
$ |
(17,783 |
) |
|
$ |
— |
|
|
$ |
— |
|
|
$ |
60,977 |
|
|
$ |
4 |
|
|
$ |
5,599 |
|
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| (a) |
Gross additions include increases in the cost basis of investments resulting from new investments, interest or dividends, the amortization of any unearned income or discounts on debt investments, as applicable. |
| (b) |
Gross reductions include decreases in the cost basis of investments resulting from principal collections related to investment repayments or sales, and the amortization of any premiums on debt investments, as applicable. When an investment is placed on non-accrual status, any cash flows received by the Company may be applied to the outstanding principal balance. |
| (7) |
As of September 30, 2023, the estimated cost basis of investments for U.S. federal tax purposes was $3,096,469, resulting in estimated gross unrealized gains and losses of $147,820 and $125,469, respectively. |
| (8) |
In accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 820, (“ASC Topic 820”), unless otherwise indicated, the fair values of all investments were determined using significant unobservable inputs and are considered Level 3 investments. See Note 6 for further information related to investments at fair value. |
| (9) |
This investment is valued using observable inputs and is considered a Level 2 investment. See Note 6 for further information related to investments at fair value. |
| (10) |
This investment is valued using observable inputs and is considered a Level 1 investment. See Note 6 for further information related to investments at fair value. |
| (11) |
This investment is non-income producing. |
| (12) |
All or a portion of this security was acquired in a transaction exempt from registration under the Securities Act of 1933, and may be deemed to be “restricted securities” under the Securities Act. As of September 30, 2023, the aggregate fair value of these securities is $6,346, or 0.4% of the Company’s net assets. |
| (13) |
Ownership of equity investments may occur through a holding company or partnership. |
| (14) |
Investment is on non-accrual status as of September 30, 2023. |
| (15) |
In addition to the principal amount outstanding and accrued interest owed on this investment, the Company is entitled to a separate Make-Whole Amount (the “Make-Whole”) of $11.4 million. The Make-Whole is a contractual obligation of the borrower and accrues interest on the balance outstanding. The Make-Whole is included on the Company’s consolidated balance sheet within other assets, net of any valuation allowance. Given uncertainty relating to collectability of the Make-Whole, the Company has applied a full valuation allowance against the amount of the Make-Whole balance outstanding. |
Please refer to our most recent definitive proxy statement and in our 2022 Annual Report, as well as subsequent filings with the SEC, which are incorporated by reference herein, for information relating to the management of the Company and for information relating to the Adviser.
The Adviser manages our
operations and provides us with investment advisory and management services and certain administrative services. We consider Joshua Easterly to be our portfolio manager who is primarily responsible for the
management of our portfolio. Please refer to our most recent definitive proxy statement, which is incorporated by reference herein, for the biographical information of the Company’s portfolio manager.
The Company’s portfolio manager does not receive any direct compensation from us for serving is such capacity.
The table below shows the dollar range of shares of common stock beneficially owned by our portfolio manager as of December 20, 2023:
|
|
|
|
|
Name of Portfolio Manager |
|
Dollar Range of
Equity Securities in
the Company |
|
|
|
|
Over 1,000,000 |
|
As of December 31, 2022, Joshua Easterly managed, or was a member of the management team for, the following client accounts:
|
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|
|
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| |
|
Number of
Accounts |
|
|
Assets of
Accounts |
|
|
Number of
Accounts
Subject to a
Performance Fee |
|
|
Assets
Subject to a
Performance Fee |
|
| Registered Investment Companies |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Pooled Investment Vehicles Other Than Registered Investment Companies (1) |
|
|
123 |
|
|
$ |
64.47 billion |
|
|
|
111 |
|
|
$ |
61.93 billion |
|
| Other Accounts |
|
|
5 |
|
|
$ |
3.79 billion |
|
|
|
3 |
|
|
$ |
2.82 billion |
|
| (1) |
Includes management investment companies that have elected to be regulated as business development companies under the 1940 Act. |
DETERMINATION OF NET ASSET VALUE
The net asset value per share of our outstanding shares of common stock is determined quarterly by dividing the value of total assets minus liabilities by the total number of shares outstanding. We calculate the value of our investments in accordance with the procedures described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies-Investments at Fair Value” in Part I, Item 1 of our 2022 Annual Report incorporated by reference in this prospectus.
Determinations in Connection with Offerings
In connection with certain future offerings of shares of our common stock, our Board or an authorized committee of our Board will be required to make the determination that we are not selling shares of our common stock at a price below the then-current net asset value of our common stock at the time at which the sale is made. Our Board or an authorized committee will consider the following factors, among others, in making a determination:
| |
• |
|
the net asset value of our common stock disclosed in the most recent periodic report that we filed with the SEC; |
| |
• |
|
our management’s assessment of whether any material change in the net asset value of our common stock has occurred (including through the realization of gains on the sale of our portfolio securities) during the period beginning on the date of the most recently disclosed net asset value of our common stock and ending two days prior to the date of the sale of our common stock; and |
| |
• |
|
the magnitude of the difference between (i) a value that our Board or an authorized committee thereof has determined reflects the current net asset value of our common stock, which is generally based upon the net asset value of our common stock disclosed in the most recent periodic report that we filed with the SEC, as adjusted to reflect our management’s assessment of any material change in the net asset value of our common stock since the date of the most recently disclosed net asset value of our common stock, and (ii) the offering price of the shares of our common stock in the proposed offering. |
These processes and procedures are part of our compliance policies and procedures. Records will be made contemporaneously with all determinations described in this section and these records will be maintained with other records that we are required to maintain under the 1940 Act.
SALES OF COMMON STOCK BELOW NET ASSET VALUE
Pursuant to approval granted at a special meeting of stockholders held on May 25, 2023, we are currently permitted to sell or otherwise issue shares of our common stock at a price below our then-current net asset value per share, subject to the approval of our Board and certain other conditions. Such stockholder approval expires on May 25, 2026. We intend to propose the extension of this approval in future years.
Except for such authorizations as otherwise may be required with respect to a particular issuance under applicable law, New York Stock Exchange rules or our certificate of incorporation, no further authorization from stockholders will be solicited or required prior to a sale or other issuance of shares of common stock at a price below net asset value per share in accordance with the terms of the approval. However, will would only issue shares of our common stock at a price below net asset value per share if the following conditions are met:
| |
• |
|
a “required majority” of our directors have determined that any such sale would be in the best interests of us and our stockholders; |
| |
• |
|
a “required majority” of our directors, in consultation with any underwriter or underwriters of the offering if it is to be underwritten, have determined in good faith, and as of a time immediately prior to the first solicitation by us or on our behalf of firm commitments to purchase such common stock or |
| |
immediately prior to the issuance of such common stock, that the price at which such shares of common stock are to be sold is not less than a price which closely approximates the market value of those shares of common stock, less any distributing commission or discount; and |
| |
• |
|
the number of shares to be issued does not exceed 25% of our then-outstanding common stock immediately prior to each such offering. |
Under the 1940 Act, a “required majority” of directors means both a majority of our directors who have no financial interest in the transaction and a majority of our independent directors. For these purposes, directors will not be deemed to have a financial interest solely by reason of their ownership of our common stock.
There is no limit on the percentage below net asset value per share at which shares may be sold by us or the number of offerings, each for up to 25% of our then-outstanding common stock, that we may conduct under the approval for the
one-year
period that authorization is granted.
In making a determination that an offering of common stock at a price below its net asset value per share pursuant to the approval is in our and our stockholders’ best interests, our Board will consider a variety of factors including:
| |
• |
|
the effect that an offering at a price below net asset value per share would have on our stockholders, including the potential dilution to the net asset value per share of our common stock our stockholders would experience as a result of the offering; |
| |
• |
|
the amount per share by which the offering price per share and the net proceeds per share are less than our most recently determined net asset value per share; |
| |
• |
|
the relationship of recent market prices of our common stock to net asset value per share and the potential impact of the offering on the market price per share of our common stock; |
| |
• |
|
whether the estimated offering price would closely approximate the market value of shares of our common stock; |
| |
• |
|
the potential market impact of being able to raise capital during the current financial market difficulties; |
| |
• |
|
the nature of any new investors anticipated to acquire shares of our common stock in the offering; |
| |
• |
|
the anticipated rate of return on and quality, type and availability of investments; and |
| |
• |
|
the leverage available to us. |
Our Board will also consider any possible conflict of interest due to the fact that the proceeds from the issuance of additional shares of our common stock would increase the management fees that we pay to the Adviser, as such fees are based on the amount of our gross assets, as it would regardless of whether we offer shares of common stock at a price below our net asset value per share or above our net asset value per share.
We will not sell shares of our common stock under this prospectus or an accompanying prospectus supplement without first filing a new post-effective amendment to the registration statement if the cumulative dilution to our net asset value per share from offerings under the registration statement, as amended by any post-effective amendments, exceeds 15%. This limit will be measured separately for each offering pursuant to the registration statement, as amended by any post-effective amendments, by calculating the percentage dilution or accretion to aggregate net asset value from that offering and then summing the percentage from each offering. For example, if our most recently determined net asset value per share at the time of the first offering is $16.00 and we have 60 million shares of common stock outstanding, the sale of 12 million shares of common stock at net proceeds to us of $8.00 per share (a 50% discount) would produce dilution of 8.33%. If we subsequently determined that our net asset value per share increased to $17.00 on the then 72 million shares of common stock outstanding and then made an additional offering, we could, for example, sell approximately an additional
11.07 million shares of common stock at net proceeds to us of $8.50 per share, which would produce dilution of 6.67%, before we would reach the aggregate 15% limit.
Sales by us of our common stock at a discount from net asset value per share pose potential risks for our existing stockholders whether or not they participate in the offering, as well as for new investors who participate in the offering. Any sale of common stock at a price below net asset value per share would result in an immediate dilution to existing common stockholders who do not participate in such sale on at least a pro rata basis.
Examples of Dilutive Effect of the Issuance of Shares Below net asset value
The following two headings and accompanying tables explain and provide hypothetical examples on the impact of a public offering of the Company’s common stock at a price less than net asset value on two different types of investors:
| |
• |
|
existing stockholders who do not purchase any shares in the offering; and |
| |
• |
|
existing stockholders who purchase a relatively small amount of shares in the offering or a relatively large amount of shares in the offering. |
A placement of common stock at a price less than net asset value to a third party in a private placement would have an impact substantially similar to the impact on existing stockholders who do not purchase any shares in the public offering described below.
Impact on Existing Stockholders Who Do Not Participate in the Offering
Our existing stockholders who do not participate in an offering below net asset value per share or who do not buy additional shares in the secondary market at the same or lower price as we obtain in the offering (after expenses and commissions) face the greatest potential risks. These stockholders will experience an immediate decrease in the net asset value of the shares they hold and their net asset value per share. These stockholders will also experience a disproportionately greater decrease in their participation in our earnings and assets and their voting power than the increase we will experience in its assets, potential earning power and voting interests due to the offering. These stockholders may also experience a decline in the market price of their shares, which often reflects to some degree announced or potential increases and decreases in net asset value. This decrease could be more pronounced as the size of the offering and level of discounts increase. There is no maximum level of discount from net asset value at which we may sell shares pursuant to this authority.
The following chart illustrates the level of NAV dilution that would be experienced by a nonparticipating stockholder in four different hypothetical offerings of different sizes and levels of discount from NAV. It is not possible to predict the level of market price decline that may occur. These examples are provided for illustrative purposes only.
The examples below assume that the issuer has 81.4 million shares outstanding, $2.8 billion in total assets and $1.5 billion in total liabilities (all figures correspond to actual data for us as of December 31, 2022). The net asset value and net asset value per share are thus $1.3 billion and $16.48 per share as of December 31, 2022. The chart illustrates the dilutive effect on Stockholder A of (a) an offering of 4.1 million shares of common stock (5% of the outstanding shares) at $15.66 per share after offering expenses and commissions (a 5% discount from net asset value per share), (b) an offering of 8.1 million shares of common stock (10% of the outstanding shares) at $14.83 per share after offering expenses and commissions (a 10% discount from net asset value per share), (c) an offering of 16.3 million shares of common stock (20% of the outstanding shares) at $13.18 per share after offering expenses and commissions (a 20% discount from net asset value per share), and (d) an offering of 20.3 million shares of common stock (25% of the outstanding shares) at $12.36 per share after offering expenses and commissions (a 25% discount from net asset value per share). The prospectus pursuant to which any
discounted offering is made will include a chart based on the actual number of shares of common stock in such offering and the actual discount to the most recently determined net asset value. It is not possible to predict the level of market price decline that may occur.
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| |
|
Prior to
Sale Below
net asset
value |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
5% Offering at
5% Discount |
|
|
10% Offering at
10% Discount |
|
|
20% Offering at
20% Discount |
|
|
25% Offering at
25% Discount |
|
| |
|
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|
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|
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|
|
|
|
Price per Share to Public |
|
|
|
|
|
$ |
16.48 |
|
|
|
|
|
|
$ |
15.61 |
|
|
|
|
|
|
$ |
13.88 |
|
|
|
|
|
|
$ |
13.01 |
|
|
|
|
|
Net Proceeds per Share to Issuer |
|
|
|
|
|
$ |
15.66 |
|
|
|
|
|
|
$ |
14.83 |
|
|
|
|
|
|
$ |
13.18 |
|
|
|
|
|
|
$ |
12.36 |
|
|
|
|
|
Decrease/Increase to Net Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,069,464 |
|
|
|
|
|
|
|
8,138,929 |
|
|
|
|
|
|
|
16,277,857 |
|
|
|
|
|
|
|
20,347,322 |
|
|
|
|
|
|
|
|
81,389,287 |
|
|
|
85,458,751 |
|
|
|
|
|
|
|
89,528,216 |
|
|
|
|
|
|
|
97,667,144 |
|
|
|
|
|
|
|
101,736,609 |
|
|
|
|
|
Net Asset Value per Share |
|
$ |
16.48 |
|
|
$ |
16.44 |
|
|
|
(0.22 |
)% |
|
$ |
16.33 |
|
|
|
(0.89 |
)% |
|
$ |
15.93 |
|
|
|
(3.32 |
)% |
|
$ |
15.66 |
|
|
|
(4.98 |
)% |
Dilution to Nonparticipating Stockholder |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Held by Stockholder A |
|
|
81,389 |
|
|
|
81,389 |
|
|
|
0.00 |
% |
|
|
81,389 |
|
|
|
0.00 |
% |
|
|
81,389 |
|
|
|
0.00 |
% |
|
|
81,389 |
|
|
|
0.00 |
% |
Percentage Held by Stockholder A |
|
|
0.10 |
% |
|
|
0.10 |
% |
|
|
(4.76 |
)% |
|
|
0.09 |
% |
|
|
(9.09 |
)% |
|
|
0.08 |
% |
|
|
(16.67 |
)% |
|
|
0.08 |
% |
|
|
(20.00 |
)% |
Total Net Asset Value Held by Stockholder A |
|
$ |
1,341,570 |
|
|
$ |
1,338,359 |
|
|
|
(0.24 |
%) |
|
$ |
1,329,347 |
|
|
|
(0.91 |
)% |
|
$ |
1,296,810 |
|
|
|
(3.34 |
)% |
|
$ |
1,274,446 |
|
|
|
(5.00 |
)% |
Total Investment by Stockholder A (Assumed to be $16.48 per Share) |
|
$ |
1,341,570 |
|
|
$ |
1,341,570 |
|
|
|
|
|
|
$ |
1,341,570 |
|
|
|
|
|
|
$ |
1,341,570 |
|
|
|
|
|
|
$ |
1,341,570 |
|
|
|
|
|
Total Dilution to Stockholder A (Total Net Asset Value Less Total Investment) |
|
|
|
|
|
$ |
(3,211 |
) |
|
|
|
|
|
$ |
(12,223 |
) |
|
|
|
|
|
$ |
(44,760 |
) |
|
|
|
|
|
$ |
(67,124 |
) |
|
|
|
|
Investment per Share Held by Stockholder A (Assumed to be $16.48 per Share on Shares Held Prior to Sale) |
|
$ |
16.48 |
|
|
$ |
16.48 |
|
|
|
0.00 |
% |
|
$ |
16.48 |
|
|
|
0.00 |
% |
|
$ |
16.48 |
|
|
|
0.00 |
% |
|
$ |
16.48 |
|
|
|
0.00 |
% |
Net Asset Value per Share Held by Stockholder A |
|
|
|
|
|
$ |
16.44 |
|
|
|
|
|
|
$ |
16.33 |
|
|
|
|
|
|
$ |
15.93 |
|
|
|
|
|
|
$ |
15.66 |
|
|
|
|
|
Dilution per Share Held by Stockholder A (Net Asset Value per Share Less Investment per Share) |
|
|
|
|
|
$ |
(0.04 |
) |
|
|
|
|
|
$ |
(0.15 |
) |
|
|
|
|
|
$ |
(0.55 |
) |
|
|
|
|
|
$ |
(0.82 |
) |
|
|
|
|
Percentage Dilution to Stockholder A (Dilution per Share Divided by Investment per Share) |
|
|
|
|
|
|
|
|
|
|
(0.22 |
)% |
|
|
|
|
|
|
(0.89 |
)% |
|
|
|
|
|
|
(3.32 |
)% |
|
|
|
|
|
|
(4.98 |
)% |
Impact on Existing Stockholders Who Do Participate in the Offering
Our existing stockholders who participate in an offering below net asset value or who buy additional shares in the secondary market at the same or lower price as we obtain in the offering (after expenses and commissions) will experience the same types of net asset value per share dilution as the nonparticipating stockholders, albeit at a lower level, to the extent they purchase less than the same percentage of the discounted offering as their interest in shares of our common stock immediately prior to the offering. The level of net asset value per share dilution will decrease as the number of shares such stockholders purchase increases. Existing stockholders who buy more than such percentage will experience net asset value per share dilution on their existing shares but will, in contrast to existing stockholders who purchase less than their proportionate share of the offering, experience an
increase (often called accretion) in average net asset value per share over their investment per share and will also experience a disproportionately greater increase in their participation in our earnings and assets and their voting power than our increase in assets, potential earning power and voting interests due to the offering. The level of accretion will increase as the excess number of shares such stockholder purchases increases. Even a stockholder who overparticipates will, however, be subject to the risk that we may make additional discounted offerings in which such stockholder does not participate, in which case such a stockholder will experience net asset value per share dilution as described above in such subsequent offerings. These stockholders may also experience a decline in the market price of their shares, which often reflects to some degree announced or potential decreases in net asset value per share. This decrease could be more pronounced as the size of the offering and level of discounts increases. There is no maximum level of discount from net asset value at which the Company may sell shares pursuant to this authority.
The following chart illustrates the level of dilution and accretion in the hypothetical 20% discount offering from the prior chart (Example 3) for a stockholder that acquires shares equal to (a) 50% of its proportionate share of the offering (i.e., 0.05% of an offering of 16.3 million shares) rather than its 0.10% proportionate share and (b) 150% of such percentage (i.e., 0.15% of an offering of 16.3 million shares) rather than its 0.10% proportionate share. The prospectus pursuant to which any discounted offering is made will include a chart for these examples based on the actual number of shares in such offering and the actual discount from the most recently determined net asset value. It is not possible to predict the level of market price decline that may occur. These examples are provided for illustrative purposes only.
|
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|
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|
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|
|
|
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|
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|
|
|
| |
|
Prior to Sale
Below net
asset value |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Price per Share to Public |
|
|
|
|
|
$ |
13.88 |
|
|
|
|
|
|
$ |
13.88 |
|
|
|
|
|
Net Proceeds per Share to Issuer |
|
|
|
|
|
$ |
13.18 |
|
|
|
|
|
|
$ |
13.18 |
|
|
|
|
|
Decrease/Increase to Net Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,154,308 |
|
|
|
|
|
|
|
15,154,308 |
|
|
|
|
|
|
|
|
81,389,287 |
|
|
|
97,667,144 |
|
|
|
20.00 |
% |
|
|
97,667,144 |
|
|
|
20.00 |
% |
Net Asset Value per Share |
|
$ |
16.48 |
|
|
$ |
15.93 |
|
|
|
(3.32 |
)% |
|
$ |
15.93 |
|
|
|
(3.32 |
)% |
Dilution/Accretion to Participating Stockholder Shares Held by Stockholder A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Held by Stockholder A |
|
|
81,389 |
|
|
|
89,528 |
|
|
|
10.00 |
% |
|
|
105,806 |
|
|
|
30.00 |
% |
Percentage Held by Stockholder A |
|
|
0.10 |
% |
|
|
0.09 |
% |
|
|
(8.33 |
)% |
|
|
0.11 |
% |
|
|
8.33 |
% |
Total Net Asset Value Held by Stockholder A |
|
$ |
1,341,570 |
|
|
$ |
1,426,491 |
|
|
|
6.33 |
% |
|
$ |
1,685,854 |
|
|
|
25.66 |
% |
Total Investment by Stockholder A (Assumed to be $16.48 per Share on Shares Held Prior to Sale) |
|
$ |
1,341,570 |
|
|
$ |
1,454,521 |
|
|
|
|
|
|
$ |
1,680,423 |
|
|
|
|
|
Total Dilution/Accretion to Stockholder A (Total Net Asset Value Less Total Investment) |
|
|
|
|
|
$ |
(28,030 |
) |
|
|
|
|
|
$ |
5,431 |
|
|
|
|
|
Investment per Share Held by Stockholder A (Assumed to be $16.48 per Share on Shares Held Prior to Sale) |
|
$ |
16.48 |
|
|
$ |
16.25 |
|
|
|
(1.42 |
)% |
|
$ |
15.88 |
|
|
|
(3.63 |
)% |
Net Asset Value per Share Held by Stockholder A |
|
|
|
|
|
$ |
15.93 |
|
|
|
|
|
|
$ |
15.93 |
|
|
|
|
|
Dilution/Accretion per Share Held by Stockholder A (Net Asset Value per Share Less Investment per Share) |
|
|
|
|
|
$ |
(0.31 |
) |
|
|
|
|
|
$ |
0.05 |
|
|
|
|
|
Percentage Dilution/Accretion to Stockholder A (Dilution per Share Divided by Investment per Share) |
|
|
|
|
|
|
|
|
|
|
(1.93 |
)% |
|
|
|
|
|
|
0.32 |
% |
Investors who are not currently stockholders and who participate in an offering of shares of our common stock at a price below net asset value per share, but whose investment per share is greater than the resulting net asset value per share due to selling compensation and expenses paid by us, will experience an immediate decrease, although small, in the net asset value of their shares and their net asset value per share compared to the price they pay for their shares. Investors who are not currently stockholders and who participate in an offering of shares of our common stock at a price below net asset value per share and whose investment per share is also less than the resulting net asset value per share due to selling compensation and expenses paid by us being significantly less than the discount per share, will experience an immediate increase in the net asset value of their shares and their net asset value per share compared to the price they pay for their shares. These investors will experience a disproportionately greater participation in our earnings and assets and their voting power than our increase in assets, potential earning power and voting interests due to such offering. These investors will, however, be subject to the risk that we may make additional discounted offerings in which such new stockholder does not participate, in which case such new stockholder will experience dilution as described above in such subsequent offerings. These investors may also experience a decline in the market price of their shares, which often reflects to some degree announced or potential increases and decreases in net asset value per share. This decrease could be more pronounced as the size of the offering and level of discounts increases. There is no maximum level of discount from net asset value per share at which we may sell shares pursuant to such authority.
The example assumes that the issuer has 81.4 million shares outstanding, $2.8 billion in total assets and $1.5 billion in total liabilities. The net asset value and NAV per share are thus $1.3 billion and $16.48 per share. The chart illustrates the dilutive effect on Stockholder A of (a) an offering of 4.1 million shares of common stock (5% of the outstanding shares) at $15.66 per share after offering expenses and commissions (a 5% discount from NAV per share), (b) an offering of 8.1 million shares of common stock (10% of the outstanding shares) at $14.83 per share after offering expenses and commissions (a 10% discount from NAV per share), (c) an offering of 16.3 million shares of common stock (20% of the outstanding shares) at $13.18 per share after offering expenses and commissions (a 20% discount from NAV per share), and (d) an offering of 20.3 million shares of common stock (25% of the outstanding shares) at $12.36 per share after offering expenses and commissions (a 25% discount from NAV per share). The prospectus pursuant to which any discounted offering is made will include a chart based on the actual number of shares of common stock in such offering and the actual discount to the most recently determined NAV. It is not possible to predict the level of market price decline that may occur.
60
The following chart illustrates the level of dilution or accretion for new investors that would be experienced by a new investor in the same hypothetical 5%, 10%, 20% and 25% discounted offerings as described in the first chart above. The illustration is for a new investor who purchases the same percentage (0.10%) of the shares in the offering as Stockholder A in the prior examples held immediately prior to the offering. The prospectus supplement pursuant to which any discounted offering is made will include a chart for these examples based on the actual number of shares in such offering and the actual discount from the most recently determined net asset value per share. It is not possible to predict the level of market price decline that may occur. These examples are provided for illustrative purposes only.
|
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|
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|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
5% Offering at 5%
Discount |
|
|
10% Offering at
10% Discount |
|
|
20% Offering at
20% Discount |
|
|
25% Offering at
25% Discount |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Price per Share to Public |
|
|
|
|
|
$ |
16.48 |
|
|
|
|
|
|
$ |
15.61 |
|
|
|
|
|
|
$ |
13.88 |
|
|
|
|
|
|
$ |
13.01 |
|
|
|
|
|
Net Proceeds per Share to Issuer |
|
|
|
|
|
$ |
15.66 |
|
|
|
|
|
|
$ |
14.83 |
|
|
|
|
|
|
$ |
13.18 |
|
|
|
|
|
|
$ |
12.36 |
|
|
|
|
|
Decrease/Increase to Net Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81,389,287 |
|
|
|
85,458,751 |
|
|
|
|
|
|
|
89,528,216 |
|
|
|
|
|
|
|
97,667,144 |
|
|
|
|
|
|
|
101,736,609 |
|
|
|
|
|
|
|
|
|
|
|
|
4,069,464 |
|
|
|
|
|
|
|
8,138,929 |
|
|
|
|
|
|
|
16,277,857 |
|
|
|
|
|
|
|
20,347,322 |
|
|
|
|
|
Net Asset Value per Share |
|
$ |
16.48 |
|
|
$ |
16.44 |
|
|
|
(0.22 |
)% |
|
$ |
16.33 |
|
|
|
(0.89 |
)% |
|
$ |
15.93 |
|
|
|
(3.32 |
)% |
|
$ |
15.66 |
|
|
|
(4.98 |
)% |
Dilution/Accretion to New Investor A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Held by Investor A |
|
|
0 |
|
|
|
4,069 |
|
|
|
|
|
|
|
8,139 |
|
|
|
|
|
|
|
16,278 |
|
|
|
|
|
|
|
20,347 |
|
|
|
|
|
Percentage Held by Investor A |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
|
|
|
|
0.01 |
% |
|
|
|
|
|
|
0.02 |
% |
|
|
|
|
|
|
0.02 |
% |
|
|
|
|
Total Net Asset Value Held by Investor A |
|
$ |
0 |
|
|
$ |
66,918 |
|
|
|
|
|
|
$ |
132,935 |
|
|
|
|
|
|
$ |
259,363 |
|
|
|
|
|
|
$ |
318,613 |
|
|
|
|
|
Total Investment by Investor A (At Price to Public) |
|
|
|
|
|
$ |
67,065 |
|
|
|
|
|
|
$ |
127,070 |
|
|
|
|
|
|
$ |
225,902 |
|
|
|
|
|
|
$ |
264,729 |
|
|
|
|
|
Total Dilution/Accretion to Investor A (Total Net Asset Value Less Total Investment |
|
|
|
|
|
$ |
(147 |
) |
|
|
|
|
|
$ |
5,865 |
|
|
|
|
|
|
$ |
33,460 |
|
|
|
|
|
|
$ |
53,883 |
|
|
|
|
|
Investment per Share Held by Investor A |
|
|
|
|
|
$ |
16.48 |
|
|
|
|
|
|
$ |
15.61 |
|
|
|
|
|
|
$ |
13.88 |
|
|
|
|
|
|
$ |
13.01 |
|
|
|
|
|
Net Asset Value per Share Held by Investor A |
|
|
|
|
|
$ |
16.44 |
|
|
|
|
|
|
$ |
16.33 |
|
|
|
|
|
|
$ |
15.93 |
|
|
|
|
|
|
$ |
15.66 |
|
|
|
|
|
Dilution/Accretion per Share Held by Investor A (Net Asset Value per Share Less Investment per Share) |
|
|
|
|
|
$ |
(0.04 |
) |
|
|
|
|
|
$ |
0.72 |
|
|
|
|
|
|
$ |
2.06 |
|
|
|
|
|
|
$ |
2.65 |
|
|
|
|
|
Percentage Dilution/Accretion to Investor A (Dilution per Share Divided by Investment per Share) |
|
|
|
|
|
|
|
|
|
|
(0.22 |
)% |
|
|
|
|
|
|
4.62 |
% |
|
|
|
|
|
|
14.81 |
% |
|
|
|
|
|
|
20.35 |
% |
DIVIDEND REINVESTMENT PLAN
The information under the heading “Dividend Reinvestment Plan” in Part I, Item I of our 2022 Annual Report is incorporated by reference in this prospectus.
A stockholder who does not opt out of the dividend reinvestment plan will be treated for U.S. federal income tax purposes as having received a cash dividend or distribution in an amount equal to the total dollar amount of the dividend or distribution payable to such stockholder, net of applicable withholding taxes, and then reinvesting that net cash for additional shares of our stock. Such a stockholder is subject to the same U.S. federal income tax consequences as stockholders who elect to receive their cash dividends or distributions in cash; however, because a stockholder that participates in the dividend reinvestment plan does not actually receive any cash, such a stockholder will not have such cash available to pay any applicable taxes on the deemed distribution. A stockholder that participates in the dividend reinvestment plan and thus is treated as having invested in additional shares of our stock will have a basis in such additional shares of stock equal to the total dollar amount of the cash dividend or distribution payable to the stockholder divided by the total numbers of shares issued to such stockholder pursuant to such dividend or distribution. The stockholder’s holding period for such stock will commence on the day following the day on which the shares are credited to the stockholder’s account.
All correspondence concerning the plan should be directed to the plan administrator by mail at Equiniti Trust Company, LLC, Transfer Agency-Sixth Street Specialty Lending, 6201 15th Avenue, Brooklyn, NY 11219.
If you hold your common stock with a brokerage firm that does not participate in the plan, you will not be able to participate in the plan and any dividend reinvestment may be effected on different terms than those described above. Consult your financial advisor for more information.
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of material U.S. federal income tax considerations applicable to us and to an investment in shares of our common stock or preferred stock. This summary deals only with beneficial owners (referred to in this summary as “stockholders”) of shares of our common stock or preferred stock that hold their shares as capital assets. This summary does not purport to be a complete description of the income tax considerations applicable to such an investment. For example, we have not described tax consequences that may be relevant to certain types of stockholders that are subject to special treatment under U.S. federal income tax laws, including:
| |
• |
|
stockholders subject to the alternative minimum tax; |
| |
• |
|
tax-exempt organizations (except as discussed below); |
| |
• |
|
traders in securities that elect to use a method of accounting for securities holdings; |
| |
• |
|
pension plans (except as discussed below); |
| |
• |
|
trusts (except as discussed below); |
| |
• |
|
entities taxed as partnerships or partners therein; |
| |
• |
|
persons holding shares of common stock or preferred stock as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment; |
| |
• |
|
persons who received our stock as compensation; |
| |
• |
|
persons who hold our stock on behalf of another person as a nominee; |
| |
• |
|
persons who are “controlled foreign corporations;” |
| |
• |
|
U.S. stockholders (as defined below) who have a “functional currency” other than the U.S. dollar. |
Finally, this summary does not address other U.S. federal tax consequences (such as estate, gift and Medicare contribution tax consequences), the alternative minimum tax or any state, local or foreign tax consequences.
The discussion below is based upon the provisions of the Code, and U.S. Treasury Regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in U.S. federal income tax consequences different from those discussed below. This summary does not address all aspects of U.S. federal income taxes and does not deal with all tax consequences that may be relevant to stockholders in light of their personal circumstances.
If we issue preferred stock that may be convertible into or exercisable or exchangeable for securities or other property or preferred stock with other terms that may have different U.S. federal income tax consequences than those described in this summary, the U.S. federal income tax consequences of such preferred stock will be described in the relevant prospectus supplement. This summary does not discuss the consequences of an investment in our subscription rights, debt securities or warrants representing rights to purchase shares of our preferred stock, common stock or debt securities or as units in combination with such securities. The U.S. federal income tax consequences of such an investment will be discussed in the relevant prospectus supplement.
For purposes of this discussion under the heading “Material U.S. Federal Income Tax Considerations,” a “U.S. stockholder” is a beneficial owner of shares of our common stock or preferred stock that is, for U.S. federal
income tax purposes, an individual who is a citizen or resident of the United States or a domestic corporation or otherwise subject to U.S. federal income tax on a net income basis in respect of our stock.
A
“Non-U.S.
stockholder” is a beneficial owner of shares of our common stock or preferred stock that is not a U.S. stockholder and not an entity taxed as a partnership.
Regulated Investment Company Classification
As a BDC, we have elected to be treated as a RIC for U.S. federal income tax purposes. Our status as a RIC enables us to deduct qualifying distributions to our stockholders, so that we will be subject to corporate-level U.S. federal income taxation only in respect of income and gains that we retain and do not distribute.
To maintain our status as a RIC, we must, among other things:
| |
• |
|
maintain our election under the 1940 Act to be treated as a BDC; |
| |
• |
|
derive in each taxable year at least 90% of our gross income from dividends, interest, gains from the sale or other disposition of stock or securities and other specified categories of investment income; and |
| |
• |
|
maintain diversified holdings so that, subject to certain exceptions and cure periods, at the end of each quarter of our taxable year: |
| |
• |
|
at least 50% of the value of our total gross assets is represented by cash and cash items, U.S. government securities, the securities of other RICs and “other securities,” provided that such “other securities” shall not include any amount of any one issuer, if our holdings of such issuer are greater in value than 5% of our total assets or greater than 10% of the outstanding voting securities of such issuer, and |
| |
• |
|
no more than 25% of the value of our assets may be invested in securities of any one issuer, the securities of any two or more issuers that are controlled by us and are engaged in the same or similar or related trades or businesses (excluding U.S. government securities and securities of other RICs), or the securities of one or more “qualified publicly traded partnerships.” |
We may earn various fees, including fees that we share with our affiliates, fees for entering into amendments with respect to debt instruments we own, and fees for significant managerial assistance provided to portfolio companies, which will not be treated as qualifying income for purposes of the 90% gross income test. We may also earn other types of income that will not be treated as qualifying income for purposes of the 90% gross income test.
To maintain our status as a RIC, we must distribute (or be treated as distributing) in each taxable year dividends for tax purposes of an amount equal to at least 90% of our investment company taxable income (which includes, among other items, dividends, interest, the excess of any net short-term capital gains over net long-term capital losses, as well as other taxable income, excluding any net capital gains reduced by deductible expenses) and 90% of our net
tax-exempt
income for that taxable year. As a RIC, we generally will not be subject to corporate-level U.S. federal income tax on our investment company taxable income and net capital gains that we distribute to stockholders. In addition, to avoid the imposition of a nondeductible 4% U.S. federal excise tax, we must distribute (or be treated as distributing) in each calendar year an amount at least equal to the sum of:
| |
• |
|
98% of our net ordinary income, excluding certain ordinary gains and losses, recognized during a calendar year; |
| |
• |
|
98.2% of our capital gain net income, adjusted for certain ordinary gains and losses, recognized for the twelve-month period ending on October 31 of such calendar year; and |
| |
• |
|
100% of any income or gains recognized, but not distributed, in preceding years. |
We have previously incurred, and can be expected to incur in the future, such excise tax on a portion of our income and gains. While we intend to distribute income and capital gains to minimize exposure to the 4% excise
tax, we may not be able to, or may choose not to, distribute amounts sufficient to avoid the imposition of the tax entirely. In that event, we will be liable for the tax only on the amount by which we do not meet the foregoing distribution requirement.
We generally expect to distribute substantially all of our earnings on a quarterly basis, but will reinvest dividends on behalf of those investors that do not elect to receive their dividends in cash. See “Price Range of Common Stock and Distributions” and “Dividend Reinvestment Plan” for a description of our dividend policy and obligations. One or more of the considerations described below, however, could result in the deferral of dividend distributions until the end of the fiscal year:
| |
• |
|
We may make investments that are subject to tax rules that require us to include amounts in our income before we receive cash corresponding to that income or that defer or limit our ability to claim the benefit of deductions or losses. For example, if we hold securities issued with original issue discount (or market discount), that original issue discount (or market discount) may be accrued in income before we receive any corresponding cash payments. Similarly, the terms of the debt instruments that we hold may be modified under certain circumstances. These modifications may be considered “significant modifications” for U.S. federal income tax purposes that give rise to deemed exchange upon which we may recognize taxable income or gain without a corresponding receipt of cash. |
| |
• |
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In cases where our taxable income exceeds our available cash flow, we will need to fund distributions with the proceeds of sale of securities or with borrowed money, and may raise funds for this purpose opportunistically over the course of the year. |
In certain circumstances (e.g., where we are required to recognize income before or without receiving cash representing such income), we may have difficulty making distributions in the amounts necessary to satisfy the requirements for maintaining RIC status and for avoiding U.S. federal income and excise taxes. Accordingly, we may have to sell investments at times we would not otherwise consider advantageous, raise additional debt or equity capital or reduce new investment originations to meet these distribution requirements. If we are not able to obtain cash from other sources, we may fail to qualify as a RIC and thereby be subject to corporate-level U.S. federal income tax.
If in any particular taxable year, we do not qualify as a RIC, all of our taxable income (including our net capital gains) will be subject to tax at regular corporate rates without any deduction for distributions to stockholders, and distributions will be taxable to our stockholders as ordinary dividends to the extent of our current or accumulated earnings and profits, and distributions would not be required. Distributions in excess of our current and accumulated earnings and profits would be treated first as a return of capital to the extent of the stockholder’s tax basis, and any remaining distributions would be treated as capital gain. If we fail to qualify as a RIC for a period greater than two consecutive taxable years, to qualify as a RIC in a subsequent year we may be subject to regular corporate tax on any net
built-in
gains with respect to certain of our assets (that is, the excess of the aggregate gains, including items of income, over aggregate losses that would have been realized with respect to such assets if we had sold the property at fair market value at the end of the taxable year) that we elect to recognize on requalification or when recognized over the next five years.
In the event we invest in foreign securities, we may be subject to withholding and other foreign taxes with respect to those securities. We do not expect to satisfy the conditions necessary to pass through to our stockholders their share of the foreign taxes paid by us.
Under Section 988 of the Code, gains or losses attributable to fluctuations in exchange rates between the time we accrue income or receivables or expenses or other liabilities denominated in a foreign currency and the time we actually collect such income or receivables or pay such liabilities are generally treated as ordinary income or loss. Similarly, gains or losses on foreign currency, foreign currency forward contracts, certain foreign
currency options or futures contracts and the disposition of debt securities denominated in foreign currency, to the extent attributable to fluctuations in exchange rates between the acquisition and disposition dates, are also treated as ordinary income or loss.
Taxation of U.S. Stockholders
Distributions from our investment company taxable income (consisting generally of net ordinary income, net short-term capital gain, and net gains from certain foreign currency transactions) generally will be taxable to U.S. stockholders as ordinary income to the extent made out of our current or accumulated earnings and profits. To the extent that such distributions paid by us to
non-corporate
U.S. stockholders (including individuals) are attributable to dividends from U.S. corporations and certain qualified foreign corporations, such distributions (“qualified dividend income”) may be eligible for a reduced maximum U.S. federal income tax rate. In this regard, it is anticipated that our distributions generally will not be attributable to dividends received by us and, therefore, generally will not qualify for the reduced rates that may be applicable to qualified dividend income. Distributions generally will not be eligible for the dividends received deduction allowed to corporate stockholders. Distributions derived from our net capital gains (which generally is the excess of our net long-term capital gain over net short-term capital loss) which we have reported as capital gain dividends will be taxable to
U.S. stockholders as long-term capital gain regardless of how long particular U.S. stockholders have held their shares. Distributions in excess of our current and accumulated earnings and profits first will reduce a U.S. stockholder’s adjusted tax basis in such U.S. stockholder’s common stock or preferred stock and, after the adjusted tax basis is reduced to zero, will constitute capital gains to such U.S. stockholder.
Any dividends declared by us in October, November, or December of any calendar year, payable to stockholders of record on a specified date in such a month, which are actually paid during January of the following calendar year, will be treated as if paid by us and received by such stockholders during the quarter ended December 31 of the previous calendar year. In addition, we may elect to relate any undistributed investment company taxable income or net capital gains eligible for distribution as a dividend back to our immediately prior taxable year if we:
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declare such dividend prior to the earlier of the 15th day of the ninth month following the close of that taxable year, or any applicable extended due date of our U.S. federal corporate income tax return for such prior taxable year; |
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distribute such amount in the 12-month period following the close of such prior taxable year; and |
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make an election in our U.S. federal corporate income tax return for the taxable year in which such undistributed investment company taxable income or net capital gains were recognized. |
Any such election will not alter the general rule that a U.S. stockholder will be treated as receiving a dividend in the taxable year in which the dividend is distributed, subject to the October, November, or December dividend declaration rule discussed immediately above.
We have adopted a dividend reinvestment plan that will allow stockholders to elect to receive dividends in the form of additional shares instead of in cash. If a U.S. stockholder reinvests dividends in additional shares, such U.S. stockholder will be treated as if it had received a distribution in the amount of cash that it would have received if it had not made the election. Any such additional shares will have a tax basis equal to the amount of the distribution.
Although we intend to distribute any net long-term capital gains at least annually, we may in the future decide to retain some or all of our net long-term capital gains but designate the retained amount as a “deemed distribution.” In that case, among other consequences, we will pay tax on the retained amount, each U.S. stockholder will be required to include his, her or its share of the deemed distribution in income as if it had been distributed to the U.S. stockholder, and the U.S. stockholder will be entitled to claim a credit equal to his, her or
its allocable share of the tax paid on the deemed distribution by us. The amount of the deemed distribution net of such tax will be added to the U.S. stockholder’s tax basis for their common stock or preferred stock. Since we expect to pay tax on any retained capital gains at our regular corporate tax rate, and since that rate is in excess of the maximum rate currently payable by individuals on long-term capital gains, the amount of tax that individual stockholders will be treated as having paid and for which they will receive a credit will exceed the tax they owe on the retained net capital gains. Such excess generally may be claimed as a credit against the U.S. stockholder’s other federal income tax obligations or may be refunded to the extent it exceeds a stockholder’s liability for federal income tax. A stockholder that is not subject to federal income tax or otherwise required to file a federal income tax return would be required to file a federal income tax return on the appropriate form to claim a refund for the taxes we paid. To utilize the deemed distribution approach, we must provide written notice to our stockholders prior to the expiration of 60 days after the close of the relevant taxable year. We cannot treat any of our investment company taxable income as a “deemed distribution.”
If an investor purchases shares of our common stock or preferred stock shortly before the record date of a distribution, the price of the shares will include the value of the distribution and the investor will be subject to tax on the distribution even though economically it may represent a return of his, her or its investment.
If a U.S. stockholder sells or otherwise disposes of shares of our common stock or preferred stock, the U.S. stockholder will recognize gain or loss equal to the difference between its adjusted tax basis in the shares sold or otherwise disposed of and the amount received. Any such gain or loss will be treated as a capital gain or loss and will be long-term capital gain or loss if the shares have been held for more than one year. Any loss recognized on a sale or exchange of shares that were held for six months or less will be treated as long-term, rather than short-term, capital loss to the extent of any capital gain distributions previously received (or deemed to be received) thereon. In addition, all or a portion of any loss recognized upon a disposition of shares of our common stock or preferred stock may be disallowed if other shares of our common stock or preferred stock are purchased (whether through reinvestment of distributions or otherwise) within 30 days before or after the disposition.
From time to time, we may offer to repurchase our outstanding shares. Stockholders who tender all shares held, or considered to be held, by them will be treated as having sold their shares and generally will realize a capital gain or loss. If a stockholder tenders fewer than all of its shares or fewer than all shares tendered are repurchased, such stockholder may be treated as having received a taxable dividend upon the tender of its shares. In such a case, there is a risk that
non-tendering
stockholders, and stockholders who tender some but not all of their shares or fewer than all of whose shares are repurchased, in each case whose percentage interests in us increase as a result of such tender, will be treated as having received a taxable distribution from us. The extent of such risk will vary depending upon the particular circumstances of the tender offer, and in particular whether such offer is a single and isolated event or is part of a plan for periodically redeeming shares.
We will send to each of our U.S. stockholders, as promptly as possible after the end of each calendar year, a notice detailing, on a per share and per distribution basis, the amounts of such distributions includible in such U.S. stockholder’s taxable income for such year as ordinary dividends and capital gain dividends. In addition, the federal tax status of each year’s distributions generally will be reported to the IRS. Distributions may also be subject to additional state, local and foreign taxes depending on a U.S. stockholder’s particular situation.
Under applicable U.S. Treasury regulations, if a U.S. stockholder recognizes a loss with respect to our common stock or preferred stock of $2 million or more for a
non-corporate
U.S. stockholder or $10 million or more for a corporate U.S. stockholder in any single taxable year (or a greater loss over a combination of years), the U.S. stockholder must file with the IRS a disclosure statement on Form 8886. Direct U.S. stockholders of portfolio securities are in many cases exempted from this reporting requirement, but under current guidance, U.S. stockholders of a RIC are not exempted. Future guidance may extend the current exception from this reporting requirement to U.S. stockholders of most or all RICs. The fact that a loss is reportable under these regulations does not affect the legal determination of whether the taxpayer’s treatment of the loss is proper. Significant monetary penalties apply to a failure to comply with this reporting requirement. States may also have a similar
reporting requirement. U.S. stockholders should consult their own tax advisers to determine the applicability of these U.S. Treasury regulations in light of their individual circumstances.
We will be required in certain cases to backup withhold and remit to the U.S. Treasury a portion of qualified dividend income, ordinary income dividends and capital gain dividends, and the proceeds of redemption of shares, paid to any stockholder (a) who has provided either an incorrect tax identification number or no number at all, (b) whom the IRS subjects to backup withholding for failure to report the receipt of interest or dividend income properly or (c) who has failed to certify to us that it is not subject to backup withholding or that it is an “exempt recipient.” Backup withholding is not an additional tax and any amounts withheld may be refunded or credited against a stockholder’s federal income tax liability, provided the appropriate information is timely furnished to the IRS.
Potential Limitation with Respect to Certain U.S. Stockholders on Deductions for Certain Fees and Expenses
We expect to be treated as a “publicly offered regulated investment company” (within the meaning of Section 67 of the Code) as a result of shares of our common stock being treated as regularly traded on an established securities market. If we are not treated as such for any calendar year, then, for purposes of computing the taxable income of U.S. stockholders that are individuals, trusts or estates, (i) our earnings will be computed without taking into account such U.S. stockholders’ allocable shares of the Management and Incentive Fees paid to our investment adviser and certain of our other expenses, (ii) each such U.S. stockholder will be treated as having received or accrued a dividend from us in the amount of such U.S. stockholder’s allocable share of these fees and expenses for the calendar year, (iii) each such U.S. stockholder will be treated as having paid or incurred such U.S. stockholder’s allocable share of these fees and expenses for the calendar year and (iv) each such U.S. stockholder’s allocable share of these fees and expenses will be treated as miscellaneous itemized deductions by such U.S. stockholder. In addition, we would be required to report the relevant income and expenses, including the Management Fee, on Form
1099-DIV.
Miscellaneous itemized deductions generally are not deductible by individuals, trusts or estates for taxable years beginning after December 31, 2017 and before January 1, 2026.
Taxation of
Tax-Exempt
U.S. Stockholders
A U.S. stockholder that is a
tax-exempt
organization for U.S. federal income tax purposes and therefore generally exempt from U.S. federal income taxation may nevertheless be subject to taxation to the extent that it is considered to derive unrelated business taxable income, or UBTI. The direct conduct by a
tax-exempt
U.S. stockholder of the activities that we propose to conduct could give rise to UBTI. However, a RIC is a corporation for U.S. federal income tax purposes and its business activities generally will not be attributed to its stockholders for purposes of determining their treatment under current law. Therefore, a
tax-exempt
U.S. stockholder will not be subject to U.S. taxation solely as a result of such stockholder’s ownership of our shares and receipt of dividends that we pay. In addition, under current law, if we incur indebtedness, such indebtedness will not be attributed to portfolio investors in our stock. Therefore, a
tax-exempt
U.S. stockholder will not be treated as earning income from “debt-financed property” and dividends we pay will not be treated as “unrelated debt-financed income” solely as a result of indebtedness that we incur.
Taxation of
Non-U.S.
Stockholders
Whether an investment in the shares of our common stock or preferred stock is appropriate for a
Non-U.S.
stockholder will depend upon that person’s particular circumstances. An investment in the shares of our common stock or preferred stock by a
Non-U.S.
stockholder may have adverse tax consequences as compared to a direct investment in the assets in which we will invest.
Non-U.S.
stockholders should consult their tax advisors before investing in our common stock or preferred stock.
Distributions of our investment company taxable income that we pay to a
Non-U.S.
stockholder will be subject to U.S. withholding tax at a 30% rate to the extent of our current or accumulated earnings and profits
unless (i) such dividends qualify for the pass-through rules described below, and such stockholder could have received the underlying income free of tax; (ii) such stockholder qualifies for, and complies with the procedures for claiming, an exemption or reduced rate under an applicable income tax treaty; or (iii) such stockholder qualifies, and complies with the procedures for claiming, an exemption by reason of its status as a foreign government-related entity.
Non-U.S.
stockholders generally are not subject to U.S. federal income tax on capital gains realized on the sale of our shares or on actual or deemed distributions of our net capital gains. If we distribute our net capital gains in the form of deemed rather than actual distributions, a
Non-U.S.
stockholder will be entitled to a U.S. federal income tax credit or tax refund equal to the stockholder’s allocable share of the tax we pay on the capital gains deemed to have been distributed. To obtain the refund, the
Non-U.S.
stockholder must obtain a U.S. taxpayer identification number and file a U.S. federal income tax return, even if the
Non-U.S.
stockholder would not otherwise be required to obtain a U.S. taxpayer identification number or file a U.S. federal income tax return.
At the end of 2015, Congress permanently renewed the pass-through rules under which certain dividend distributions by RICs derived from our “qualified net interest income” (generally, our U.S. source interest income, other than certain contingent interest and interest from obligations of a corporation or partnership in which we are at a least a 10% stockholder, reduced by expenses that are allocable to such income) or paid in connection with our “qualified short-term capital gains” (generally, the excess of our net short-term capital gain over our net long-term capital loss for such taxable year) qualify for an exemption from U.S. withholding tax. As a result, dividends that we designate as “interest-related dividends” or “short-term capital gain dividends” generally will be exempt from U.S. withholding tax if the underlying income is U.S.-source and the
Non-U.S.
stockholder could have received the underlying income free of tax. To the extent dividends are paid that do not qualify for this exemption (e.g., dividends related to foreign-source income or other income not treated as qualified net interest income or qualified short-term capital gains), some
Non-U.S.
stockholders may qualify for a reduced rate of U.S. withholding tax under an applicable tax treaty or for an exemption from U.S. withholding tax by reason of their status as a foreign sovereign or under special treaty provisions for certain foreign pension funds. Prospective investors should consult their own advisers regarding their eligibility for a reduced rate or exemption as described above.
To qualify for an exemption or reduced rate of U.S. withholding tax (under a treaty, by reason of an exemption for sovereign investors, or under the rules applicable to interest-related dividends or short-term capital gain dividends), a
Non-U.S.
stockholder must comply with the U.S. tax certification requirements described below. A
Non-U.S.
stockholder must deliver to the applicable withholding agent and maintain in effect a valid IRS Form
or other applicable tax certification establishing its entitlement to the exemption or reduced rate, or otherwise establishing an exemption from backup withholding.
We have adopted a dividend reinvestment plan that will allow stockholders to elect to receive dividends in the form of additional shares instead of in cash. If a
Non-U.S.
stockholder reinvests dividends in additional shares, such
Non-U.S.
stockholder will be treated as if it had received a distribution in the amount of cash that it would have received if it had not made the election. If the distribution is a distribution of our investment company taxable income and is not designated by us as a short-term capital gain dividend or interest-related dividend, if applicable, the amount distributed (to the extent of our current or accumulated earnings and profits) will be subject to withholding of U.S. federal income tax at a 30% rate (or lower rate provided by an applicable income tax treaty) and only the net
after-tax
amount will be reinvested in our common stock. The
Non-U.S.
stockholder will have an adjusted tax basis in the additional shares of our common stock purchased through the dividend reinvestment plan equal to the amount of the reinvested distribution. The additional shares will have a new holding period commencing on the day following the day on which the shares are credited to the
Non-U.S.
stockholder’s account.
In the case of distributions made by the Company (other than capital gain dividends), additional requirements will apply to
Non-U.S.
stockholders that are considered for U.S. federal income tax purposes to be
a foreign financial institution or
non-financial
foreign entity, as well as to
Non-U.S.
stockholders that hold their shares through such an institution or entity. In general, an exemption from U.S. withholding tax will be available only if the foreign financial institution, under an agreement it has entered into with the U.S. government or under certain intergovernmental agreements, collects and provides to the U.S. tax authorities information about its accountholders (including certain investors in such institution) and if the
non-financial
foreign entity has provided the withholding agent with a certification identifying certain of its direct and indirect U.S. owners. Any U.S. taxes withheld pursuant to the aforementioned requirements from distributions paid to affected
Non-U.S.
stockholders who are otherwise eligible for an exemption from, or reduction of, U.S. federal withholding taxes on such distributions may only be reclaimed by such
Non-U.S.
stockholders by timely filing a U.S. tax return with the IRS to claim the benefit of such exemption or reduction.
A RIC is a corporation for U.S. federal income tax purposes. Under current law, a
Non-U.S.
stockholder will not be considered to be engaged in the conduct of a business in the United States solely by reason of its ownership in a RIC. Certain special rules apply to a
Non-U.S.
stockholder that is an entity qualifying for tax exemption under Section 892 of the Code. Such
Non-U.S.
stockholders will generally not be treated as engaged in “commercial activity” merely by virtue of its ownership of our common stock and will generally be exempt from withholding tax on dividends received on shares of our common stock. Certain special rules apply to such
Non-U.S.
stockholders if we qualify as a U.S. real property holding corporation and such investor owns more than 5% of such class of stock. We do not expect these special rules to apply but there cannot be any assurance thereof.
Non-U.S.
stockholders should consult their own tax advisors with respect to the U.S. federal income tax and withholding tax, and state, local and foreign tax consequences of an investment in the shares of our common stock or preferred stock.
U.S. information reporting requirements will apply and backup withholding will not apply to dividends paid on our shares to a
Non-U.S.
stockholder, provided the
Non-U.S.
stockholder provides to the applicable withholding agent a Form
(or satisfies certain documentary evidence requirements for establishing that it is not a United States person) or otherwise establishes an exemption. Similarly, information reporting requirements (but not backup withholding) will apply to a payment of the proceeds of a sale of our shares effected outside the United States by a foreign office of a broker if the broker (i) is a United States person, (ii) derives 50% or more of its gross income for certain periods from the conduct of a trade or business in the United States, (iii) is a “controlled foreign corporation” as to the United States, or (iv) is a foreign partnership that, at any time during its taxable year is more than 50% (by income or capital interest) owned by United States persons or is engaged in the conduct of a U.S. trade or business, unless in any such case the broker has documentary evidence in its records that the holder is a
Non-U.S.
stockholder and certain conditions are met, or such holder otherwise establishes an exemption. Payment by a United States office of a broker of the proceeds of a sale of our shares will be subject to both backup withholding and information reporting unless the
Non-U.S.
stockholder certifies its status that it is not a United States person under penalties of perjury or otherwise establishes an exemption. Backup withholding is not an additional tax. Any amounts withheld from payments made to a
Non-U.S.
stockholder may be refunded or credited against such stockholder’s U.S. federal income tax liability, if any, provided that the required information is timely furnished to the IRS.
70
DESCRIPTION OF OUR SECURITIES
This prospectus contains a summary of our common stock,
pr
eferred stock, subscription rights
, deb
t securities a
nd
warrants. These summaries are not meant to be a complete description of each security. However, this prospectus and the accompanying prospectus supplement will describe the material terms and conditions for each security.
DESCRIPTION OF OUR CAPITAL STOCK
The following description is based on relevant portions of the Delaware General Corporate Law, or the DGCL, and on our certificate of incorporation and bylaws. This summary is not necessarily complete, and we refer you to the DGCL and our certificate of incorporation and bylaws for a more detailed description of the provisions summarized below.
Under the terms of our restated certificate of incorporation, which was adopted on June 15, 2020, our authorized capital stock consists of 400,000,000 shares of common stock, par value $0.01 per share, of which 87,578,655 shares are outstanding as of December 20, 2023, and 100,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are outstanding as of December 20, 2023.
Our common stock is listed on the NYSE under the symbol “TSLX.” There are no outstanding options or warrants to purchase our stock. No stock has been authorized for issuance under any equity compensation plans. Under Delaware law, our stockholders generally are not personally liable for our debts or obligations.
The following presents our outstanding classes of securities as of December 20, 2023:
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Amount Held
by Us or for
Our Account |
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Amount Outstanding
Exclusive of Amount
Held by Us or for
Our Account |
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Common Stock |
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400,000,000 |
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664,250 |
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87,578,655 |
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Under the terms of our certificate of incorporation, holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders, and holders of common stock do not have cumulative voting rights. Accordingly, subject to the rights of any outstanding preferred stock, holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors standing for election. Holders of common stock are entitled to receive proportionately any dividends declared by our Board, subject to any preferential dividend rights of outstanding preferred stock. Upon our liquidation, dissolution or winding up, the holders of common stock will be entitled to receive ratably our net assets available after the payment of all debts and other liabilities and will be subject to the prior rights of any outstanding preferred stock. Holders of common stock have no redemption or conversion rights. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of any series of preferred stock that we may designate and issue in the future. In addition, holders of our common stock may participate in our dividend reinvestment plan.
Under the terms of our certificate of incorporation, our Board is authorized to issue shares of preferred stock in one or more series without stockholder approval. See “Description of Our Preferred Stock.”
The purpose of authorizing our Board to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with providing leverage for our investment program, possible acquisitions and other corporate purposes, could make it more difficult for a third party to acquire, or could discourage a third party from acquiring, a majority of our outstanding voting stock.
Limitation on Liability of Directors and Officers; Indemnification and Advance of Expenses
Our certification of incorporation limits our directors’ liability to the fullest extent permitted under Delaware corporate law and the 1940 Act. Specifically, our directors will not be personally liable to us or our stockholders for any breach of fiduciary duty as a director, except for any liability:
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for any breach of the director’s duty of loyalty to us or our stockholders, |
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for acts or omissions not in good faith or which involve willful misconduct, gross negligence, bad faith, reckless disregard or a knowing violation of law, |
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under Section 174 of the DGCL, which relates to unlawful payment of dividends or unlawful stock purchases or redemptions, or |
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(iv) |
for any transaction from which the director derived an improper personal benefit. |
If the DGCL is amended to permit further elimination or limitation of the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL. So long as we are registered or regulated under the 1940 Act, any limitation of liability of our directors and officers as described above is limited to the extent prohibited by the 1940 Act or by any valid rule, regulation or order of the SEC.
Section 145 of the DGCL allows for the indemnification of officers, directors, and any corporate agents in terms sufficiently broad to indemnify such person under certain circumstances for liabilities, including reimbursement for expenses, incurred arising under the Securities Act. Our certificate of incorporation and bylaws provide that we will indemnify our directors and officers to the fullest extent authorized or permitted by law and this right to indemnification will continue as to a person who has ceased to be a director or officer and will inure to the benefit of his or her heirs, executors and personal and legal representatives; however, for proceedings to enforce rights to indemnification, we are not obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless that proceeding (or part thereof) was authorized or consented to by the Board. The right to indemnification includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
Our obligation to provide indemnification and advancement of expenses is subject to the requirements of the 1940 Act and Investment Company Act Release No. 11330, which, among other things, preclude indemnification for any liability (whether or not there is an adjudication of liability or the matter has been settled) arising by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties, and require reasonable and fair means for determining whether indemnification will be made.
In addition, we have entered into indemnification agreements with our directors and officers that provide for a contractual right to indemnification to the fullest extent permitted by the DGCL. A form of the indemnification agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.
We may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers. The rights to indemnification and to the advancement of expenses are subject to the requirements of the 1940 Act to the extent applicable. Any repeal or modification of our certificate of incorporation by our stockholders will
not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer existing at the time of the repeal or modification with respect to any acts or omissions occurring prior to the repeal or modification.
Under the Investment Advisory Agreement, we have, to the extent permitted by applicable law, indemnified the Adviser and certain of its affiliates, as described under “Management Agreements-Indemnification” in Part I, Item 1 of our 2022 Annual Report.
The following summary outlines certain provisions of Delaware law and our certificate of incorporation regarding anti-takeover provisions. These provisions could have the effect of limiting the ability of other entities or persons to acquire control of us by means of a tender offer, proxy contest or otherwise, or to change the composition of our Board. These provisions are expected to discourage certain coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to negotiate first with our Board. These measures, however, may delay, defer or prevent a transaction or a change in control that might otherwise be in the best interests of our stockholders and could have the effect of depriving stockholders of an opportunity to sell their shares at a premium over prevailing market prices. These attempts could also have the effect of increasing our expenses and disrupting our normal operation. We believe, however, that the benefits of these provisions outweigh the potential disadvantages of discouraging acquisition proposals because the negotiation of the proposals may improve their terms.
We are subject to the provisions of Section 203 of the DGCL. In general, the statute prohibits a publicly held Delaware corporation from engaging in a “business combination” with “interested stockholders” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes certain mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to exceptions (including an exception for our Adviser and certain of its affiliates), an “interested stockholder” with which business combinations may be restricted is a person that, together with its affiliates and associates, owns, or is an affiliate or associate of the corporation and within the prior three years did own, 15% or more of the corporation’s voting stock.
Our certificate of incorporation and bylaws provide that:
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the Board be divided into three classes, as nearly equal in size as possible, with staggered three-year terms (and the number of directors shall not be fewer than four or greater than nine); |
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directors may be removed only for cause by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class; and |
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subject to the rights of any holders of preferred stock, any vacancy on the Board, however the vacancy occurs, including a vacancy due to an enlargement of the Board, may only be filled by vote of a majority of the directors then in office. |
The classification of our Board and the limitations on removal of directors and filling of vacancies could have the effect of making it more difficult for a third party to acquire us, or of discouraging a third party from acquiring us. We believe, however, that the longer time required to elect a majority of a classified board of directors helps to ensure the continuity and stability of our management and policies.
Our bylaws also provide that:
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any action required or permitted to be taken by the stockholders at an annual meeting or special meeting of stockholders may only be taken if it is properly brought before such meeting; and |
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special meetings of the stockholders may only be called by our Board, Chairman, or a Chief Executive Officer. |
Our bylaws provide that for nominations and any other matters to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding advance notice to us. The purpose of requiring stockholders to give us advance notice of nominations and other business is to afford our Nominating and Corporate Governance Committee a meaningful opportunity to consider the qualifications of the proposed nominees and the advisability of any other proposed business and, to the extent deemed necessary or desirable by our Board, to inform stockholders and make recommendations about such qualifications or business, as well as to provide a more orderly procedure for conducting meetings of stockholders. Our certificate of incorporation further provides that stockholders may not take action by written consent in lieu of a meeting. These provisions may discourage another person or entity from making a tender offer for our common stock, because such person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take action as a stockholder (such as electing new directors or approving a merger) only at a duly called stockholders’ meeting, and not by written consent.
The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws requires a greater percentage. Our certificate of incorporation requires the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class, to amend certain specified provisions of the certificate relating to our Board, limitation of liability, indemnification procedures, and amendments to our certificate of incorporation.
Our certificate of incorporation permits our Board to amend or repeal our bylaws. Our bylaws generally can be amended or repealed by approval of at least 75% of the total number of authorized directors then in office. Additionally, our stockholders have the power to adopt, amend or repeal our bylaws, upon the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote on any matter.
A director may be removed from office, but only for cause and at a meeting called for that purpose, by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class.
In addition, our certificate of incorporation requires the favorable vote of a majority of our Board followed by the favorable vote of the holders of at least 75% of our outstanding shares of common stock, to approve, adopt or authorize certain transactions with 10% or greater holders of our outstanding common stock and their affiliates or associates, unless the transaction has been approved by at least 80% of our Board, in which case approval by “a majority of the outstanding voting securities” (as defined in the 1940 Act) will be required. For purposes of these provisions, a 10% or greater holder of our outstanding common stock, or a principal stockholder, refers to any person who, whether directly or indirectly and whether alone or together with its affiliates and associates, beneficially owns 10% or more of the outstanding shares of our common stock.
The 10% holder transactions subject to these special approval requirements are:
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the merger or consolidation of us or any subsidiary of ours with or into any principal stockholder; |
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the issuance of any of our securities to any principal stockholder for cash, except pursuant to any automatic dividend reinvestment plan or the exercise of any preemptive rights granted in our certificate of incorporation (which are no longer applicable following our IPO) or pursuant to any subscription agreement by and among us, the Adviser and such principal stockholder entered into prior to our IPO; |
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the sale, lease or exchange of all or any substantial part of our assets to any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for the purpose of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period; and |
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the sale, lease or exchange to us or any subsidiary of ours, in exchange for our securities, of any assets of any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for purposes of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period. |
To convert us to an
open-end
investment company, to merge or consolidate us with any entity in a transaction as a result of which the governing documents of the surviving entity do not contain substantially the same anti-takeover provisions as are provided in our certificate of incorporation, to liquidate and dissolve us or to amend any of the provisions discussed herein, our certificate of incorporation requires the favorable vote of at least 80% of the holders of our common stock then outstanding, or the approval of a majority of the continuing directors and at least 75% of the holders of our capital stock then outstanding entitled to vote in the election of directors, voting together as a single class. If approved in the foregoing manner, our conversion to an
open-end
investment company could not occur until 90 days after the stockholders’ meeting at which the conversion was approved and would also require at least 30 days’ prior notice to all stockholders. As part of the conversion to an
open-end
investment company, substantially all of our investment policies and strategies and portfolio would have to be modified to assure the degree of portfolio liquidity required for
open-end
investment companies. In the event of conversion, the common shares would cease to be listed on any national securities exchange or market system. Stockholders of an
open-end
investment company may require the company to redeem their shares at any time, except in certain circumstances as authorized by or under the 1940 Act, at their net asset value, less such redemption charge, if any, as might be in effect at the time of a redemption. You should assume that it is not likely that our Board would vote to convert us to an
open-end
fund.
The 1940 Act defines “a majority of the outstanding voting securities” as the lesser of:
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67% or more of the company’s voting stock present at a meeting if more than 50% of the outstanding voting securities of the company are present or represented by proxy; and |
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more than 50% of the outstanding voting securities of the company. |
For the purposes of calculating “a majority of the outstanding voting securities” under our certificate of incorporation, each class and series of our shares will vote together as a single class, except to the extent required by the 1940 Act or our certificate of incorporation, with respect to any class or series of shares. If a separate class vote is required, the applicable proportion of shares of the class or series, voting as a separate class or series, also will be required.
Our Board has determined that provisions with respect to the Board and the stockholder voting requirements described above, which voting requirements are greater than the minimum requirements under Delaware law or the 1940 Act, are in the best interest of stockholders generally.
DESCRIPTION OF OUR PREFERRED STOCK
In addition to shares of common stock, we have 100,000,000 shares of preferred stock authorized under our certificate of incorporation, par value $0.01 per share, of which no shares are currently outstanding. If we offer preferred stock under this prospectus, we will issue an appropriate prospectus supplement. We may issue preferred stock from time to time in one or more classes or series, without stockholder approval. Prior to issuance of shares of each class or series, our Board is required by Delaware law and by our certificate of incorporation to set the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each class or series. Any such issuance must adhere to the requirements of the 1940 Act, Delaware law and any other limitations imposed by law.
The Board has discretion to establish the number of shares to be included in each series and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other rights, if any, of the shares of each series, and any qualifications, limitations, or restrictions. The 1940 Act limits our flexibility as to certain rights and preferences of the preferred stock under our certificate of incorporation. In particular, every share of stock issued by a BDC must be voting stock and have equal voting rights with every other outstanding class of voting stock, except to the extent that the stock satisfies the requirements for being treated as a senior security, which requires, among other things, that:
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immediately after issuance and before any distribution is made with respect to common stock, we must meet a coverage ratio of total assets (less total liabilities other than indebtedness) to total indebtedness plus preferred stock, of at least 150%; and |
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the holders of shares of preferred stock must be entitled as a class to elect two directors at all times and to elect a majority of the directors if and for so long as dividends on the preferred stock are unpaid in an amount equal to two full years of dividends on the preferred stock. |
For any series of preferred stock that we may issue, our Board will determine and the amendment to our certificate of incorporation and the prospectus supplement relating to such series will describe:
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the designation and number of shares of such series; |
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the rate and time at which, and the preferences and conditions under which, any dividends will be paid on shares of such series, as well as whether such dividends are participating or non-participating; |
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any provisions relating to convertibility or exchangeability of the shares of such series, including adjustments to the conversion price of such series; |
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the rights and preferences, if any, of holders of shares of such series upon our liquidation, dissolution or winding up of our affairs; |
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the voting powers, if any, of the holders of shares of such series; |
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any provisions relating to the redemption of the shares of such series; |
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any limitations on our ability to pay dividends or make distributions on, or acquire or redeem, other securities while shares of such series are outstanding; |
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any conditions or restrictions on our ability to issue additional shares of such series or other securities; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other relative powers, preferences and participating, optional or special rights of shares of such series, and the qualifications, limitations or restrictions thereof. |
All shares of preferred stock that we may issue will be identical and of equal rank except as to the particular terms thereof that may be fixed by our Board. All shares of each series of preferred stock will differ only as to the dates from which dividends, if any, thereon will be cumulative.
DESCRIPTION OF OUR SUBSCRIPTION RIGHTS
We may issue subscription rights to our stockholders to purchase common stock. Subscription rights may be issued independently or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection with a subscription rights offering to our stockholders, we would distribute certificates evidencing the subscription rights and a prospectus supplement to our stockholders on the record date that we set for receiving subscription rights in such subscription rights offering.
The applicable prospectus supplement would describe the following terms of subscription rights in respect of which this prospectus is being delivered:
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the period of time the offering would remain open (which shall be open a minimum number of days such that all record holders would be eligible to participate in the offering and shall not be open longer than 120 days); |
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the title of such subscription rights; |
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the exercise price for such subscription rights (or method of calculation thereof); |
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the ratio of the offering (which, in the case of transferable rights, will require a minimum of three shares to be held of record before a person is entitled to purchase an additional share); |
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the number of such subscription rights issued to each stockholder; |
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the extent to which such subscription rights are transferable and the market on which they may be traded if they are transferable; |
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if applicable, a discussion of certain U.S. federal income tax considerations applicable to the issuance or exercise of such subscription rights; |
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the date on which the right to exercise such subscription rights shall commence, and the date on which such right shall expire (subject to any extension); |
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the extent to which such subscription rights include an over-subscription privilege with respect to unsubscribed securities and the terms of such over-subscription privilege; |
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any termination right we may have in connection with such subscription rights offering; and |
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any other terms of such subscription rights, including exercise, settlement and other procedures and limitations relating to the transfer and exercise of such subscription rights. |
Exercise of Subscription Rights
Each subscription right would entitle the holder of the subscription right to purchase for cash such amount of shares of common stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the subscription rights offered thereby. Subscription rights may be exercised at any time up to the close of business on the expiration date for such subscription rights set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights would become void.
Subscription rights may be exercised as set forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the subscription rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any other office indicated in the prospectus supplement we will forward, as soon as practicable, the shares of common stock purchasable upon such exercise. To the extent permissible under applicable law, we may determine to offer any unsubscribed offered securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, as set forth in the applicable prospectus supplement.
Any stockholder who chooses not to participate in a rights offering should expect to own a smaller interest in us upon completion of such rights offering. Any rights offering will dilute the ownership interest and voting power of stockholders who do not fully exercise their subscription rights. Further, because the net proceeds per share from any rights offering may be lower than our then current net asset value per share, the rights offering may reduce our net asset value per share. The amount of dilution that a stockholder will experience could be substantial, particularly to the extent we engage in multiple rights offerings within a limited time period. In addition, the market price of our common stock could be adversely affected while a rights offering is ongoing as a result of the possibility that a significant number of additional shares may be issued upon completion of such rights offering. All of our stockholders will also indirectly bear the expenses associated with any rights offering we may conduct, regardless of whether they elect to exercise any rights.
DESCRIPTION OF OUR WARRANTS
The following is a general description of the terms of the warrants we may issue from time to time. Particular terms of any warrants we offer will be described in the prospectus supplement relating to such warrants.
We may issue warrants to purchase shares of our common stock, preferred stock or debt securities. Such warrants may be issued independently or together with common stock, preferred stock or debt securities and may be attached or separate from such securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
A prospectus supplement will describe the particular terms of any series of warrants we may issue, including the following:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which these shares may be purchased upon such exercise; |
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the date on which the right to exercise such warrants shall commence and the date on which such right will expire; |
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whether such warrants will be issued in registered form or bearer form; |
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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information with respect to book-entry procedures, if any; |
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the terms of the securities issuable upon exercise of the warrants; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants.
Prior to exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including, in the case of warrants to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture or, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights.
Under the 1940 Act, we may generally only offer warrants provided that (1) the warrants expire by their terms within ten years; (2) the exercise or conversion price is not less than the current market value at the date of issuance; (3) our stockholders authorize the proposal to issue such warrants, and our Board approves such issuance on the basis that the issuance is in the best interests of us and our stockholders; and (4) if the warrants are accompanied by other securities, the warrants are not separately transferable unless no class of such warrants and the securities accompanying them has been publicly distributed. The 1940 Act also provides that the amount of our voting securities that would result from the exercise of all outstanding warrants, as well as options and rights, at the time of issuance may not exceed 25% of our outstanding voting securities.
DESCRIPTION OF OUR DEBT SECURITIES
We may issue debt securities in one or more series. The specific terms of each series of debt securities will be described in the particular prospectus supplement relating to that series. The prospectus supplement may or may not modify the general terms found in this prospectus and will be filed with the SEC. For a complete description of the terms of a particular series of debt securities, you should read both this prospectus and the prospectus supplement relating to that particular series.
As required by federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an “indenture.” An indenture is a contract between us and a financial institution acting as trustee on your behalf, and is subject to and governed by the Trust Indenture Act of 1939, as amended. Certain of our debt securities have been issued under an indenture dated January 22, 2018 between us and Wells Fargo Bank, National Association. We also intend on issuing debt securities under an indenture to be entered into between us and U.S. Bank Trust Company, National Association.
Subject to the provisions of the indenture, the trustee has two main roles. First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described in the second paragraph under “—Events of Default—Remedies If an Event of Default Occurs.” Second, the trustee performs certain administrative duties for us.
Because this section is a summary, it does not describe every aspect of the debt securities and the indenture. We urge you to read the indenture because it, and not this description, defines your rights as a holder of debt securities. For example, in this section, we use capitalized words to signify terms that are specifically defined in the indenture. Some of the definitions are repeated in this prospectus, but for the rest you will need to read the indenture. We have filed indentures with the SEC. See “Available Information” for information on how to obtain a copy of the applicable indenture.
The prospectus supplement, which will accompany this prospectus, will describe the particular series of debt securities being offered, including, among other things:
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the designation or title of the series of debt securities; |
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the total principal amount of the series of debt securities; |
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the percentage of the principal amount at which the series of debt securities will be offered; |
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the date or dates on which principal will be payable; |
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable; |
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whether any interest may be paid by issuing additional securities of the same series in lieu of cash (and the terms upon which any such interest may be paid by issuing additional securities); |
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the terms for redemption, extension or early repayment, if any; |
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the currencies in which the series of debt securities are issued and payable; |
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whether the amount of payments of principal, premium or interest, if any, on a series of debt securities will be determined with reference to an index, formula or other method (which could be based on one or more currencies, commodities, equity indices or other indices) and how these amounts will be determined; |
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the place or places, if any, other than or in addition to the Borough of Manhattan in the City of New York, of payment, transfer, conversion and/or exchange of the debt securities; |
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the denominations in which the offered debt securities will be issued (if other than $1,000 and any integral multiple thereof); |
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the provision for any sinking fund; |
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any restrictive covenants; |
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whether the series of debt securities is issuable in certificated form; |
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any provisions for defeasance or covenant defeasance; |
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any special federal income tax implications, including, if applicable, U.S. federal income tax considerations relating to original issue discount; |
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option); |
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
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whether the debt securities are subject to subordination and the terms of such subordination; |
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whether the debt securities are secured and the terms of any security interest; |
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the listing, if any, on a securities exchange; and |
The debt securities may be secured or unsecured obligations. Unless the prospectus supplement states otherwise, principal (and premium, if any) and interest, if any, will be paid by us in immediately available funds.
We are permitted, under specified conditions, to issue multiple classes of indebtedness and one class of shares senior to our common stock if our asset coverage, calculated pursuant to the 1940 Act, is at least equal to 150% immediately after each such issuance. In addition, while any indebtedness and senior securities remain outstanding, we must make provisions to prohibit the distribution to our stockholders or the repurchase of such indebtedness or securities unless we meet the applicable asset coverage ratios at the time of the distribution or repurchase. Specifically, we may be precluded from declaring dividends or repurchasing shares of our common stock unless our asset coverage is at least 150%. We may also borrow amounts up to 5% of the value of our total assets for temporary or emergency purposes without regard to asset coverage. For a discussion of the risks associated with leverage, see “Risk Factors-Regulations governing our operation as a BDC affect our ability to, and the way in which we, raise additional capital” in Part II, Item 1A of our 3Q 2023 Quarterly Report.
The indenture provides that any debt securities proposed to be sold under this prospectus and the accompanying prospectus supplement (“offered debt securities”) and any debt securities issuable upon the exercise of warrants or upon conversion or exchange of other offered securities (“underlying debt securities”), may be issued under the indenture in one or more series.
For purposes of this prospectus, any reference to the payment of principal of, or premium or interest, if any, on, debt securities will include additional amounts if required by the terms of the debt securities.
The indenture does not limit the amount of debt securities that may be issued thereunder from time to time. Debt securities issued under the indenture, when a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.” The indenture also provides that there may be more than one
trustee thereunder, each with respect to one or more different series of indenture securities. See “-Resignation of Trustee” below. At a time when two or more trustees are acting under the indenture, each with respect to only certain series, the term “indenture securities” means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee under the indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under the indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
The indenture does not contain any provisions that give you protection in the event we issue a large amount of debt or we are acquired by another entity.
We refer you to the prospectus supplement for information with respect to any deletions from, modifications of or additions to the Events of Default or our covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection.
We have the ability to issue indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening was restricted when that series was created.
We expect that we will usually issue debt securities in book-entry only form represented by global securities.
If any debt securities are convertible into or exchangeable for other securities, the prospectus supplement will explain the terms and conditions of the conversion or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in the prospectus supplement.
Payment and Paying Agents
We will pay interest to the person listed in the applicable trustee’s records as the owner of the debt security at the close of business on a particular day in advance of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, usually about two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest for an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller based on their respective ownership periods within the particular interest period. This prorated interest amount is called “accrued interest.”
Payments on Global Securities
We will make payments on a global security in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we will make payments directly to the depositary, or its nominee, and not to any indirect holders who own beneficial interests in the global security. An indirect holder’s right to those payments will be governed by the rules and practices of the depositary and its participants.
Payments on Certificated Securities
We will make payments on a certificated debt security as follows. We will pay interest that is due on an interest payment date by check mailed on the interest payment date to the holder at his or her address shown on the trustee’s records as of the close of business on the regular record date. We will make all payments of principal and premium, if any, by check at the office of the applicable trustee in New York, NY and/or at other offices that may be specified in the prospectus supplement or in a notice to holders against surrender of the debt security.
Alternatively, if the holder asks us to do so, we will pay any amount that becomes due on the debt security by wire transfer of immediately available funds to an account at a bank in New York City, on the due date. To request payment by wire, the holder must give the applicable trustee or other paying agent appropriate transfer instructions at least 15 business days before the requested wire payment is due. In the case of any interest payment due on an interest payment date, the instructions must be given by the person who is the holder on the relevant regular record date. Any wire instructions, once properly given, will remain in effect unless and until new instructions are given in the manner described above.
Payment When Offices Are Closed
Except as otherwise indicated in the applicable prospectus supplement, if any payment is due on a debt security on a day that is not a business day, we will make the payment on the next day that is a business day. Payments made on the next business day in this situation will be treated under the indenture as if they were made on the original due date, except as otherwise indicated in the applicable prospectus supplement. Such payment will not result in a default under any debt security or the indenture, and no interest will accrue on the payment amount from the original due date to the next day that is a business day.
Book-entry and other indirect holders should consult their banks or brokers for information on how they will receive payments on their debt securities.
You will have rights if an Event of Default occurs in respect of the debt securities of your series and is not cured, as described later in this subsection.
The term “Event of Default” in respect of the debt securities of your series means any of the following (unless the prospectus supplement relating to such debt securities states otherwise):
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We do not pay the principal of, or any premium on, a debt security of the series on its due date, including upon any redemption date or required repurchase date. |
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We do not pay interest on a debt security of the series when due, and such default is not cured within 30 days. |
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We do not deposit any sinking fund payment in respect of debt securities of the series on its due date, and do not cure this default within five days. |
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We remain in breach of a covenant in respect of debt securities of the series for 60 days after we receive a written notice of default stating we are in breach. The notice must be sent by either the trustee (if a Responsible Officer has actual knowledge of such default) or holders of at least 25% of the principal amount of debt securities of the series. |
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We file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur and remain undischarged or unstayed for a period of 90 days. |
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We or any of our “significant subsidiaries” (as defined in in Rule 1-02(w) of Regulation S-X, other than subsidiaries that are non-recourse or limited recourse subsidiaries, bankruptcy remote special purpose vehicles and any subsidiaries that are not consolidated with us for GAAP purposes) default, with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $50 million in the aggregate of us and/or any such subsidiary, (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, unless such indebtedness is discharged, or such acceleration is rescinded, stayed or annulled, within a period of 30 calendar days after written notice of such failure is given to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the debt securities of the series then outstanding. |
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On the last business day of each of twenty-four consecutive calendar months, we have an asset coverage of less than 100%, giving effect to any amendments to Section 18(a)(1)(C)(ii) and Section 61 of the 1940 Act or to any exemptive relief granted to us by the SEC. |
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Any other Event of Default in respect of debt securities of the series described in the applicable prospectus supplement occurs. |
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal, premium or interest, if it determines in good faith that the withholding of notice is in the interests of the holders.
Remedies If an Event of Default Occurs
If an Event of Default has occurred and has not been cured, the trustee (if a Responsible Officer has actual knowledge of such Event of Default) or the holders of at least 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. In certain circumstances, a declaration of acceleration of maturity may be canceled by the holders of a majority in principal amount of the debt securities of the affected series.
The trustee is not required to take any action under the indenture at the request of any holders unless the holders offer the trustee protection from expenses and liability (called an “indemnity”) (Section 315 of the Trust Indenture Act of 1939). If indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee may refuse to follow those directions in certain circumstances. No delay or omission in exercising any right or remedy will be treated as a waiver of that right, remedy or Event of Default.
Before you are allowed to bypass your trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
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You must give your trustee written notice that an Event of Default has occurred and remains uncured. |
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The holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer indemnity to the trustee against the cost and other liabilities of taking that action. |
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The trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity. |
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The holders of a majority in principal amount of the debt securities must not have given the trustee a direction inconsistent with the above notice during that 60 day period. |
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt securities on or after the due date.
Holders of a majority in principal amount of the debt securities of the affected series may waive any past defaults other than:
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the payment of principal, any premium or interest; or |
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in respect of a covenant that cannot be modified or amended without the consent of each holder. |
Book-entry and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an acceleration of maturity.
Each year, we will furnish to each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture and the debt securities, or else specifying any default.
Merger, Consolidation or Sale of Assets
Under the terms of the indenture, we are generally permitted to consolidate or merge with another entity. We are also permitted to sell all or substantially all of our assets to another entity. However, unless the prospectus supplement relating to certain debt securities states otherwise, we may not take any of these actions unless all the following conditions are met:
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Where we merge out of existence or sell all or substantially all our assets, the resulting entity or transferee must be organized and existing in the United States and must agree to be legally responsible for our obligations under the debt securities. |
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Immediately before and immediately after giving effect to such transaction, no Default or Event of Default shall have happened and be continuing. |
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We must deliver certain certificates and documents to the trustee. |
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We must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities. |
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For the period of time during which debt securities of any series are outstanding, we will not violate, whether or not we are subject thereto, Section 18(a)(1)(A) as modified by Section 61(a)(1) and (2) of the 1940 Act or any successor provisions, but giving effect, in either case, to any exemptive relief granted to us by the SEC. |
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If, at any time, we are not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act to file any periodic reports with the SEC, we agree to furnish to holders of the any series of debt securities outstanding and the trustee, for the period of time during which the such debt securities are outstanding, our audited annual consolidated financial statements, within 90 days of our fiscal year end, and unaudited interim consolidated financial statements, within 45 days of our fiscal quarter end (other than our fourth fiscal quarter). All such financial statements will be prepared, in all material respects, in accordance with GAAP, as applicable. |
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There are three types of changes we can make to the indenture and the debt securities issued thereunder.
Changes Requiring Your Approval
First, there are changes that we cannot make to your debt securities without your specific approval. The following is a list of those types of changes:
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change the stated maturity of the principal of or interest on a debt security; |
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reduce any amounts due on a debt security; |
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reduce the amount of principal payable upon acceleration of the maturity of a security following a default; |
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adversely affect any right of repayment at the holder’s option; |
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change the place (except as otherwise described in the prospectus or prospectus supplement) or currency of payment on a debt security; |
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impair your right to sue for payment; |
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adversely affect any right to convert or exchange a debt security in accordance with its terms; |
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modify the subordination provisions in the indenture in a manner that is adverse to outstanding holders of the debt securities; |
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults; |
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modify certain of the provisions of the indenture dealing with supplemental indentures, modification and waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and |
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change any obligation we have to pay additional amounts. |
Changes Not Requiring Approval
The second type of change does not require any vote by the holders of the debt securities. This type is limited to clarifications, establishment of the form or terms of new securities of any series as permitted by the indenture, and certain other changes that would not adversely affect holders of the outstanding debt securities in any material respect, including adding additional covenants or event of default. We also do not need any approval to make any change that affects only debt securities to be issued under the indenture after the change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture and the debt securities would require the following approval:
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If the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount of that series. |
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If the change affects more than one series of debt securities issued under the same indenture, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose. |
The holders of a majority in principal amount of a series of debt securities issued under an indenture, or all series, voting together as one class for this purpose, may waive our compliance with some of our covenants in that indenture. However, we cannot obtain a waiver of a payment default or of any of the matters covered by the bullet points included above under “-Changes Requiring Your Approval.”
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Further Details Concerning Voting
When taking a vote, we will use the following rules to decide how much principal to attribute to a debt security:
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For original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of these debt securities were accelerated to that date because of a default. |
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For debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that debt security described in the prospectus supplement. |
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For debt securities denominated in one or more foreign currencies, we will use the U.S. dollar equivalent. |
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Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “—Defeasance-Full Defeasance.” |
We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote or take other action under the indenture. If we set a record date for a vote or other action to be taken by holders of one or more series, that vote or action may be taken only by persons who are holders of outstanding indenture securities of those series on the record date and must be taken within eleven months following the record date.
Book-entry and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or the debt securities or request a waiver.
The following provisions will be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance and full defeasance will not be applicable to that series.
If certain conditions are satisfied, we can make the deposit described below and be released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called “covenant defeasance.” In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and government securities set aside in trust to repay your debt securities. If applicable, you also would be released from the subordination provisions described under “—Indenture Provisions—Subordination” below. In order to achieve covenant defeasance, we must do the following:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. |
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We must deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. federal income tax law, we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and repaid the debt securities at maturity. |
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We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to covenant defeasance have been complied with. |
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If we accomplished covenant defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented from making payment. For example, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities became immediately due and payable, there might be a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
If there is a change in U.S. federal tax law, as described below, we can legally release ourselves from all payment and other obligations on the debt securities of a particular series (called “full defeasance”) if we put in place the following other arrangements for you to be repaid:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. |
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We must deliver to the trustee a legal opinion confirming that there has been a change in current U.S. federal tax law or an IRS ruling that allows us to make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and repaid the debt securities at maturity. Under current U.S. federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid you your share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for your debt securities and you would recognize gain or loss on the debt securities at the time of the deposit. |
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We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to defeasance have been complied with. |
If we ever accomplished full defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our lenders and other creditors if we ever became bankrupt or insolvent. If applicable, you would also be released from the subordination provisions described later under “—Indenture Provisions—Subordination.”
Form, Exchange and Transfer of Certificated Registered Securities
Holders may exchange their certificated securities, if any, for debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed.
Holders may exchange or transfer their certificated securities, if any, at the office of their trustee. We have appointed the trustee to act as our agent for registering debt securities in the names of holders transferring debt securities. We may appoint another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange their certificated securities, if any, but they may be required to pay any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership.
If we have designated additional transfer agents for your debt security, they will be named in your prospectus supplement. We may appoint additional transfer agents or cancel the appointment of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If any certificated securities of a particular series are redeemable and we redeem less than all the debt securities of that series, we may block the transfer or exchange of those debt securities during the period
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beginning 15 days before the day we mail the notice of redemption and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers or exchanges of any certificated securities selected for redemption, except that we will continue to permit transfers and exchanges of the unredeemed portion of any debt security that will be partially redeemed.
Each trustee may resign or be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to these series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities under the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions-Subordination
Upon any distribution of our assets upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest, if any, on any indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), but our obligation to you to make payment of the principal of (and premium, if any) and interest, if any, on such subordinated debt securities will not otherwise be affected. In addition, no payment on account of principal (or premium, if any), sinking fund or interest, if any, may be made on such subordinated debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), sinking fund and interest on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment by us is received by the trustee in respect of subordinated debt securities or by the holders of any of such subordinated debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the holders of the Senior Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution to the holders of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness upon this distribution by us, the holders of such subordinated debt securities will be subrogated to the rights of the holders of the Senior Indebtedness to the extent of payments made to the holders of the Senior Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination, in the event of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated debt securities. The indenture provides that these subordination provisions will not apply to money and securities held in trust under the defeasance provisions of the indenture.
“Senior Indebtedness” is defined in the indenture as the principal of (and premium, if any) and unpaid interest on:
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our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness is not senior or prior in right of payment to the subordinated debt securities, and |
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renewals, extensions, modifications and refinancings of any of this indebtedness. |
If this prospectus is being delivered in connection with the offering of a series of indenture securities denominated as subordinated debt securities, the accompanying prospectus supplement will set forth the approximate amount of our Senior Indebtedness outstanding as of a recent date.
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Secured Indebtedness and Ranking
We may issue two types of unsecured indebtedness obligations: senior and subordinated. Senior unsecured indebtedness obligations refer to those that rank senior in right of payment to all of our future indebtedness that is expressly subordinated in right of payment to such indebtedness. Subordinated unsecured indebtedness obligations refer to those that are expressly subordinated in right of payment to other unsecured obligations.
Certain of our indebtedness, including certain series of indenture securities, may be secured. The prospectus supplement for each series of indenture securities will describe the terms of any security interest for such series and will indicate the approximate amount of our secured indebtedness as of a recent date. Any unsecured indenture securities will effectively rank junior to any secured indebtedness, including any secured indenture securities, that we incur in the future to the extent of the value of the assets securing such future secured indebtedness. Our debt securities, whether secured or unsecured, will rank structurally junior to all existing and future indebtedness (including trade payables) incurred by our subsidiaries, financing vehicles or similar facilities.
In the event of our bankruptcy, liquidation, reorganization or other winding up, any of our assets that secure secured debt will be available to pay obligations on unsecured debt securities only after all indebtedness under such secured debt has been repaid in full from such assets. We advise you that there may not be sufficient assets remaining to pay amounts due on any or all unsecured debt securities then outstanding. As a result, the holders of unsecured indenture securities may recover less, ratably, than holders of any of our secured indebtedness.
The Trustee under the Indenture
Each prospectus supplement relating to an offering of debt securities will identify the financial institution to serve as trustee of such debt securities under the applicable indenture. This document and the related documents do not provide a comprehensive description of the rights, benefits, protections, immunities, indemnities, and privileges of the trustee. Rather, the applicable indenture sets forth the trustee’s rights, benefits, protections, immunities, indemnities, and privileges. The trustee assumes (and shall have) no responsibility or liability for the accuracy, correctness, or completeness of the information (including such information concerning us or our affiliates or any other party) contained in this document or the related documents or for any failure by us or any other party to disclose events that may have occurred and may affect the significance or accuracy of such information.
Certain Considerations Relating To Foreign Currencies
Debt securities denominated or payable in foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations in the foreign currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market. These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus supplement.
Book-Entry Debt Securities
The Depository Trust Company, New York, NY, or DTC, will act as securities depository for the debt securities. The debt securities will be issued as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully registered certificate will be issued for the debt securities, in the aggregate principal amount of such issue, and will be deposited with DTC. If, however, the aggregate principal amount of any issue exceeds $500 million, one certificate will be issued with respect to each $500 million of principal amount, and an additional certificate will be issued with respect to any remaining principal amount of such issue.
DTC, the world’s largest securities depository, is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
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holds and provides asset servicing for U.S. and
non-U.S.
equity, corporate and municipal debt issues, and money market instruments from over 100 countries that DTC’s participants, or Direct Participants, deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and
non-U.S.
securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC.
DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and
non-U.S.
securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly, or Indirect Participants. The DTC Rules applicable to its Participants are on file with the SEC.
Purchases of debt securities under the DTC system must be made by or through Direct Participants, which will receive a credit for the debt securities on DTC’s records. The ownership interest of each actual purchaser of each security, or Beneficial Owner, is in turn to be recorded on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the debt securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in debt securities, except in the event that use of the book-entry system for the debt securities is discontinued.
To facilitate subsequent transfers, all debt securities deposited by Direct Participants with DTC are registered in the name of DTC’s partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of debt securities with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the debt securities; DTC’s records reflect only the identity of the Direct Participants to whose accounts such debt securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the debt securities within an issue are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the debt securities unless authorized by a Direct Participant in accordance with DTC’s Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to us as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts the debt securities are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Redemption proceeds, distributions, and dividend payments on the debt securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to
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credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or the trustee on the payment date in accordance with their respective holdings shown on DTC’s records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such Participant and not of DTC or its nominee, the trustee, or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of us or the trustee, but disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as depository with respect to the debt securities at any time by giving reasonable notice to us or to the trustee. Under such circumstances, in the event that a successor depository is not obtained, certificates are required to be printed and delivered. We may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, certificates will be printed and delivered to DTC.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
CUSTODIAN, TRANSFER AND DIVIDEND PAYING AGENT AND REGISTRAR
Our securities and loan documents are held by State Street Bank and Trust Company pursuant to a custodian agreement and Equiniti Trust Company, LLC serves as our transfer agent, distribution paying agent and registrar. The principal business address of State Street Bank and Trust Company is 1 Lincoln Street, Boston, Massachusetts 02111. The principal business address of Equiniti Trust Company, LLC is 6201 15th Avenue, Brooklyn, NY 11219.
BROKERAGE ALLOCATION AND OTHER PRACTICES
Since we will acquire and dispose of many of our investments in privately negotiated transactions, many of the transactions that we engage in will not require the use of brokers or the payment of brokerage commissions.
Subject to policies established by our Board, the Adviser will be primarily responsible for selecting brokers and dealers to execute transactions with respect to the publicly traded securities portion of our portfolio transactions and the allocation of brokerage commissions. The Adviser does not expect to execute transactions through any particular broker or dealer but will seek to obtain the best net results for us under the circumstances, taking into account such factors as price (including the applicable brokerage commission or dealer spread), size of order, difficulty of execution and operational facilities of the firm and the firm’s risk and skill in positioning blocks of securities.
The Adviser generally will seek reasonably competitive trade execution costs but will not necessarily pay the lowest spread or commission available. Subject to applicable legal requirements and consistent with Section 28(e) of the Exchange Act, the Adviser may select a broker based upon brokerage or research services provided to the Adviser and us and any other clients. In return for such services, we may pay a higher commission than other brokers would charge if the Adviser determines in good faith that such commission is reasonable in relation to the services provided.
We also pay brokerage commissions incurred in connection with purchases pursuant to the Company
10b5-1
Plan.
The aggregate amount of brokerage commissions paid by us during the three most recent completed fiscal years is less than $0.4 million.
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We may offer, from time to time, in one or more offerings or series, our common stock, preferred stock, debt securities, subscription rights to purchase shares of our common stock or warrants representing rights to purchase shares of our common stock, preferred stock or debt securities, in one or more underwritten public offerings,
offerings, negotiated transactions, block trades, best efforts offerings or a combination of these methods.
We may sell the securities through underwriters or dealers, directly to one or more purchasers, including existing stockholders in a rights offering, through agents designated from time to time by us, in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to our thought a market maker or into an existing trading market, on an exchange or otherwise, in forward contracts of similar arrangements or through a combination of any such methods of sale. Any underwriter or agent involved in the offer and sale of the securities will be named in the applicable prospectus supplement. A prospectus supplement or supplements will also describe the terms of the offering of the securities, including: the purchase price of the securities and the proceeds we will receive from the sale; any options under which underwriters may purchase additional securities from us; any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; the public offering price; any discounts or concessions allowed or
re-allowed
or paid to dealers; any securities exchange or market on which the securities may be listed; and, in the case of a rights offering, the number of shares of our common stock issuable upon the exercise of each right. Only underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at prevailing market prices at the time of sale, at prices related to such prevailing market prices, or at negotiated prices, provided, however, that the offering price per share of any common stock offered by us, less any underwriting commissions or discounts, must equal or exceed the net asset value per share of our common stock at the time of the offering except (a) in connection with a rights offering to our existing stockholders, (b) with the consent of the majority of our outstanding voting securities or (c) under such circumstances as the SEC may permit. The price at which securities may be distributed may represent a discount from prevailing market prices.
In connection with the sale of the securities, underwriters or agents may receive compensation from us or from purchasers of the securities, for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities may be deemed to be underwriters under the Securities Act, and any discounts and commissions they receive from us and any profit realized by them on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. Any such underwriter or agent will be identified and any such compensation received from us will be described in the applicable prospectus supplement. The maximum aggregate commission or discount to be received by any member of the Financial Industry Regulatory Authority, or FINRA, or independent broker-dealer will not be greater than 8% of the gross proceeds of the sale of securities offered pursuant to this prospectus and any applicable prospectus supplement. We may also reimburse the underwriter or agent for certain fees and legal expenses incurred by it.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the option to purchase additional shares from us or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally
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sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, the agent will act on a best-efforts basis for the period of its appointment.
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no trading market, other than our common stock, which is traded on the NYSE. We may elect to list any other class or series of securities on any exchanges, but we are not obligated to do so. We cannot guarantee the liquidity of the trading markets for any securities.
Under agreements that we may enter, underwriters, dealers and agents who participate in the distribution of the securities may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Underwriters, dealers and agents may engage in transactions with, or perform services for, us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as agents to solicit offers by certain institutions to purchase securities from us pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such institutions must be approved by us. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject. The underwriters and such other agents will not have any responsibility in respect of the validity or performance of such contracts. Such contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such contracts.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third parties in such sale transactions will be underwriters and, if not identified in this prospectus, will be identified in the applicable prospectus supplement.
In order to comply with the securities laws of certain states, if applicable, the securities offered hereby will be sold in such jurisdictions only through registered or licensed brokers or dealers.
The legality of the securities offered hereby will be passed upon for us by Simpson Thacher & Bartlett LLP, Washington, D.C. Certain legal matters in connection with the offering will be passed upon for the underwriters, if any, by the counsel named in the prospectus supplement.
95
The consolidated financial statements of Sixth Street Specialty Lending, Inc. (and subsidiaries) as of December 31, 2022 and 2021, and for each of the years in the three-year period ended December 31, 2022 and the Senior Securities table covering the last ten fiscal years ended December 31, 2022 under the heading “Senior Securities” have been incorporated by reference in this prospectus and included elsewhere in the registration statement, respectively, in reliance upon the reports of KPMG LLP, 345 Park Avenue, New York, New York 10154, independent registered public accounting firm, incorporated by reference, respectively, and upon the authority of said firm as experts in accounting and auditing.
96
We have filed with the SEC a registration statement on Form
N-2,
together with all amendments and related exhibits, under the Securities Act, with respect to the securities offered by this prospectus. The registration statement contains additional information about us and the securities being offered by this prospectus.
We file with or submit to the SEC periodic and current reports, proxy statements and other information meeting the informational requirements of the Exchange Act.
We maintain a website at https://sixthstreetspecialtylending.com and make all of our periodic and current reports, proxy statements and other publicly filed information available, free of charge, on or through our website. Information contained on our website is not incorporated into this prospectus, and you should not consider information on our website to be part of this prospectus. You may also obtain such information by contacting us in writing at 888 7th Avenue, 41st Floor, New York, NY 10106, Attention: TSLX Investor Relations, or by emailing us at IRTSLX@sixthstreet.com. The SEC maintains a website that contains reports, proxy and information statements and other information we file with the SEC at www.sec.gov. Copies of these reports, proxy and information statements and other information may also be obtained, after paying a duplicating fee, by electronic request at the following
e-mail
address: publicinfo@sec.gov.
Our codes of ethics are attached as exhibits to the registration statement of which this prospectus is a part, and are available on the EDGAR Databased on the SEC’s internet site at http://www.sec.gov. You may also obtain copies of the codes of ethics, after paying a duplicating fee, by electronic request at the following
e-mail
address: publicinfo@sec.gov.
Proxy Voting Policies and Procedures
You may obtain information about how the Adviser voted proxies, free of charge, by making a written request for proxy voting information to: Sixth Street Specialty Lending Advisers, 888 7th Avenue, 41st Floor, New York, NY 10106, Attention: TSLX Investor Relations, or by emailing us at IRTSLX@sixthstreet.com. The SEC also maintains a website at http://www.sec.gov that contains such information.
INFORMATION INCORPORATED BY REFERENCE
This prospectus is part of a registration statement that we have filed with the SEC. Pursuant to the SBCAA, we are allowed to “incorporate by reference” the information that we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to comprise a part of this prospectus from the date we file that document. Any reports filed by us with the SEC before the date that any offering of any securities by means of this prospectus and any accompanying prospectus supplement is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus. This prospectus incorporates by reference the documents listed below:
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• |
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on February 16, 2023, including the information specifically incorporated by reference into the Form 10-K from our Definitive Proxy Statement on Schedule 14A relating to our 2023 Annual Meeting of Stockholders, filed with the SEC on April 13, 2023; |
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• |
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Our Quarterly Reports on Form 10-Q for the three months ended March 31, 2023, filed with the SEC on May 8, 2023, for the three months ended June 30, 2023, filed with the SEC on August 3, 2023, and for the three months ended September 30, 2023, filed with the SEC on November 2, 2023; |
97
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• |
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Our Current Reports on Form 8-K, filed with the SEC on May 15, 2023, May 26, 2023, June 12, 2023, June 13, 2023, July 14, 2023, July 17, 2023, August 10, 2023 and August 14, 2023; and |
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• |
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the description of our common stock contained in our Registration Statement on Form 8-A (File No. 001-36364), as filed with the SEC on March 19, 2014, including any amendment or report filed for the purpose of updating such description prior to the termination of the offering of the common stock registered hereby. |
We incorporate by reference into this prospectus additional documents that we may file with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, until all of the securities offered by this prospectus and any accompanying prospectus supplement have been sold or we otherwise terminate the offering of these securities; provided, however, that information “furnished” under Item 2.02 or Item 7.01 of Form
8-K
or other information “furnished” to the SEC which is not deemed filed is not incorporated by reference in this prospectus and any accompanying prospectus supplement. Information that we file with the SEC will automatically update and may supersede information in this prospectus, any accompanying prospectus supplement and information previously filed with the SEC.
We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written request of any such person, a copy of any or all of the documents that has been or may be incorporated by reference into this prospectus (excluding certain exhibits to the documents) at no cost. Any such request may be made by contacting us in writing at the following address:
Sixth Street Specialty Lending, Inc.
888 7th Avenue, 41st Floor
New York, NY 10106
Attention: TSLX Investor Relations
Email
: IRTSLX@sixthstreet.com.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different or additional information, and you should not rely on such information if you receive it. We are not making an offer of or soliciting an offer to buy, any securities in any state or other jurisdiction where such offer or sale is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
98
SIXTH STREET SPECIALTY LENDING, INC.
PART C
Other Information
Item 25. Financial Statements and Exhibits
(1) Financial Statements
The Report of Independent Registered Public Accounting Firm of KPMG LLP, dated February 16, 2023, and the audited consolidated financial statements of Sixth Street Specialty Lending, Inc. (and subsidiaries) as of December 31, 2022 and 2021 and for each of the years in the three year period ended December 31, 2022, 2021 and 2020 included in our 2022 Annual Report, are incorporated by reference in this Registration Statement.
The interim unaudited consolidated financial statements of Sixth Street Specialty Lending, Inc. (and subsidiaries) as of September 30, 2023 and for the three and nine months ended September 30, 2023 and 2022 included in our 3Q 2023 Quarterly Report are also incorporated herein by reference.
(2) Exhibits
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| (a) |
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Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to Amendment No. 1 to the Company’s Current Report on Form 8-K filed on June 19, 2020). |
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| (b) |
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Second Amended and Restated Bylaws of Sixth Street Specialty Lending, Inc., effective as of July 10, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K/A filed on July 17, 2023). |
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| (c) |
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Not applicable. |
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| (d)(1) |
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K filed on March 22, 2012). |
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| (d)(2) |
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Form of Subscription Certificate (incorporated by reference to Exhibit (d)(7) to Pre-Effective Amendment No. 1 to the Company’s Registration Statement on Form N-2 filed on July 25, 2014). |
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| (d)(3) |
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Form of indenture, between the Company and a trustee.* |
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| (d)(4) |
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Statement of Eligibility of Trustee on Form T-1.* |
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| (d)(5) |
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Indenture, dated as of February 1, 2017, between TPG Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on February 1, 2017). |
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| (d)(6) |
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Form of 4.50% Convertible Note Due 2022 (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on February 1, 2017). |
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| (d)(7) |
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Indenture, dated as of January 22, 2018, between TPG Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on January 22, 2018). |
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| (d)(8) |
|
First Supplemental Indenture, dated as of January 22, 2018, between TPG Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on January 22, 2018). |
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| (d)(9) |
|
Form of 4.500% Note Due 2023 (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed on January 22, 2018). |
|
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| (d)(10) |
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First Supplemental Indenture, dated as of June 19, 2018, between TPG Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on June 19, 2018). |
C-1
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| (d)(11) |
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Second Supplemental Indenture, dated as of November 1, 2019, between TPG Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on November 1, 2019). |
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| (d)(12) |
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Form of 3.875% Note (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on November 1, 2019). |
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| (d)(13) |
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Third Supplemental Indenture, dated as of February 3, 2021, between Sixth Street Specialty Lending, Inc. and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on February 3, 2021). |
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| (d)(14) |
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Form of 2.500% Note (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on February 3, 2021). |
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| (d)(15) |
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Fourth Supplemental Indenture, dated as of August 14, 2023, between Sixth Street Specialty Lending, Inc. and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 14, 2023). |
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| (d)(16) |
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Form of 6.950% Note (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 14, 2023). |
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| (e) |
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Dividend Reinvestment Plan of Sixth Street Specialty Lending, Inc. (incorporated by reference to Exhibit (e) to Pre-Effective Amendment No. 4 to the Company’s Registration Statement on Form N-2 filed on March 17, 2014). |
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| (f) |
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Not applicable. |
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| (g) |
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Amended and Restated Investment Advisory and Management Agreement, dated December 12, 2011, between the Company and the Adviser (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 13, 2011). |
|
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| (h)(1) |
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Form of Underwriting Agreement for Equity Securities (incorporated by reference to Exhibit (h)(1) to the Company’s Registration Statement on Form N-2 filed on March 31, 2016). |
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| (h)(2) |
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Form of Underwriting Agreement for Debt Securities (incorporated by reference to Exhibit (h)(2) to the Company’s Registration Statement on Form N-2 filed on March 31, 2016). |
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| (i) |
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Not applicable. |
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| (j) |
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Custodian Agreement dated November 29, 2012 between TPG Specialty Lending, Inc. and State Street Bank and Trust Company (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 4, 2012). |
|
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| (k)(1) |
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Form of Indemnification Agreement between the Company and certain officers and directors (incorporated by reference to Exhibit 10.3 to Amendment No. 1 to the Company’s Registration Statement on Form 10 filed on March 14, 2011). |
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| (k)(2) |
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Amended and Restated Senior Secured Revolving Credit Agreement, dated as of July 2, 2013, among TPG Specialty Lending, Inc., the lenders party thereto, SunTrust Bank as administrative agent and JPMorgan Chase Bank N.A. as syndication agent (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 9, 2013). |
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| (k)(3) |
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Second Amended and Restated Senior Secured Credit Agreement, dated February 27, 2014, among TPG Specialty Lending, Inc., as Borrower, the Lenders Party Hereto and SunTrust Bank, as Administrative Agent, and JPMorgan Chase Bank, N.A., as Syndication Agent (incorporated by reference to Exhibit 10.20 to the Company’s Annual Report on Form 10-K filed on March 4, 2014). |
C-2
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| (k)(4) |
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Form of Increase Letter pursuant to the Second Amended and Restated Senior Secured Credit Agreement, dated February 27, 2014, among TPG Specialty Lending, Inc., as Borrower, the Lenders Party Hereto and SunTrust Bank, as Administrative Agent, and JPMorgan Chase Bank, N.A., as Syndication Agent (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed on August 4, 2014). |
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| (k)(5) |
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First Amendment to the Second Amended and Restated Senior Secured Revolving Credit Agreement, dated June 3, 2014, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent and Collateral Agent (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed on August 4, 2014). |
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| (k)(6) |
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Second Amendment to the Second Amended and Restated Senior Secured Revolving Credit Agreement, dated June 27, 2014, among TPG Specialty Lending, Inc., as Borrower, Morgan Stanley Bank, N.A., as a Lender, and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed on August 4, 2014). |
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| (k)(7) |
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Third Amendment to the Second Amended and Restated Senior Secured Revolving Credit Agreement, dated October 17, 2014, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 3, 2014). |
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| (k)(8) |
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Fourth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated October 2, 2015, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 3, 2015). |
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| (k)(9) |
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Fifth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated December 22, 2016, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.15 to the Company’s Annual Report on Form 10-K filed on February 22, 2017). |
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| (k)(10) |
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Amended and Restated Administration Agreement, dated as of February 22, 2017, between the Company and the Adviser (incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K filed on February 22, 2017). |
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| (k)(11) |
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Sixth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated February 20, 2018, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K filed on February 21, 2018). |
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| (k)(12) |
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Seventh Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of November 5, 2018, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 6, 2018). |
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| (k)(13) |
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Eighth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of February 14, 2019, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and SunTrust Bank, as Administrative Agent (incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K filed on February 20, 2019). |
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| (k)(14) |
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Ninth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of January 31, 2020, among TPG Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent. (incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K filed on February 19, 2020). |
C-3
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| (k)(15) |
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Tenth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of February 5, 2021, among Sixth Street Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent (incorporated by reference to the Exhibit 10.18 to the Company’s Annual Report on Form 10-K filed on February 17, 2021). |
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| (k)(16) |
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Eleventh Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of December 21, 2021, among Sixth Street Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent (incorporated by reference to the Exhibit 10.19 to the Company’s Annual Report on Form 10-K filed on February 17, 2022). |
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| (k)(17) |
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Twelfth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of April 25, 2022, among Sixth Street Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on May 3, 2022). |
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| (k)(18) |
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Thirteenth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of May 19, 2022, among Sixth Street Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed on August 2, 2022). |
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| (k)(19) |
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Fourteenth Amendment to Second Amended and Restated Senior Secured Revolving Credit Agreement, dated as of June 12, 2023, among Sixth Street Specialty Lending, Inc., as Borrower, the Lenders party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Administrative Agent Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 3, 2023). |
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| (l) |
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Opinion and Consent of Simpson Thacher & Bartlett LLP * |
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| (m) |
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Not applicable. |
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| (n)(1) |
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Consent of Simpson Thacher & Bartlett LLP (included in opinion filed as Exhibit (l)). |
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| (n)(2) |
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Consent of KPMG LLP.* |
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| (n)(3) |
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Report of KPMG LLP (incorporated by reference to Exhibit 99.1 to the Company’s Annual Report on Form 10-K filed on February 16, 2023). |
|
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| (n)(4) |
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Power of Attorney.* |
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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) |
|
Not applicable. |
|
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| (r)(1) |
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Code of Ethics of TPG Specialty Lending, Inc. (incorporated by reference to Exhibit (r)(1) to Pre-Effective Amendment No. 4 to the Company’s Registration Statement on Form N-2 filed on March 17, 2014). |
|
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| (r)(2) |
|
Code of Ethics of TSL Advisers, LLC (incorporated by reference to Exhibit (r)(2) to Pre-Effective Amendment No. 4 to the Company’s Registration Statement on Form N-2 filed on March 17, 2014). |
|
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| (s) |
|
Calculation of Filing Fee Table.* |
C-4
|
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| 101.INS* |
|
Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document. |
|
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| 101.SCH* |
|
Inline XBRL Taxonomy Extension Schema Document. |
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| 101.CAL* |
|
Inline XBRL Taxonomy Extension Calculation Linkbase Document. |
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| 101.DEF* |
|
Inline XBRL Taxonomy Extension Definition Linkbase Document. |
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| 101.LAB* |
|
Inline XBRL Taxonomy Extension Label Linkbase Document. |
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| 101.PRE* |
|
Inline XBRL Taxonomy Extension Presentation Linkbase Document. |
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| 104* |
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Cover Page Interactive Data File embedded within the Inline XBRL document). |
Item 26. Marketing Arrangements
The information contained under the heading “Plan of Distribution” in this Registration Statement is incorporated herein by reference and any information concerning any underwriters for a particular offering will be contained in the prospectus supplement related to that offering.
Item 27. Other Expenses of Issuance and Distribution
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| Securities and Exchange Commission registration fee |
|
$ |
* |
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| FINRA filing fee |
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* * |
|
| NYSE listing fee |
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* * |
|
| Printing expenses |
|
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* * |
|
| Legal fees and expenses |
|
|
* * |
|
| Accounting fees and expenses |
|
|
* * |
|
| Miscellaneous |
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* * |
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|
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| Total |
|
$ |
* * |
|
|
|
|
|
|
| * |
In accordance with Rules 456(b), 457(r) and 415(a)(6) promulgated under the Securities Act, the Registrant is deferring payment of all of the registration fees. Any registration fees will be paid subsequently on a pay-as-you-go basis. |
| ** |
These fees will be calculated based on the securities offered and the number of issuances and accordingly, cannot be estimated at this time. These fees, if any, will be reflected in the applicable prospectus supplement. |
Item 28. Persons Controlled by or Under Common Control
The information contained in the section entitled “Summary” in the Registration Statement and in the sections entitled “Election of Directors,” “Corporate Governance,” “Certain Relationships and Related Party Transactions” and “Security Ownership of Certain Beneficial Owners and Management” in our 2023 Annual Proxy and in our 2022 Annual Report is incorporated herein by reference.
Item 29. Number of Holders of Securities
The following table sets forth the approximate number of record holders of our common stock as of December 15, 2023.
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| Title of Class |
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Number of
Record
Holders |
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| Common Stock, $0.01 par value |
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2 |
|
C-5
Item 30. Indemnification
Section 145 of the DGCL allows for the indemnification of officers, directors and any corporate agents in terms sufficiently broad to indemnify these persons under certain circumstances for liabilities, including reimbursement for expenses, incurred arising under the Securities Act. Our certificate of incorporation and bylaws provide that we shall indemnify our directors and officers to the fullest extent authorized or permitted by law and this right to indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, we are not obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by the person unless the proceeding (or part thereof) was authorized or consented to by the Board. The right to indemnification conferred includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
So long as we are regulated under the 1940 Act, the above indemnification is limited by the 1940 Act or by any valid rule, regulation or order of the SEC thereunder. The 1940 Act provides, among other things, that a company may not indemnify any director or officer against liability to it or its security holders to which he or she might otherwise be subject by reason of his or her willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office unless a determination is made by final decision of a court, by vote of a majority of a quorum of directors who are disinterested, non-party directors or by independent legal counsel that the liability for which indemnification is sought did not arise out of the foregoing conduct.
In addition, we have entered into indemnification agreements with our directors and officers that provide for a contractual right to indemnification to the fullest extent permitted by the DGCL. A form of indemnification agreement has been filed as an exhibit to this Registration Statement.
We may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers. The rights to indemnification and to the advance of expenses are subject to the requirements of the 1940 Act to the extent applicable. Any repeal or modification of our certificate of incorporation by our stockholders will not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
The Investment Advisory Agreement and the Administration Agreement provide that the Adviser and its members, managers, officers, employees, agents, controlling persons and any other person or entity affiliated with it shall not be liable to us for any action taken or omitted to be taken by the Adviser in connection with the performance of any of its duties or obligations under these Agreements or otherwise as an investment adviser of ours (except to the extent specified in Section 36(b) of the 1940 Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services). We will, to the fullest extent permitted by law, provide indemnification and the right to the advancement of expenses, to each person who was or is made a party or is threatened to be made a party to or is involved (including, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a member, manager, officer, employee, agent, controlling person or any other person or entity affiliated with the Adviser, including without limitation the Administrator, or is or was a member of the Adviser’s Investment Review Committee (each such person hereinafter an “Indemnitee”), on the same general terms set forth in the certificate of incorporation.
We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act.
C-6
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, we have been advised that in the opinion of the SEC 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 us 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us 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 Advisor
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 the section entitled “Summary” in this Registration Statement and in the sections entitled “Corporate Governance”, “Certain Relationships and Related Party Transactions” and “Management Agreements” in our Definitive Proxy Statement on Schedule 14A relating to our 2023 Annual Proxy and in Part I, Item 1 of our 2022 Annual Report, as well as Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report, each of which are incorporated herein by reference. Additional information regarding the Adviser and its officers is set forth in its Form ADV, filed with the SEC (SEC File No. 801-72185), 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 1940 Act, and the rules thereunder are maintained at the offices of:
| |
(1) |
The Registrant, 2100 McKinney Avenue, Suite 1500, Dallas, TX 75201; |
| |
(2) |
The transfer agent, American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, NY 11219; |
| |
(3) |
The custodian, State Street Bank and Trust Company, 1 Lincoln Street Boston, MA 02111; and |
| |
(4) |
The Adviser, 2100 McKinney Avenue, Suite 1500, Dallas, TX 75201. |
Item 33. Management Services
Not Applicable.
Item 34. Undertakings
| (1) |
We undertake 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 10% 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) |
We undertake, in the event that the securities being registered are to be offered to existing stockholders 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 the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent underwriting |
C-7
| |
thereof. We further undertake that 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, we shall file a post-effective amendment to set forth the terms of such offering. |
| (a) |
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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b), or other applicable SEC rule under the Securities Act, if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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; |
Provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by us pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b), or other applicable SEC rule under the Securities Act, that is part of 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: |
| (i) |
if we are relying on Rule 430B: |
| (A) |
each prospectus filed by us pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (B) |
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (x), or (xi) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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 effective date, 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 effective date; or |
C-8
| (ii) |
if we are subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) or Rule 497(b), (c), (d), or (e) under the Securities Act, as applicable, as part of a registration statement related to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, 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 our liability under the Securities Act to any purchaser in the initial distribution of securities, we undertake that in a primary offering of our securities 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, we 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 ours relating to the offering required to be filed pursuant to Rule 424 or Rule 497 under the Securities Act, as applicable; |
| (ii) |
free writing prospectus relating to the offering prepared by or on behalf of us or used or referred to by us; |
| (iii) |
the portion of any other free writing prospectus or advertisement pursuant to Rule 482 under the Securities Act relating to the offering containing material information about us or our securities provided by or on behalf of us; and |
| (iv) |
any other communication that is an offer in the offering made by us to the purchaser. |
| (6) |
We undertake that, for purposes of determining any liability under the Securities Act, each filing of our annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference into the registration statement 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. |
| (7) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC 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 us of expenses incurred or paid by one of our directors, officers or controlling persons 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
C-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and the State of New York on the 22nd day of December, 2023.
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|
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| SIXTH STREET SPECIALTY LENDING, INC. |
|
|
| By: |
|
/s/ Ian Simmonds |
|
|
Name: Ian Simmonds |
|
|
Title: Chief Financial Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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|
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|
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| Signature |
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Title |
|
Date |
| /s/ Joshua Easterly Joshua Easterly |
|
Chief Executive Officer, Director and Chairman of the Board of Directors |
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December 22, 2023 |
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|
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| /s/ Ian Simmonds Ian Simmonds |
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Chief Financial Officer (Principal Financial Officer) |
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December 22, 2023 |
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| /s/ Michael Graf Michael Graf |
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Deputy Chief Financial Officer,
Vice President and Principal Accounting Officer (Principal Accounting Officer) |
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December 22, 2023 |
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| /s/ P. Emery Covington* P. Emery Covington |
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Director |
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December 22, 2023 |
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| /s/ Hurley Doddy* Hurley Doddy |
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Director |
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December 22, 2023 |
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| /s/ Michael Fishman* Michael Fishman |
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Director |
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December 22, 2023 |
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| /s/ Jennifer Gordon* Jennifer Gordon |
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Director |
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December 22, 2023 |
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| /s/ Richard A. Higginbotham* Richard A. Higginbotham |
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Director |
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December 22, 2023 |
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| /s/ John A. Ross* John A. Ross |
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Director |
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December 22, 2023 |
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| /s/ Judy Slotkin* Judy Slotkin |
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Director |
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December 22, 2023 |
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| /s/ David Stiepleman* David Stiepleman |
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Director |
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December 22, 2023 |
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| /s/ Ronald K. Tanemura* Ronald K. Tanemura |
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Director |
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December 22, 2023 |
C-10
|
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| *By: |
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/s/ Ian Simmonds |
|
|
Ian Simmonds |
|
|
As Attorney-in-Fact |
The original powers of attorney authorizing Michael Fishman, Joshua Easterly, Ian Simmonds, David Stiepleman and Jennifer Gordon to execute the Registration Statement, and any amendments thereto, for the directors of the Registrant on whose behalf this Registration Statement is filed, is filed with this Registration Statement as Exhibit (n)(4).
C-11
Exhibit (d)(3)
SIXTH STREET SPECIALTY LENDING, INC.
(Company)
and
[ ], NATIONAL ASSOCIATION
(Trustee)
Indenture
Dated as of [__________]
Providing for the Issuance
of
Debt Securities
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION
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| Section 1.01. |
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Definitions |
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1 |
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| Section 1.02. |
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Compliance Certificates |
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|
12 |
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| Section 1.03. |
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Form of Documents Delivered to Trustee |
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12 |
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| Section 1.04. |
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Acts of Holders |
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13 |
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| Section 1.05. |
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Notices, Etc., to Trustee and Company |
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14 |
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| Section 1.06. |
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Notice to Holders; Waiver |
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15 |
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| Section 1.07. |
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Effect of Headings and Table of Contents |
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16 |
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| Section 1.08. |
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Successors and Assigns |
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16 |
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| Section 1.09. |
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Separability Clause |
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16 |
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| Section 1.10. |
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Benefits of Indenture |
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16 |
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| Section 1.11. |
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Governing Law |
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16 |
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| Section 1.12. |
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Legal Holidays |
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16 |
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| Section 1.13. |
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Submission to Jurisdiction |
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17 |
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| Section 1.14. |
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Waiver of Jury Trial |
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17 |
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| Section 1.15. |
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U.S.A. Patriot Act |
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17 |
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i
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| ARTICLE TWO |
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| SECURITIES FORMS |
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| Section 2.01. |
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Forms of Securities |
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17 |
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| Section 2.02. |
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Form of Trustee’s Certificate of Authentication |
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18 |
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| Section 2.03. |
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Securities Issuable in Global Form |
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18 |
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| Section 2.04. |
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Certificated Notes |
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19 |
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| ARTICLE THREE |
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| THE SECURITIES |
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| Section 3.01. |
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Amount Unlimited; Issuable in Series |
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20 |
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| Section 3.02. |
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Denominations |
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24 |
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| Section 3.03. |
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Execution, Authentication, Delivery and Dating |
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24 |
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| Section 3.04. |
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Temporary Securities |
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26 |
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| Section 3.05. |
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Registration, Registration of Transfer and Exchange |
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26 |
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| Section 3.06. |
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Mutilated, Destroyed, Lost and Stolen Securities |
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28 |
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| Section 3.07. |
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Payment of Interest; Interest Rights Preserved; Optional Interest Reset |
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29 |
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| Section 3.08. |
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Optional Extension of Maturity |
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31 |
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| Section 3.09. |
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Persons Deemed Owners |
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32 |
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| Section 3.10. |
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Cancellation |
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33 |
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| Section 3.11. |
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Computation of Interest |
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33 |
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| Section 3.12. |
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Currency and Manner of Payments in Respect of Securities |
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33 |
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| Section 3.13. |
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Appointment and Resignation of Successor Exchange Rate Agent |
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37 |
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| Section 3.14. |
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CUSIP Numbers |
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37 |
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| ARTICLE FOUR |
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| SATISFACTION AND DISCHARGE |
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| Section 4.01. |
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Satisfaction and Discharge of Indenture |
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37 |
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| Section 4.02. |
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Application of Trust Funds |
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39 |
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| ARTICLE FIVE |
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| REMEDIES |
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| Section 5.01. |
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Events of Default |
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39 |
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| Section 5.02. |
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Acceleration of Maturity; Rescission and Annulment |
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41 |
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| Section 5.03. |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
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42 |
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| Section 5.04. |
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Trustee May File Proofs of Claim |
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42 |
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| Section 5.05. |
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Trustee May Enforce Claims Without Possession of Securities |
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43 |
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| Section 5.06. |
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Application of Money Collected |
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43 |
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| Section 5.07. |
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Limitation on Suits |
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44 |
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| Section 5.08. |
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Unconditional Right of Holders to Receive Principal, Premium and Interest |
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45 |
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| Section 5.09. |
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Restoration of Rights and Remedies |
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45 |
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| Section 5.10. |
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Rights and Remedies Cumulative |
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45 |
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| Section 5.11. |
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Delay or Omission Not Waiver |
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45 |
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ii
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| Section 5.12. |
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Control by Holders of Securities |
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46 |
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| Section 5.13. |
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Waiver of Past Defaults |
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46 |
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| Section 5.14. |
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Waiver of Stay or Extension Laws |
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46 |
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| Section 5.15. |
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Undertaking for Costs |
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47 |
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| ARTICLE SIX |
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| THE TRUSTEE |
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| Section 6.01. |
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Notice of Defaults |
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47 |
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| Section 6.02. |
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Certain Rights of Trustee |
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48 |
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| Section 6.03. |
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Not Responsible for Recitals or Issuance of Securities |
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49 |
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| Section 6.04. |
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May Hold Securities |
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50 |
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| Section 6.05. |
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Money Held in Trust |
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51 |
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| Section 6.06. |
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Compensation and Reimbursement and Indemnification of Trustee |
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51 |
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| Section 6.07. |
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Corporate Trustee Required; Eligibility |
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52 |
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| Section 6.08. |
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Disqualification; Conflicting Interests |
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52 |
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| Section 6.09. |
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Resignation and Removal; Appointment of Successor |
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52 |
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| Section 6.10. |
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Acceptance of Appointment by Successor |
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54 |
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| Section 6.11. |
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Merger, Conversion, Consolidation or Succession to Business |
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55 |
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| Section 6.12. |
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Appointment of Authenticating Agent |
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55 |
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| Section 6.13. |
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Preferential Collection of Claims Against Company |
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57 |
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| ARTICLE SEVEN |
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| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
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| Section 7.01. |
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Disclosure of Names and Addresses of Holders |
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57 |
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| Section 7.02. |
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Preservation of Information; Communications to Holders |
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57 |
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| Section 7.03. |
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Reports by Trustee |
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58 |
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| Section 7.04. |
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Reports by Company |
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58 |
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| Section 7.05. |
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Calculation of Original Issue Discount |
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58 |
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| ARTICLE EIGHT |
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| CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER |
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| Section 8.01. |
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Merger, Consolidation or Sale of Assets |
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59 |
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| Section 8.02. |
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Successor Person Substituted |
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59 |
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| ARTICLE NINE |
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| SUPPLEMENTAL INDENTURES |
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| Section 9.01. |
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Supplemental Indentures Without Consent of Holders |
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60 |
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| Section 9.02. |
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Supplemental Indentures With Consent of Holders |
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61 |
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| Section 9.03. |
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Execution of Supplemental Indentures |
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63 |
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| Section 9.04. |
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Effect of Supplemental Indentures |
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63 |
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| Section 9.05. |
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Conformity With Trust Indenture Act |
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63 |
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| Section 9.06. |
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Reference in Securities to Supplemental Indentures |
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63 |
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iii
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| ARTICLE TEN |
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| COVENANTS |
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| Section 10.01. |
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Payment of Principal, Premium, if any, and Interest |
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63 |
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| Section 10.02. |
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Maintenance of Office or Agency |
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64 |
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| Section 10.03. |
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Money for Securities Payments to Be Held in Trust |
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64 |
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| Section 10.04. |
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Additional Amounts |
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65 |
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| Section 10.05. |
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Statement as to Compliance |
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66 |
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| Section 10.06. |
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Waiver of Certain Covenants |
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|
66 |
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| Section 10.07. |
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Section 18(a)(1)(A) of the Investment Company Act |
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67 |
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| Section 10.08. |
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Commission Reports and Reports to Holders |
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|
67 |
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| ARTICLE ELEVEN |
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| REDEMPTION OF SECURITIES |
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| Section 11.01. |
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Applicability of Article |
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67 |
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| Section 11.02. |
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Election to Redeem; Notice to Trustee |
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67 |
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| Section 11.03. |
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Selection by Trustee of Securities to Be Redeemed |
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68 |
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| Section 11.04. |
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Notice of Redemption |
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68 |
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| Section 11.05. |
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Deposit of Redemption Price |
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70 |
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| Section 11.06. |
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Securities Payable on Redemption Date |
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70 |
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| Section 11.07. |
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Securities Redeemed in Part |
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|
70 |
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| ARTICLE TWELVE |
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| SINKING FUNDS |
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| Section 12.01. |
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Applicability of Article |
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71 |
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| Section 12.02. |
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Satisfaction of Sinking Fund Payments With Securities |
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71 |
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| Section 12.03. |
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Redemption of Securities for Sinking Fund |
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71 |
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| ARTICLE THIRTEEN |
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| REPAYMENT AT THE OPTION OF HOLDERS |
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| Section 13.01. |
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Applicability of Article |
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72 |
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| Section 13.02. |
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Repayment of Securities |
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72 |
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| Section 13.03. |
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Exercise of Option |
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|
72 |
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| Section 13.04. |
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When Securities Presented for Repayment Become Due and Payable |
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|
73 |
|
| Section 13.05. |
|
Securities Repaid in Part |
|
|
73 |
|
|
| ARTICLE FOURTEEN |
|
|
| DEFEASANCE AND COVENANT DEFEASANCE |
|
|
|
|
| Section 14.01. |
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance |
|
|
74 |
|
| Section 14.02. |
|
Defeasance and Discharge |
|
|
74 |
|
| Section 14.03. |
|
Covenant Defeasance |
|
|
75 |
|
| Section 14.04. |
|
Conditions to Defeasance or Covenant Defeasance |
|
|
75 |
|
| Section 14.05. |
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
|
|
76 |
|
iv
|
|
|
|
|
|
|
| ARTICLE FIFTEEN |
|
|
| MEETINGS OF HOLDERS OF SECURITIES |
|
|
|
|
| Section 15.01. |
|
Purposes for Which Meetings May Be Called |
|
|
78 |
|
| Section 15.02. |
|
Call, Notice and Place of Meetings |
|
|
78 |
|
| Section 15.03. |
|
Persons Entitled to Vote at Meetings |
|
|
78 |
|
| Section 15.04. |
|
Quorum; Action |
|
|
78 |
|
| Section 15.05. |
|
Determination of Voting Rights; Conduct and Adjournment of Meetings |
|
|
80 |
|
| Section 15.06. |
|
Counting Votes and Recording Action of Meetings |
|
|
80 |
|
|
| ARTICLE SIXTEEN |
|
|
| SUBORDINATION OF SECURITIES |
|
|
|
|
| Section 16.01. |
|
Agreement to Subordinate |
|
|
81 |
|
| Section 16.02. |
|
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Subordinated Securities |
|
|
81 |
|
| Section 16.03. |
|
No Payment on Subordinated Securities in Event of Default on Senior Indebtedness |
|
|
83 |
|
| Section 16.04. |
|
Payments on Subordinated Securities Permitted |
|
|
83 |
|
| Section 16.05. |
|
Authorization of Holders to Trustee to Effect Subordination |
|
|
84 |
|
| Section 16.06. |
|
Notices to Trustee |
|
|
84 |
|
| Section 16.07. |
|
Trustee as Holder of Senior Indebtedness |
|
|
85 |
|
| Section 16.08. |
|
Modifications of Terms of Senior Indebtedness |
|
|
85 |
|
| Section 16.09. |
|
Reliance on Judicial Order or Certificate of Liquidating Agent |
|
|
85 |
|
v
SIXTH STREET SPECIALTY LENDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ]
|
|
|
|
|
|
|
| Trust Indenture Act Section |
|
|
|
Indenture Section |
| §310 |
|
(a)(1) |
|
|
|
6.07 |
|
|
(a)(2) |
|
|
|
6.07 |
|
|
(a)(5) |
|
|
|
6.07 |
|
|
(b) |
|
|
|
6.08 |
| §311 |
|
|
|
|
|
|
|
|
|
|
|
|
6.13 |
| §312 |
|
(c) |
|
|
|
7.01 |
|
|
|
|
| §313 |
|
|
|
|
|
7.03 |
| §314 |
|
(a) |
|
|
|
7.04 |
|
|
(a)(4) |
|
|
|
10.05 |
|
|
(c)(1) |
|
|
|
1.02 |
|
|
(c)(2) |
|
|
|
1.02 |
|
|
(e) |
|
|
|
1.02 |
|
|
|
|
| §315 |
|
(a) |
|
|
|
6.01 |
|
|
(b) |
|
|
|
6.01 |
|
|
(c) |
|
|
|
6.01 |
|
|
(d) |
|
|
|
6.01 |
|
|
(e) |
|
|
|
5.15 |
| §316 |
|
(a) (last sentence) |
|
|
|
1.01 (“Outstanding”) |
|
|
(a)(1)(A) |
|
|
|
5.02, 5.12 |
|
|
(a)(1)(B) |
|
|
|
5.13 |
|
|
(b) |
|
|
|
5.08 |
| §317 |
|
(a)(1) |
|
|
|
5.03 |
|
|
(a)(2) |
|
|
|
5.04 |
|
|
(b) |
|
|
|
10.03 |
| §318 |
|
(a) |
|
|
|
1.11 |
|
|
(c) |
|
|
|
1.11 |
NOTE: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
vi
INDENTURE, dated as of [___________] between Sixth Street Specialty Lending, Inc., a
Delaware corporation (the “Company”, as more fully set forth in Section 1.01), and [ ], as Trustee (as trustee in such capacity and
not in its individual capacity, the “Trustee”, as more fully set forth in Section 1.01).
RECITALS OF THE COMPANY
WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes debt securities (hereinafter called the
“Securities”) evidencing its secured or unsecured indebtedness, which may or may not be convertible into or exchangeable for any securities of any Person (including the Company), and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities, to be issued in one or more series, unlimited as to principal amount, to bear such rates of interest, to mature at such times and to have such other provisions as shall
be fixed as hereinafter provided;
WHEREAS, this Indenture (as defined herein) is subject to the provisions of the Trust Indenture Act (as
defined herein), that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions; and
WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of, and enforceable against, the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase of the Securities by
the Holders (as defined herein) thereof, it is mutually covenanted and agreed, for the benefit of each other and for the equal and proportionate benefit of all Holders of the Securities, or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in
this Article have the meanings assigned to them in this Article, and include the plural as well as the singular and, pursuant to Section 3.01, any such item may, with respect to any particular series of Securities, be amended or modified or
specified as being inapplicable;
(b) all other terms used herein which are defined in the Trust Indenture Act either directly or by
reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in Section 311 of the Trust Indenture Act, shall have the meanings assigned to them in the
rules of the Commission (as defined herein) adopted under the Trust Indenture Act;
1
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of America;
(d) the words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(e) “or” is not exclusive;
(f) provisions apply to successive events and transactions; and references to sections of or rules under the Exchange Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
Certain terms, used in other Articles herein,
are defined in those Articles.
“Act”, when used with respect to any Holder of a Security, has the meaning specified in
Section 1.04.
“Additional Amounts” means any additional amounts that are required by a Security or by or pursuant
to a Board Resolution, under circumstances specified therein, to be paid by the Company in respect of certain taxes imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar, Paying Agent, Authenticating Agent, or Depositary Custodian.
“Applicable Procedures” means, with respect to any matter at any time relating to a Global Note, the rules, policies and
procedures of the Depositary applicable to such matter.
“Authenticating Agent” means the Trustee or any authenticating
agent appointed by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
“Bankruptcy Law” has the meaning specified in Section 5.01.
2
“Board of Directors” means the board of directors of the Company or any
committee of that board duly authorized to act hereunder.
“Board Resolution” means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture
or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which the Corporate Trust Office or banking institutions
in that Place of Payment or particular location are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean, respectively, a written request or order signed in the name of
the Company by a Chief Executive Officer, and by the Chief Financial Officer, the Chief Operating Officer, Chief Compliance Officer, any President or Vice President, the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
“Component Currency” has the meaning specified in Section 3.12(h).
“Controlled Subsidiary” means any Subsidiary of the Company, 50% or more of the outstanding equity interests of which
are owned by the Company and its direct or indirect Subsidiaries and of which the Company possesses, directly or indirectly, the power to direct or cause the direction of the management or policies, whether through the ownership of voting equity
interests, by agreement or otherwise.
“Conversion Date” has the meaning specified in Section 3.12(d).
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which
issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which it was established.
“Corporate Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business in
respect of this Indenture shall be administered, which office at the date hereof is located at [ ], or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company) or if at any time there is more than one Trustee, means the Corporate Trust Office of any such other Trustee
with respect to the Securities of the applicable series.
3
“corporation” includes corporations, associations, companies and business
trusts.
“Currency” means any currency or currencies, composite currency or currency unit or currency units, including,
without limitation, the ECU, issued by the government of one or more countries or by any reorganized confederation or association of such governments.
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 3.07(a).
“Depositary” means, with respect to each global Security, the Person specified in Section 3.03 as the Depositary with
respect to such Securities, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.
“Depositary Custodian” means the Trustee as custodian with respect to the Global Notes or any successor entity thereto.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and private debts.
“ECU” means the European
Currency Unit as defined and revised from time to time by the Council of the European Communities.
“Election Date” has
the meaning specified in Section 3.12(h).
“European Communities” means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
“European Monetary System” means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European Communities.
“Event of Default”
has the meaning specified in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated by the Commission thereunder and any statute successor thereto, in each case as amended from time to time.
4
“Exchange Rate Agent”, with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, a New York Clearing House bank designated pursuant to Section 3.01 or Section 3.13.
“Exchange Rate Officer’s Certificate” means a certificate setting forth (i) the applicable Market Exchange Rate or
the applicable bid quotation and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount
determined in accordance with Section 3.02 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate or the applicable bid quotation signed by the Chief Financial Officer or any
President or Vice President of the Company.
“Extension Notice” has the meaning specified in Section 3.08.
“Extension Period” has the meaning specified in Section 3.08.
“Final Maturity” has the meaning specified in Section 3.08.
“Foreign Currency” means any Currency, including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized confederation or association of such governments.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and the statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States, which are in effect from time to time.
“Government Obligations” means securities that are (i) direct obligations of the United States of America or the
government which issued the Foreign Currency in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such government that issued the Foreign Currency in which the Securities of such series are payable, the timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such depository receipt.
5
“Holder” means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated
by Section 3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which
such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms that relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee
but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security as to which all or
certain interest payments and/or the principal amount payable at Maturity are determined by reference to prices, changes in prices, or differences between prices, of securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section 3.01 hereof.
“Interest”, when used
with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant
to Section 10.04, includes such Additional Amounts.
“Interest Payment Date”, when used with respect to any
Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the
Investment Company Act of 1940, as amended, and the rules, regulations and interpretations promulgated thereunder, to the extent applicable, and any statute successor thereto.
“Junior Subordinated Security” or “Junior Subordinated Securities” means any Security or Securities
designated pursuant to Section 3.01 as a Junior Subordinated Security.
“Junior Subordinated Indebtedness” means the
principal of (and premium, if any) and unpaid interest on (a) indebtedness of the Company (including indebtedness of others guaranteed by the Company), whether outstanding on the date hereof or thereafter created, incurred, assumed or
guaranteed, for money borrowed, which in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness ranks junior in right of payment to the Company’s Senior Indebtedness and
Senior Subordinated Indebtedness and equally and pari passu in right of payment to any other Junior Subordinated Indebtedness, (b) Junior Subordinated Securities, and (c) renewals, extensions, modifications and refinancings of any such
indebtedness.
6
“Market Exchange Rate” means, unless otherwise specified with respect to
any Securities pursuant to Section 3.01, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in
the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or other principal market for such currency or currency unit in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make
payments in respect of such securities as determined by the Exchange Rate Agent, in its sole discretion.
“Maturity”,
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment, notice of exchange or conversion or otherwise.
“Notice of
Default” has the meaning provided in Section 5.01.
“Officers’ Certificate” means a certificate signed
by a Chief Executive Officer and by the Chief Financial Officer, the Chief Operating Officer, the Chief Compliance Officer, any President or Vice President, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or who may be an employee of the
Company, or other counsel acceptable to the Trustee.
“Optional Reset Date” has the meaning specified in
Section 3.07(b).
7
“Original Issue Discount Security” means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Original Stated Maturity” has the meaning specified in Section 3.08.
“Outstanding”, when used with respect to Securities or any series of Securities, means, as of the date of determination, all
Securities or all Securities of such series, as the case may be, theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder, money in the
necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such
Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 14.02 and 14.03, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities that have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security or Indexed Security, the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above or (iii) below, respectively) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such
8
Security pursuant to Section 3.01, and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of (or
premium, if any) or interest, if any, on any Securities on behalf of the Company.
“Permitted Junior Securities”, has the
meaning specified in Section 16.02.
“Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof, or any other entity.
“Place of Payment”, when used with respect to the Securities of or within any series, means the place or places where the
principal of (and premium, if any) and interest, if any, on such Securities are payable as specified and as contemplated by Sections 3.01 and 10.02.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with
respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
“Registered Security” means any Security that is registered in the Security Register.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any
series means the date specified for that purpose as contemplated by Section 3.01, whether or not a Business Day.
“Repayment
Date” means, when used with respect to any Security to be repaid at the option of the Holder, means the date fixed for such repayment by or pursuant to this Indenture.
“Repayment Price” means, when used with respect to any Security to be repaid at the option of the Holder, means the price at
which it is to be repaid by or pursuant to this Indenture.
“Reset Notice” has the meaning specified in
Section 3.07(b).
9
“Responsible Officer”, when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust matters who shall have direct responsibility for the administration of this Indenture, or any other officer to whom any corporate trust matter is referred because of
such officer’s knowledge of and familiarity with the particular subject.
“Security” or
“Securities” has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest on (a) indebtedness of the
Company (including indebtedness of others guaranteed by the Company), whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money borrowed, unless in the instrument creating or evidencing the same or
under which the same is outstanding it is provided that such indebtedness is not senior or prior in right of payment to Subordinated Indebtedness, (b) Senior Securities, and (c) renewals, extensions, modifications and refinancings of any
such indebtedness.
“Senior Security” or “Senior Securities” means any Security or Securities designated
pursuant to Section 3.01 as a Senior Security.
“Senior Subordinated Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (a) indebtedness of the Company (including indebtedness of others guaranteed by the Company), whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money
borrowed, that in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness ranks junior in right of payment to the Company’s Senior Indebtedness, equally and pari
passu in right of payment with all other Senior Subordinated Indebtedness and senior in right of payment to any Junior Subordinated Indebtedness, (b) Senior Subordinated Securities, and (c) renewals, extensions, modifications and
refinancings of any such indebtedness.
“Senior Subordinated Security” or “Senior Subordinated
Securities” means any Security or Securities designated pursuant to Section 3.01 as a Senior Subordinated Security.
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act, as such regulation is in effect on the original date of this Indenture (but excluding any Subsidiary
which is (a) a non-recourse or limited recourse Subsidiary, (b) a bankruptcy remote special purpose vehicle or (c) is not consolidated with the Company for purposes of GAAP).
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“Special Record Date” for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 3.07.
“Specified
Amount” has the meaning specified in Section 3.12(h).
“Stated Maturity”, when used with respect to any
Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date
may be extended pursuant to the provisions of Section 3.08.
“Subordinated Indebtedness” means any Senior
Subordinated Indebtedness or Junior Subordinated Indebtedness.
“Subsequent Interest Period” has the meaning specified in
Section 3.07(b).
“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the outstanding shares or other interests having voting power is at the time directly or indirectly owned or controlled by such Person or one or more of the Subsidiaries of
such Person. Unless the context otherwise requires, all references to Subsidiary or Subsidiaries under this Indenture shall refer to Subsidiaries of the Company. In addition, for purposes of this definition, “Subsidiary” shall exclude any
investments held by the Company in the ordinary course of business which are not, under GAAP, consolidated on the financial statements of the Company and its Subsidiaries.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Indenture was executed, except as provided in Section 9.05.
“Trustee” means the Person named as the
“Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of
that series.
“United States” means, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, any
individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is
not treated as a United States Person under any applicable Treasury regulations), any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. Notwithstanding the preceding sentence, to the extent provided in the
Treasury regulations, certain trusts in existence on August 20, 1996, and treated as United States persons prior to such date that elect to continue to be treated as United States Persons, will also be United States persons.
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“Valuation Date” has the meaning specified in Section 3.12(c).
“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the
most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
Section 1.02. Compliance Certificates.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to
such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Section 10.05) shall include;
(a)
a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate
are based;
(c) a statement that such individual signing the certificate or opinion has made such examination or investigation as is
necessary to enable such individual to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a statement as to whether in the opinion of such individual such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based, insofar as it relates
to legal matters, upon an Opinion of Counsel, or a certificate or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information as to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in
writing.
Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 15.06.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register.
(d) [Reserved]
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(e) If the Company shall solicit from the Holders of Registered Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if in writing and sent, first-class postage prepaid, or sent via overnight courier guaranteeing next day delivery, or same day messenger service or by electronic mail (in PDF) to the Trustee at its Corporate
Trust Office, Attention: Sixth Street Specialty Lending, or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent, first-class postage prepaid, or sent via overnight courier guaranteeing next day delivery, or same day messenger service, or by electronic
mail (in PDF), to the Company, to the attention of its Chief Financial Officer at 888 Seventh Avenue, 35th Floor, New York, New York 10019, with a copy to the TSL Chief Compliance Officer at the same address.
The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders) shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered; (ii) when return receipt is delivered, if delivered by electronic mail; (iii) five Business Days after being deposited in the mail, postage prepaid; and
(iv) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Notice to the Trustee shall be effective only if such receipt is acknowledged.
Whenever under this Indenture the Trustee or the Company is required to provide any notice by mail, in all cases each of the Trustee and the
Company may alternatively provide notice by overnight courier, by facsimile, with confirmation of transmission, or by electronic mail, with return receipt requested.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, by overnight courier guaranteeing next day delivery, by facsimile or by electronic mail to each such Holder affected by such
event, at his address, facsimile number or email address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any notice or communication shall also
be so delivered to any Person described in TIA Section 313(c), to the extent required by the TIA. In any case where notice to Holders of Registered Securities is given as provided herein, neither the failure to send such notice, nor any defect
in any notice so sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. Any notice mailed or sent to a Holder in the manner herein prescribed shall be conclusively deemed to
have been received by such Holder, whether or not such Holder actually receives such notice. In the case of a global Security, notices shall be given in accordance with the applicable procedures of the Depositary. Notwithstanding any other provision
of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a global Security (whether by mail or otherwise), such notice shall be sufficiently
given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with Applicable Procedures.
If by reason of the suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the country of publication.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
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Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein, the TIA cross reference table, and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Depositary Custodian, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York without regard to
principles of conflicts of laws that would cause the application of laws of another jurisdiction. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
Section 1.12. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security other than a provision in the Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
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Section 1.13. Submission to Jurisdiction.
The Company hereby irrevocably submits to the non-exclusive jurisdiction of any New York
state or federal court sitting in The City of New York, New York County in any action or proceeding arising out of or relating to the Indenture and the Securities of any series, and the Company hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such New York state or federal court. The Company hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding.
Section 1.14. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.15. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE TWO
SECURITIES
FORMS
Section 2.01. Forms of Securities.
The Registered Securities of each series, the temporary global Securities of each series, if any, and the permanent global Securities of each
series, if any, to be endorsed thereon shall be in substantially the forms as shall be established in one or more indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution in accordance with Section 3.01,
shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.
The
definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
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Section 2.02. Form of Trustee’s Certificate of Authentication.
Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Authorized Signatory |
Section 2.03. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 3.01, then, notwithstanding
clause (viii) of Section 3.01 and the provisions of Section 3.02, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee or the Security Registrar in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the
Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order.
The provisions of the second to last sentence of Section 3.03 shall apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated by the second to last sentence of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of
(and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein. Neither the Trustee nor any Agent shall have responsibility for any actions taken or not taken by the
Depositary.
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The Company, the Trustee, any authenticating agent, any Paying Agent, and any Securities
Registrar may deem the Person in whose name a Security shall be registered upon the Security Register to be, and may treat it as, the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Security Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 3.07) accrued and unpaid interest on such
Security, for conversion of such Security and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Security Registrar shall be affected by any notice to the contrary. All such payments
so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 2.04. Certificated Notes.
Notwithstanding anything to the contrary, Securities in physical, certificated form will be issued and delivered to each person that the
Depositary identifies as a beneficial owner of the related Securities only if:
(a) the Depositary notifies the Company at any time that
it is unwilling or unable to continue as depositary for the Securities in global form and a successor depositary is not appointed within 90 days;
(b) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90
days; or
(c) an Event of Default with respect to the Securities has occurred and is continuing and such beneficial owner requests that
its Securities be issued in physical, certificated form.
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ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, each of which may consist of one or more tranches, and shall be designated as Senior
Securities, Senior Subordinated Securities or Junior Subordinated Securities. Senior Securities are unsubordinated, shall rank equally and pari passu with all of the Company’s Senior Indebtedness and senior to all Subordinated
Securities. Senior Subordinated Securities shall rank junior to the Company’s Senior Indebtedness, equally and pari passu with all other Senior Subordinated Indebtedness and senior to any Junior Subordinated Indebtedness.
Junior Subordinated Securities shall rank junior to the Company’s Senior Indebtedness and any Senior Subordinated Indebtedness and equally and pari passu with all other Junior Subordinated Indebtedness. There shall be
(i) established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or
(ii) established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (i), (ii) and
(xv) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series when issued from time to time, as provided in Section 3.03):
(i) the title of the Securities of the series including CUSIP numbers (which shall distinguish the Securities of such series
from all other series of Securities);
(ii) any limit upon the aggregate principal amount of the Securities of the series
that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05,
3.06, 9.06, 11.07 or 13.05, and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(iii) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of
the Securities of the series shall be payable;
(iv) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest
will be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date shall be determined, and the basis upon which such interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
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(v) the place or places, if any, other than or in addition to the Corporate
Trust Office, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and where notices or demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(vi) the period or periods within which, or the date or dates on which, the price
or prices at which, the Currency or Currencies in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have the option;
(vii) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the period or periods within which or the date or dates on which, the price or prices at which, the Currency or Currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(viii)
if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable;
(ix) if other than the Trustee, the identity of each Security Registrar, Depositary Custodian, and/or Paying Agent;
(x) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02, upon redemption of the Securities of the series which are redeemable before their Stated Maturity, upon surrender for repayment at the option of the
Holder, or which the Trustee shall be entitled to claim pursuant to Section 5.04 or the method by which such portion shall be determined;
(xi) if other than Dollars, the Currency or Currencies in which payment of the principal of (or premium, if any) or interest,
if any, on the Securities of the series shall be made or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of
Section 3.12;
(xii) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the
Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(xiii) whether the principal of (or premium, if any) or interest, if any, on
the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in one or more Currencies other than that in which such Securities are denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency or Currencies in which such Securities are denominated or stated to be
payable and the Currency or Currencies in which such Securities are to be paid, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 3.12;
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(xiv) provisions, if any, granting special rights to the Holders of
Securities of the series, including, without limitation, with respect to any collateral securing such Securities;
(xv) any
deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to any of the provisions of Section 10.06) of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(xvi) whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of
the series are to be issuable in permanent global form and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series in certificated form and of like tenor of any
authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.05, and the circumstances under which and the place or places where such exchanges may be made
and if Securities of the series are to be issuable as a global Security, the identity of the depositary for such series;
(xvii) the date as of which any temporary global Security representing Outstanding Securities of the series shall be dated if
other than the date of original issuance of the first Security of the series to be issued;
(xviii) the Person to whom any
interest on any Registered Security of the series shall be payable, if other than the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, and
the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.04; and the extent to which, or the manner in which, any
interest payable on a permanent global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.07;
(xix) the applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of Article Fourteen;
(xx) if the Securities of such
series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or
terms of such certificates, documents or conditions;
(xxi) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section 10.04 on the Securities of the series to any Holder who is not a United States Person (including any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
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(xxii) the designation of the initial Exchange Rate Agent, if any;
(xxiii) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(xxiv) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable;
(xxv) if the Securities of the series are to be listed on a securities exchange, the name of such exchange may be indicated;
and
(xxvi) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture or
the requirements of the Trust Indenture Act, except as permitted by Section 9.01(v)), including, but not limited to, secured Securities and guarantees of Securities.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above (subject to Section 3.03) and set forth in the Officers’ Certificate referred to above or in any such indenture supplemental hereto. No Board Resolution or Officers’ Certificate may
affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect to any series of Securities except as it may agree in writing.
All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s) shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms of the Securities of such series.
The Company shall be responsible for
making calculations called for under the Securities and this Indenture, including but not limited to determination of interest, additional interest, Additional Amounts, Redemption Price, Repayment Price, applicable premium, make whole Amount,
premium, if any, and any other amounts payable on the Securities. The Company will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Company will provide a schedule of its
calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee shall forward the Company’s
calculations to any Holder of the Securities upon the written request of such Holder.
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Section 3.02. Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 3.01. With respect
to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities of any series, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by a Chief Executive Officer, the Chief Financial
Officer, Chief Operating Officer, Chief Compliance Officer, Secretary or one of its Presidents or Vice Presidents. The signature of any of these officers on the Securities may be manual or by facsimile, .pdf attachment or other electronically
transmitted signature of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the signatures of individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If
all the Securities of any series are not to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance
of such Securities and determining the terms of particular Securities of such series, such as interest rate, maturity date, date of issuance and date from which interest shall accrue. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying upon,
(a) an Opinion of Counsel stating,
(i) that the form or forms of such Securities have been established in conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been established in conformity with the provisions of this Indenture; and
(iii) that this Indenture and such Securities, when completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities; and
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(b) an Officers’ Certificate stating, to the best of the knowledge of the signers of
such certificate, that no Event of Default with respect to any of the Securities shall have occurred and be continuing.
If such form or
terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties, obligations or immunities under the
Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. Notwithstanding the generality of the foregoing, the Trustee will not be required to authenticate Securities denominated in a Foreign Currency
if the Trustee reasonably believes that it would be unable to perform its duties with respect to such Securities.
Each Security shall be
dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any
purpose until authenticated substantially in the form set out in Section 2.02 by the Trustee or an Authenticating Agent by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
The Company initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the global Securities and the Trustee as Depositary Custodian. The Company has entered into a letter of representations with the Depositary in the form provided by the Depositary and the Trustee and each Agent are hereby
authorized to act in accordance with such letter and Applicable Procedures.
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Section 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in
registered form, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities
of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged as provided in or pursuant to a Board Resolution), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal
amount and like tenor of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.05. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency of the Company in a Place of Payment
a register for each series of Securities (the registers maintained in such office or in any such office or agency of the Company in a Place of Payment being herein sometimes referred to collectively as the “Security Register”) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided, and for facilitating exchanges of temporary global Securities for permanent global Securities or definitive Securities, or both, or of permanent global Securities for definitive
Securities, or both, as herein provided. In the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of any series to the Security Registrar or any co-Security Registrar, and satisfaction of the requirements for such transfer set forth in this Section 3.05, the Company shall execute, and the Trustee shall, upon receipt of a Company Order,
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding and containing identical terms and provisions.
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At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any such
office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities that the Holder making the exchange is entitled to receive.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee, upon receipt of a Company Order,
shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing,
except as otherwise specified as contemplated by Section 3.01 and 2.04, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to
exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 3.01 and provided that any applicable notice provided in the
permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered by the Depositary or such other depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, or to the Security Registrar, to be exchanged, in
whole or from time to time in part, for definitive Securities of the same series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption. If a Registered
Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest or interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
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Every Registered Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar or any transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by
the Holder thereof or his attorney or any transfer agent duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not involving any transfer.
The Company shall not be
required (i) to issue, register the transfer of or exchange any Security if such Security may be among those selected for redemption during a period beginning at the opening of business 15 days before selection of the Securities to be
redeemed under Section 11.03 and ending at the close of business on the day the relevant notice of redemption is sent, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer of or exchange any Security that has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee or the Company, together with, in proper cases, such security
or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same
series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding.
If there
shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall, subject to the following paragraph, execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding.
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Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, interest, if
any, on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 10.02; provided, however, that each installment of interest, if any, on any
Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person as it
appears on the Security Register or (ii) transfer to an account maintained by the payee located in the United States.
Except as
otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, any interest on any Registered Security of any series that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are
payable
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(except as otherwise specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Company shall promptly notify the Trustee of such Special Record Date and, in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be
sent pursuant to Applicable Procedures or mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed or sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (and certification by the Company that the proposed manner of payment complies with the requirements of this clause (ii)), such manner of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such
modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset
by the Company on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Company may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 45 but
not more than 60 days prior to an Optional Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of any such Security a
notice (the “Reset Notice”) indicating whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate
(or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the
Stated Maturity of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the
Subsequent Interest Period
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Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date (or
if 20 days does not fall on a Business Day, the next succeeding Business Day), the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the
Reset Notice and establish a higher interest rate (or a spread or spread multiplier providing for a higher interest rate, if applicable) for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in
Section 1.06, notice of such higher interest rate (or such higher spread or spread multiplier providing for a higher interest rate, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for
repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier providing for a higher interest rate, if applicable).
The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment
at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment
pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 3.08. Optional Extension of Maturity.
The provisions of this Section 3.08 may be made applicable to any series of Securities pursuant to Section 3.01 (with such
modifications, additions or substitutions as may be specified pursuant to such Section 3.01). The Stated Maturity of any Security of such series may be extended at the option of the Company for the period or periods specified on the face of
such Security (each an “Extension Period”) up to but not beyond the date (the “Final Maturity”) set forth on the face of such Security. The Company may exercise such option with respect to any Security by notifying
the Trustee of such exercise at least 45 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If the Company exercises such option,
the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”), prepared by the Company,
indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate (or spread, spread multiplier or other formula to calculate such interest rate, if applicable), if any,
applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically
and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.
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Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity
(or if 20 days does not fall on a Business Day, the next succeeding Business Day) of such Security, the Company may, at its option, revoke the interest rate (or spread, spread multiplier or other formula to calculate such interest rate, if
applicable) provided for in the Extension Notice and establish a higher interest rate (or spread, spread multiplier or other formula to calculate such higher interest rate, if applicable) for the Extension Period by causing the Trustee to transmit,
in the manner provided for in Section 1.06, notice of such higher interest rate (or spread, spread multiplier or other formula to calculate such interest rate, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Stated
Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the Stated Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice
to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.
Section 3.09. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.05 and 3.07) interest,
if any, on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global temporary or permanent Security, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary
and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.
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Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by the Trustee.
The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Cancelled Securities held by the Trustee shall be destroyed by the Trustee in accordance with its
customary procedures.
Section 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 with respect to Securities of any series, interest, if any, on the
Securities of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 3.12. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to Section 3.01, with respect to Registered Securities of any
series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, payment of the principal of (and premium, if any) and interest, if any, on any
Registered Security of such series will be made in the Currency in which such Registered Security is payable. The provisions of this Section 3.12 may be modified or superseded with respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with signature guarantees and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to
the Trustee for such series of Registered Securities (but any such change
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must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such
change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or
Fourteen or with respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered
any such election to the Trustee of such series of Registered Securities not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in
Section 3.12(a). The Trustee for each such series of Registered Securities shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the election referred to in paragraph
(b) above has been provided for pursuant to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any
series, the Exchange Rate Agent will deliver to the Company a written notice specifying the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if
any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding such payment date the Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect
of the Dollar or Foreign Currency or Currencies payments to be made on such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar or Foreign Currency or Currencies amount receivable by Holders of Registered Securities
who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the “Valuation Date”)
immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the currency of payment for use on each such payment date. Unless otherwise specified pursuant to
Section 3.01, the Dollar amount to be paid by the Company to the Trustee of each such series of Securities and by such Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided
in paragraph (f) or (g) below.
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(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a Registered
Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in
which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.12.
(f) The “Dollar Equivalent of the Foreign Currency” shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 3.12, the following terms shall have the following meanings:
A “Component Currency” shall mean any currency which, on the Conversion Date, was a component currency of the
relevant currency unit, including, but not limited to, the ECU.
A “Specified Amount” of a Component
Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division, and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not limited to, the ECU, a
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Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
An “Election Date” shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to Maturity, as the case may be, or such other prior date for any series of Registered Securities as specified pursuant to clause (xiii) of Section 3.01 by which the
written election referred to in Section 3.12(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the Company, the Trustee for the appropriate series of Securities and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly
give written notice to the Company and the Trustee for the appropriate series of Securities of any such decision or determination.
In the
event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof and of the applicable Conversion Date to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other currency unit in which Securities are denominated or payable, the Company will immediately give written notice thereof to the Trustee of the appropriate series of Securities
and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the
Trustee of the appropriate series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall
be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
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Section 3.13. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a
Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least
one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of
exchange and, if applicable, for the purpose of converting the issued Foreign Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of the Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate
Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified
pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or
payable in the same Currency).
Section 3.14. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall indicate the
respective “CUSIP” numbers of the Securities in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Company shall advise the Trustee as promptly as practicable in writing of any change in the CUSIP numbers.
ARTICLE
FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
Except as set forth below, this Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities
specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section 10.04), and the Trustee, upon receipt of a Company Order, and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
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(a) either
(i) all Securities of such series theretofore authenticated and delivered (other than (i) Securities that have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within one year, or
(3) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, solely for the benefit of the Holders, an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has irrevocably paid or caused to be irrevocably paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee and any predecessor Trustee
under Section 6.06, the obligations of the Company to any Authenticating Agent under Section 6.12 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive any termination of this Indenture.
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Section 4.02. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons
entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
“Event of Default”, wherever used herein with respect to any particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a particular series or is specifically deleted or modified in or pursuant to the supplemental indenture or a Board Resolution establishing such series of Securities or is in
the form of Security for such series:
(i) default in the payment of any interest upon any Security of that series, when
such interest becomes due and payable, and continuance of such default for a period of 30 days; or
(ii) default in the
payment of the principal of (or premium, if any) any Security of that series when it becomes due and payable at its Maturity, including upon any Redemption Date or required repurchase date; or
(iii) default in the deposit of any sinking fund payment, when and as due by the terms of any Security of that series, and
continuance of such default for a period of 5 days; or
(iv) the Company’s failure for 60 consecutive days after
written notice from the Trustee or the Holders of at least 25% in principal amount of the Securities of such series then Outstanding to the Company and the Trustee, as applicable, has been received to comply with any of the Company’s other
agreements contained in such Securities or this Indenture;
(v) the Company, pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case or proceeding under any Bankruptcy Law,
(2) consents to the commencement of any bankruptcy or insolvency case or proceeding against it, or files a petition or answer or consent
seeking reorganization or relief against it,
(3) consents to the entry of a decree or order for relief against it in an involuntary case
or proceeding,
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(4) consents to the filing of such petition or to the appointment of or taking possession
by a Custodian of the Company or for all or substantially all of its property, or
(5) makes an assignment for the benefit of creditors,
or admits in writing of its inability to pay its debts generally as they become due or takes any corporate action in furtherance of any such action;
The term “Bankruptcy Law” means title 11, U.S. Code or any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law. The term “Custodian” means any custodian, receiver, trustee, assignee, liquidator, sequestrator or other similar official under any Bankruptcy Law.
(vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is for relief against the Company in an involuntary case or proceeding, or
(2) adjudges the Company bankrupt or insolvent, or approves as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, or
(3) appoints a Custodian of the Company or for all or substantially all of its property,
or
(4) orders the winding up or liquidation of the Company,
and the continuance of any such decree or order for relief or any such other decree or order remains unstayed and in effect for a period of
90 consecutive days;
(vii) if, pursuant to Sections 18(a)(1)(C)(ii) and 61 of the Investment Company Act, or any
successor provisions, on the last business day of each of twenty-four consecutive calendar months any class of Securities shall have an asset coverage (as such term is used in the Investment Company Act) of less than 100 per centum, giving
effect to any amendments to such provisions of the Investment Company Act or to any exemptive relief granted to the Company by the Commission; or
(viii) default by the Company or any of its Significant Subsidiaries, with respect to any mortgage, agreement or other
instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $50 million in the aggregate of the Company and/or any such Significant Subsidiary, whether such
indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable at
its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, unless, in either case, such indebtedness is discharged, or such acceleration is rescinded, stayed or annulled, within a period of 30 calendar days after
written notice of such failure is given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of any series then Outstanding.
(ix) any other Event of Default provided with respect to Securities of that series.
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Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case
(other than an Event of Default specified in Section 5.01(v) or 5.01(vi), the Trustee (if a Responsible Officer has actual knowledge of such Event of Default) or the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or specified portion thereof shall become immediately due and payable; provided that 100% of the
principal of, and accrued and unpaid interest on, the Notes will automatically become due and payable in the case of an Event of Default specified in Section 5.01(v) or 5.01(vi) hereof.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d)
and 3.12(e)):
(1) all overdue installments of interest, if any, on all Outstanding Securities of that series,
(2) the principal of (and premium, if any) all Outstanding Securities of that series that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for in such Securities,
(3) to the extent that payment of such
interest is lawful, interest upon overdue installments of interest at the rate or rates borne by or provided for in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(ii) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of (or premium, if any) or interest on Securities of that series that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any installment of interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of
(or premium, if any) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of Securities of such series, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, if any, with interest upon any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest, if any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be provided for in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents (and take such other actions, including voting for the election of a trustee in bankruptcy or similar official and serving on a committee of creditors) as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such series to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee
under Section 6.06. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.06 hereof out of the estate in
any such proceeding, shall be unpaid for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Subject to Article
Eight and Section 9.02 and unless otherwise provided as contemplated by Section 3.01, nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 5.06. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article and after an Event of Default any money or other property distributable
in respect of the Company’s obligations under this Indenture shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal (or premium, if
any) or interest, if any, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.06;
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SECOND: To the payment of the amounts then due and unpaid upon any Senior Securities for
principal (and premium, if any) and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such
Senior Securities for principal (and premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the amounts then
due and unpaid upon any Senior Subordinated Securities for principal (and premium, if any) and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Senior Subordinated Securities for principal (and premium, if any) and interest, if any, respectively; and
FOURTH: To the payment of the amounts then due and unpaid upon any other Securities for principal (and premium, if any) and interest, if any,
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities for principal (and premium, if any) and
interest, if any, respectively; and
FIFTH: To the payment of the remainder, if any, to the Company or any other Person or Persons
entitled thereto.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(ii) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of
such notice, request and offer of security or indemnity has failed to institute any such proceeding; and
(v) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
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it being understood and intended that no one or more of such Holders shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of repayment at the option of the Holders on the Repayment Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders of Securities shall, subject to any determination
in such proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
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Section 5.12. Control by Holders of Securities.
Subject to Section 6.02(v), the Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that
(i) such direction shall not be in conflict with any rule of law or with this Indenture,
(ii) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and
(iii) the Trustee need not take any action that might involve it in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders).
Section 5.13. Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to Securities of such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 5.14. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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Section 5.15. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 5.15 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 5.08 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Notice of Defaults.
(a) Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder actually known to a Responsible Officer of the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the Securities of such series; and provided further that in the case of any
Default or breach of the character specified in Section 5.01(iv) with respect to the Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.
(b) Prior to the time when the occurrence of an Event of Default becomes known to a Responsible Officer of the Trustee and after the curing or
waiving of all such Events of Default with respect to a series of Securities that may have occurred:
(i) the duties and
obligations of the Trustee shall with respect to the Securities of any series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated therein).
(c) If an Event of Default has occurred and is
continuing with respect to the Securities of any series of which a Responsible Officer of the Trustee has actual notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to the Securities of such
series, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
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(d) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b) of this Section 6.01; (ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the Securities Outstanding relating to the time, method, and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, with respect to the Securities of any series under this Indenture.
(e)
Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 6.01.
Section 6.02. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(ii) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.03 which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(iii) Whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may
require and rely upon a Board Resolution, an Opinion of Counsel and/or an Officers’ Certificate and the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance thereon.
(iv) The Trustee may consult with counsel concerning all matters hereunder, and may in all cases pay such reasonable
compensation to any attorney, agent, receiver or employee retained or employed by it in connection herewith and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(v) The Trustee shall be under no
obligation to take any action or exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities (including the reasonable fees and expenses of its agents and counsel) which might be incurred by it in compliance with such request or
direction.
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(vi) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable notice and at reasonable times during normal business
hours to examine the books, records and premises of the Company, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(vii) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(viii) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default by the Company or by the Holders of at least 25% of the aggregate principal amount of the Securities of any series then outstanding is
received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(ix) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its
right to be compensated, reimbursed and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and each Agent.
(x) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(xi) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(xii) The Trustee may request
that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by
any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(xiii) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.
(xiv) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this
Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics; recognized public
health emergencies; quarantine restrictions; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; hacking; cyber-attacks or other use or infiltration of the Trustee’s technological
infrastructure exceeding authorized access; accidents; labor disputes; acts of civil or military authority and governmental action or other unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility.
(xv) The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(xvi) The Trustee shall not be required to give any bond or surety in respect of the performance of its
powers or duties hereunder.
Section 6.03. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Indenture or of
the Securities, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof or for funds received and disbursed in accordance with Indenture. The Trustee shall not be bound to ascertain or inquire as to the performance, observance, or breach of any covenants,
conditions, representations, warranties or agreements on the part of the Company but the Trustee may require full
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information and advice as to the performance of the aforementioned covenants. Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the
Securities. The Trustee shall have no obligation to pursue any action that is not in accordance with applicable law. The Trustee makes no representation as to and shall not be responsible for any statement or recital herein or any statement in any
document in connection with the sale of any of the Securities. The Trustee shall not be responsible for and makes no representation as to any act or omission of any rating agency or any rating with respect to the Securities. The Trustee shall have
no obligation to independently determine or verify if any event has occurred or notify the Holders of any event dependent upon the rating of the Securities, or if the rating on the Securities has been changed, suspended or withdrawn by any rating
agency.
Section 6.04. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
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Section 6.05. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.06. Compensation and Reimbursement and Indemnification of Trustee.
The Company agrees:
(i) To pay to the Trustee and any predecessor Trustee from time to time such compensation for all services rendered by it
hereunder as has been agreed upon from time to time in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust).
(ii) To reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee or any predecessor Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful misconduct as finally adjudicated by a court of competent jurisdiction.
(iii) To indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any loss, liability,
claim, damage, fee, cost or expense incurred without negligence or willful misconduct on its own part as finally adjudicated by a court of competent jurisdiction, arising out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including the reasonable fees and expenses of its agents and counsel) of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder (whether asserted by the Company, any Holder, or any other Person), including enforcement of this Section 6.06, and including reasonable attorneys’ fees and expenses and court costs incurred in connection with any action,
claim or suit brought to enforce the Trustee’s right to compensation, reimbursement or indemnification.
All indemnifications and
releases from liability granted hereunder to the Trustee shall extend to its officers, directors, employees, agents, attorneys, custodians, successors and assigns. As security for the performance of the obligations of the Company under this Section,
the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.01 occurs, the
expenses and compensation for such services are intended to constitute expenses of administration under Title 11, U.S. Code, or any similar Federal, State or analogous foreign law for the relief of debtors.
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The provisions of this Section 6.06 shall survive the resignation or removal of the
Trustee and the satisfaction, termination or discharge of this Indenture. “Trustee” for the purposes of this Section 6.06 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent,
custodian and other person employed to act hereunder; provided, however, that the negligence or willful misconduct of any Trustee hereunder, as finally adjudicated by a court of competent jurisdiction, shall not affect the rights of any other
Trustee hereunder.
Section 6.07. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest, apply to the Commission for permission to continue as trustee or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting interest with respect to Securities of any series under this Indenture or any other indenture of the Company by virtue of being a trustee under this Indenture with respect to any particular
series of Securities.
Section 6.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.10.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
(c)
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.
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(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.07 and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of a
notice of resignation or the delivery of an Act of removal, the Trustee resigning or being removed may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities in Section 1.06.
Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
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Section 6.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 6.06.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definition of those terms in Section 1.01 which contemplate such
situation.
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(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments reasonably necessary to more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities, in
either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 6.12. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents (which may be an Affiliate
or Affiliates of the Company) with respect to one or more series of Securities that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange, registration of transfer
or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and, except as may otherwise be provided pursuant to Section 3.01, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not
less than $1,500,000 and subject to supervision or examination by Federal or State authorities.
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If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall promptly give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 1.06. Any
successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each
Authenticating Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
| [ ], as Authenticating Agent |
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| By: |
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|
Authorized Signatory |
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If all of the Securities of a series may not be originally issued at one time, and the
Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent (which, if so requested by the Company,
shall be an Affiliate of the Company) having an office in a Place of Payment designated by the Company with respect to such series of Securities, provided that the terms and conditions of such appointment are reasonably acceptable
to the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any agent of any of them shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing or sending any material pursuant to a request made under TIA
Section 312(b).
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail or send to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such May 15 which meets the requirements of TIA Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee of the listing of the Securities on any stock exchange. In the event that, on any such reporting date, no events have occurred
under the applicable sections of the TIA within the 12 months preceding such reporting date, the Trustee shall be under no duty or obligation to provide such reports.
Section 7.04. Reports by Company.
The Company will file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act; provided, that any such information, documents or reports filed electronically with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be deemed filed with and delivered to the Trustee and the Holders at the same time as filed with the Commission. The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed
pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.
Delivery of such reports, information,
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on Officers’ Certificates).
Section 7.05. Calculation of Original Issue Discount.
Upon request of the Trustee, the Company shall file with the Trustee promptly at the end of each calendar year a written notice specifying the
amount of original issue discount (including daily rates and accrual periods), if any, accrued on Outstanding Securities as of the end of such year.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Merger, Consolidation or Sale of Assets.
The Company shall not merge or consolidate with or into any other Person (other than a merger of a wholly owned Subsidiary of the Company into
the Company) or sell, transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided that, for the avoidance of doubt, a pledge of assets pursuant to any secured debt instrument of the Company or its Controlled
Subsidiaries shall not be deemed to be any such sale, transfer, lease, conveyance or disposition) in one transaction or series of related transactions unless:
(i) the Company shall be the surviving Person (the “Surviving Person”) or the Surviving Person (if other than the
Company) formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation or limited liability company organized and existing under the laws of the United States of America or
any state or territory thereof;
(ii) the Surviving Person (if other than the Company) expressly assumes, by supplemental
indenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Securities Outstanding, and the
due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the Company;
(iii) immediately before and immediately after giving effect to such transaction or series of related transactions, no Default
or Event of Default shall have occurred and be continuing; and
(iv) the Company shall deliver, or cause to be delivered,
to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this Section 8.01, that all conditions precedent in this
Indenture relating to such transaction have been complied with and that such supplemental indenture, if any, is valid, binding and enforceable against the successor company.
For the purposes of this Section 8.01, the sale, transfer, lease, conveyance or other disposition of all the property of one or more
Subsidiaries of the Company, which property, if held by the Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all the property of the Company.
Section 8.02. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in
accordance with Section 8.01, the successor corporation formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein; and in the event of any such conveyance or transfer, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(iii) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
provided, however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive such default; or
(iv) [Reserved]
(v) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision; or
(vi) to secure the Securities pursuant to the requirements of Section 8.01, or otherwise; or
(vii) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01, including the
provisions and procedures relating to Securities convertible into or exchangeable for any securities of any Person (including the Company), or to authorize the issuance of additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions, limitations or restrictions thereafter to be
observed; or
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(viii) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than
one Trustee; or
(ix) to cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with
any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action shall not adversely affect the interests of the Holders of Securities of any series in any
material respect, in each case as determined in good faith by the Company, as evidenced in an Officers’ Certificate; or
(x) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to Sections 4.01, 14.02 and 14.03; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in
any material respect as determined in good faith by the Company, as evidenced in an Officers’ Certificate; or
(xi) to
add guarantors or co-obligors with respect to any series of Securities or to release guarantors from their guarantees of Securities in accordance with the terms of the applicable series of
Securities; or
(xii) to make any change in any series of Securities that does not adversely affect in any material respect
the rights of the Holders of such Securities as determined in good faith by the Company, as evidenced in an Officers’ Certificate.
Section 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture that affects such series of Securities or of modifying in any manner the rights of the Holders of such series of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of (or premium, if any) or any installment of principal of or interest on, any
Security, subject to the provisions of Section 3.08; or the terms of any sinking fund with respect to any Security; or reduce the principal amount thereof or the rate of interest (or change the manner of calculating the rate of interest,
thereon, or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 10.04 (except as contemplated by Section 8.01(i) and permitted by Section 9.01(i)), or
reduce the portion of the principal of an Original Issue Discount Security or Indexed Security that would be due and payable upon a declaration of acceleration of
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the Maturity thereof pursuant to Section 5.02, or upon the redemption thereof or the
amount thereof provable in bankruptcy pursuant to Section 5.04, or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where, or the Currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption
Date or the Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 3.01 herein, or modify the subordination provisions set forth in Article Sixteen in a
manner that is adverse to the Holder of any Security, or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver with respect to such series (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 15.04 for quorum or voting, or
(iii) modify any of the provisions of this Section, Section 5.13 or Section 10.06, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder of a Security with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of
Sections 6.10(b) and 9.01(viii).
It shall not be necessary for any Act of Holders under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture
that changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date that is eleven months after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled and of no further effect.
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Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon, in addition to the documents required by Section 1.02 of this Indenture, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms and that all conditions
precedent to such supplemental indenture have been complied with, subject to customary assumptions and exceptions. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal
of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of such series of Securities and this Indenture. Unless otherwise specified with respect to Securities of any series pursuant to
Section 3.01, at the option of the Company, all payments of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against surrender of such Security.
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Section 10.02. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 3.01 with respect to a series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the Corporate Trust Office, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent, and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series
(i) are denominated in a currency other than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such
series of Securities, or as so required, at least one Exchange Rate Agent. The Company will notify the Trustee of the name and address of any Exchange Rate Agent retained by it.
Section 10.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of any Securities, it will, on or before each due date
of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the principal (and premium, if any) and
interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or before each due date of the principal
of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest,
if any, so becoming due, such sum of money to be held in trust for the benefit of the Persons entitled to such principal, premium or interest and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums of money held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to
the Company upon Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such money held in trust, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Additional Amounts.
If the Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series
such Additional Amounts as may be specified as contemplated by Section 3.01. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series
or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for by the terms of such series established pursuant to
Section 3.01 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise
specified as contemplated by Section 3.01, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day on which a payment of principal premium is made), and at least 10 days prior to each date of payment of principal, premium or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if
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other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal, premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities of that series and the Company will pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall
not so receive the above-mentioned certificate, then the Trustee or such Paying Agent shall be entitled (i) to assume that no such withholding or deduction is required with respect to any payment of principal or interest with respect to any
Securities of a series until it shall have received a certificate advising otherwise and (ii) to make all payments of principal and interest with respect to the Securities of a series without withholding or deductions until otherwise advised.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section or in reliance on the Company’s not furnishing such an Officers’ Certificate.
Section 10.05. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the date hereof so long as any Security
is Outstanding hereunder, an Officers’ Certificate one signer of which shall be either the principal executive officer, the principal financial officer or the principal accounting officer of the Company, that need not comply with
Section 1.02 stating to the knowledge of the signers thereof whether the Company is in default in the performance of any of the terms, provisions or conditions of this Indenture. For purposes of this Section 10.05, such default shall be
determined without regard to any period of grace or requirement of notice under this Indenture.
Section 10.06. Waiver of Certain
Covenants.
The Company may omit in any particular instance to comply with any covenant or condition of the Company set forth herein or
added to Article Ten pursuant to Section 3.01(xiv) or Section 3.01(xv) in connection with the Securities of a series, if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of all
Outstanding Securities of such series, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
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Section 10.07. Section 18(a)(1)(A) of the Investment Company Act.
The Company hereby agrees that for the period of time during which Securities are Outstanding, the Company will not violate, whether or not it
is subject thereto, Section 18(a)(1)(A) as modified by Section 61(a)(1) of the Investment Company Act or any successor provisions thereto of the Investment Company Act, but giving effect, in either case, to any exemptive relief granted to
the Company by the Commission.
Section 10.08. Commission Reports and Reports to Holders.
If, at any time, the Company is not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act to file any periodic
reports with the Commission, the Company agrees to furnish to the Holders of any series of Securities and the Trustee for the period of time during which such Securities are Outstanding: (i) within 90 days after the end of the each fiscal year
of the Company, audited annual consolidated financial statements of the Company and (ii) within 45 days after the end of each fiscal quarter of the Company (other than the Company’s fourth fiscal quarter), unaudited interim consolidated
financial statements of the Company. All such financial statements shall be prepared, in all material respects, in accordance with GAAP, as applicable.
Delivery of reports, information and documents to the Trustee hereunder is for informational purposes only and the Trustee’s receipt of
any such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’ Certificates or certificates or statements delivered to the Trustee pursuant to Section 1.02 of the Base Indenture). The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, compliance with the covenants or with respect to any reports or other documents filed with the Commission or EDGAR or any website under this Indenture, or participate in any conference calls.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed, and, if applicable, of the tenor of the Securities to be redeemed, and shall deliver to the Trustee such documentation and records as shall
enable the Trustee to select the Securities to be redeemed pursuant to Section 11.03. In the case of any redemption of Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
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Section 11.03. Selection by Trustee of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any time, and the Securities are global Securities, the Securities to be redeemed will
be selected by the Trustee in accordance with applicable Depositary procedures. If the Securities to be redeemed or repurchased are not global Securities then held by the Depositary, the Trustee shall select the Securities to be redeemed by lot or
such other similar method the Trustee deems to be fair and appropriate from the Outstanding Securities of such series issued on such date with the same terms not previously called for redemption, not less than 30 nor more than 60 days prior to the
redemption date; provided that such method may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series; provided, however, that no such partial redemption shall reduce the portion of the principal
amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series.
The Trustee shall
promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06, not less than 30 days nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified by the terms of such series established pursuant to Section 3.01, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of
any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
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Any notice that is mailed or sent to the Holders of Registered Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall
identify the Securities to be redeemed and shall state:
(i) the Redemption Date,
(ii) the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06,
(iii) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or Securities to be redeemed,
(iv) in case any Security is to
be redeemed in part only, the notice that relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(v) that on the Redemption Date, the Redemption Price
and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(vi) the Place or Places of Payment where such Securities maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any, and the name of the Paying Agent,
(vii) that the redemption is for a sinking fund, if such is the case, and
(viii) [Reserved]
(ix) [Reserved]
(x) the CUSIP number of such Security, if any, and that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Security.
A notice of redemption published as contemplated by
Section 1.06 need not identify particular Registered Securities to be redeemed. Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Company’s request, delivered to the Trustee at least 2 Business Days
prior to the date the notice of redemption is to be sent (unless a shorter period shall be satisfactory to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice together with the notice to be given setting forth
the information to be stated therein as provided in the preceding paragraph, by the Trustee in the name and at the expense of the Company.
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Section 11.05. Deposit of Redemption Price.
On or prior to 10:00 am, New York City time, on the Business Day prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent, in accordance with the terms of this Indenture, segregate and hold in trust as provided in Section 10.03) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless otherwise specified pursuant to Section 3.01) accrued interest on, all the Securities or portions thereof which are to be redeemed on that date.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such
Securities shall if the same were interest-bearing cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such Security or, in the case of an Original Issue Discount Security, at the Yield to Maturity of such Security.
Section 11.07. Securities Redeemed in Part.
Any Registered Security that is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge a new Security or Securities of the same series and of like tenor,
of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a temporary global Security or permanent global Security
is so surrendered, such new Security so issued shall be a new temporary global Security or permanent global Security, respectively. However, if less than all the Securities of any series with differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion shall select the particular Securities to be redeemed and shall notify the Trustee in writing thereof at least 45 days prior to the relevant redemption date.
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ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of any Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments With Securities.
The Company may, in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of a series,
(i) deliver Outstanding Securities of such series (other than any previously called for redemption) and (ii) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, as provided for by the terms of such Securities; provided that such Securities so delivered or
applied as a credit have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking
Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of any series, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and the
portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon
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be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.01. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms
of such Securities and (except as otherwise specified by the terms of such series established pursuant to Section 3.01) in accordance with this Article.
Section 13.02. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at the Repayment Price thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants that on or before 10:00 am, New
York City time, on the Business Day preceding the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount
of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)) sufficient to pay the Repayment Price of, and (unless otherwise specified pursuant to Section 3.01) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
Section 13.03. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form
on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the
Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire Repayment Price of such Security is to be repaid in accordance with the terms of such Security, the portion of the
Repayment Price of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be
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issued to the Holder for the portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Company. If the Security is in global form, the exercise of such option and payment thereof shall also be made in compliance with the applicable procedures of the Depositary.
Section 13.04. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security
for repayment in accordance with such provisions, the Repayment Price of such Security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided, however, that
installments of interest on Registered Securities, whose Stated Maturity is prior to (or, if specified pursuant to Section 3.01, on) the Repayment Date shall be payable (but without interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security surrendered for repayment shall not be so repaid upon surrender thereof, the Repayment Price shall, until paid, bear interest
from the Repayment Date at the rate of interest set forth in such Security or, in the case of an Original Issue Discount Security, at the Yield to Maturity of such Security.
Section 13.05. Securities Repaid in Part.
Upon surrender of any Registered Security that is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, and of like tenor, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of such Security so surrendered that is not to be repaid. If a temporary global Security or permanent global Security is so surrendered, such new Security so issued shall be
a new temporary global Security or a new permanent global Security, respectively.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01. Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is made for either or both of (a) defeasance of the Securities of or within a series under
Section 14.02 or (b) covenant defeasance of the Securities of or within a series under Section 14.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option by Board Resolution, at any time, with respect to such Securities,
elect to have either Section 14.02 (if applicable) or Section 14.03 (if applicable) be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Article.
Section 14.02. Defeasance and Discharge.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter, “defeasance”). For this
purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of
Section 14.05 and the other Sections of this Indenture referred to in clauses (A) and (B) of this Section, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities
when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by
Section 10.04, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 14.03 with respect to such Securities. Following a defeasance, payment of such Securities may not be accelerated because of an Event of Default.
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Section 14.03. Covenant Defeasance.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the
Company shall be released from its obligations, if specified pursuant to Section 3.01, under any covenant with respect to such Outstanding Securities on and after the date the conditions set forth in Section 14.04 are satisfied
(hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Company may
omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under
Section 5.01(iv) or 5.01(vii) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. Following a covenant defeasance, payment of such Securities may not
be accelerated because of an Event of Default solely by reference to such Sections specified above in this Section 14.03.
Section 14.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 14.02 or Section 14.03 to any Outstanding Securities of or
within a series:
(i) The Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.07 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for the benefit of, and dedicated solely to, the Holders of such Securities, (A) an amount (in such Currency in which such Securities are then specified as payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with
their terms will provide, without reinvestment thereof, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (C) a combination thereof
in an amount, sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (1) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities on the Stated Maturity of such principal or installment of
principal or interest and (2) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such
Securities.
(ii) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.
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(iii) No Default or Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as Sections 5.01(v) and 5.01(vi) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(iv) In the case of an election under
Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not
occurred.
(v) In the case of an election under Section 14.03, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to either the defeasance under Section 14.02 or the covenant defeasance under Section 14.03 (as the case may be) have been complied with.
(vii) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.
Section 14.05. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 14.05, the “Trustee”) pursuant to Section 14.04 in
respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
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Unless otherwise specified with respect to any Security pursuant to Section 3.01, if,
after a deposit referred to in Section 14.04(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant to Section 14.04(a) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 14.04(a) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect
of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the money or Government
Obligations deposited pursuant to Section 14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 14.04 which, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this
Article.
If, after the Company has made a deposit with the Trustee pursuant to Section 14.04, the Trustee is unable to apply any
money in accordance with Section 14.05 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the applicable Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.04 until such time as the Trustee is permitted to apply all such money in accordance with
this Article Fourteen; provided, however, that if the Company has made any payment of the principal of or interest on any series of Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive any such payment from the money held by the Trustee.
Money deposited with the Trustee in trust
pursuant to this Section 14.05 shall not be subject to the subordination provisions of Article Sixteen.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes for Which Meetings May Be Called.
A meeting of Holders of any series of Securities may be called at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 15.02. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 15.01, to be
held at such time and at such place in the Borough of Manhattan, the City of New York as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 15.01, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication or mailing or sending of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, the City of New York for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 15.03. Persons Entitled
to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (i) a Holder
of one or more Outstanding Securities of such series, or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
Section 15.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent, waiver, request, demand, notice, authorization, direction or other action that this
Indenture expressly provides may be made, given or taken by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at
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the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 15.02(a), except that such
notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to
Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect to any consent, waiver, request, demand, notice, authorization, direction or other action
which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series, whether or not present or represented at the meeting.
Notwithstanding the
foregoing provisions of this Section 15.04, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any consent, waiver, request, demand, notice, authorization, direction or other action that this
Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series that vote in favor of such consent, waiver, request,
demand, notice, authorization, direction or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
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Section 15.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04. Such regulations may provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an
instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 15.02(b), in which case the Company or the Holders of Securities of
the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting of Holders, each Holder of a Security
of such series or proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by such Holder; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.02 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting, and the meeting may be held as so adjourned without further notice.
Section 15.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any Series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 15.02
and, if applicable, Section 15.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
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ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 16.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Senior Subordinated Securities by his acceptance
thereof, whether upon original issue or upon transfer, assignment or exchange thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Senior Subordinated
Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Junior Subordinated Securities by his acceptance
thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Junior Subordinated Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness and Senior Subordinated Indebtedness.
Section 16.02. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Subordinated Securities.
Upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under
applicable bankruptcy law):
(i) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium, if any) and interest due thereon before the Holders of the Subordinated Securities (except that, anything in this Indenture to the contrary notwithstanding, Holders of Subordinated Securities may receive and retain
Permitted Junior Securities); are entitled to receive any payment upon the principal (or premium, if any) or interest, if any, on indebtedness evidenced by the Subordinated Securities (except that, anything in this Indenture to the contrary
notwithstanding, Holders of Subordinated Securities may receive and retain Permitted Junior Securities); and
(ii) the
holders of all Senior Subordinated Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if any) and interest due thereon before the Holders of the Junior Subordinated Securities are entitled to receive any
payment upon the principal (or premium, if any) or interest, if any, on indebtedness evidenced by the Junior Subordinated Securities; and
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(iii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Sixteen shall be paid by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(iv) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received by the Trustee or the Holders of th/e Subordinated Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice
to the Trustee, to the holder of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
“Permitted Junior Securities” means:
(1) Equity Interests in the Company; or
(2) debt securities that are subordinated to all Senior Indebtedness and any debt securities issued in exchange for Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the Subordinated Securities and the Junior Subordinated Securities are subordinated to Senior Indebtedness under this Indenture.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Subordinated Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to Senior Indebtedness until the principal of (and premium, if any) and interest, if any, on the Subordinated Securities
shall be paid in full and no such payments or distributions to the Holders of the Subordinated Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Subordinated Securities be deemed to be a payment by the Company to or on account of the Subordinated Securities. It is understood that the provisions of this Article Sixteen are
and are intended solely for the purpose of defining the relative rights of the Holders of the Subordinated Securities, on the one hand, and the holders of the Senior Indebtedness,
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on the other hand. Nothing contained in this Article Sixteen or elsewhere in this Indenture or in the
Subordinated Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Subordinated Securities, the obligation of the Company, which is unconditional and
absolute, to pay to the Holders of the Subordinated Securities the principal of (and premium, if any) and interest, if any, on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect
the relative rights of the Holders of the Subordinated Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or in the Subordinated Securities prevent the Trustee or the Holder of any
Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article Sixteen, the Trustee, subject to the provisions of Section 6.01, shall be entitled
to rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen.
If the Trustee or any Holder of Subordinated Securities does not file a proper claim or proof of debt in the form required in any proceeding
referred to above prior to 30 days before the expiration of the time to file such claim in such proceeding, then the holder of any Senior Indebtedness is hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf
of such Holder of Subordinated Securities.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth in this Article and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee does not owe any fiduciary duties to the holders of Senior Indebtedness, including any holder of Securities other than Securities
issued under this Indenture.
Section 16.03. No Payment on Subordinated Securities in Event of Default on Senior Indebtedness.
No payment by the Company on account of principal (or premium, if any), sinking funds or interest, if any, on the Subordinated Securities shall
be made unless full payment of amounts then due for principal (premium, if any), sinking funds and interest on Senior Indebtedness has been made or duly provided for in money or money’s worth.
Section 16.04. Payments on Subordinated Securities Permitted.
Nothing contained in this Indenture or in any of the Subordinated Securities shall (a) affect the obligation of the Company to make, or
prevent the Company from making, at any time except as provided in Sections 16.02 and 16.03, payments of principal of (or premium, if any) or interest, if any, on the Subordinated Securities or (b) prevent the application by the Trustee of any
moneys deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or interest, if any, on the Subordinated Securities, unless the Trustee shall have received at its Corporate Trust Office written notice of
any event prohibiting the making of such payment more than three Business Days prior to the date fixed for such payment.
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Section 16.05. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Subordinated Securities by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this Article Sixteen and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 16.06. Notices to Trustee.
Notwithstanding the provisions of this Article or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than
the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any event which would prohibit the making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying
Agent shall have received (in the case of the Trustee, at its Corporate Trust Office) written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof reasonably
satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such trustee; provided, however, that if at least three Business Days prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (including, without limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Subordinated Security) the Trustee shall not have received with respect to such moneys the notice
provided for in this Section 16.06, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which may be received by it within three Business Days prior to such date. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Sixteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
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Section 16.07. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Sixteen in respect of any Senior
Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06.
Section 16.08. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Subordinated Securities or the
Trustee.
No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or not
such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article Sixteen or of the Subordinated Securities relating to the subordination thereof.
Section 16.09. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article Sixteen, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Subordinated
Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen.
* * * * *
This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture. The exchange of copies of this Indenture and of signature pages by facsimile, .pdf transmission or electronic mail shall constitute effective execution and delivery of this
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, .pdf transmission or electronic mail shall be deemed to be their original signatures for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first
written above.
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| SIXTH STREET SPECIALTY LENDING, INC. |
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| By: |
|
|
| Name: |
|
Ian T. Simmonds |
| Title: |
|
Chief Financial Officer |
|
| [ ], as Trustee |
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| By: |
|
|
| Name: |
|
[ ] |
| Title: |
|
[ ] |
[Signature Page to Indenture]
Exhibit (d)(4)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
|
|
|
| 800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
| (Address of principal executive offices) |
|
(Zip Code) |
James W. Hall
U.S. Bank Trust Company, National Association
100 Wall Street, Suite 600
New York, NY 10005
(551)
427-1335
(Name, address and telephone number of agent for service)
XXXXX
(Issuer with
respect to the Securities)
|
|
|
| Delaware |
|
XX-XXXXXXX |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
|
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Debt Securities
(Title
of the Indenture Securities)
FORM T-1
| Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee.
|
| |
a) |
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Washington, D.C.
| |
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. |
AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee,
describe each such affiliation. |
None
| Items 3-15 |
Items 3-15 are not applicable because to the best of the
Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and
qualification. |
| |
1. |
A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| |
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.
|
| |
3. |
A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2.
|
| |
4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 3. |
| |
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
| |
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as
Exhibit 4. |
| |
7. |
Report of Condition of the Trustee as of March 31, 2023, published pursuant to law or the requirements of
its supervising or examining authority, attached as Exhibit 5. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York, State of New York on the 19th of December, 2023.
|
|
|
| By: |
|
/s/ James W. Hall |
|
|
James W. Hall |
|
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST
COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national
banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company,
National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The
business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior
approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than
twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director
shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the
person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of
directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless
the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and
his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters
concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to
determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting.
It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
- 1 -
Association is located, on the next following banking day. If no election is held on the day fixed or in the
event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by
the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall
be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of
directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the
purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him
or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be
1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one
class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of
subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such,
if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency
approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the
Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock,
and (2) each shareholder shall be entitled to one vote per share.
- 2 -
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be
voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the
meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the
shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of
the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of
directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and
shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) |
Define the duties of the officers, employees, and agents of the Association. |
| (2) |
Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees,
and agents of the Association. |
| (3) |
Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and
conditions consistent with applicable law. |
| (4) |
Dismiss officers and employees. |
| (5) |
Require bonds from officers and employees and to fix the penalty thereof. |
| (6) |
Ratify written policies authorized by the Association’s management or committees of the board.
|
| (7) |
Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that
nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required
for shareholder approval to increase or reduce the capital. |
- 3 -
| (8) |
Manage and administer the business and affairs of the Association. |
| (9) |
Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and
regulating the affairs of the Association. |
| (10) |
Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in
part to the shareholders. |
| (12) |
Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city
of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a
certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to
establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the
Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of
the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless
otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH.
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock
is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the
Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
- 4 -
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
|
| /s/ Jeffrey T. Grubb |
| Jeffrey T. Grubb |
|
| /s/ Robert D. Sznewajs |
| Robert D. Sznewajs |
|
| /s/ Dwight V. Board |
| Dwight V. Board |
|
| /s/ P. K. Chatterjee |
| P. K. Chatterjee |
|
| /s/ Robert Lane |
| Robert Lane |
Exhibit 2
|
|
|
|
|
Office of the Comptroller of
the Currency |
| |
Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and
control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company,
National Association,” Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date
of this certificate.
IN TESTIMONY WHEREOF, today, April 18, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these
presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2023-00648-C
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of
Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the
transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date
thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association
is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to
hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called
for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty
(60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for
election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any
meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be
thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without
further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors
of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all
shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be
held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the
Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly
elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the
Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five
nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the
shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
by a majority vote of the full Board may increase the size of the Board but not to more than a total of
twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up
to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by
applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and
appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman
or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may
designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any
place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of
business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by
being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except
when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once
a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and
regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or
committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to
fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors
on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such
powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit
(by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of
this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in
accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling
the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate
significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are
not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and
which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide
oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers
or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or
relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be
directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either
the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper.
Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration
of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not
be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure
of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such
powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may
appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties
as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and
of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the
Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as
the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may
appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business
of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other
authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers
shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any
officer at any time.
ARTICLE V
Stock
Section 5.1.
The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the
certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock
represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at
shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise
convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances,
transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may
be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated
from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of
this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The
Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the
purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its
fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a
fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail,
postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data,
as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30
days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent
as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such
indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such
insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. §
1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated
party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing
regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not
initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws:
Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate
provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2.
A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end
on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General
Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: December 19, 2023
|
|
|
| By: |
|
/s/ James W. Hall |
|
|
James W. Hall |
|
|
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 09/30/2023
($000’s)
|
|
|
|
|
| |
|
09/30/2023 |
|
| Assets |
|
|
|
|
| Cash and Balances Due From Depository Institutions |
|
$ |
971,860 |
|
| Securities |
|
|
4,247 |
|
| Federal Funds |
|
|
0 |
|
| Loans & Lease Financing Receivables |
|
|
0 |
|
| Fixed Assets |
|
|
1,548 |
|
| Intangible Assets |
|
|
579,147 |
|
| Other Assets |
|
|
165,346 |
|
|
|
|
|
|
| Total Assets |
|
$ |
1,722,148 |
|
| Liabilities |
|
|
|
|
| Deposits |
|
$ |
0 |
|
| Fed Funds |
|
|
0 |
|
| Treasury Demand Notes |
|
|
0 |
|
| Trading Liabilities |
|
|
0 |
|
| Other Borrowed Money |
|
|
0 |
|
| Acceptances |
|
|
0 |
|
| Subordinated Notes and Debentures |
|
|
0 |
|
| Other Liabilities |
|
|
226,499 |
|
|
|
|
|
|
| Total Liabilities |
|
$ |
226,499 |
|
| Equity |
|
|
|
|
| Common and Preferred Stock |
|
|
200 |
|
| Surplus |
|
|
1,171,635 |
|
| Undivided Profits |
|
|
323,814 |
|
| Minority Interest in Subsidiaries |
|
|
0 |
|
|
|
|
|
|
| Total Equity Capital |
|
$ |
1,495,649 |
|
| Total Liabilities and Equity Capital |
|
$ |
1,722,148 |
|
Exhibit (l)
|
|
|
|
|
|
|
|
|
|
|
Simpson Thacher & Bartlett LLP |
|
|
|
|
900 G STREET, NW
WASHINGTON, D.C. 20001
|
|
|
|
|
|
|
|
TELEPHONE: +1-202-636-5500 FACSIMILE: +1-202-636-5502 |
|
|
| Direct Dial Number |
|
|
|
E-mail Address |
December 22, 2023
Sixth Street Specialty Lending, Inc.
2100 McKinney Avenue,
Suite 1500
Dallas, TX 75201
Ladies and Gentlemen:
We have acted as counsel to Sixth Street Specialty Lending, Inc., a Delaware corporation (the “Company”), in connection with the
Registration Statement on Form N-2 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, relating to (i) shares of common stock of the Company, par value $0.01 per share (the “Common Stock”); (ii) shares of preferred stock of the Company, par value $0.01 per share (the “Preferred Stock”); (iii) debt
securities, which may be either senior debt securities or subordinated debt securities and which may be convertible into other securities of the Company (collectively, the “Debt Securities”); (iv) warrants to purchase Common Stock,
Preferred Stock or Debt Securities (the “Warrants”); and (v) subscription rights to purchase Common Stock (the “Subscription Rights”). The Common Stock, the Preferred Stock, the Debt Securities, the Warrants and the
Subscription Rights are hereinafter referred to collectively as the “Securities.” The Securities may be issued and sold or delivered from time to time for an indeterminate aggregate initial offering price.
|
|
|
|
|
| Sixth Street Specialty Lending, Inc. |
|
|
|
December 22, 2023 |
The Debt Securities will be issued under an Indenture (the “Indenture”) between the
Company and a trustee named therein.
The Warrants will be issued pursuant to one or more warrant agreements (each, a “Warrant
Agreement”) between the Company and a warrant agent named therein.
The Subscription Rights will be issued pursuant to one or more
subscription rights agreements (each, a “Rights Agreement”) between the Company and a rights agent named therein.
The Indenture
(including any supplemental indentures thereto), the Warrant Agreements and the Rights Agreements are hereinafter collectively referred to as the “Securities Agreements.”
We have examined the Registration Statement and the form of Indenture. In addition, we have examined, and have relied as to matters of fact
upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and
have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
In
rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that, at the time of execution, authentication, issuance and delivery of any of the Securities, the
applicable Securities Agreement will be the valid and legally binding obligation of each party thereto other than the Company. We also have assumed that, with respect to the issuance of any shares of Common Stock or Preferred Stock, the amount of
valid consideration paid in respect of such shares will equal or exceed the par value of such shares.
|
|
|
|
|
| Sixth Street Specialty Lending, Inc. |
|
|
|
December 22, 2023 |
In rendering the opinions set forth below, we have assumed further that, at the time of
execution, authentication, issuance and delivery, as applicable, of each of the applicable Securities Agreements and Securities, (1) the Company will be validly existing and in good standing under the law of the jurisdiction in which it is
organized and such Securities Agreement will have been duly authorized, executed and delivered by the Company in accordance with its organizational documents and the law of the jurisdiction in which it is organized, (2) the execution, delivery,
issuance and performance, as applicable, by the Company of such Securities Agreement and such Securities will not constitute a breach or violation of its organizational documents or violate the law of the jurisdiction in which it is organized or any
other jurisdiction (except that no such assumption is made with respect to the law of the State of New York or the Delaware General Corporation Law, assuming there shall not have been any change in such law affecting the validity or enforceability
of such Securities Agreement and such Securities) and (3) the execution, delivery, issuance and performance, as applicable, by the Company of such Securities Agreement and such Securities (a) will not constitute a breach or default under
any agreement or instrument which is binding upon the Company or and (b) will comply with all applicable regulatory requirements.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1. With respect to the Common Stock, assuming (a) the taking by the Board of Directors of the Company or a duly
constituted and acting committee of such Board of Directors (such Board of Directors or committee being referred to herein as the “Board”) of all necessary corporate action to authorize and approve the issuance of the Common Stock and the
terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company and (b) due issuance and delivery
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| Sixth Street Specialty Lending, Inc. |
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|
December 22, 2023 |
of the Common Stock, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Board and otherwise in accordance with the
provisions of such agreement, the Company’s Restated Certificate of Incorporation, dated June 15, 2020 (the “Certificate of Incorporation”), the Company’s Second Amended and Restated Bylaws, dated July 10, 2023 (the
“Bylaws”) and the Delaware General Corporation Law, the Common Stock will be validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock, assuming (a) the taking by the Board of all necessary corporate action to
authorize and approve the issuance and terms of the Preferred Stock and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company, (b) due filing of the applicable
definitive certificate of designations with respect to such Preferred Stock and (c) due issuance and delivery of the Preferred Stock, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement
approved by the Board and otherwise in accordance with the provisions of such agreement, the Certificate of Incorporation, the Bylaws and the Delaware General Corporation Law, the Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to the Debt Securities, assuming (a) the taking of all necessary corporate action by the Board, or,
unless the Debt Securities are convertible into equity securities of the Company, duly authorized officers of the Company (such Board or authorized officers being referred to herein as the “Company Authorizing Party”) to authorize and
approve the issuance and terms of any Debt Securities and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company and (b) the due execution, authentication, issuance and
delivery of such Debt Securities, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Company Authorizing Party and otherwise in accordance with the provisions of such
agreement and the applicable Indenture, such Debt Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
4. With respect to the Warrants, assuming (a) the taking of all necessary corporate action by the Board to authorize and
approve the issuance and terms of any Warrants and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company and (b) the due execution, countersignature, issuance and
delivery of such Warrants, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Board and otherwise in accordance with the provisions of such agreement and the applicable
definitive Warrant Agreement, such Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
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| Sixth Street Specialty Lending, Inc. |
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|
December 22, 2023 |
5. With respect to the Subscription Rights, assuming (a) the taking of
all necessary corporate action by the Board to authorize and approve the issuance and terms of the Subscription Rights and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the
Company and (b) the due execution, countersignature, issuance and delivery of such Subscription Rights, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Board and
otherwise in accordance with the provisions of such agreement and the applicable definitive Subscription Rights Agreement, such Subscription Rights will constitute valid and legally binding obligations of the Company enforceable against the Company
in accordance with their terms.
Our opinions set forth in paragraphs 3 through 5 above are subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing. In addition, we express no opinion as to the validity, legally binding effect or enforceability of the waiver of rights and defenses contained in Section 3.06 of the Indenture. In
connection with the provisions of the Indenture whereby the parties will submit to the jurisdiction of the courts of the United States of America for the Southern District of New York, we note the limitations of 28 U.S.C. Sections 1331 and 1332 on
subject matter jurisdiction of the federal courts.
We do not express any opinion herein concerning any law other than the law of the
State of New York and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus included in the Registration Statement.
|
| Very truly yours, |
|
| /s/ Simpson Thacher & Bartlett LLP |
|
| SIMPSON THACHER & BARTLETT LLP |
Exhibit (n)(2)
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Sixth Street Specialty Lending, Inc.:
We consent to the use of our report dated February 16, 2023, with respect to the consolidated balance sheets of Sixth Street Specialty Lending, Inc.
(and subsidiaries) (the Company), including the consolidated schedules of investments, as of December 31, 2022 and 2021, and the related consolidated statements of operations, changes in net assets and cash flows for each of the years in the
three-year period ended December 31, 2022, and the effectiveness of internal control over financial reporting as of December 31, 2022, and our report dated February 16, 2023 on the consolidated senior securities table of the Company,
incorporated by reference herein, and to the references to our firm under the headings “Financial Highlights”, “Senior Securities”, and “Experts” in the Form
N-2.
/s/ KPMG LLP
New York, New York
December 22, 2023
Exhibit (n)(4)
POWER OF ATTORNEY
KNOW ALL PEOPLE BY
THESE PRESENTS, that each person whose signature appears below hereby makes, constitutes and appoints each of Michael Fishman, Joshua Easterly, Ian Simmonds, David Stiepleman and Jennifer Gordon with full power to act without the other, as his
or her agent and attorney-in-fact for the purpose of executing in his or her name, in his or her capacity as a Director and/or officer of Sixth Street Specialty Lending,
Inc., (i) the registration statement on Form N-2 or any other appropriate form (including amendments or supplements thereto), to be filed with the United States Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder, as applicable or (ii) any statement of beneficial ownership on Form 3, 4 or 5 to be filed with the
United States Securities and Exchange Commission.
All past acts of an
attorney-in-fact in furtherance of the foregoing are hereby ratified and confirmed.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one
instrument.
This Power of Attorney shall be valid from the date hereof until revoked by me.
IN WITNESS HEREOF I have executed this instrument as of the 22nd day of December, 2023.
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| /s/ Joshua Easterly |
|
Chief Executive Officer, Director and Chairman of the Board of
Directors |
| Joshua Easterly |
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| /s/ Ian Simmonds |
|
Chief Financial Officer |
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| Ian Simmonds |
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| /s/ Michael Graf |
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Deputy Chief Financial Officer, Vice President and Principal
Accounting Officer |
| Michael Graf |
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| /s/ P. Emery Covington |
|
Director |
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| P. Emery Covington |
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| /s/ Hurley Doddy |
|
Director |
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| Hurley Doddy |
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| /s/ Michael Fishman |
|
Director |
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| Michael Fishman |
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| /s/ Jennifer Gordon |
|
Director |
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| Jennifer Gordon |
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| /s/ Richard A. Higginbotham |
|
Director |
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| Richard A. Higginbotham |
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| /s/ John A. Ross |
|
Director |
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| John A. Ross |
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| /s/ Judy Slotkin |
|
Director |
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| Judy Slotkin |
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| /s/ David Stiepleman |
|
Director |
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| David Stiepleman |
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| /s/ Ronald K. Tanemura |
|
Director |
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| Ronald K. Tanemura |
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Exhibit (s)
Calculation of Filing Fee Tables
FORM N-2
(Form Type)
Sixth Street
Specialty Lending, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
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Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering
Price Per
Unit |
|
Maximum
Aggregate
Offering
Price |
|
Fee
Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
Carry
Forward File
Number |
|
Carry
Forward Initial
effective date |
|
Filing Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward |
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| Newly Registered Securities |
| |
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| Fees to be paid |
|
Equity |
|
Common Stock, $0.01 par value per share(3)(4) |
|
Rule 456(b) and
Rule 457(r) |
|
(1) |
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(1) |
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(1) |
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(2) |
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(2) |
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| |
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| Fees to be paid |
|
Equity |
|
Preferred Stock, $0.01 par value per share(3)(4) |
|
Rule 456(b) and
Rule 457(r) |
|
(1) |
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(1) |
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(1) |
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(2) |
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(2) |
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| |
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| Fees to be paid |
|
Other |
|
Subscription Rights(3) |
|
Rule 456(b) and
Rule 457(r) |
|
(1) |
|
(1) |
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(1) |
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(2) |
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(2) |
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| |
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| Fees to be paid |
|
Other |
|
Warrants(5) |
|
Rule 456(b) and
Rule 457(r) |
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(1) |
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(1) |
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(1) |
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(2) |
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(2) |
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| Fees to be paid |
|
Debt |
|
Debt Securities(4)(6) |
|
Rule 456(b) and
Rule 457(r) |
|
(1) |
|
(1) |
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(1) |
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(2) |
|
(2) |
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| Fees Previously Paid |
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N/A |
|
N/A |
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N/A |
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N/A |
|
N/A |
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N/A |
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N/A |
|
N-2 |
|
333-231271 |
|
May 7, 2019 |
|
$1,493.70 |
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| Carry Forward Securities |
| |
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| Carry Forward Securities |
|
N/A |
|
N/A |
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N/A |
|
N/A |
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N/A |
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N/A |
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N/A |
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N/A |
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N/A |
| |
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| |
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Total Offering Amounts |
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N/A |
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N/A |
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| |
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Total Fees Previously Paid |
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N/A |
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Total Fee Offsets |
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N/A |
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Net Fee Due |
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N/A |
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| (1) |
An unspecified amount of securities or aggregate principal amount, as applicable, of each identified class is
being registered as may from time to time be sold at unspecified prices. |
| (2) |
In accordance with Rules 456(b), 457(r) and 415(a)(6) promulgated under the Securities Act, the Registrant is
deferring payment of all of the registration fees. Registration fees will be paid subsequently on a pay-as-you-go basis. |
| (3) |
There is being registered hereunder an indeterminate number of shares of common stock or preferred stock, or
subscription rights to purchase shares of common stock as may be sold, from time to time. |
| (4) |
Includes such indeterminate number of shares of common stock, preferred stock or debt securities as may, from
time to time, be issued upon conversion or exchange of other securities registered hereunder, to the extent any such securities are, by their terms, convertible or exchangeable for common stock, preferred stock or debt securities.
|
| (5) |
There is being registered hereunder an indeterminate number of warrants as may be sold, from time to time,
representing rights to purchase common stock, preferred stock or debt securities. |
| (6) |
There is being registered hereunder an indeterminate principal amount of debt securities as may be sold, from
time to time. |
v3.23.4
N-2 - USD ($)
|
|
3 Months Ended |
9 Months Ended |
12 Months Ended |
Dec. 22, 2023 |
Dec. 20, 2023 |
Sep. 30, 2023 |
Jun. 30, 2023 |
Mar. 31, 2023 |
Dec. 31, 2022 |
Sep. 30, 2022 |
Jun. 30, 2022 |
Mar. 31, 2022 |
Dec. 31, 2021 |
Sep. 30, 2021 |
Jun. 30, 2021 |
Mar. 31, 2021 |
Sep. 30, 2023 |
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
Dec. 31, 2019 |
Dec. 31, 2018 |
Dec. 31, 2017 |
Dec. 31, 2016 |
Dec. 31, 2015 |
Dec. 31, 2014 |
Dec. 31, 2013 |
| Cover [Abstract] |
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| Entity Central Index Key |
|
0001508655
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| Amendment Flag |
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false
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| Entity Inv Company Type |
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N-2
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| Securities Act File Number |
|
000-00000
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| Document Type |
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N-2ASR
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| Document Registration Statement |
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true
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| Pre-Effective Amendment |
|
false
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| Post-Effective Amendment |
|
false
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| Investment Company Act Registration |
|
false
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| Investment Company Registration Amendment |
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false
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| Entity Registrant Name |
|
Sixth Street Specialty Lending, Inc.
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| Entity Address, Address Line One |
|
2100 McKinney Avenue, Suite 1500
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| Entity Address, City or Town |
|
Dallas
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| Entity Address, State or Province |
|
TX
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| Entity Address, Postal Zip Code |
|
75201
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| City Area Code |
|
469
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| Local Phone Number |
|
621-2001
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| Dividend or Interest Reinvestment Plan Only |
|
false
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| Delayed or Continuous Offering |
|
true
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| Primary Shelf [Flag] |
|
false
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| Effective Upon Filing, 462(e) |
|
true
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| Additional Securities Effective, 413(b) |
|
false
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| Effective when Declared, Section 8(c) |
|
false
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| New Effective Date for Previous Filing |
|
false
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| Additional Securities. 462(b) |
|
false
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| No Substantive Changes, 462(c) |
|
false
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| Exhibits Only, 462(d) |
|
false
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| Registered Closed-End Fund [Flag] |
|
false
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| Business Development Company [Flag] |
|
true
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| Interval Fund [Flag] |
|
false
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| Primary Shelf Qualified [Flag] |
|
true
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| Entity Well-known Seasoned Issuer |
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Yes
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| Entity Emerging Growth Company |
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false
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| New CEF or BDC Registrant [Flag] |
|
false
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| Fee Table [Abstract] |
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| Shareholder Transaction Expenses [Table Text Block] |
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Stockholder transaction expenses (as a percentage of offering price): |
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| Sales load |
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— |
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|
(1 |
) |
| Offering expenses |
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— |
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(2 |
) |
| Dividend reinvestment plan expenses |
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(3 |
) |
| (1) |
In the event that the securities to which this prospectus relates are sold to or through underwriters, a corresponding prospectus supplement will disclose the applicable sales load (underwriting discount or commission). |
| (2) |
The related prospectus supplement will disclose the estimated amount of offering expenses, the offering price and the offering expenses borne by us as a percentage of the offering price. |
| (3) |
The expenses of the dividend reinvestment plan are included in “Other expenses” in the table above. The plan administrator’s fees will be paid by us. There are no brokerage charges or other charges to stockholders who participate in the plan, except that if a participant elects by written notice to the plan administrator to have the plan administrator sell part or all of the shares held by the plan administrator in the participant’s account and remit the proceeds to the participant, the plan administrator is authorized to deduct a $15.00 transaction fee plus a brokerage commission from the proceeds. For additional information, see “Dividend Reinvestment Plan.” |
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| Sales Load [Percent] |
[1] |
0.00%
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| Dividend Reinvestment and Cash Purchase Fees |
[2] |
$ 0
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| Other Transaction Expenses [Abstract] |
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| Other Transaction Expenses [Percent] |
[3] |
0.00%
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| Annual Expenses [Table Text Block] |
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Estimated annual expenses (as a percentage of net assets attributable to common stock) (4) : |
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| Management Fee payable under the Investment Advisory Agreement |
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|
2.97 |
% |
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|
(5 |
) |
| Incentive Fee payable under the Investment Advisory Agreement |
|
|
2.49 |
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|
(6 |
) |
| Interest payments on borrowed funds |
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|
4.17 |
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|
(7 |
) |
| Other expenses |
|
|
1.20 |
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|
(8 |
) |
| Total annual expenses |
|
|
10.83 |
%
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| (4) |
The net assets attributable to common stock used to calculate the percentages in this table reflect our net assets of $1,341.6 million as of December 31, 2022. |
| (5) |
The Management Fee is 1.5% of the average value of our gross assets (including cash and cash equivalents and assets purchased with borrowed amounts) using the values at the end of the two most recently completed calendar quarters, adjusted for any share issuances or repurchases during the period. We may from time to time decide it is appropriate to change the terms of our Investment Advisory Agreement. Under the 1940 Act, any material change to our Investment Advisory Agreement must be submitted to stockholders for approval. See “Management Agreements” in Part I, Item 1 of our 2022 Annual Report and in Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. | The Management Fee reflected in the table is calculated by determining the ratio that the Management Fee for the year ended December 31, 2022 bears to our net assets attributable to common stock (rather than our gross assets). From time to time, our Adviser voluntarily has waived certain Management Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Management Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates are based on our actual Management Fees for the year ended December 31, 2022. For the year ended December 31, 2022, Management Fees of $0.4 million were waived consisting solely of Management Fees pursuant to the Leverage Waiver. The Adviser intends to waive a portion of the Management Fee payable under the Investment Advisory Agreement by reducing the Management Fee on assets financed using leverage over 200% asset coverage (in other words, over 1.0x debt to equity) (the “Leverage Waiver”). Pursuant to the Leverage Waiver, the Adviser intends to waive the portion of the Management Fee in excess of an annual rate of 1.0% (0.250% per quarter) on the average value of the Company’s gross assets as of the end of the two most recently completed calendar quarters that exceeds the product of (i) 200% and (ii) the average value of our net asset value at the end of the two most recently completed calendar quarters. For the three and nine months ended September 30, 2023, Management Fees of $0.3 million and $0.8 million have been waived pursuant to the Leverage Waiver. We may have capital gains and interest income that could result in the payment of an Incentive Fee to the Adviser in the twelve months after the date of this prospectus. The Incentive Fee payable in the example below is based upon our actual results for the year ended December 31, 2022 and assumes that the Incentive Fee is 17.5% for all relevant periods. However, the Incentive Fee payable to the Adviser is based on our performance and will not be paid unless we achieve certain goals.
| |
The Incentive Fee consists of two parts, as follows: | (i) The first component, payable at the end of each quarter in arrears, equals 100% of the pre-Incentive Fee net investment income in excess of a 1.5% quarterly “hurdle rate,” the calculation of which is further explained below, until the Adviser has received 17.5% of the total pre-Incentive Fee net investment income for that quarter and, for pre-Incentive Fee net investment income in excess of 1.82% quarterly, 17.5% of all remaining pre-Incentive Fee net investment income for that quarter. The 100% “catch-up” provision for pre-Incentive Fee net investment income in excess of the 1.5% “hurdle rate” is intended to provide the Adviser with an Incentive Fee of 17.5% on all pre-Incentive Fee net investment income when that amount equals 1.82% in a quarter (7.28% annualized), which is the rate at which catch-up is achieved. Once the “hurdle rate” is reached and catch-up is achieved, 17.5% of any pre-Incentive Fee net investment income in excess of 1.82% in any quarter is payable to the Adviser. Pre-Incentive Fee net investment income means dividends, interest and fee income accrued by us during the calendar quarter, minus our operating expenses for the quarter (including the Management Fee, expenses payable under the Administration Agreement to the Administrator, and any interest expense and dividends paid on any issued and outstanding preferred stock, but excluding the Incentive Fee). Pre-Incentive Fee net investment income includes, in the case of investments with a deferred interest feature (such as original issue discount, debt instruments with interest and zero coupon securities), accrued income that we may not have received in cash. Pre-Incentive Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses. (ii) The second component, payable at the end of each fiscal year in arrears, equaled 15% through March 31, 2014 and, beginning April 1, 2014, equals a weighted percentage of cumulative realized capital gains from the Company’s inception to the end of that fiscal year, less cumulative realized capital losses and unrealized capital losses. This component of the Incentive Fee is referred to as the Capital Gains Fee. Each year, the fee paid for this component of the Incentive Fee is net of the aggregate amount of any previously paid Capital Gains Fee for prior periods. For capital gains that accrue following March 31, 2014, the Incentive Fee rate is 17.5%. The Company accrues, but does not pay, a capital gains Incentive Fee with respect to unrealized capital gains because a capital gains Incentive Fee would be owed to the Adviser if the Company were to sell the relevant investment and realize a capital gain. The weighted percentage is intended to ensure that for each fiscal year following the completion of the IPO, the portion of the Company’s realized capital gains that accrued prior to March 31, 2014, is subject to an Incentive Fee rate of 15% and the portion of the Company’s realized capital gains that accrued beginning April 1, 2014 is subject to an Incentive Fee rate of 17.5%. As of March 31, 2020, there are no remaining investments that were made prior to April 1, 2014, and as a result, the Incentive Fee rate of 17.5% is applicable to any future realized capital gains.. For purposes of determining whether pre-Incentive Fee net investment income exceeds the hurdle rate, pre-Incentive Fee net investment income is expressed as a rate of return on the value of our net assets at the end of the immediately preceding calendar quarter. Pre-Incentive Fee net investment income does not include any realized capital gains, realized capital losses or unrealized capital gains or losses. Because of the structure of the Incentive Fee, it is possible that we may pay an Incentive Fee in a quarter in which we incur a loss. For example, if we receive pre-Incentive Fee net investment income in excess of the quarterly minimum hurdle rate, we will pay the applicable Incentive Fee even if we have incurred a loss in that quarter due to realized and unrealized capital losses. In addition, because the quarterly minimum hurdle rate is calculated based on our net assets, decreases in our net assets due to realized or unrealized capital losses in any given quarter may increase the likelihood that the hurdle rate is reached and therefore the likelihood of us paying an Incentive Fee for that quarter. Our net investment income used to calculate this component of the Incentive Fee is also included in the amount of our gross assets used to calculate the Management Fee because gross assets are total assets (including cash received) before deducting liabilities (such as declared dividend payments). Section 205(b)(3) of the Advisers Act, as amended, prohibits the Adviser from receiving the payment of fees on unrealized gains until those gains are realized, if ever. There can be no assurance that such unrealized gains will be realized in the future. See Note 3 to our consolidated financial statements in our 2022 Annual Report and our 3Q 2023 Quarterly Report and “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. From time to time, our Adviser has voluntarily waived certain Incentive Fees. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Results of Operations-Incentive Fees” in Part II, Item 7 of our 2022 Annual Report and in Part I, Item 2 of our 3Q 2023 Quarterly Report. The above estimates do not reflect or assume any such waivers.
| (7) |
Interest payments on borrowed funds is based on our interest expense for the year ended December 31, 2022 under our credit facilities excluding fees (such as fees on undrawn amounts and amortization of upfront fees) and including the swap-adjusted interest expense related to our 2022 Convertible Notes, 2023 Notes, 2024 Notes and 2026 Notes. This item is based on the assumption that our borrowings and interest costs after an offering will remain similar to those prior to such offering. We may borrow additional funds from time to time to make investments to the extent we determine that the economic situation is conducive to doing so. On October 8, 2018, our stockholders approved the application of the minimum asset coverage ratio of 150% to us, as set forth in Section 61(a)(2) of the 1940 Act, as amended by the SBCAA. |
| ( 8) |
Includes our overhead expenses, such as payments under the Administration Agreement for certain expenses incurred by the Adviser, and excise taxes. See “Management Agreements-Investment Advisory Agreement; Administration Agreement; License Agreement” in Part I, Item 1 of our 2022 Annual Report and Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report. The expenses in this table are based on our actual other expenses and excise taxes for the year ended December 31, 2022. |
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| Management Fees [Percent] |
[4],[5] |
2.97%
|
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| Interest Expenses on Borrowings [Percent] |
[5],[6] |
4.17%
|
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| Incentive Fees [Percent] |
[5],[7] |
2.49%
|
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| Other Annual Expenses [Abstract] |
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| Other Annual Expenses [Percent] |
[5],[8] |
1.20%
|
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|
| Total Annual Expenses [Percent] |
[5] |
10.83%
|
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| Expense Example [Table Text Block] |
|
The following example demonstrates the projected dollar amount of total cumulative expe n ses over various periods with respect to a hypothetical investment in our common stock. In calculating the following expense amounts, we have assumed we would have no additional leverage and that our annual operating expenses would remain at the levels set forth in the table above. The Incentive Fee payable in the example below assumes that the Incentive Fee is 17.5% for all relevant periods. Transaction expenses are not included in the following example. In the event that shares to which this prospectus relates are sold to or through underwriters, a corresponding prospectus supplement will restate this example to reflect the applicable sales load and offering expenses.
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| |
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|
You would pay the following expenses on a $1,000 common stock investment, assuming a 5% annual return from realized capital gains |
|
$ |
92 |
|
|
$ |
265 |
|
|
$ |
423 |
|
|
$ |
765 |
|
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| Expense Example, Year 01 |
|
$ 92
|
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| Expense Example, Years 1 to 3 |
|
265
|
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| Expense Example, Years 1 to 5 |
|
423
|
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| Expense Example, Years 1 to 10 |
|
$ 765
|
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| Purpose of Fee Table , Note [Text Block] |
|
The following table is intended to assist you in understanding the costs and expenses that an investor in our common stock will bear directly or indirectly in the twelve months after the date of this prospectus, based on the assumptions set forth below. We caution you that some of the percentages indicated in the table below are estimates and may vary. The following table should not be considered a representation of our future expenses, which may be greater or less than shown. Future expenses will depend on many factors, including our use of leverage, which may vary periodically depending on market conditions, our portfolio composition and our Adviser’s assessment of risks and returns. However, our total borrowings are limited under the 1940 Act so that we may not incur any additional leverage if doing so would cause our asset coverage ratio to fall below 150%, as defined in the 1940 Act. Except where the context suggests otherwise, whenever this prospectus contains a reference to fees or expenses paid by “us,” the “Company” or “Sixth Street Specialty Lending, Inc.” or says that “we” will pay fees or expenses, stockholders will indirectly bear these fees or expenses as investors in Sixth Street Specialty Lending, Inc.
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| Basis of Transaction Fees, Note [Text Block] |
|
as a percentage of offering price
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| Other Expenses, Note [Text Block] |
|
This example and the expenses in the table above should not be considered a representation of our future expenses, and actual expenses (including the cost of debt, if any, and other expenses) may be greater or less than those shown.
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| Management Fee not based on Net Assets, Note [Text Block] |
|
The Management Fee is 1.5% of the average value of our gross assets (including cash and cash equivalents and assets purchased with borrowed amounts) using the values at the end of the two most recently completed calendar quarters, adjusted for any share issuances or repurchases during the period. We may from time to time decide it is appropriate to change the terms of our Investment Advisory Agreement. Under the 1940 Act, any material change to our Investment Advisory Agreement must be submitted to stockholders for approval. See “Management Agreements” in Part I, Item 1 of our 2022 Annual Report and in Note 3 to our consolidated financial statements in our 3Q 2023 Quarterly Report.
|
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| Financial Highlights [Abstract] |
|
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| Senior Securities [Table Text Block] |
|
Information about our senior securities is shown as of the dates indicated in the below table . The report of our independent registered public accounting firm, KPMG LLP, on the senior securities table as of December 31, 2022 is included in our 2022 Annual Report and is incorporated by reference to the registration statement of which this prospectus is a part.
|
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|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
Revolving Credit Facilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
758.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
719.3 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
316.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
472.3 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
495.7 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
187.5 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
486.8 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
578.7 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
540.3 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
283.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
432.3 |
|
|
|
2,329.5 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.3 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.1 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
112.5 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
111.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
100.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
142.5 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.9 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.7 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
347.1 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.8 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.1 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
297.2 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.8 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.5 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.1 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
(1) |
Total amount of each class of senior securities outstanding at carrying value, excluding the impact of deferred financing costs and hedge accounting relationships, at the end of the period presented |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities, Note [Text Block] |
|
Information about our senior securities is shown as of the dates indicated in the below table . The report of our independent registered public accounting firm, KPMG LLP, on the senior securities table as of December 31, 2022 is included in our 2022 Annual Report and is incorporated by reference to the registration statement of which this prospectus is a part.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
Revolving Credit Facilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
758.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
719.3 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
316.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
472.3 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
495.7 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
187.5 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
486.8 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
578.7 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
540.3 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
283.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
432.3 |
|
|
|
2,329.5 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.3 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
113.1 |
|
|
|
2,376.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
112.5 |
|
|
|
2,257.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
111.9 |
|
|
|
3,110.3 |
|
|
|
— |
|
|
|
N/A |
|
Convertible Senior Notes due 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
100.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
142.5 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.9 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
171.7 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
114.7 |
|
|
|
2,355.3 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
150.0 |
|
|
|
2,705.2 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Amount Outstanding Exclusive of Treasury Securities (1) ($ in millions) |
|
|
|
|
|
Involuntary
Liquidating
Preference
Per Unit |
|
|
Average
Market
Value
Per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
347.1 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.8 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.4 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
346.1 |
|
|
|
2,045.4 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
297.2 |
|
|
|
2,004.1 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.8 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.5 |
|
|
|
1,885.7 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
298.1 |
|
|
|
2,053.6 |
|
|
|
— |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| September 30, 2023 (unaudited) |
|
$ |
298.2 |
|
|
$ |
1,872.8 |
|
|
|
— |
|
|
|
N/A |
|
(1) |
Total amount of each class of senior securities outstanding at carrying value, excluding the impact of deferred financing costs and hedge accounting relationships, at the end of the period presented |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Highlights Annualized, Note [Text Block] |
|
Information about our senior securities is shown as of the dates indicated in the below table .
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Headings, Note [Text Block] |
|
Information about our senior securities is shown as of the dates indicated in the below table . The report of our independent registered public accounting firm, KPMG LLP, on the senior securities table as of December 31, 2022 is included in our 2022 Annual Report and is incorporated by reference to the registration statement of which this prospectus is a part. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| General Description of Registrant [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Risk Factors [Table Text Block] |
|
Investing in our securities involves a number of significant risks. You should carefully consider the risks set out below and described in Part I, Item 1A, “Risk Factors,” in our 2022 Annual Report and Part I, Item IA, “Risk Factors,” in our quarterly report on Form 10-Q for the three months ended March 31, 2023 (the “1Q 2023 Quarterly Report”), in our quarterly report on Form 10-Q for the three months ended June 30, 2023 (the “2Q 2023 Quarterly Report”), and in our 3Q 2023 Quarterly Report, which are incorporated by reference in this prospectus, together with the other information set forth in this prospectus or in any prospectus supplement and in the other documents that we include or incorporate by reference into this prospectus before making a decision about investing in our securities. The risks and uncertainties set out below and discussed in our 2022 Annual Report, 1Q 2023 Quarterly Report, 2Q 2023 Quarterly Report, and 3Q 2023 Quarterly Report are not the only ones we face. Additional risks and uncertainties not presently known to us or not presently deemed material by us may also materially and adversely affect our business, financial condition and results of operations. In such case, our net asset value and the trading price of our securities could decline, and you may lose all or part of your investment. Risks Related to Offerings Pursuant to This Prospectus We will have broad discretion over the use of proceeds of any offering made pursuant to this prospectus, to the extent it is successful. We will have significant flexibility in applying the proceeds of any offering made pursuant to this prospectus. For example, we may pay operating expenses from net proceeds, which could limit our ability to achieve our investment objective. The net asset value per share of our common stock may be diluted if we sell or otherwise issue shares of our common stock at prices below the then-current net asset value per share of our common stock. Pursuant to approval granted at a special meeting of stockholders held on May 25, 2023, we are currently permitted to sell or otherwise issue shares of our common stock at a price below our then-current net asset value per share, subject to the approval of our Board and certain other conditions. Such stockholder approval expires on May 25, 2024. We intend to propose the extension of this approval in future years. Any decision to sell or otherwise issue shares of our common stock below our then-current net asset value per share would be subject to the determination by our board of directors that such issuance or sale is in our and our stockholders’ best interests. If we were to sell or otherwise issue shares of our common stock below our then-current net asset value per share, such issuances or sales would result in an immediate dilution to the net asset value per share of our common stock. This dilution would occur as a result of the issuance or sale of shares at a price below the then-current net asset value per share of our common stock and a proportionately greater decrease in the stockholders’ interest in our earnings and assets and their voting interest in us than the increase in our assets resulting from such issuance or sale. Because the number of shares of common stock that could be so issued and the timing of any issuance is not currently known, the actual dilutive effect cannot be predicted. Further, if our current stockholders do not purchase any shares to maintain their percentage interest, regardless of whether such offering is above or below the then-current net asset value per share, their voting power will be diluted. For additional information and hypothetical examples of these risks, see “Sales of Common Stock Below Net Asset Value” and the prospectus supplement pursuant to which such sale is made. Your interest in us may be diluted if you do not fully exercise your subscription rights in any rights offering. In addition, if the subscription price is less than our net asset value per share, then you will experience an immediate dilution of the aggregate net asset value of your shares. In the event we issue subscription rights, stockholders who do not fully exercise their subscription rights should expect that they will, at the completion of a rights offering pursuant to this prospectus, own a smaller proportional interest in us than would otherwise be the case if they fully exercised their rights. We cannot state precisely the amount of any such dilution in share ownership because we do not know at this time what proportion of the shares will be purchased as a result of such rights offering. In addition, if the subscription price is less than the net asset value per share of our common stock, then our stockholders would experience an immediate dilution of the aggregate net asset value of their shares as a result of the offering. The amount of any decrease in net asset value is not predictable because it is not known at this time what the subscription price and net asset value per share will be on the expiration date of a rights offering or what proportion of the shares will be purchased as a result of such rights offering. Such dilution could be substantial. We may in the future determine to issue preferred stock, which could adversely affect the market value of our common stock and cause the net asset value and market value of our common stock to be more volatile. The issuance of shares of preferred stock with dividend or conversion rights, liquidation preferences or other economic terms favorable to the holders of preferred stock could adversely affect the market price for our common stock by making an investment in the common stock less attractive and could make the net asset value and market value of our common stock more volatile. Payment of dividends and repayment of the liquidation preference of preferred stock would take preference over any dividends or other payments to our common stockholders, and holders of preferred stock would not be subject to any of our expenses or losses and would not be entitled to participate in any income or appreciation in excess of their stated preference (other than convertible preferred stock that converts into common stock). If the dividend rate on the preferred stock were to approach the net rate of return on our investment portfolio, the benefit of leverage to the holders of the common stock would be reduced. If the dividend rate on the preferred stock were to exceed the net rate of return on our portfolio, the leverage would result in a lower rate of return to the holders of common stock than if we had not issued preferred stock. Any decline in the net asset value of our investments would be borne entirely by the holders of common stock. Therefore, if the market value of our portfolio were to decline, the leverage would result in a greater decrease in net asset value to the holders of common stock than if we were not leveraged through the issuance of preferred stock. This greater net asset value decrease would also tend to cause a greater decline in the market price for the common stock. We might be in danger of failing to maintain the required asset coverage of the preferred stock or of losing our ratings on the preferred stock or, in an extreme case, our current investment income might not be sufficient to meet the dividend requirements on the preferred stock. In order to counteract such an event, we might need to liquidate investments in order to fund a redemption of some or all of the preferred stock. In addition, under the 1940 Act, preferred stock constitutes a “senior security” for purposes of the asset coverage test. Holders of any preferred stock we might issue would have the right to elect members of the board of directors and class voting rights on certain matters. Holders of any preferred stock we might issue, voting separately as a single class, would have the right to elect two members of the Board at all times and in the event dividends become two full years in arrears would have the right to elect a majority of the directors until such arrearage is completely eliminated. In addition, preferred stockholders may have class voting rights on certain matters, including changes in fundamental investment restrictions and conversion to open-end status, and, accordingly, could veto any such changes. Restrictions imposed on the declarations and payment of dividends or other distributions to the holders of our common stock and preferred stock, both by the 1940 Act and by requirements imposed by rating agencies or the terms of our credit facilities, might impair our ability to maintain our qualification as a RIC for federal income tax purposes. While we would intend to redeem our preferred stock to the extent necessary to enable us to distribute our income as required to maintain our qualification as a RIC, there can be no assurance that such actions could be effected in time to meet the tax requirements.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Share Price [Table Text Block] |
|
The following table sets forth the net asset value per share of our common stock, the range of high and low closing sales prices of our common stock reported on the NYSE, the closing sales price as a premium (discount) to net asset value and the dividends declared by us in each fiscal quarter for the year ending December 31, 2023, and for the years ended December 31, 2022 and December 31, 2021. On December 20, 2023, the last reported closing sales price of our common stock on the NYSE was $21.08 per share, which represented a premium of approximately 24.2% to the net asset value per share reported by us as of September 30, 2023, the last date prior to the date of this prospectus for which we reported net asset value.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
High Sales Price to Net Asset Value (2) |
|
|
Low Sales
Price to
Net Asset
Value |
|
|
|
|
| |
|
|
|
|
|
|
|
|
Year ended December 31, 2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
16.47 |
|
|
$ |
22.76 |
|
|
$ |
20.46 |
|
|
|
38.2 |
% |
|
|
24.2 |
% |
|
$ |
1.71 |
|
|
|
|
16.85 |
|
|
|
22.78 |
|
|
|
20.80 |
|
|
|
35.2 |
% |
|
|
23.4 |
% |
|
|
0.47 |
|
|
|
|
17.18 |
|
|
|
23.97 |
|
|
|
21.13 |
|
|
|
39.5 |
% |
|
|
23.0 |
% |
|
|
0.43 |
|
|
|
|
16.84 |
|
|
|
24.74 |
|
|
|
21.97 |
|
|
|
47.0 |
% |
|
|
30.5 |
% |
|
|
0.98 |
|
Year ended December 31, 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
16.88 |
|
|
$ |
24.27 |
|
|
$ |
22.40 |
|
|
|
43.8 |
% |
|
|
23.0 |
% |
|
$ |
0.52 |
|
|
|
|
16.27 |
|
|
|
23.64 |
|
|
|
18.09 |
|
|
|
45.3 |
% |
|
|
11.2 |
% |
|
|
0.45 |
|
|
|
|
16.36 |
|
|
|
19.64 |
|
|
|
6.13 |
|
|
|
19.9 |
% |
|
|
(1.4 |
)% |
|
|
0.42 |
|
|
|
|
16.48 |
|
|
|
19.14 |
|
|
|
16.56 |
|
|
|
16.1 |
% |
|
|
0.5 |
% |
|
|
0.45 |
|
Year ending December 31, 2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
16.59 |
|
|
$ |
19.83 |
|
|
$ |
16.86 |
|
|
|
19.5 |
% |
|
|
1.6 |
% |
|
$ |
0.55 |
|
|
|
|
16.74 |
|
|
|
20.08 |
|
|
|
17.31 |
|
|
|
20.0 |
% |
|
|
3.4 |
% |
|
|
0.50 |
|
|
|
|
16.97 |
|
|
|
20.97 |
|
|
|
19.02 |
|
|
|
23.6 |
% |
|
|
12.1 |
% |
|
|
0.52 |
|
Fourth Quarter (through December 20, 2023 ) |
|
|
* |
|
|
|
21.49 |
|
|
|
19.05 |
|
|
|
* |
% |
|
|
* |
% |
|
|
0.53 |
|
| (1) |
Net asset value per share is determined as of the last day in the relevant quarter and therefore may not reflect the net asset value per share on the date of the high and low closing sales prices. The net asset values shown are based on outstanding shares at the end of the relevant quarter. |
| (2) |
Calculated as the respective high or low closing sales price less net asset value, divided by net asset value (in each case, as of the applicable quarter). Does not reflect intraday trading prices. |
| (3) |
Represents the dividends declared in the relevant quarter. |
| * |
Net asset value has not yet been reported for this period. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Lowest Price or Bid |
|
|
$ 19.05
|
|
$ 19.02
|
$ 17.31
|
$ 16.86
|
$ 16.56
|
$ 6.13
|
$ 18.09
|
$ 22.4
|
$ 21.97
|
$ 21.13
|
$ 20.8
|
$ 20.46
|
|
|
|
|
|
|
|
|
|
|
|
| Highest Price or Bid |
|
|
$ 21.49
|
|
$ 20.97
|
$ 20.08
|
$ 19.83
|
$ 19.14
|
$ 19.64
|
$ 23.64
|
$ 24.27
|
$ 24.74
|
$ 23.97
|
$ 22.78
|
$ 22.76
|
|
|
|
|
|
|
|
|
|
|
|
| Highest Price or Bid, Premium (Discount) to NAV [Percent] |
[9] |
|
|
[10] |
23.60%
|
20.00%
|
19.50%
|
16.10%
|
19.90%
|
45.30%
|
43.80%
|
47.00%
|
39.50%
|
35.20%
|
38.20%
|
|
|
|
|
|
|
|
|
|
|
|
| Lowest Price or Bid, Premium (Discount) to NAV [Percent] |
|
|
|
[10] |
12.10%
|
3.40%
|
1.60%
|
0.50%
|
(1.40%)
|
11.20%
|
23.00%
|
30.50%
|
23.00%
|
23.40%
|
24.20%
|
|
|
|
|
|
|
|
|
|
|
|
| NAV Per Share |
[11] |
|
|
[10] |
$ 16.97
|
$ 16.74
|
$ 16.59
|
$ 16.48
|
$ 16.36
|
$ 16.27
|
$ 16.88
|
$ 16.84
|
$ 17.18
|
$ 16.85
|
$ 16.47
|
$ 16.97
|
$ 16.48
|
$ 16.84
|
|
|
|
|
|
|
|
|
| Capital Stock, Long-Term Debt, and Other Securities [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Capital Stock [Table Text Block] |
|
DESCRIPTION OF OUR SECURITIES This prospectus contains a summary of our common stock, pr eferred stock, subscription rights , deb t securities a nd warrants. These summaries are not meant to be a complete description of each security. However, this prospectus and the accompanying prospectus supplement will describe the material terms and conditions for each security. DESCRIPTION OF OUR CAPITAL STOCK The following description is based on relevant portions of the Delaware General Corporate Law, or the DGCL, and on our certificate of incorporation and bylaws. This summary is not necessarily complete, and we refer you to the DGCL and our certificate of incorporation and bylaws for a more detailed description of the provisions summarized below. Under the terms of our restated certificate of incorporation, which was adopted on June 15, 2020, our authorized capital stock consists of 400,000,000 shares of common stock, par value $0.01 per share, of which 87,578,655 shares are outstanding as of December 20, 2023, and 100,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are outstanding as of December 20, 2023. Our common stock is listed on the NYSE under the symbol “TSLX.” There are no outstanding options or warrants to purchase our stock. No stock has been authorized for issuance under any equity compensation plans. Under Delaware law, our stockholders generally are not personally liable for our debts or obligations. The following presents our outstanding classes of securities as of December 20, 2023:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount Held
by Us or for
Our Account |
|
|
Amount Outstanding
Exclusive of Amount
Held by Us or for
Our Account |
|
Common Stock |
|
|
400,000,000 |
|
|
|
664,250 |
|
|
|
87,578,655 |
| Under the terms of our certificate of incorporation, holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders, and holders of common stock do not have cumulative voting rights. Accordingly, subject to the rights of any outstanding preferred stock, holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors standing for election. Holders of common stock are entitled to receive proportionately any dividends declared by our Board, subject to any preferential dividend rights of outstanding preferred stock. Upon our liquidation, dissolution or winding up, the holders of common stock will be entitled to receive ratably our net assets available after the payment of all debts and other liabilities and will be subject to the prior rights of any outstanding preferred stock. Holders of common stock have no redemption or conversion rights. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of any series of preferred stock that we may designate and issue in the future. In addition, holders of our common stock may participate in our dividend reinvestment plan. Under the terms of our certificate of incorporation, our Board is authorized to issue shares of preferred stock in one or more series without stockholder approval. See “Description of Our Preferred Stock.” The purpose of authorizing our Board to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with providing leverage for our investment program, possible acquisitions and other corporate purposes, could make it more difficult for a third party to acquire, or could discourage a third party from acquiring, a majority of our outstanding voting stock. Limitation on Liability of Directors and Officers; Indemnification and Advance of Expenses Our certification of incorporation limits our directors’ liability to the fullest extent permitted under Delaware corporate law and the 1940 Act. Specifically, our directors will not be personally liable to us or our stockholders for any breach of fiduciary duty as a director, except for any liability:
| |
(i) |
for any breach of the director’s duty of loyalty to us or our stockholders, |
| |
(ii) |
for acts or omissions not in good faith or which involve willful misconduct, gross negligence, bad faith, reckless disregard or a knowing violation of law, |
| |
(iii) |
under Section 174 of the DGCL, which relates to unlawful payment of dividends or unlawful stock purchases or redemptions, or |
| |
(iv) |
for any transaction from which the director derived an improper personal benefit. | If the DGCL is amended to permit further elimination or limitation of the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL. So long as we are registered or regulated under the 1940 Act, any limitation of liability of our directors and officers as described above is limited to the extent prohibited by the 1940 Act or by any valid rule, regulation or order of the SEC. Section 145 of the DGCL allows for the indemnification of officers, directors, and any corporate agents in terms sufficiently broad to indemnify such person under certain circumstances for liabilities, including reimbursement for expenses, incurred arising under the Securities Act. Our certificate of incorporation and bylaws provide that we will indemnify our directors and officers to the fullest extent authorized or permitted by law and this right to indemnification will continue as to a person who has ceased to be a director or officer and will inure to the benefit of his or her heirs, executors and personal and legal representatives; however, for proceedings to enforce rights to indemnification, we are not obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless that proceeding (or part thereof) was authorized or consented to by the Board. The right to indemnification includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. Our obligation to provide indemnification and advancement of expenses is subject to the requirements of the 1940 Act and Investment Company Act Release No. 11330, which, among other things, preclude indemnification for any liability (whether or not there is an adjudication of liability or the matter has been settled) arising by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties, and require reasonable and fair means for determining whether indemnification will be made. In addition, we have entered into indemnification agreements with our directors and officers that provide for a contractual right to indemnification to the fullest extent permitted by the DGCL. A form of the indemnification agreement has been filed as an exhibit to the registration statement of which this prospectus is a part. We may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers. The rights to indemnification and to the advancement of expenses are subject to the requirements of the 1940 Act to the extent applicable. Any repeal or modification of our certificate of incorporation by our stockholders will not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer existing at the time of the repeal or modification with respect to any acts or omissions occurring prior to the repeal or modification. Under the Investment Advisory Agreement, we have, to the extent permitted by applicable law, indemnified the Adviser and certain of its affiliates, as described under “Management Agreements-Indemnification” in Part I, Item 1 of our 2022 Annual Report. The following summary outlines certain provisions of Delaware law and our certificate of incorporation regarding anti-takeover provisions. These provisions could have the effect of limiting the ability of other entities or persons to acquire control of us by means of a tender offer, proxy contest or otherwise, or to change the composition of our Board. These provisions are expected to discourage certain coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to negotiate first with our Board. These measures, however, may delay, defer or prevent a transaction or a change in control that might otherwise be in the best interests of our stockholders and could have the effect of depriving stockholders of an opportunity to sell their shares at a premium over prevailing market prices. These attempts could also have the effect of increasing our expenses and disrupting our normal operation. We believe, however, that the benefits of these provisions outweigh the potential disadvantages of discouraging acquisition proposals because the negotiation of the proposals may improve their terms. We are subject to the provisions of Section 203 of the DGCL. In general, the statute prohibits a publicly held Delaware corporation from engaging in a “business combination” with “interested stockholders” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes certain mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to exceptions (including an exception for our Adviser and certain of its affiliates), an “interested stockholder” with which business combinations may be restricted is a person that, together with its affiliates and associates, owns, or is an affiliate or associate of the corporation and within the prior three years did own, 15% or more of the corporation’s voting stock. Our certificate of incorporation and bylaws provide that:
| |
• |
|
the Board be divided into three classes, as nearly equal in size as possible, with staggered three-year terms (and the number of directors shall not be fewer than four or greater than nine); |
| |
• |
|
directors may be removed only for cause by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class; and |
| |
• |
|
subject to the rights of any holders of preferred stock, any vacancy on the Board, however the vacancy occurs, including a vacancy due to an enlargement of the Board, may only be filled by vote of a majority of the directors then in office. | The classification of our Board and the limitations on removal of directors and filling of vacancies could have the effect of making it more difficult for a third party to acquire us, or of discouraging a third party from acquiring us. We believe, however, that the longer time required to elect a majority of a classified board of directors helps to ensure the continuity and stability of our management and policies. Our bylaws also provide that:
| |
• |
|
any action required or permitted to be taken by the stockholders at an annual meeting or special meeting of stockholders may only be taken if it is properly brought before such meeting; and |
| |
• |
|
special meetings of the stockholders may only be called by our Board, Chairman, or a Chief Executive Officer. | Our bylaws provide that for nominations and any other matters to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding advance notice to us. The purpose of requiring stockholders to give us advance notice of nominations and other business is to afford our Nominating and Corporate Governance Committee a meaningful opportunity to consider the qualifications of the proposed nominees and the advisability of any other proposed business and, to the extent deemed necessary or desirable by our Board, to inform stockholders and make recommendations about such qualifications or business, as well as to provide a more orderly procedure for conducting meetings of stockholders. Our certificate of incorporation further provides that stockholders may not take action by written consent in lieu of a meeting. These provisions may discourage another person or entity from making a tender offer for our common stock, because such person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take action as a stockholder (such as electing new directors or approving a merger) only at a duly called stockholders’ meeting, and not by written consent. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws requires a greater percentage. Our certificate of incorporation requires the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class, to amend certain specified provisions of the certificate relating to our Board, limitation of liability, indemnification procedures, and amendments to our certificate of incorporation. Our certificate of incorporation permits our Board to amend or repeal our bylaws. Our bylaws generally can be amended or repealed by approval of at least 75% of the total number of authorized directors then in office. Additionally, our stockholders have the power to adopt, amend or repeal our bylaws, upon the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote on any matter. A director may be removed from office, but only for cause and at a meeting called for that purpose, by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class. In addition, our certificate of incorporation requires the favorable vote of a majority of our Board followed by the favorable vote of the holders of at least 75% of our outstanding shares of common stock, to approve, adopt or authorize certain transactions with 10% or greater holders of our outstanding common stock and their affiliates or associates, unless the transaction has been approved by at least 80% of our Board, in which case approval by “a majority of the outstanding voting securities” (as defined in the 1940 Act) will be required. For purposes of these provisions, a 10% or greater holder of our outstanding common stock, or a principal stockholder, refers to any person who, whether directly or indirectly and whether alone or together with its affiliates and associates, beneficially owns 10% or more of the outstanding shares of our common stock. The 10% holder transactions subject to these special approval requirements are:
| |
• |
|
the merger or consolidation of us or any subsidiary of ours with or into any principal stockholder; |
| |
• |
|
the issuance of any of our securities to any principal stockholder for cash, except pursuant to any automatic dividend reinvestment plan or the exercise of any preemptive rights granted in our certificate of incorporation (which are no longer applicable following our IPO) or pursuant to any subscription agreement by and among us, the Adviser and such principal stockholder entered into prior to our IPO; |
| |
• |
|
the sale, lease or exchange of all or any substantial part of our assets to any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for the purpose of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period; and |
| |
• |
|
the sale, lease or exchange to us or any subsidiary of ours, in exchange for our securities, of any assets of any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for purposes of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period. | To convert us to an open-end investment company, to merge or consolidate us with any entity in a transaction as a result of which the governing documents of the surviving entity do not contain substantially the same anti-takeover provisions as are provided in our certificate of incorporation, to liquidate and dissolve us or to amend any of the provisions discussed herein, our certificate of incorporation requires the favorable vote of at least 80% of the holders of our common stock then outstanding, or the approval of a majority of the continuing directors and at least 75% of the holders of our capital stock then outstanding entitled to vote in the election of directors, voting together as a single class. If approved in the foregoing manner, our conversion to an open-end investment company could not occur until 90 days after the stockholders’ meeting at which the conversion was approved and would also require at least 30 days’ prior notice to all stockholders. As part of the conversion to an open-end investment company, substantially all of our investment policies and strategies and portfolio would have to be modified to assure the degree of portfolio liquidity required for open-end investment companies. In the event of conversion, the common shares would cease to be listed on any national securities exchange or market system. Stockholders of an open-end investment company may require the company to redeem their shares at any time, except in certain circumstances as authorized by or under the 1940 Act, at their net asset value, less such redemption charge, if any, as might be in effect at the time of a redemption. You should assume that it is not likely that our Board would vote to convert us to an open-end fund. The 1940 Act defines “a majority of the outstanding voting securities” as the lesser of:
| |
• |
|
67% or more of the company’s voting stock present at a meeting if more than 50% of the outstanding voting securities of the company are present or represented by proxy; and |
| |
• |
|
more than 50% of the outstanding voting securities of the company. | For the purposes of calculating “a majority of the outstanding voting securities” under our certificate of incorporation, each class and series of our shares will vote together as a single class, except to the extent required by the 1940 Act or our certificate of incorporation, with respect to any class or series of shares. If a separate class vote is required, the applicable proportion of shares of the class or series, voting as a separate class or series, also will be required. Our Board has determined that provisions with respect to the Board and the stockholder voting requirements described above, which voting requirements are greater than the minimum requirements under Delaware law or the 1940 Act, are in the best interest of stockholders generally. DESCRIPTION OF OUR PREFERRED STOCK In addition to shares of common stock, we have 100,000,000 shares of preferred stock authorized under our certificate of incorporation, par value $0.01 per share, of which no shares are currently outstanding. If we offer preferred stock under this prospectus, we will issue an appropriate prospectus supplement. We may issue preferred stock from time to time in one or more classes or series, without stockholder approval. Prior to issuance of shares of each class or series, our Board is required by Delaware law and by our certificate of incorporation to set the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each class or series. Any such issuance must adhere to the requirements of the 1940 Act, Delaware law and any other limitations imposed by law. The Board has discretion to establish the number of shares to be included in each series and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other rights, if any, of the shares of each series, and any qualifications, limitations, or restrictions. The 1940 Act limits our flexibility as to certain rights and preferences of the preferred stock under our certificate of incorporation. In particular, every share of stock issued by a BDC must be voting stock and have equal voting rights with every other outstanding class of voting stock, except to the extent that the stock satisfies the requirements for being treated as a senior security, which requires, among other things, that:
| |
• |
|
immediately after issuance and before any distribution is made with respect to common stock, we must meet a coverage ratio of total assets (less total liabilities other than indebtedness) to total indebtedness plus preferred stock, of at least 150%; and |
| |
• |
|
the holders of shares of preferred stock must be entitled as a class to elect two directors at all times and to elect a majority of the directors if and for so long as dividends on the preferred stock are unpaid in an amount equal to two full years of dividends on the preferred stock. | For any series of preferred stock that we may issue, our Board will determine and the amendment to our certificate of incorporation and the prospectus supplement relating to such series will describe:
| |
• |
|
the designation and number of shares of such series; |
| |
• |
|
the rate and time at which, and the preferences and conditions under which, any dividends will be paid on shares of such series, as well as whether such dividends are participating or non-participating; |
| |
• |
|
any provisions relating to convertibility or exchangeability of the shares of such series, including adjustments to the conversion price of such series; |
| |
• |
|
the rights and preferences, if any, of holders of shares of such series upon our liquidation, dissolution or winding up of our affairs; |
| |
• |
|
the voting powers, if any, of the holders of shares of such series; |
| |
• |
|
any provisions relating to the redemption of the shares of such series; |
| |
• |
|
any limitations on our ability to pay dividends or make distributions on, or acquire or redeem, other securities while shares of such series are outstanding; |
| |
• |
|
any conditions or restrictions on our ability to issue additional shares of such series or other securities; |
| |
• |
|
if applicable, a discussion of certain U.S. federal income tax considerations; and |
| |
• |
|
any other relative powers, preferences and participating, optional or special rights of shares of such series, and the qualifications, limitations or restrictions thereof. | All shares of preferred stock that we may issue will be identical and of equal rank except as to the particular terms thereof that may be fixed by our Board. All shares of each series of preferred stock will differ only as to the dates from which dividends, if any, thereon will be cumulative. DESCRIPTION OF OUR SUBSCRIPTION RIGHTS We may issue subscription rights to our stockholders to purchase common stock. Subscription rights may be issued independently or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection with a subscription rights offering to our stockholders, we would distribute certificates evidencing the subscription rights and a prospectus supplement to our stockholders on the record date that we set for receiving subscription rights in such subscription rights offering. The applicable prospectus supplement would describe the following terms of subscription rights in respect of which this prospectus is being delivered:
| |
• |
|
the period of time the offering would remain open (which shall be open a minimum number of days such that all record holders would be eligible to participate in the offering and shall not be open longer than 120 days); |
| |
• |
|
the title of such subscription rights; |
| |
• |
|
the exercise price for such subscription rights (or method of calculation thereof); |
| |
• |
|
the ratio of the offering (which, in the case of transferable rights, will require a minimum of three shares to be held of record before a person is entitled to purchase an additional share); |
| |
• |
|
the number of such subscription rights issued to each stockholder; |
| |
• |
|
the extent to which such subscription rights are transferable and the market on which they may be traded if they are transferable; |
| |
• |
|
if applicable, a discussion of certain U.S. federal income tax considerations applicable to the issuance or exercise of such subscription rights; |
| |
• |
|
the date on which the right to exercise such subscription rights shall commence, and the date on which such right shall expire (subject to any extension); |
| |
• |
|
the extent to which such subscription rights include an over-subscription privilege with respect to unsubscribed securities and the terms of such over-subscription privilege; |
| |
• |
|
any termination right we may have in connection with such subscription rights offering; and |
| |
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any other terms of such subscription rights, including exercise, settlement and other procedures and limitations relating to the transfer and exercise of such subscription rights. | Exercise of Subscription Rights Each subscription right would entitle the holder of the subscription right to purchase for cash such amount of shares of common stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the subscription rights offered thereby. Subscription rights may be exercised at any time up to the close of business on the expiration date for such subscription rights set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights would become void. Subscription rights may be exercised as set forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the subscription rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any other office indicated in the prospectus supplement we will forward, as soon as practicable, the shares of common stock purchasable upon such exercise. To the extent permissible under applicable law, we may determine to offer any unsubscribed offered securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, as set forth in the applicable prospectus supplement. Any stockholder who chooses not to participate in a rights offering should expect to own a smaller interest in us upon completion of such rights offering. Any rights offering will dilute the ownership interest and voting power of stockholders who do not fully exercise their subscription rights. Further, because the net proceeds per share from any rights offering may be lower than our then current net asset value per share, the rights offering may reduce our net asset value per share. The amount of dilution that a stockholder will experience could be substantial, particularly to the extent we engage in multiple rights offerings within a limited time period. In addition, the market price of our common stock could be adversely affected while a rights offering is ongoing as a result of the possibility that a significant number of additional shares may be issued upon completion of such rights offering. All of our stockholders will also indirectly bear the expenses associated with any rights offering we may conduct, regardless of whether they elect to exercise any rights. DESCRIPTION OF OUR WARRANTS The following is a general description of the terms of the warrants we may issue from time to time. Particular terms of any warrants we offer will be described in the prospectus supplement relating to such warrants. We may issue warrants to purchase shares of our common stock, preferred stock or debt securities. Such warrants may be issued independently or together with common stock, preferred stock or debt securities and may be attached or separate from such securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants. A prospectus supplement will describe the particular terms of any series of warrants we may issue, including the following:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which these shares may be purchased upon such exercise; |
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the date on which the right to exercise such warrants shall commence and the date on which such right will expire; |
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whether such warrants will be issued in registered form or bearer form; |
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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information with respect to book-entry procedures, if any; |
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the terms of the securities issuable upon exercise of the warrants; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. | We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants. Prior to exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including, in the case of warrants to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture or, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights. Under the 1940 Act, we may generally only offer warrants provided that (1) the warrants expire by their terms within ten years; (2) the exercise or conversion price is not less than the current market value at the date of issuance; (3) our stockholders authorize the proposal to issue such warrants, and our Board approves such issuance on the basis that the issuance is in the best interests of us and our stockholders; and (4) if the warrants are accompanied by other securities, the warrants are not separately transferable unless no class of such warrants and the securities accompanying them has been publicly distributed. The 1940 Act also provides that the amount of our voting securities that would result from the exercise of all outstanding warrants, as well as options and rights, at the time of issuance may not exceed 25% of our outstanding voting securities.
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| Security Title [Text Block] |
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DESCRIPTION OF OUR SECURITIES This prospectus contains a summary of our common stock, pr eferred stock, subscription rights , deb t securities a nd warrants. These summaries are not meant to be a complete description of each security. However, this prospectus and the accompanying prospectus supplement will describe the material terms and conditions for each security. DESCRIPTION OF OUR CAPITAL STOCK The following description is based on relevant portions of the Delaware General Corporate Law, or the DGCL, and on our certificate of incorporation and bylaws. This summary is not necessarily complete, and we refer you to the DGCL and our certificate of incorporation and bylaws for a more detailed description of the provisions summarized below. Under the terms of our restated certificate of incorporation, which was adopted on June 15, 2020, our authorized capital stock consists of 400,000,000 shares of common stock, par value $0.01 per share, of which 87,578,655 shares are outstanding as of December 20, 2023, and 100,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are outstanding as of December 20, 2023. Our common stock is listed on the NYSE under the symbol “TSLX.” There are no outstanding options or warrants to purchase our stock. No stock has been authorized for issuance under any equity compensation plans. Under Delaware law, our stockholders generally are not personally liable for our debts or obligations. The following presents our outstanding classes of securities as of December 20, 2023:
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Amount Held
by Us or for
Our Account |
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Amount Outstanding
Exclusive of Amount
Held by Us or for
Our Account |
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Common Stock |
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400,000,000 |
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664,250 |
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87,578,655 |
| Under the terms of our certificate of incorporation, holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders, and holders of common stock do not have cumulative voting rights. Accordingly, subject to the rights of any outstanding preferred stock, holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors standing for election. Holders of common stock are entitled to receive proportionately any dividends declared by our Board, subject to any preferential dividend rights of outstanding preferred stock. Upon our liquidation, dissolution or winding up, the holders of common stock will be entitled to receive ratably our net assets available after the payment of all debts and other liabilities and will be subject to the prior rights of any outstanding preferred stock. Holders of common stock have no redemption or conversion rights. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of any series of preferred stock that we may designate and issue in the future. In addition, holders of our common stock may participate in our dividend reinvestment plan. Under the terms of our certificate of incorporation, our Board is authorized to issue shares of preferred stock in one or more series without stockholder approval. See “Description of Our Preferred Stock.” The purpose of authorizing our Board to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with providing leverage for our investment program, possible acquisitions and other corporate purposes, could make it more difficult for a third party to acquire, or could discourage a third party from acquiring, a majority of our outstanding voting stock. Limitation on Liability of Directors and Officers; Indemnification and Advance of Expenses Our certification of incorporation limits our directors’ liability to the fullest extent permitted under Delaware corporate law and the 1940 Act. Specifically, our directors will not be personally liable to us or our stockholders for any breach of fiduciary duty as a director, except for any liability:
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for any breach of the director’s duty of loyalty to us or our stockholders, |
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for acts or omissions not in good faith or which involve willful misconduct, gross negligence, bad faith, reckless disregard or a knowing violation of law, |
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under Section 174 of the DGCL, which relates to unlawful payment of dividends or unlawful stock purchases or redemptions, or |
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for any transaction from which the director derived an improper personal benefit. | If the DGCL is amended to permit further elimination or limitation of the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL. So long as we are registered or regulated under the 1940 Act, any limitation of liability of our directors and officers as described above is limited to the extent prohibited by the 1940 Act or by any valid rule, regulation or order of the SEC. Section 145 of the DGCL allows for the indemnification of officers, directors, and any corporate agents in terms sufficiently broad to indemnify such person under certain circumstances for liabilities, including reimbursement for expenses, incurred arising under the Securities Act. Our certificate of incorporation and bylaws provide that we will indemnify our directors and officers to the fullest extent authorized or permitted by law and this right to indemnification will continue as to a person who has ceased to be a director or officer and will inure to the benefit of his or her heirs, executors and personal and legal representatives; however, for proceedings to enforce rights to indemnification, we are not obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless that proceeding (or part thereof) was authorized or consented to by the Board. The right to indemnification includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. Our obligation to provide indemnification and advancement of expenses is subject to the requirements of the 1940 Act and Investment Company Act Release No. 11330, which, among other things, preclude indemnification for any liability (whether or not there is an adjudication of liability or the matter has been settled) arising by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties, and require reasonable and fair means for determining whether indemnification will be made. In addition, we have entered into indemnification agreements with our directors and officers that provide for a contractual right to indemnification to the fullest extent permitted by the DGCL. A form of the indemnification agreement has been filed as an exhibit to the registration statement of which this prospectus is a part. We may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers. The rights to indemnification and to the advancement of expenses are subject to the requirements of the 1940 Act to the extent applicable. Any repeal or modification of our certificate of incorporation by our stockholders will not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer existing at the time of the repeal or modification with respect to any acts or omissions occurring prior to the repeal or modification. Under the Investment Advisory Agreement, we have, to the extent permitted by applicable law, indemnified the Adviser and certain of its affiliates, as described under “Management Agreements-Indemnification” in Part I, Item 1 of our 2022 Annual Report. The following summary outlines certain provisions of Delaware law and our certificate of incorporation regarding anti-takeover provisions. These provisions could have the effect of limiting the ability of other entities or persons to acquire control of us by means of a tender offer, proxy contest or otherwise, or to change the composition of our Board. These provisions are expected to discourage certain coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to negotiate first with our Board. These measures, however, may delay, defer or prevent a transaction or a change in control that might otherwise be in the best interests of our stockholders and could have the effect of depriving stockholders of an opportunity to sell their shares at a premium over prevailing market prices. These attempts could also have the effect of increasing our expenses and disrupting our normal operation. We believe, however, that the benefits of these provisions outweigh the potential disadvantages of discouraging acquisition proposals because the negotiation of the proposals may improve their terms. We are subject to the provisions of Section 203 of the DGCL. In general, the statute prohibits a publicly held Delaware corporation from engaging in a “business combination” with “interested stockholders” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes certain mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to exceptions (including an exception for our Adviser and certain of its affiliates), an “interested stockholder” with which business combinations may be restricted is a person that, together with its affiliates and associates, owns, or is an affiliate or associate of the corporation and within the prior three years did own, 15% or more of the corporation’s voting stock. Our certificate of incorporation and bylaws provide that:
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the Board be divided into three classes, as nearly equal in size as possible, with staggered three-year terms (and the number of directors shall not be fewer than four or greater than nine); |
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directors may be removed only for cause by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class; and |
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subject to the rights of any holders of preferred stock, any vacancy on the Board, however the vacancy occurs, including a vacancy due to an enlargement of the Board, may only be filled by vote of a majority of the directors then in office. | The classification of our Board and the limitations on removal of directors and filling of vacancies could have the effect of making it more difficult for a third party to acquire us, or of discouraging a third party from acquiring us. We believe, however, that the longer time required to elect a majority of a classified board of directors helps to ensure the continuity and stability of our management and policies. Our bylaws also provide that:
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any action required or permitted to be taken by the stockholders at an annual meeting or special meeting of stockholders may only be taken if it is properly brought before such meeting; and |
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special meetings of the stockholders may only be called by our Board, Chairman, or a Chief Executive Officer. | Our bylaws provide that for nominations and any other matters to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding advance notice to us. The purpose of requiring stockholders to give us advance notice of nominations and other business is to afford our Nominating and Corporate Governance Committee a meaningful opportunity to consider the qualifications of the proposed nominees and the advisability of any other proposed business and, to the extent deemed necessary or desirable by our Board, to inform stockholders and make recommendations about such qualifications or business, as well as to provide a more orderly procedure for conducting meetings of stockholders. Our certificate of incorporation further provides that stockholders may not take action by written consent in lieu of a meeting. These provisions may discourage another person or entity from making a tender offer for our common stock, because such person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take action as a stockholder (such as electing new directors or approving a merger) only at a duly called stockholders’ meeting, and not by written consent. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws requires a greater percentage. Our certificate of incorporation requires the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class, to amend certain specified provisions of the certificate relating to our Board, limitation of liability, indemnification procedures, and amendments to our certificate of incorporation. Our certificate of incorporation permits our Board to amend or repeal our bylaws. Our bylaws generally can be amended or repealed by approval of at least 75% of the total number of authorized directors then in office. Additionally, our stockholders have the power to adopt, amend or repeal our bylaws, upon the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote on any matter. A director may be removed from office, but only for cause and at a meeting called for that purpose, by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class. In addition, our certificate of incorporation requires the favorable vote of a majority of our Board followed by the favorable vote of the holders of at least 75% of our outstanding shares of common stock, to approve, adopt or authorize certain transactions with 10% or greater holders of our outstanding common stock and their affiliates or associates, unless the transaction has been approved by at least 80% of our Board, in which case approval by “a majority of the outstanding voting securities” (as defined in the 1940 Act) will be required. For purposes of these provisions, a 10% or greater holder of our outstanding common stock, or a principal stockholder, refers to any person who, whether directly or indirectly and whether alone or together with its affiliates and associates, beneficially owns 10% or more of the outstanding shares of our common stock. The 10% holder transactions subject to these special approval requirements are:
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the merger or consolidation of us or any subsidiary of ours with or into any principal stockholder; |
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the issuance of any of our securities to any principal stockholder for cash, except pursuant to any automatic dividend reinvestment plan or the exercise of any preemptive rights granted in our certificate of incorporation (which are no longer applicable following our IPO) or pursuant to any subscription agreement by and among us, the Adviser and such principal stockholder entered into prior to our IPO; |
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the sale, lease or exchange of all or any substantial part of our assets to any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for the purpose of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period; and |
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the sale, lease or exchange to us or any subsidiary of ours, in exchange for our securities, of any assets of any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for purposes of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period. | To convert us to an open-end investment company, to merge or consolidate us with any entity in a transaction as a result of which the governing documents of the surviving entity do not contain substantially the same anti-takeover provisions as are provided in our certificate of incorporation, to liquidate and dissolve us or to amend any of the provisions discussed herein, our certificate of incorporation requires the favorable vote of at least 80% of the holders of our common stock then outstanding, or the approval of a majority of the continuing directors and at least 75% of the holders of our capital stock then outstanding entitled to vote in the election of directors, voting together as a single class. If approved in the foregoing manner, our conversion to an open-end investment company could not occur until 90 days after the stockholders’ meeting at which the conversion was approved and would also require at least 30 days’ prior notice to all stockholders. As part of the conversion to an open-end investment company, substantially all of our investment policies and strategies and portfolio would have to be modified to assure the degree of portfolio liquidity required for open-end investment companies. In the event of conversion, the common shares would cease to be listed on any national securities exchange or market system. Stockholders of an open-end investment company may require the company to redeem their shares at any time, except in certain circumstances as authorized by or under the 1940 Act, at their net asset value, less such redemption charge, if any, as might be in effect at the time of a redemption. You should assume that it is not likely that our Board would vote to convert us to an open-end fund. The 1940 Act defines “a majority of the outstanding voting securities” as the lesser of:
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67% or more of the company’s voting stock present at a meeting if more than 50% of the outstanding voting securities of the company are present or represented by proxy; and |
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more than 50% of the outstanding voting securities of the company. | For the purposes of calculating “a majority of the outstanding voting securities” under our certificate of incorporation, each class and series of our shares will vote together as a single class, except to the extent required by the 1940 Act or our certificate of incorporation, with respect to any class or series of shares. If a separate class vote is required, the applicable proportion of shares of the class or series, voting as a separate class or series, also will be required. Our Board has determined that provisions with respect to the Board and the stockholder voting requirements described above, which voting requirements are greater than the minimum requirements under Delaware law or the 1940 Act, are in the best interest of stockholders generally. DESCRIPTION OF OUR PREFERRED STOCK In addition to shares of common stock, we have 100,000,000 shares of preferred stock authorized under our certificate of incorporation, par value $0.01 per share, of which no shares are currently outstanding. If we offer preferred stock under this prospectus, we will issue an appropriate prospectus supplement. We may issue preferred stock from time to time in one or more classes or series, without stockholder approval. Prior to issuance of shares of each class or series, our Board is required by Delaware law and by our certificate of incorporation to set the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each class or series. Any such issuance must adhere to the requirements of the 1940 Act, Delaware law and any other limitations imposed by law. The Board has discretion to establish the number of shares to be included in each series and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other rights, if any, of the shares of each series, and any qualifications, limitations, or restrictions. The 1940 Act limits our flexibility as to certain rights and preferences of the preferred stock under our certificate of incorporation. In particular, every share of stock issued by a BDC must be voting stock and have equal voting rights with every other outstanding class of voting stock, except to the extent that the stock satisfies the requirements for being treated as a senior security, which requires, among other things, that:
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immediately after issuance and before any distribution is made with respect to common stock, we must meet a coverage ratio of total assets (less total liabilities other than indebtedness) to total indebtedness plus preferred stock, of at least 150%; and |
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the holders of shares of preferred stock must be entitled as a class to elect two directors at all times and to elect a majority of the directors if and for so long as dividends on the preferred stock are unpaid in an amount equal to two full years of dividends on the preferred stock. | For any series of preferred stock that we may issue, our Board will determine and the amendment to our certificate of incorporation and the prospectus supplement relating to such series will describe:
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the designation and number of shares of such series; |
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the rate and time at which, and the preferences and conditions under which, any dividends will be paid on shares of such series, as well as whether such dividends are participating or non-participating; |
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any provisions relating to convertibility or exchangeability of the shares of such series, including adjustments to the conversion price of such series; |
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the rights and preferences, if any, of holders of shares of such series upon our liquidation, dissolution or winding up of our affairs; |
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the voting powers, if any, of the holders of shares of such series; |
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any provisions relating to the redemption of the shares of such series; |
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any limitations on our ability to pay dividends or make distributions on, or acquire or redeem, other securities while shares of such series are outstanding; |
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any conditions or restrictions on our ability to issue additional shares of such series or other securities; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other relative powers, preferences and participating, optional or special rights of shares of such series, and the qualifications, limitations or restrictions thereof. | All shares of preferred stock that we may issue will be identical and of equal rank except as to the particular terms thereof that may be fixed by our Board. All shares of each series of preferred stock will differ only as to the dates from which dividends, if any, thereon will be cumulative. DESCRIPTION OF OUR SUBSCRIPTION RIGHTS We may issue subscription rights to our stockholders to purchase common stock. Subscription rights may be issued independently or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection with a subscription rights offering to our stockholders, we would distribute certificates evidencing the subscription rights and a prospectus supplement to our stockholders on the record date that we set for receiving subscription rights in such subscription rights offering. The applicable prospectus supplement would describe the following terms of subscription rights in respect of which this prospectus is being delivered:
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the period of time the offering would remain open (which shall be open a minimum number of days such that all record holders would be eligible to participate in the offering and shall not be open longer than 120 days); |
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the title of such subscription rights; |
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the exercise price for such subscription rights (or method of calculation thereof); |
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the ratio of the offering (which, in the case of transferable rights, will require a minimum of three shares to be held of record before a person is entitled to purchase an additional share); |
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the number of such subscription rights issued to each stockholder; |
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the extent to which such subscription rights are transferable and the market on which they may be traded if they are transferable; |
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if applicable, a discussion of certain U.S. federal income tax considerations applicable to the issuance or exercise of such subscription rights; |
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the date on which the right to exercise such subscription rights shall commence, and the date on which such right shall expire (subject to any extension); |
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the extent to which such subscription rights include an over-subscription privilege with respect to unsubscribed securities and the terms of such over-subscription privilege; |
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any termination right we may have in connection with such subscription rights offering; and |
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any other terms of such subscription rights, including exercise, settlement and other procedures and limitations relating to the transfer and exercise of such subscription rights. | Exercise of Subscription Rights Each subscription right would entitle the holder of the subscription right to purchase for cash such amount of shares of common stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the subscription rights offered thereby. Subscription rights may be exercised at any time up to the close of business on the expiration date for such subscription rights set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights would become void. Subscription rights may be exercised as set forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the subscription rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any other office indicated in the prospectus supplement we will forward, as soon as practicable, the shares of common stock purchasable upon such exercise. To the extent permissible under applicable law, we may determine to offer any unsubscribed offered securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, as set forth in the applicable prospectus supplement. Any stockholder who chooses not to participate in a rights offering should expect to own a smaller interest in us upon completion of such rights offering. Any rights offering will dilute the ownership interest and voting power of stockholders who do not fully exercise their subscription rights. Further, because the net proceeds per share from any rights offering may be lower than our then current net asset value per share, the rights offering may reduce our net asset value per share. The amount of dilution that a stockholder will experience could be substantial, particularly to the extent we engage in multiple rights offerings within a limited time period. In addition, the market price of our common stock could be adversely affected while a rights offering is ongoing as a result of the possibility that a significant number of additional shares may be issued upon completion of such rights offering. All of our stockholders will also indirectly bear the expenses associated with any rights offering we may conduct, regardless of whether they elect to exercise any rights. DESCRIPTION OF OUR WARRANTS The following is a general description of the terms of the warrants we may issue from time to time. Particular terms of any warrants we offer will be described in the prospectus supplement relating to such warrants. We may issue warrants to purchase shares of our common stock, preferred stock or debt securities. Such warrants may be issued independently or together with common stock, preferred stock or debt securities and may be attached or separate from such securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants. A prospectus supplement will describe the particular terms of any series of warrants we may issue, including the following:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which these shares may be purchased upon such exercise; |
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the date on which the right to exercise such warrants shall commence and the date on which such right will expire; |
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whether such warrants will be issued in registered form or bearer form; |
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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information with respect to book-entry procedures, if any; |
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the terms of the securities issuable upon exercise of the warrants; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. | We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants. Prior to exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including, in the case of warrants to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture or, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights. Under the 1940 Act, we may generally only offer warrants provided that (1) the warrants expire by their terms within ten years; (2) the exercise or conversion price is not less than the current market value at the date of issuance; (3) our stockholders authorize the proposal to issue such warrants, and our Board approves such issuance on the basis that the issuance is in the best interests of us and our stockholders; and (4) if the warrants are accompanied by other securities, the warrants are not separately transferable unless no class of such warrants and the securities accompanying them has been publicly distributed. The 1940 Act also provides that the amount of our voting securities that would result from the exercise of all outstanding warrants, as well as options and rights, at the time of issuance may not exceed 25% of our outstanding voting securities.
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| Long Term Debt [Table Text Block] |
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DESCRIPTION OF OUR DEBT SECURITIES We may issue debt securities in one or more series. The specific terms of each series of debt securities will be described in the particular prospectus supplement relating to that series. The prospectus supplement may or may not modify the general terms found in this prospectus and will be filed with the SEC. For a complete description of the terms of a particular series of debt securities, you should read both this prospectus and the prospectus supplement relating to that particular series. As required by federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an “indenture.” An indenture is a contract between us and a financial institution acting as trustee on your behalf, and is subject to and governed by the Trust Indenture Act of 1939, as amended. Certain of our debt securities have been issued under an indenture dated January 22, 2018 between us and Wells Fargo Bank, National Association. We also intend on issuing debt securities under an indenture to be entered into between us and U.S. Bank Trust Company, National Association. Subject to the provisions of the indenture, the trustee has two main roles. First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described in the second paragraph under “—Events of Default—Remedies If an Event of Default Occurs.” Second, the trustee performs certain administrative duties for us. Because this section is a summary, it does not describe every aspect of the debt securities and the indenture. We urge you to read the indenture because it, and not this description, defines your rights as a holder of debt securities. For example, in this section, we use capitalized words to signify terms that are specifically defined in the indenture. Some of the definitions are repeated in this prospectus, but for the rest you will need to read the indenture. We have filed indentures with the SEC. See “Available Information” for information on how to obtain a copy of the applicable indenture. The prospectus supplement, which will accompany this prospectus, will describe the particular series of debt securities being offered, including, among other things:
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the designation or title of the series of debt securities; |
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the total principal amount of the series of debt securities; |
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the percentage of the principal amount at which the series of debt securities will be offered; |
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the date or dates on which principal will be payable; |
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable; |
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whether any interest may be paid by issuing additional securities of the same series in lieu of cash (and the terms upon which any such interest may be paid by issuing additional securities); |
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the terms for redemption, extension or early repayment, if any; |
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the currencies in which the series of debt securities are issued and payable; |
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whether the amount of payments of principal, premium or interest, if any, on a series of debt securities will be determined with reference to an index, formula or other method (which could be based on one or more currencies, commodities, equity indices or other indices) and how these amounts will be determined; |
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the place or places, if any, other than or in addition to the Borough of Manhattan in the City of New York, of payment, transfer, conversion and/or exchange of the debt securities; |
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the denominations in which the offered debt securities will be issued (if other than $1,000 and any integral multiple thereof); |
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the provision for any sinking fund; |
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any restrictive covenants; |
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whether the series of debt securities is issuable in certificated form; |
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any provisions for defeasance or covenant defeasance; |
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any special federal income tax implications, including, if applicable, U.S. federal income tax considerations relating to original issue discount; |
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option); |
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
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whether the debt securities are subject to subordination and the terms of such subordination; |
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whether the debt securities are secured and the terms of any security interest; |
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the listing, if any, on a securities exchange; and |
The debt securities may be secured or unsecured obligations. Unless the prospectus supplement states otherwise, principal (and premium, if any) and interest, if any, will be paid by us in immediately available funds. We are permitted, under specified conditions, to issue multiple classes of indebtedness and one class of shares senior to our common stock if our asset coverage, calculated pursuant to the 1940 Act, is at least equal to 150% immediately after each such issuance. In addition, while any indebtedness and senior securities remain outstanding, we must make provisions to prohibit the distribution to our stockholders or the repurchase of such indebtedness or securities unless we meet the applicable asset coverage ratios at the time of the distribution or repurchase. Specifically, we may be precluded from declaring dividends or repurchasing shares of our common stock unless our asset coverage is at least 150%. We may also borrow amounts up to 5% of the value of our total assets for temporary or emergency purposes without regard to asset coverage. For a discussion of the risks associated with leverage, see “Risk Factors-Regulations governing our operation as a BDC affect our ability to, and the way in which we, raise additional capital” in Part II, Item 1A of our 3Q 2023 Quarterly Report.
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| Outstanding Securities [Table Text Block] |
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The following presents our outstanding classes of securities as of December 20, 2023:
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Amount Held
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Amount Outstanding
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Common Stock |
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400,000,000 |
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664,250 |
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87,578,655 |
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| Risks Related To Offerings Pursuant To This Prospectus [Member] |
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| General Description of Registrant [Abstract] |
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| Risk [Text Block] |
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Risks Related to Offerings Pursuant to This Prospectus We will have broad discretion over the use of proceeds of any offering made pursuant to this prospectus, to the extent it is successful. We will have significant flexibility in applying the proceeds of any offering made pursuant to this prospectus. For example, we may pay operating expenses from net proceeds, which could limit our ability to achieve our investment objective. The net asset value per share of our common stock may be diluted if we sell or otherwise issue shares of our common stock at prices below the then-current net asset value per share of our common stock. Pursuant to approval granted at a special meeting of stockholders held on May 25, 2023, we are currently permitted to sell or otherwise issue shares of our common stock at a price below our then-current net asset value per share, subject to the approval of our Board and certain other conditions. Such stockholder approval expires on May 25, 2024. We intend to propose the extension of this approval in future years. Any decision to sell or otherwise issue shares of our common stock below our then-current net asset value per share would be subject to the determination by our board of directors that such issuance or sale is in our and our stockholders’ best interests. If we were to sell or otherwise issue shares of our common stock below our then-current net asset value per share, such issuances or sales would result in an immediate dilution to the net asset value per share of our common stock. This dilution would occur as a result of the issuance or sale of shares at a price below the then-current net asset value per share of our common stock and a proportionately greater decrease in the stockholders’ interest in our earnings and assets and their voting interest in us than the increase in our assets resulting from such issuance or sale. Because the number of shares of common stock that could be so issued and the timing of any issuance is not currently known, the actual dilutive effect cannot be predicted. Further, if our current stockholders do not purchase any shares to maintain their percentage interest, regardless of whether such offering is above or below the then-current net asset value per share, their voting power will be diluted. For additional information and hypothetical examples of these risks, see “Sales of Common Stock Below Net Asset Value” and the prospectus supplement pursuant to which such sale is made. Your interest in us may be diluted if you do not fully exercise your subscription rights in any rights offering. In addition, if the subscription price is less than our net asset value per share, then you will experience an immediate dilution of the aggregate net asset value of your shares. In the event we issue subscription rights, stockholders who do not fully exercise their subscription rights should expect that they will, at the completion of a rights offering pursuant to this prospectus, own a smaller proportional interest in us than would otherwise be the case if they fully exercised their rights. We cannot state precisely the amount of any such dilution in share ownership because we do not know at this time what proportion of the shares will be purchased as a result of such rights offering. In addition, if the subscription price is less than the net asset value per share of our common stock, then our stockholders would experience an immediate dilution of the aggregate net asset value of their shares as a result of the offering. The amount of any decrease in net asset value is not predictable because it is not known at this time what the subscription price and net asset value per share will be on the expiration date of a rights offering or what proportion of the shares will be purchased as a result of such rights offering. Such dilution could be substantial. We may in the future determine to issue preferred stock, which could adversely affect the market value of our common stock and cause the net asset value and market value of our common stock to be more volatile. The issuance of shares of preferred stock with dividend or conversion rights, liquidation preferences or other economic terms favorable to the holders of preferred stock could adversely affect the market price for our common stock by making an investment in the common stock less attractive and could make the net asset value and market value of our common stock more volatile. Payment of dividends and repayment of the liquidation preference of preferred stock would take preference over any dividends or other payments to our common stockholders, and holders of preferred stock would not be subject to any of our expenses or losses and would not be entitled to participate in any income or appreciation in excess of their stated preference (other than convertible preferred stock that converts into common stock). If the dividend rate on the preferred stock were to approach the net rate of return on our investment portfolio, the benefit of leverage to the holders of the common stock would be reduced. If the dividend rate on the preferred stock were to exceed the net rate of return on our portfolio, the leverage would result in a lower rate of return to the holders of common stock than if we had not issued preferred stock. Any decline in the net asset value of our investments would be borne entirely by the holders of common stock. Therefore, if the market value of our portfolio were to decline, the leverage would result in a greater decrease in net asset value to the holders of common stock than if we were not leveraged through the issuance of preferred stock. This greater net asset value decrease would also tend to cause a greater decline in the market price for the common stock. We might be in danger of failing to maintain the required asset coverage of the preferred stock or of losing our ratings on the preferred stock or, in an extreme case, our current investment income might not be sufficient to meet the dividend requirements on the preferred stock. In order to counteract such an event, we might need to liquidate investments in order to fund a redemption of some or all of the preferred stock. In addition, under the 1940 Act, preferred stock constitutes a “senior security” for purposes of the asset coverage test. Holders of any preferred stock we might issue would have the right to elect members of the board of directors and class voting rights on certain matters. Holders of any preferred stock we might issue, voting separately as a single class, would have the right to elect two members of the Board at all times and in the event dividends become two full years in arrears would have the right to elect a majority of the directors until such arrearage is completely eliminated. In addition, preferred stockholders may have class voting rights on certain matters, including changes in fundamental investment restrictions and conversion to open-end status, and, accordingly, could veto any such changes. Restrictions imposed on the declarations and payment of dividends or other distributions to the holders of our common stock and preferred stock, both by the 1940 Act and by requirements imposed by rating agencies or the terms of our credit facilities, might impair our ability to maintain our qualification as a RIC for federal income tax purposes. While we would intend to redeem our preferred stock to the extent necessary to enable us to distribute our income as required to maintain our qualification as a RIC, there can be no assurance that such actions could be effected in time to meet the tax requirements.
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| Business Contact [Member] |
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| Cover [Abstract] |
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| Entity Address, Address Line One |
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345 California Street, Suite 3300
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| Entity Address, City or Town |
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San Francisco
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| Entity Address, State or Province |
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CA
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| Entity Address, Postal Zip Code |
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94104
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| Contact Personnel Name |
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Joshua Peck
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| Common Stock [Member] |
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| Other Annual Expenses [Abstract] |
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| Basis of Transaction Fees, Note [Text Block] |
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as a percentage of net assets attributable to common stock
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| Capital Stock, Long-Term Debt, and Other Securities [Abstract] |
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| Security Dividends [Text Block] |
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Holders of common stock are entitled to receive proportionately any dividends declared by our Board, subject to any preferential dividend rights of outstanding preferred stock.
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| Security Voting Rights [Text Block] |
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Under the terms of our certificate of incorporation, holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders, and holders of common stock do not have cumulative voting rights.
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| Security Liquidation Rights [Text Block] |
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Upon our liquidation, dissolution or winding up, the holders of common stock will be entitled to receive ratably our net assets available after the payment of all debts and other liabilities and will be subject to the prior rights of any outstanding preferred stock.
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| Security Liabilities [Text Block] |
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Limitation on Liability of Directors and Officers; Indemnification and Advance of Expenses Our certification of incorporation limits our directors’ liability to the fullest extent permitted under Delaware corporate law and the 1940 Act. Specifically, our directors will not be personally liable to us or our stockholders for any breach of fiduciary duty as a director, except for any liability:
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for acts or omissions not in good faith or which involve willful misconduct, gross negligence, bad faith, reckless disregard or a knowing violation of law, |
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under Section 174 of the DGCL, which relates to unlawful payment of dividends or unlawful stock purchases or redemptions, or |
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for any transaction from which the director derived an improper personal benefit. | If the DGCL is amended to permit further elimination or limitation of the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL. So long as we are registered or regulated under the 1940 Act, any limitation of liability of our directors and officers as described above is limited to the extent prohibited by the 1940 Act or by any valid rule, regulation or order of the SEC. Section 145 of the DGCL allows for the indemnification of officers, directors, and any corporate agents in terms sufficiently broad to indemnify such person under certain circumstances for liabilities, including reimbursement for expenses, incurred arising under the Securities Act. Our certificate of incorporation and bylaws provide that we will indemnify our directors and officers to the fullest extent authorized or permitted by law and this right to indemnification will continue as to a person who has ceased to be a director or officer and will inure to the benefit of his or her heirs, executors and personal and legal representatives; however, for proceedings to enforce rights to indemnification, we are not obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless that proceeding (or part thereof) was authorized or consented to by the Board. The right to indemnification includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. Our obligation to provide indemnification and advancement of expenses is subject to the requirements of the 1940 Act and Investment Company Act Release No. 11330, which, among other things, preclude indemnification for any liability (whether or not there is an adjudication of liability or the matter has been settled) arising by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties, and require reasonable and fair means for determining whether indemnification will be made. In addition, we have entered into indemnification agreements with our directors and officers that provide for a contractual right to indemnification to the fullest extent permitted by the DGCL. A form of the indemnification agreement has been filed as an exhibit to the registration statement of which this prospectus is a part. We may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers. The rights to indemnification and to the advancement of expenses are subject to the requirements of the 1940 Act to the extent applicable. Any repeal or modification of our certificate of incorporation by our stockholders will not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer existing at the time of the repeal or modification with respect to any acts or omissions occurring prior to the repeal or modification. Under the Investment Advisory Agreement, we have, to the extent permitted by applicable law, indemnified the Adviser and certain of its affiliates, as described under “Management Agreements-Indemnification” in Part I, Item 1 of our 2022 Annual Report. The following summary outlines certain provisions of Delaware law and our certificate of incorporation regarding anti-takeover provisions. These provisions could have the effect of limiting the ability of other entities or persons to acquire control of us by means of a tender offer, proxy contest or otherwise, or to change the composition of our Board. These provisions are expected to discourage certain coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to negotiate first with our Board. These measures, however, may delay, defer or prevent a transaction or a change in control that might otherwise be in the best interests of our stockholders and could have the effect of depriving stockholders of an opportunity to sell their shares at a premium over prevailing market prices. These attempts could also have the effect of increasing our expenses and disrupting our normal operation. We believe, however, that the benefits of these provisions outweigh the potential disadvantages of discouraging acquisition proposals because the negotiation of the proposals may improve their terms. We are subject to the provisions of Section 203 of the DGCL. In general, the statute prohibits a publicly held Delaware corporation from engaging in a “business combination” with “interested stockholders” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes certain mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to exceptions (including an exception for our Adviser and certain of its affiliates), an “interested stockholder” with which business combinations may be restricted is a person that, together with its affiliates and associates, owns, or is an affiliate or associate of the corporation and within the prior three years did own, 15% or more of the corporation’s voting stock. Our certificate of incorporation and bylaws provide that:
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the Board be divided into three classes, as nearly equal in size as possible, with staggered three-year terms (and the number of directors shall not be fewer than four or greater than nine); |
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directors may be removed only for cause by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class; and |
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subject to the rights of any holders of preferred stock, any vacancy on the Board, however the vacancy occurs, including a vacancy due to an enlargement of the Board, may only be filled by vote of a majority of the directors then in office. | The classification of our Board and the limitations on removal of directors and filling of vacancies could have the effect of making it more difficult for a third party to acquire us, or of discouraging a third party from acquiring us. We believe, however, that the longer time required to elect a majority of a classified board of directors helps to ensure the continuity and stability of our management and policies. Our bylaws also provide that:
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any action required or permitted to be taken by the stockholders at an annual meeting or special meeting of stockholders may only be taken if it is properly brought before such meeting; and |
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special meetings of the stockholders may only be called by our Board, Chairman, or a Chief Executive Officer. | Our bylaws provide that for nominations and any other matters to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding advance notice to us. The purpose of requiring stockholders to give us advance notice of nominations and other business is to afford our Nominating and Corporate Governance Committee a meaningful opportunity to consider the qualifications of the proposed nominees and the advisability of any other proposed business and, to the extent deemed necessary or desirable by our Board, to inform stockholders and make recommendations about such qualifications or business, as well as to provide a more orderly procedure for conducting meetings of stockholders. Our certificate of incorporation further provides that stockholders may not take action by written consent in lieu of a meeting. These provisions may discourage another person or entity from making a tender offer for our common stock, because such person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take action as a stockholder (such as electing new directors or approving a merger) only at a duly called stockholders’ meeting, and not by written consent. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws requires a greater percentage. Our certificate of incorporation requires the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class, to amend certain specified provisions of the certificate relating to our Board, limitation of liability, indemnification procedures, and amendments to our certificate of incorporation. Our certificate of incorporation permits our Board to amend or repeal our bylaws. Our bylaws generally can be amended or repealed by approval of at least 75% of the total number of authorized directors then in office. Additionally, our stockholders have the power to adopt, amend or repeal our bylaws, upon the affirmative vote of at least 75% of the holders of our capital stock then outstanding and entitled to vote on any matter. A director may be removed from office, but only for cause and at a meeting called for that purpose, by the affirmative vote of 75% of the holders of our capital stock then outstanding and entitled to vote in the election of directors, voting together as a single class. In addition, our certificate of incorporation requires the favorable vote of a majority of our Board followed by the favorable vote of the holders of at least 75% of our outstanding shares of common stock, to approve, adopt or authorize certain transactions with 10% or greater holders of our outstanding common stock and their affiliates or associates, unless the transaction has been approved by at least 80% of our Board, in which case approval by “a majority of the outstanding voting securities” (as defined in the 1940 Act) will be required. For purposes of these provisions, a 10% or greater holder of our outstanding common stock, or a principal stockholder, refers to any person who, whether directly or indirectly and whether alone or together with its affiliates and associates, beneficially owns 10% or more of the outstanding shares of our common stock. The 10% holder transactions subject to these special approval requirements are:
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the merger or consolidation of us or any subsidiary of ours with or into any principal stockholder; |
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the issuance of any of our securities to any principal stockholder for cash, except pursuant to any automatic dividend reinvestment plan or the exercise of any preemptive rights granted in our certificate of incorporation (which are no longer applicable following our IPO) or pursuant to any subscription agreement by and among us, the Adviser and such principal stockholder entered into prior to our IPO; |
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the sale, lease or exchange of all or any substantial part of our assets to any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for the purpose of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period; and |
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the sale, lease or exchange to us or any subsidiary of ours, in exchange for our securities, of any assets of any principal stockholder, except assets having an aggregate fair market value of less than 5% of our total assets, aggregating for purposes of this computation all assets sold, leased or exchanged in any series of similar transactions within a twelve-month period. | To convert us to an open-end investment company, to merge or consolidate us with any entity in a transaction as a result of which the governing documents of the surviving entity do not contain substantially the same anti-takeover provisions as are provided in our certificate of incorporation, to liquidate and dissolve us or to amend any of the provisions discussed herein, our certificate of incorporation requires the favorable vote of at least 80% of the holders of our common stock then outstanding, or the approval of a majority of the continuing directors and at least 75% of the holders of our capital stock then outstanding entitled to vote in the election of directors, voting together as a single class. If approved in the foregoing manner, our conversion to an open-end investment company could not occur until 90 days after the stockholders’ meeting at which the conversion was approved and would also require at least 30 days’ prior notice to all stockholders. As part of the conversion to an open-end investment company, substantially all of our investment policies and strategies and portfolio would have to be modified to assure the degree of portfolio liquidity required for open-end investment companies. In the event of conversion, the common shares would cease to be listed on any national securities exchange or market system. Stockholders of an open-end investment company may require the company to redeem their shares at any time, except in certain circumstances as authorized by or under the 1940 Act, at their net asset value, less such redemption charge, if any, as might be in effect at the time of a redemption. You should assume that it is not likely that our Board would vote to convert us to an open-end fund. The 1940 Act defines “a majority of the outstanding voting securities” as the lesser of:
| |
• |
|
67% or more of the company’s voting stock present at a meeting if more than 50% of the outstanding voting securities of the company are present or represented by proxy; and |
| |
• |
|
more than 50% of the outstanding voting securities of the company. | For the purposes of calculating “a majority of the outstanding voting securities” under our certificate of incorporation, each class and series of our shares will vote together as a single class, except to the extent required by the 1940 Act or our certificate of incorporation, with respect to any class or series of shares. If a separate class vote is required, the applicable proportion of shares of the class or series, voting as a separate class or series, also will be required. Our Board has determined that provisions with respect to the Board and the stockholder voting requirements described above, which voting requirements are greater than the minimum requirements under Delaware law or the 1940 Act, are in the best interest of stockholders generally.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Outstanding Security, Title [Text Block] |
|
Common Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Outstanding Security, Authorized [Shares] |
|
400,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Outstanding Security, Held [Shares] |
|
664,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Outstanding Security, Not Held [Shares] |
|
87,578,655
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Revolving Credit Facilities [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 758,200,000
|
|
|
$ 719,300,000
|
|
|
|
$ 316,400,000
|
|
|
|
$ 758,200,000
|
$ 719,300,000
|
$ 316,400,000
|
$ 472,300,000
|
$ 495,700,000
|
$ 187,500,000
|
$ 486,800,000
|
$ 578,700,000
|
$ 540,300,000
|
$ 283,900,000
|
$ 432,300,000
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 1,872.8
|
|
|
$ 1,885.7
|
|
|
|
$ 2,053.6
|
|
|
|
$ 1,872.8
|
$ 1,885.7
|
$ 2,053.6
|
$ 2,045.4
|
$ 2,004.1
|
$ 2,705.2
|
$ 2,355.3
|
$ 2,376.6
|
$ 2,257.3
|
$ 3,110.3
|
$ 2,329.5
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Convertible Senior Notes due 2019 [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
$ 0
|
$ 0
|
$ 0
|
$ 0
|
$ 0
|
$ 114,300,000
|
$ 113,700,000
|
$ 113,100,000
|
$ 112,500,000
|
$ 111,900,000
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
$ 0
|
$ 0
|
$ 0
|
$ 0
|
$ 0
|
$ 2,705.2
|
$ 2,355.3
|
$ 2,376.6
|
$ 2,257.3
|
$ 3,110.3
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Convertible Senior Notes due 2022 [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 100,000,000
|
|
|
|
$ 0
|
$ 0
|
$ 100,000,000
|
$ 142,500,000
|
$ 171,900,000
|
$ 171,700,000
|
$ 114,700,000
|
|
|
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 2,053.6
|
|
|
|
$ 0
|
$ 0
|
$ 2,053.6
|
$ 2,045.4
|
$ 2,004.1
|
$ 2,705.2
|
$ 2,355.3
|
|
|
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
0
|
0
|
$ 0
|
$ 0
|
|
|
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 2023 Notes [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 0
|
|
|
$ 150,000,000
|
|
|
|
$ 150,000,000
|
|
|
|
$ 0
|
$ 150,000,000
|
$ 150,000,000
|
$ 150,000,000
|
$ 150,000,000
|
$ 150,000,000
|
|
|
|
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 0
|
|
|
$ 1,885.7
|
|
|
|
$ 2,053.6
|
|
|
|
$ 0
|
$ 1,885.7
|
$ 2,053.6
|
$ 2,045.4
|
$ 2,004.1
|
$ 2,705.2
|
|
|
|
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
0
|
0
|
$ 0
|
|
|
|
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 2024 Notes [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 347,100,000
|
|
|
$ 346,800,000
|
|
|
|
$ 346,400,000
|
|
|
|
$ 347,100,000
|
$ 346,800,000
|
$ 346,400,000
|
$ 346,100,000
|
$ 297,200,000
|
|
|
|
|
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 1,872.8
|
|
|
$ 1,885.7
|
|
|
|
$ 2,053.6
|
|
|
|
$ 1,872.8
|
$ 1,885.7
|
$ 2,053.6
|
$ 2,045.4
|
$ 2,004.1
|
|
|
|
|
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
0
|
0
|
|
|
|
|
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 2026 Notes [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 298,800,000
|
|
|
$ 298,500,000
|
|
|
|
$ 298,100,000
|
|
|
|
$ 298,800,000
|
$ 298,500,000
|
$ 298,100,000
|
|
|
|
|
|
|
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 1,872.8
|
|
|
$ 1,885.7
|
|
|
|
$ 2,053.6
|
|
|
|
$ 1,872.8
|
$ 1,885.7
|
$ 2,053.6
|
|
|
|
|
|
|
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
$ 0
|
|
|
|
$ 0
|
|
|
|
0
|
0
|
0
|
|
|
|
|
|
|
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 2028 Notes [Member] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Financial Highlights [Abstract] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Amount |
[12] |
|
|
|
$ 298,200,000
|
|
|
|
|
|
|
|
|
|
|
$ 298,200,000
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Coverage per Unit |
|
|
|
|
$ 1,872.8
|
|
|
|
|
|
|
|
|
|
|
$ 1,872.8
|
|
|
|
|
|
|
|
|
|
|
| Preferred Stock Liquidating Preference |
|
|
|
|
$ 0
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
| Senior Securities Average Market Value per Unit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| X |
- ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef
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-Name Form N-2
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