Exhibit (h)
Pershing Square USA, Ltd.
[ ] Common Shares of Beneficial Interest
No Par Value Per Share
UNDERWRITING AGREEMENT
[ ], 2026
1. | Sale and Purchase. Upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, and in connection with, and conditioned upon, the purchase by the Underwriters and delivery by PSI of the PSI Shares pursuant to the PSI Underwriting Agreement, the Company agrees to sell to the Selling Shareholder for resale to the Underwriters, the Selling Shareholder agrees to resell to the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Selling Shareholder the aggregate number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto in each case at a purchase price of $[ ] per Share (the “Purchase Price”). The Company and the Selling Shareholder are advised that the Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares as soon after the Effective Time as is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. |
2. | Payment and Delivery. Payment of the Purchase Price for the Firm Shares shall be made by the Underwriters to the Selling Shareholder (which may direct such payment to the Company) by Federal Funds wire transfer, against delivery of the Firm Shares to the Managing Representatives through the facilities of the Depository Trust Company for the respective accounts of the Underwriters. Such payment and delivery shall be made at a time mutually agreed upon by the parties on the business day following the date of this Underwriting Agreement (unless another date shall be agreed to by the Company, the Selling Shareholder and the Managing Representatives on behalf of the Underwriters). The time at which such payment and delivery are actually made is hereinafter sometimes called the “Firm Shares Closing Time.” The Firm Shares will not be certificated. |
3. | Representations and Warranties of the Company, the Manager and the Selling Shareholder. The Company represents and warrants, the Manager represents and warrants and the Selling Shareholder represents and warrants, to each Underwriter as of the date of this Underwriting Agreement, as of the Applicable Time, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows: |
(a) | (i)(A) The Registration Statement has heretofore become effective under the Securities Act or, with respect to any Rule 462(b) Registration Statement, will be filed with the Commission and become effective under the Securities Act no later than 10:00 p.m., New York City time, on the date of this Underwriting Agreement; (B) no stop order of the Commission preventing or suspending the use of any preliminary prospectus, any Sales Materials or the Prospectus or the effectiveness of the Registration Statement has been issued, no revocation of registration has been issued and no proceedings for such purpose have been instituted, or to the Company’s, the Manager’s or the Selling Shareholder’s knowledge are contemplated, by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; |
(b) | Each Issuer Free Writing Prospectus complies in all material respects with the Securities Act, including the requirements of Rule 433, and the Investment Company Act and has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration Statement or the Prospectus, and any preliminary prospectus or other prospectus deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to any statements contained in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing by or on behalf of any Underwriter through the Managing Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Underwriters through the Managing Representatives consists of the information described as such in Section 10(f) hereof. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities. |
(c) | Other than the Registration Statement, any preliminary prospectus and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 of the Securities Act Regulations, (ii) the documents listed on Schedule G hereto, each electronic road show and any other written communications approved in writing in advance by the Managing Representatives or (ii) the Sales Material listed on Schedule F hereto. |
(d) | The Company (i) has not alone engaged in any Testing-the-Waters Communications other than Testing-the-Waters Communications with the consent of the Managing Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A of the Securities Act Regulations or institutions that are accredited investors within the meaning of Rule 501 of the Securities Act Regulations and (ii) except as disclosed to the Managing Representatives and in accordance with the procedures agreed among PSI and the Managing Representatives, has not authorized anyone other than the Underwriters to engage in Testing-the-Waters Communications on its behalf. The Company reconfirms that the Underwriters have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed or approved for distribution any Written Testing-the-Waters Communication except as set forth on Schedule H hereto. Any individual Written Testing-The-Waters-Communication does not conflict with the information contained in the Registration Statement or the General Disclosure Package and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
(e) | At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer. |
(f) | The Company (i) has been duly organized and is validly existing as a statutory trust in good standing under the laws of the State of Delaware; (ii) has full power and authority to conduct all the activities conducted by it, to own or lease all properties and assets owned or leased by it and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; and (iii) is duly licensed and qualified to do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, except where the failure to be so licensed or qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on (A) the business, financial condition or results of operation, or prospects of the Company or (B) the ability of the Company to consummate the offering or any transaction contemplated by this Underwriting Agreement, the Registration Statement, the General Disclosure Package and the Prospectus ((A) and (B) a “Company Material Adverse Effect”). |
(g) | Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has no subsidiaries. |
(h) | The capitalization of the Company is as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. The Common Shares conform in all material respects to the description of them in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. All the issued and outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. No holder of Shares will be subject to personal liability by reason of being such a holder. The Shares to be issued to the Selling Stockholder, delivered to the Underwriters by the Selling Stockholder and paid for by the Underwriters in accordance with this Underwriting Agreement have been duly authorized and when delivered to the Underwriters will have been validly issued, fully paid and nonassessable, and the issuance of the Shares is not subject to the preemptive or other similar rights of any securityholder of the Company. |
(i) | The Private Placement Shares to be issued to the Selling Shareholder and delivered to the purchasers thereof by the Selling Shareholder pursuant to the Private Placement Agreements have been duly authorized and when delivered to the purchasers of the Private Placement Shares will have been validly issued, fully paid and nonassessable (except as described in the Registration Statement, the General Disclosure Package and the Prospectus). The offer, issuance, sale and delivery of the Private Placement Shares pursuant to the Private Placement Agreements does not require registration under the Securities Act, and such offer, issuance, sale and delivery does not violate any provision of the Investment Company Act. The issuance of the Private Placement Shares pursuant to the Private Placement Agreements is not subject to the preemptive or other similar rights of any securityholder of the Company. |
(j) | The preferred shares, no par value per share, liquidation preference $50.00 per share, designated as the Company’s 7.50% Series A Cumulative Preferred Shares (the “Preferred Shares”) to be issued pursuant to the Preferred Shares Subscription Agreement have been duly authorized and when issued and delivered pursuant to the Preferred Shares Subscription Agreement will have been validly issued, fully paid and nonassessable. The Preferred Shares conform in all material respects to the description of them in the Registration Statement, the General Disclosure Package and the Prospectus. The issuance of the Preferred Shares pursuant to the Preferred Shares Subscription Agreement has been done in compliance with all applicable federal and state securities laws. The offer, issuance, sale and delivery of the Preferred Shares pursuant to the Preferred Shares Subscription Agreement does not require registration under the Securities Act, and such offer, issuance, sale and delivery does not violate any provision of the Investment Company Act. The issuance of the Preferred Shares pursuant to the Preferred Shares Subscription Agreement is not subject to the preemptive or other similar rights of any securityholder of the Company. |
(k) | The Company is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any final amendment to the Registration Statement (a “Final Amendment”), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Shares as provided in this Underwriting Agreement has or will have been taken by the Company; the provisions of the Company’s Agreement and Declaration of Trust (as amended, supplemented or restated, including by the Statement of Preferences in respect of the Preferred Shares, through the date hereof, the “Declaration of Trust”) and bylaws (as amended or restated through the date hereof, the “Bylaws”) comply in all material respects with the applicable requirements of the Investment Company Act. |
(l) | The Company has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement, the Custody Agreement, the Transfer Agency Agreement, the Administration Agreement, the Initial Subscription Agreements, the Preferred Shares Subscription Agreement, the Offering Subscription Agreement, the Private Placement Agreements and the Registration Rights Agreement (collectively, the “Company Agreements”) and the Dividend Reinvestment Plan and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Company Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company and the Dividend Reinvestment Plan has been duly and validly authorized by the Company, (ii) each Company Agreement and the Dividend Reinvestment Plan complies in all material respects with the applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Company Agreement constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by U.S. bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as enforcement of rights to indemnity thereunder may be limited by federal or state securities laws. |
(m) | There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the Securities Act pursuant to this Underwriting Agreement, other than those rights that have been |
(n) | None of (i) the execution, delivery and performance by the Company of the Company Agreements and the performance by the Company of the Dividend Reinvestment Plan, (ii) the issuance and sale by the Company of the Shares as contemplated by the Offering Subscription Agreement and by the Selling Shareholder as contemplated by this Underwriting Agreement, the Registration Statement, the General Disclosure Package, the Prospectus, (iii) the issuance and sale by the Company of the Preferred Shares as contemplated by the Preferred Shares Subscription Agreement, (iv) the issuance and sale by the Company of the Private Placement Shares as contemplated by the Private Placement Agreements, and (v) the performance by the Company of its obligations under any of the Company Agreements or the Dividend Reinvestment Plan or the consummation by the Company of the other transactions contemplated by the Company Agreements or the Dividend Reinvestment Plan (A) conflicts with or will conflict with, or results in or will result in a breach or violation of the Declaration of Trust or the Bylaws of the Company, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or results in or will result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company, under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other agreement or instrument to which the Company is a party or by which the Company may be bound or to which any property or assets of the Company is subject or (C) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Company, other than state securities or “blue sky” laws applicable in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement, except with respect to clauses (B) and (C), to the extent that any such breach, violation or contravention would not, singly or in the aggregate, be reasonably expected to have a Company Material Adverse Effect. |
(o) | The Company’s board of trustees and the Company’s sole shareholder has approved the Investment Management Agreement in accordance with Section 15 of the Investment Company Act. |
(p) | The Company is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breach or default which would not, singly or in the aggregate, be reasonably expected to have a Company Material Adverse Effect. |
(q) | There are no restrictions, limitations or regulations with respect to the ability of the Company to invest its assets as described in the Registration Statement, the General Disclosure Package and the Prospectus, other than as described therein, and the use of the proceeds and any transactions intended to effectuate the investment of the proceeds described in the Registration Statement, the General Disclosure Package and the Prospectus comply in all material respects with the requirements of the Investment Company Act. |
(r) | No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Company for the performance by the Company of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Company Agreements, the Dividend Reinvestment Plan, the Registration Statement, the General Disclosure Package or the Prospectus, except such as (i) have been obtained and such as may be required (and shall be obtained prior to the commencement of the transactions contemplated by this Underwriting Agreement) under the Securities Act, the Exchange Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the NYSE, FINRA or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. |
(s) | Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, no transaction has occurred between or among the Company and any of its officers or trustees, shareholders or affiliates or any affiliate or affiliates of any such officer or trustee or shareholder or affiliate that is required to be described in the Registration Statement, the General Disclosure Package and the Prospectus. |
(t) | Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any employee or agent of the Company has made any payment of funds of the Company or received or retained any funds, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus. |
(u) | The Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE and the Notification remains in effect. |
(v) | Ernst & Young LLP who have certified certain financial statements of the Company and delivered their report with respect to the audited financial statements and schedules included in the General Disclosure Package and the Prospectus, are independent public accountants with respect to the Company within the meaning of the Securities Act, the Securities Act Regulations and the Public Company Accounting Oversight Board |
(w) | The statement of assets and liabilities, together with any related notes or schedules thereto, included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus presents fairly in all material respects the financial position of the Company as of the dates or for the periods indicated and have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. |
(x) | Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business, prospects, management, properties, net assets or results of operations of the Company, whether or not arising in the ordinary course of business, (ii) the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions other than those in the ordinary course of its business or incident to its organization; (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of the Company’s capital shares; and (iv) the Company has not incurred any long-term debt. |
(y) | Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Company or to which the Company is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending, or, to the knowledge of the Company, the Manager or the Selling Shareholder, threatened against the Company which, in each case, might reasonably be expected to have a Company Material Adverse Effect. |
(z) | There are no contracts, franchises or other documents that are of a character required to be described in the Registration Statement or Prospectus, or that are required to be filed as exhibits to the Registration Statement, which are not described or filed as required (and the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time contains in all material respects the same description of the foregoing matters contained in the Prospectus); and the statements in the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the Prospectus under the heading “Certain U.S. Federal Income Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings. |
(aa) | The Company possesses such permits, licenses, approvals, consents and other authorizations issued by the appropriate Governmental Entities (collectively, “Governmental Licenses”) necessary to conduct the business now operated by it, except where the failure so to possess would not, singly or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. The Company is in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would |
(bb) | Except for stabilization transactions conducted by the Underwriters, and except for the issuance or purchase of Shares pursuant to the Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Company as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not taken and will not take, directly or indirectly, any action designed or which might be expected to cause or result in, or which will constitute, the unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares in violation of applicable federal securities laws. |
(cc) | There are no Sales Materials other than as set forth on Schedule F hereto. Each Sales Material complies in all material respects with the Securities Act (including, without limitation, Rule 482 of the Securities Act Regulations), the Investment Company Act and the applicable rules and interpretations of the FINRA, has been or will be (within the time period specified in Rule 497 of the Securities Act Regulations) filed in accordance with the Rule 482 of the Securities Act Regulations (to the extent required thereby) and does not conflict with the information contained in the Registration Statement or the General Disclosure Package. Each Sales Material did not, and as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
(dd) | No person is serving or acting as an officer, trustee or investment adviser of the Company except in accordance with the provisions of the Investment Company Act. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus (or any amendment or supplement to any of them), no trustee of the Company is (i) an “interested person” (as defined in the Investment Company Act) of the Company or (ii) an “affiliated person” (as defined in the Investment Company Act) of any Underwriter listed in Schedule A hereto. For purposes of this Section 3(z), the Company and the Manager shall be entitled to rely on the representations from such officers and trustees. |
(ee) | There are no transfer taxes or other similar fees or charges under federal laws or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Underwriting Agreement or the issuance by the Company or sale by the Company of the Shares. |
(ff) | The Company has (i) appointed a Chief Compliance Officer and (ii) adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1 under the Investment Company Act) by the Company, including policies and procedures that provide oversight of compliance for the investment adviser, administrator and transfer agent of the Company. |
(gg) | Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or as would not, singly or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect, all United States federal income tax returns of the Company required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The United States federal income tax returns of the Company through the fiscal year ended December 31, 20[24] have been settled and no assessment in connection therewith has been made against the Company. The Company has filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would not reasonably be expected to result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals and reserves on the books of the |
(hh) | Any statistical, demographic or market-related data included in the Registration Statement, the General Disclosure Package, the Prospectus, any Sales Materials, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication are based on or derived from sources that the Company, the Manager and the Selling Shareholder believe to be reliable and accurate in all material respects, all such data included in the Registration Statement, the General Disclosure Package, the Prospectus, any Sales Materials, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication accurately reflects in all material respects the materials upon which it is based or from which it was derived, and, to the extent required, the Company has obtained the written consent to the use of such data from such sources. |
(ii) | Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged; all policies of insurance insuring the Company or its business, assets, employees, officers and trustees, including the Company’s trustees and officers errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 of the Investment Company Act, are in full force and effect; the Company is in compliance with the terms of such policies, instruments and fidelity bond in all material respects; and there are no claims by the Company under any such policies, instruments or fidelity bond as to which any insurance company is denying liability or defending under a reservation of rights clause; the Company has not been refused any insurance coverage sought or applied for; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage and fidelity bond as and when such coverage and fidelity bond expires or to obtain similar coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Company Material Adverse Effect. |
(jj) | Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company owns or possesses, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems, or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) used in the Company’s business, except where any failure to own or possess such Intellectual Property would not, singly or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and the Company has not received any written notice or is not otherwise aware of any claim of infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would reasonably be expected to result in a Company Material Adverse Effect. |
(kk) | The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Company; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. The Company employs “internal control over financial reporting” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such internal control over financial reporting is effective as required by the Investment Company Act. Since the Company’s inception, there has been |
(ll) | The Company has established and maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and its principal financial officer by others within the Company, and such disclosure controls and procedures are reasonably effective to perform the functions for which they were established. |
(mm) | The Company and its officers and trustees, in their capacities as such, are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder (the “Sarbanes-Oxley Act”). |
(nn) | The Company’s Board of Trustees has validly appointed an audit committee whose composition satisfies the requirements of Rules 303A.06 and 303A.07(a) of the NYSE Listed Company Manual and the Board of Trustees and/or the audit committee has adopted a charter that satisfies the requirements of Rule 303A.07(c) of the NYSE Listed Company Manual. |
(oo) | Neither the Company nor any trustee or officer of the Company nor, to the Company’s knowledge, any other person associated with or acting on behalf of the Company including, without limitation, any agent or employee of the Company, has in the last five years, directly or knowingly indirectly, while acting on behalf of the Company (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”), any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any other payment in violation of the FCPA or any other applicable anti-bribery or anti-corruption law. The Company has instituted maintains (or is subject to) and enforces, and will continue to maintain (or be subject to) and enforce policies and procedures reasonably designed to promote and ensure compliance with applicable anti-bribery and anti-corruption laws. |
(pp) | The operations of the Company are and have in the last five years been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and any other applicable provisions of statutes, rules and regulations related to the prevention of money laundering and terrorist financing, issued, administered or enforced by any governmental agency, as well as any guidelines issued by any governmental agency thereunder (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or the Manager, threatened. |
(qq) | In the last five years, the Company, and all of its trustees and officers, and, to the knowledge of the Company, employees and agents (in each case in their roles as such) have been in compliance with all applicable economic and financial sanctions and trade embargo laws and regulations including those administered, enacted or enforced by the United States, the United Nations Security Council, the European Union, any European Union member state, the United Kingdom, and any other government entity with jurisdiction over the Company(collectively, “Sanctions”). In the preceding five years, the Company has not conducted, directly or knowingly indirectly, any business (i) with or in any country or territory that is itself the subject or target of any Sanctions (at the time of this Agreement, Iran, Cuba, North Korea, and the Crimea, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic regions of Ukraine, and the non-government controlled oblasts of Zaporizhzhia and Kherson (each a “Sanctioned Jurisdiction”)); or (ii) with any person (individual, entity, or governmental body) subject to Sanctions, including any person (x) appearing on any Sanctions-related list of restricted parties; (y) any person |
(rr) | The Company’s information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company as currently conducted, in each case, to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants except, as would not reasonably be expected to, singly or in the aggregate, have a Company Material Adverse Effect. The Company implements and maintains commercially reasonable controls, policies, procedures, and technological safeguards designed to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and personal, personally identifiable, or regulated data comprising personal data (“Personal Data”) collected, used or otherwise processed by it or on its behalf in connection with their businesses, and, to the knowledge of the Company, except as disclosed in the Registration Statement, General Disclosure Package and Prospectus, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations relating to the same, in each case, except, as would not reasonably be expected to, singly or in the aggregate, have a Company Material Adverse Effect. The Company is presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, approved and released policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. |
(ss) | Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company as described in each of the Registration Statement, the General Disclosure Package and the Prospectus will violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal Reserve System. |
(tt) | There are (and prior to the Closing Time, will be) no debt securities, convertible securities or preference shares issued or guaranteed by the Company that are rated by a “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) under the Exchange Act. |
(uu) | The Company has obtained for the benefit of the Underwriters the agreement (a “Lock Up Agreement”) in the form of Schedule D hereto, of those individuals listed on Schedule E hereto. As of the date of this Underwriting Agreement, Schedule E contains a true, complete and correct list of all trustees, officers and holders of Common Shares or other common shares of beneficial interest of the Company, all holders of options, warrants, convertible debt securities, or other securities convertible into or exercisable or exchangeable as Common Shares or other common shares of beneficial interest of the Company. |
(vv) | All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its officers and trustees in connection with letters, filings or other supplemental information provided to FINRA pursuant to FINRA’s conduct rules is true, complete and correct in all material respects. |
4. | Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as of the date of this Underwriting Agreement, as of the Applicable Time, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows: |
(a) | The Manager (i) has been duly organized and is validly existing and in good standing as a limited partnership under the laws of the State of Delaware; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business and other activities conducted by it as described in the Registration Statement, the General Disclosure Package and the Prospectus; and (iii) is duly licensed and qualified to do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, except where the failure to be so licensed or qualified or to be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on (A) the Manager’s ability to provide services to the Company as contemplated by the Investment Management Agreement or (B) the ability of the Manager to fulfill its obligations under any Manager Agreement ((A) and (B) together, a “Manager Material Adverse Effect”). |
(a) | The Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser for the Company as contemplated by the Investment Management Agreement, the Registration Statement, the General Disclosure Package and the Prospectus. |
(b) | The Manager has the full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement, the Initial Subscription Agreement, the Preferred Shares Subscription Agreement and the Registration Rights Agreement (collectively, the “Manager Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Manager Agreement has been or will be duly and validly authorized, executed and delivered by the Manager; (ii) none of the Manager Agreements violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Manager Agreement constitutes a legal, valid and binding obligation of the Manager, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Manager’s obligations thereunder may be limited by U.S. bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as enforcement of rights to indemnity thereunder may be limited by federal or state securities laws. |
(c) | None of (i) the execution, delivery and performance by the Manager of the Manager Agreements, (ii) the issuance and sale by the Company of the Shares as contemplated by this Underwriting Agreement, the Registration Statement, the General Disclosure Package, the Prospectus and any of the Manager Agreements, (iii) the issuance and sale by the Company of the Preferred Shares as contemplated by the Preferred Shares Subscription Agreement and (iv) the performance by the Manager of its obligations under any of the Manager Agreements or performance and consummation by the Manager of the transactions contemplated by any such Manager Agreement (A) conflicts with or will conflict with, or results in or will result in a breach or violation of, the Certificate of Formation or the Limited Partnership Agreement or any agreement or instrument to which the Manager is a party or by which the Manager is bound, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Manager under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Manager is a party or by which it may be bound or to which any of the property or |
(d) | No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Manager for the consummation by the Manager of the transactions contemplated by the Manager Agreements or the performance by the Manager of all the terms and provisions to be performed by or on behalf of it as contemplated in the Manager Agreements, the Registration Statement, the General Disclosure Package or the Prospectus, except such as have been obtained and such as may be required (and shall be obtained prior to commencement of the transaction contemplated by this Underwriting Agreement) under the Securities Act, the Exchange Act, the Investment Company Act or the Advisers Act, and may be required by the NYSE, FINRA or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. |
(e) | The description of the Manager and its business and the statements attributed to the Manager in the Registration Statement, the General Disclosure Package and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the General Disclosure Package and the Prospectus in light of the circumstances under which they were made) not misleading. |
(f) | Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Manager or any of its subsidiaries or to which the Manager or any of its subsidiaries is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic now pending or, to the knowledge of the Manager, threatened against or affecting the Manager or any of its subsidiaries of a nature required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus and is not so disclosed as required or that could reasonably be expected to, if determined adversely, result in a Manager Material Adverse Effect. |
(g) | The Manager and its subsidiaries possess such Governmental Licenses necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect. The Manager and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect. Neither the Manager nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Manager Material Adverse Effect. |
(h) | Except for stabilization transactions conducted by the Underwriters, the Manager has not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in, or which will constitute, the unlawful stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the Shares in violation of applicable federal securities laws. |
(i) | The Manager has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Manager and its supervised persons. |
(j) | The Manager maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance |
(k) | None of the Manager, any of its subsidiaries, any member, manager, director, trustee, officer of the Manager nor, to the Manager’s knowledge, any other person associated with or acting on behalf of the Manager or any of its subsidiaries including, without limitation, any agent or employee of the Manager or any of its subsidiaries, has in the last five years, directly or knowingly indirectly, while acting on behalf of the Manager or any of its subsidiaries (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA, any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any other payment in violation of the FCPA or any other applicable anti-bribery or anti-corruption law. The Manager and each of its subsidiaries has instituted and maintains (or is subject to) and enforces, and will continue to maintain (or be subject to) and enforce policies and procedures reasonably designed to promote and ensure compliance with applicable anti-bribery and anti-corruption laws. |
(l) | The operations of the Manager and its subsidiaries are and have in the last five years been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Manager, threatened. |
(m) | In the last five years, the Manager, each of its subsidiaries, and all of their respective directors, and officers, and, to the knowledge of the Manager, employees and agents (in each case in their roles as such) have been in compliance with all applicable Sanctions. In the preceding five years, neither the Manager nor any of its subsidiaries has conducted, directly or knowingly indirectly, any business (i) with or in any country or territory that is itself the subject or target of any Sanctions; or (ii) with any person (individual, entity, or governmental body) subject to Sanctions, including any Sanctioned Person. Neither the Manager or any of its subsidiaries, nor any of their respective directors, officers, or, to the knowledge of the Manager, direct or indirect shareholders, employees or agents is a Sanctioned Person. The Manager and each of its subsidiaries have in place controls reasonably designed to ensure compliance with applicable Sanctions. Neither the Manager nor any of its subsidiaries has in the last five years (i) made any voluntary, directed or involuntary disclosure to any governmental body with respect to any alleged act or omission relating to any non-compliance with any Sanctions, (ii) been the subject of any actual or threatened investigation, inquiry or enforcement proceeding for a violation of Sanctions, or (iii) received any notice, request, penalty, or citation from a governmental authority for any actual or potential non-compliance with Sanctions. Neither the Manager nor any of its subsidiaries will directly or indirectly use the proceeds of the transactions contemplated by this Underwriting Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with or involving any Sanctioned Person in violation of Sanctions, (ii) to fund or facilitate any activities of or business in or involving any Sanctioned Jurisdiction in violation of Sanctions or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. |
(n) | The Manager and its subsidiaries’ IT Systems are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Manager and its subsidiaries as currently conducted, in each case, to the knowledge of the Manager, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, except as would not reasonably be expected, singly or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. The Manager and its subsidiaries implement and maintain commercially reasonable controls, |
5. | Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to each Underwriter as of the date of this Underwriting Agreement, as of the Applicable Time, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows: |
(a) | The Selling Shareholder (i) has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Nevada; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business and other activities conducted by it as described in the Registration Statement, the General Disclosure Package and the Prospectus; and (iii) is duly licensed and qualified to do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, except where the failure to be so licensed or qualified or to be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to fulfill its obligations under this Underwriting Agreement and the PSI Underwriting Agreement (together, a “Selling Shareholder Material Adverse Effect”). |
(b) | The Selling Shareholder has the full power and authority to enter into this Underwriting Agreement, and to perform all the terms and provisions hereof to be carried out by it; and (i) this Underwriting Agreement has been duly and validly authorized, executed and delivered by the Selling Shareholder and (ii) assuming due authorization, execution and delivery by the other parties thereto, this Underwriting Agreement constitutes a legal, valid and binding obligation of the Selling Shareholder, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Selling Shareholder’s obligations thereunder may be limited by U.S. bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as enforcement of rights to indemnity thereunder may be limited by federal or state securities laws. |
(c) | Assuming due issuance by the Company of the Shares, the Selling Shareholder will have, immediately prior to the Firm Shares Closing Time or the Additional Shares Closing Time, as the case may be, valid title to the Shares to be sold at the Firm Shares Closing Time or the Additional Shares Closing Time, as the case may be, free and clear of all liens, encumbrances, equities or adverse claims; and, upon payment for the Shares pursuant to this Agreement, delivery of such Shares, as directed by the Managing Representatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by DTC, registration of the Shares in the name of Cede or such other nominee and the crediting of the Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to the Shares)), (A) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of the Shares and (B) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to the Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) the Shares will have been registered in the name of Cede |
(d) | The Selling Shareholder is not prompted by any material information concerning the Company which is not set forth in the Registration Statement, the General Disclosure Package or the Prospectus to sell the Shares pursuant to this Agreement. |
(e) | None of (i) the execution, delivery and performance by the Selling Shareholder of this Underwriting Agreement, (ii) the issuance and sale by the Company and the Selling Shareholder of the Shares as contemplated by this Underwriting Agreement, the Registration Statement, the General Disclosure Package and the Prospectus, (iii) the issuance and sale by the Company of the Preferred Shares as contemplated by the Preferred Shares Subscription Agreement and (iv) the performance by the Selling Shareholder of its obligations under this Underwriting Agreement or performance and consummation by the Selling Shareholder of the transactions contemplated hereby (A) conflicts with or will conflict with, or results in or will result in a breach or violation of, the articles of incorporation or the bylaws of the Selling Shareholder, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Selling Shareholder under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Selling Shareholder is a party or by which it may be bound or to which any of the property or assets of the Selling Shareholder is subject or (C) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Selling Shareholder or having jurisdiction over the Selling Shareholder, except with respect to clauses (B) and (C), to the extent that any such breach, violation or contravention would not, singly or in the aggregate, reasonably be expected to have a Selling Shareholder Material Adverse Effect. |
(f) | No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Selling Shareholder for the performance by the Selling Shareholder of all the terms and provisions to be performed by or on behalf of it as contemplated in this Underwriting Agreement, the Registration Statement, the General Disclosure Package or the Prospectus, except (i) such as have been obtained, (ii) such as may be required (and shall be obtained prior to commencement of the transaction contemplated by this Underwriting Agreement) under the Securities Act, the Exchange Act, the Investment Company Act or the Advisers Act, and (iii) may be required by the NYSE, FINRA or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated in this Underwriting Agreement and the General Disclosure Package and the Prospectus. |
(g) | The description of the Selling Shareholder and its business and the statements attributed to the Selling Shareholder in the Registration Statement, the General Disclosure Package and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act, as applicable, and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the General Disclosure Package and the Prospectus in light of the circumstances under which they were made) not misleading. |
(h) | Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Selling Shareholder or any of its Subsidiaries or to which the Selling Shareholder of any of its Subsidiaries is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic now pending or, to the knowledge of the Selling Shareholder, threatened against or affecting the Selling Shareholder or any of its Subsidiaries which, in each case, could reasonably be expected to have a Selling Shareholder Material Adverse Effect. As used in this Section 5, “Subsidiary” |
(i) | The Selling Shareholder and its Subsidiaries possess such Governmental Licenses necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, reasonably be expected to result in a Selling Shareholder Material Adverse Effect. The Selling Shareholder and its Subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to result in a Selling Shareholder Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, reasonably be expected to have a Selling Shareholder Material Adverse Effect. Neither the Selling Shareholder nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Selling Shareholder Material Adverse Effect. |
(j) | Except for stabilization activities conducted by the Underwriters, the Selling Shareholder has not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in, or which will constitute, the unlawful stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the Shares in violation of applicable federal securities laws. |
(k) | Neither the Selling Shareholder nor any member, manager, director, trustee, officer of the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any other person acting on behalf of the Selling Shareholder including, without limitation, any agent or employee of the Selling Shareholder, has in the last five years, directly or knowingly indirectly, while acting on behalf of the Selling Shareholder (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA, any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any other payment in violation of the FCPA or any other applicable anti-bribery or anti-corruption law. The Selling Shareholder has instituted, maintains (or is subject to) and enforces, and will continue to maintain (or be subject to) and enforce policies and procedures reasonably designed to promote and ensure compliance with applicable anti-bribery and anti-corruption laws. |
(l) | The operations of the Selling Shareholder and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened. |
(m) | In the last five years, the Selling Shareholder, each of its Subsidiaries, and all of their respective directors, officers, and, to the knowledge of the Selling Shareholder, employees and agents (in each case in their roles as such) have been in compliance with all applicable Sanctions. In the preceding five years, neither the Selling Shareholder nor any of its subsidiaries has conducted, directly or indirectly, any business with or in any (i) country or territory that is itself the subject or target of any Sanctions; or (ii) with any person (individual, entity, or governmental body) subject to Sanctions, including any Sanctioned Person. Neither the Selling Shareholder or any of its subsidiaries, nor any of their respective direct or indirect |
(n) | The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. |
(o) | All of the information provided to the Underwriters or to counsel for the Underwriters by the Selling Stockholder, its officers and trustees in connection with letters, filings or other supplemental information provided to FINRA pursuant to FINRA’s conduct rules is true, complete and correct in all material respects. |
6. | Agreements of the Parties. |
(a) | If the registration statement relating to the Shares has not yet become effective, the Company will promptly file the Prospectus in a form approved by the Managing Representatives, if not previously filed, with the Commission, and will use its commercially reasonable best efforts to cause such registration statement to become effective and, as soon as the Company is advised, will advise the Managing Representatives when the Registration Statement or any amendment thereto has become effective. If it is necessary for a post-effective amendment to the Registration Statement, or a Rule 462(b) Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its commercially reasonable best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed in a form approved by the Managing Representatives and become effective as soon as possible. The Company will promptly advise the Managing Representatives and, if requested by the Managing Representatives, will confirm such advice in writing, when any post-effective amendment to the Registration Statement has become effective or any amendment or supplement to the Prospectus shall have been filed and of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information. If the Registration Statement has become effective and the Prospectus contained therein omits certain information at the time of effectiveness pursuant to Rule 430A, the Company will file a Rule 424(b) Prospectus in a form approved by the Managing Representatives as promptly as practicable, but no later than the second business day following the earlier of the date of this Underwriting Agreement or the date the Prospectus is first used after the Effective Time. If the Registration Statement has become effective and the Prospectus contained therein does not so omit such information, the Company will file a Prospectus pursuant to Rule 424(b) in a form approved by the Managing Representatives as promptly as practicable, but no later than the fifth business day following the date of the later of the Effective Time or the commencement of the public offering of the Shares after the Effective Time. In either case, the Company will provide the Managing Representatives satisfactory evidence of the filing. The Company will not file with the Commission any Prospectus or any |
(b) | For the period of three years from the date hereof, the Company will advise the Managing Representatives promptly (i) of the issuance by the Commission of any stop order in respect of the Company or in respect of the Manager, which relates to the Company and could materially affect the ability of the Manager to perform its respective obligations to the Company, (ii) of the initiation or threatening in writing of any proceedings for, or receipt by the Company of any written notice with respect to, any suspension of the qualification of the Shares for sale in any jurisdiction or the issuance of any order by the Commission suspending the effectiveness of the Registration Statement or the Notification or preventing or suspending the use of any preliminary prospectus, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any Sales Material or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act or Section 8(e) of the Investment Company Act; (iii) of receipt by the Company, or any representative or attorney of the Company, of any request from the Commission to amend or supplement the Registration Statement, the Notification or the Prospectus. The Company will make every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or the Notification or preventing or suspending the use of any preliminary prospectus or other prospectus related to the Shares, and, if any such order is issued, to obtain its lifting as soon as practicable. |
(c) | If not delivered prior to the date of this Underwriting Agreement, the Company will deliver to the Managing Representatives , without charge, a signed copy of the Registration Statement, the Exchange Act Registration Statement and the Notification and of any amendments (except any post-effective amendment which is filed with the Commission after the later of (i) one year from the date of this Underwriting Agreement or (ii) the date on which the distribution of the Shares is completed) to either the Registration Statement, the Exchange Act Registration Statement or the Notification (including all exhibits filed with any such document) and as many conformed copies of the Registration Statement and any amendments thereto (except any post-effective amendment which is filed with the Commission after the later of (i) one year from the date of this Underwriting Agreement or (ii) the date on which the distribution of the Shares is completed) (excluding exhibits) as the Managing Representatives may reasonably request. The copies of the Registration Statement, the Exchange Act Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. |
(d) | During such period as a prospectus is required under the Securities Act to be delivered by an underwriter or a dealer, the Company will deliver, without charge, to the Managing Representatives, the Underwriters and any dealers, at such office or offices as the Managing Representatives may designate, as many copies of each preliminary prospectus and the Prospectus as the Managing Representatives may reasonably request, and if any event occurs during such period as a result of which it is necessary to amend or supplement the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Prospectus to comply with the Securities Act or the Investment Company Act, the Company promptly will notify the Managing Representatives of such event and prepare, submit to the Managing Representatives, file with the Commission and deliver, without charge, to the Underwriters and to dealers (whose names and addresses the Managing Representatives will furnish to the Company) to whom Shares may have been sold by the Underwriters, and to other dealers on request, amendments or supplements to the Prospectus so that the statements in such Prospectus, as so amended or supplemented, will not, in the light of the circumstances under which they were made, be misleading and will comply with the Securities Act and the Investment Company Act. Delivery by the Underwriters of any such amendments or supplements to the Prospectus will not constitute a waiver of any of the conditions in Section 7 hereof. |
(e) | The Company will make generally available to holders of the Company’s securities, as soon as practicable (which may be satisfied by filing on EDGAR), an earnings statement, if applicable (which need not be audited), satisfying the provisions of the last paragraph of Section 11(a) of the Securities Act and, at the option of the Company, Rule 158 of the Securities Act Regulations. |
(f) | If the transactions contemplated by this Underwriting Agreement are consummated, the Company shall pay all costs and expenses incident to the performance of its obligations under this Underwriting Agreement, including, but not limited to, costs and expenses of or relating to the preparation, printing and filing of the Registration Statement and exhibits to it, any preliminary prospectus, the General Disclosure Package, the Prospectus, each Issuer Free Writing Prospectus, the Sales Material and all amendments and supplements thereto, the issuance of the Shares, the registration or qualification, if any, of the Shares for offer and sale under the securities or “blue sky” laws of any applicable jurisdictions, including the fees and disbursements, if any, of counsel for the Underwriters in that connection, and the preparation and printing of any preliminary and supplemental “blue sky” memoranda, if any, the furnishing (including costs of design, production, shipping and mailing) to the Underwriters and dealers of copies of each preliminary prospectus relating to the Shares, the Sales Materials, the Prospectus, each Issuer Free Writing Prospectus and all amendments or supplements to the Prospectus, and of the other documents required by this Section 6 to be so furnished, the filing requirements of FINRA in connection with its review of the underwriting arrangements and Sales Materials, if any, including filing fees paid by counsel (but not the legal fees), all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company, the listing of the Shares on the NYSE and the transfer agent for the Shares; provided that (A) the Company and each Underwriter shall pay its own costs and expenses relating to the attendance at any road show or other informational meeting relating to the Company, (B) each Underwriter shall pay the costs and expenses of any internal promotional or informational materials relating to the Company, other than any Sales Materials or any Issuer Free Writing Prospectus, prepared by such Underwriter in connection with the offering of the Shares, (C) the Underwriters shall pay the costs and expenses of any “tombstone” announcements relating to the offering of the Shares and (D) except as expressly provided in this Section 6(f) and subject to the terms of any existing agreement among the Selling Shareholder, the Manager and/or the Company and the Managing Representatives, the Underwriters shall pay their own costs and expenses, including fees and disbursements of their counsel and stock transfer taxes on the resale of any Shares by them. The Company and the Selling Shareholder and/or the Manager may otherwise agree among themselves as to the payment of the foregoing expenses, whether or not the transactions contemplated by this Underwriting Agreement are consummated; provided, however, that in no event shall the Underwriters be obligated to pay any expenses intended to be borne by the Company as provided above. |
(g) | If the transactions contemplated by this Underwriting Agreement are not consummated, except as otherwise provided herein and subject to the terms of any existing agreement to which the Company, or any of its subsidiaries, may be party along with the Managing Representatives, no party will be under any liability to any other party, except that (i) if this Underwriting Agreement is terminated by (A) the Company, the Manager or the Selling Shareholder pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or (B) the Managing Representatives or the Underwriters because of any inability, failure or refusal on the part of the Company, the Manager or the Selling Shareholder to comply with any terms of this Underwriting Agreement or because any of the conditions in Section 7 are not satisfied, the Selling Shareholder or the Selling Shareholder’s affiliates will, the Manager or the Manager’s affiliates will, and the Company will, reimburse the Underwriters for all out-of-pocket expenses (including the reasonably incurred fees, disbursements and other charges of their counsel but only to the extent such expenses are not subject to any existing agreement or have not otherwise been paid or reimbursed by the Company) incurred by them in connection with the proposed purchase and sale of the Shares (provided, however, that the Company, the Manager and the Selling Shareholder shall not be liable for any loss of anticipated profits or speculative or consequential or similar damages for such termination) and (ii) no Underwriter who has failed or refused to purchase the Shares agreed to be purchased by it under this Underwriting Agreement, in breach of its obligations pursuant to this Underwriting Agreement, will be relieved of liability to the Company, the Manager, the Selling Shareholder and the other Underwriters for damages occasioned by its default. For the avoidance of doubt, the last sentence of Section 6(f) above shall also be applicable to this Section 6(g). |
(h) | For a period of six months after the date of the Prospectus, the Company will not, without the prior consent of the Managing Representatives (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Commission a registration statement under the Securities Act relating to, any equity securities of the Company or any securities convertible into or exercisable or exchangeable for any equity securities of the Company, or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of any equity securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities, in cash or otherwise, without the prior written consent of the Managing Representatives, except, in each case as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and without limitation the Company may (A) issue and sell the Additional Shares on exercise of the option provided for in Section 1 hereof, (B) issue Common Shares pursuant to the Dividend Reinvestment Plan, (C) issue and sell the Preferred Shares and (D) issue and sell the Private Placement Shares. |
(i) | The Company shall use its best efforts to cause the Shares to be listed on the NYSE prior to the date the Shares are issued, subject only to official notice of the issuance thereof, and comply with the rules and regulations of such exchange. |
(j) | As soon as legally required to do so, the Company and its trustees and officers, in their capacities as such, shall take all actions reasonably necessary to comply with any applicable provisions of the Sarbanes-Oxley Act, including Sections 302 and 906 related to certifications. |
(k) | The Company will direct the investment of the net proceeds of the offering of the Shares in such a manner as to comply with the investment objective and policies of the Company as described in the Prospectus. |
(l) | The Company will direct the investment of the net proceeds of the offering of the Shares and the proceeds of the issuance of the Preferred Shares pursuant to the Preferred Shares Subscription Agreement in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and to qualify as a regulated investment company under Subchapter M of the Code. |
(m) | The Company will direct the proceeds of the offering of the Shares and the proceeds of the issuance of the Preferred Shares pursuant to the Preferred Shares Subscription Agreement in such a manner as to comply with the asset coverage requirements of the Investment Company Act. |
(n) | Immediately following the Effective Time, the Company will be in compliance with Section 303A of the New York Stock Exchange Listed Company Manual, as applied to closed-end management investment companies registered under the Investment Company Act. |
(o) | The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the unlawful stabilization or manipulation of the price of any security of the Company to facilitate the delivery or resale of the Securities. |
(p) | The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Shares for offering and delivery under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Managing Representatives may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. |
(q) | The Company agrees that, unless it obtains the prior written consent of the Managing Representatives, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Managing Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule G hereto and any “road show that is a written communication” within the meaning of |
(r) | The Company agrees that, unless it obtains the prior written consent of the Managing Representatives, it will not make any offer relating to the Shares that would constitute Sales Material; provided that the Managing Representatives will be deemed to have consented to the Sales Material listed on Schedule F hereto. The Company represents that it has complied and will comply with the applicable requirements of Rule 482 with respect to such Sales Material, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of any Sales Material there occurred or occurs an event or development as a result of which such Sales Material conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Managing Representatives and will promptly amend or supplement, at its own expense, such Sales Material to eliminate or correct such conflict, untrue statement or omission. |
(s) | If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances existing at that subsequent time not misleading, the Company will (i) notify promptly the Managing Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission; and (iii) supply any amendment or supplement to the Managing Representatives in such quantities as may be reasonably requested. |
(t) | The Company, during the period when a Prospectus relating to the Securities is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act of the Investment Company Act within the time periods required by the Exchange Act and Exchange Act Regulations or the Investment Company Act. |
(u) | Concurrently with the purchase of the Firm Shares at the Firm Shares Closing Time, the Company shall complete the Private Placement on the terms and in the manner described in the Registration Statement, the General Disclosure Package and the Prospectus. |
7. | Conditions of the Underwriters’ Obligations. The obligations of the Underwriters to purchase the Shares are subject to the accuracy on the date of this Underwriting Agreement, as of the Applicable Time and as of each of the Closing Times, of the representations and warranties of the Company, the Manager and the Selling Shareholder in this Underwriting Agreement, to the accuracy and completeness of all statements made by the Company, the Manager, the Selling Shareholder or any of their respective officers in any certificate delivered to the Managing Representatives or their counsel pursuant to this Underwriting Agreement, to performance by the Company, the Manager, the Selling Shareholder of their respective obligations under this Underwriting Agreement and to the satisfaction (or waiver in writing by the Managing Representatives on behalf of the Underwriters) of each of the following additional conditions: |
(a) | The Registration Statement must have become effective by 5:30 p.m., New York City time, on the date of this Underwriting Agreement or such later date and time as the Managing Representatives consent to in writing. The Prospectus must have been filed in accordance with Rule 424(b). |
(b) | No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Underwriters, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Managing Representatives. |
(c) | Since the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, as of the date of this Underwriting Agreement, (i) there must not have been any material adverse change in the Common Shares or any material adverse change in the liabilities of the Company except as set forth in or contemplated by the Registration Statement, the General Disclosure Package and the Prospectus; (ii) there must not have been any material adverse change in the condition (financial or otherwise), earnings, business affairs, business prospects, management, properties, net assets or results of operations, whether or not arising from transactions in the ordinary course of business of the Company or the Manager as set forth in or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus; (iii) the Company must not have sustained any loss or interference with its business from any court or from any legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement, the General Disclosure Package and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement, the General Disclosure Package or the Prospectus or any statement or information omitted in the Registration Statement, the General Disclosure Package or the Prospectus that should be reflected therein in order to make the statements or information therein (in the case of the General Disclosure Package and the Prospectus, in light of the circumstances under which they were made), not misleading; if, in the judgment of the Managing Representatives (other than a defaulting Underwriter under Section 9 hereof), any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) is material and adverse so as to make it impracticable or inadvisable to consummate the sale and delivery of the Shares to the public on the terms and in the manner contemplated by the General Disclosure Package. |
(d) | The Managing Representatives must have received as of each Closing Time a certificate, dated such date, of the Chief Executive Officer, President or a Vice-President and the Controller, Treasurer, Assistant Treasurer, Chief Financial Officer or Chief Accounting Officer of each of the Company, the Manager and the Selling Shareholder certifying (in their capacity as such officers) that: |
(i) | the signers have carefully examined the Registration Statement, the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time, the Prospectus and this Underwriting Agreement, |
(ii) | the representations of the Company (with respect to the certificates from such Company officers), the representations of the Manager (with respect to the certificates from such officers of the Manager) and the representations of the Selling Shareholder (with respect to the certificates from such officers of the Selling Shareholder) in this Underwriting Agreement are accurate on and as of the date of the certificate, |
(iii) | there has not been any material adverse change in the condition (financial or otherwise), earnings, business affairs, business prospects, management, property, net assets or results of operations of the Company (with respect to the certificates from such Company officers), the Manager (with respect to the certificates from such officers of the Manager) or the Selling Shareholder (with respect to the certificates from such officers of the Selling Shareholder), since the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, which change would adversely affect the ability of the Company, the Manager or the Selling Shareholder, as the case may be, to fulfill its obligations under this Underwriting Agreement or the Investment Management Agreement (with respect to the certificates from such officers of the Manager), whether or not arising from transactions in the ordinary course of business, |
(iv) | with respect to the certificates from such officers of the Company only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Shares or otherwise having a material adverse effect on the Company has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, |
(v) | with respect to the certificates from such officers of the Manager only, no order having a material adverse effect on the ability of the Manager to fulfill its obligations under this Underwriting Agreement or the Investment Management Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, |
(vi) | with respect to the certificates from such officers of the Selling Shareholder only, no order having a material adverse effect on the ability of the Selling Shareholder to fulfill its obligations under this Underwriting Agreement has been issued and no proceedings for any such purpose are pending before or, to the actual knowledge of such officers, threatened by the Commission. |
(vii) | each of the Company (with respect to the certificates from such Company officers), the Manager (with respect to the certificates from such officers of the Manager) and the Selling Shareholder (with respect to the certificates from such officers of the Manager) has performed all of its respective agreements that this Underwriting Agreement requires it to perform by such Closing Time (to the extent not waived in writing by the Managing Representatives), |
(e) | The Managing Representatives shall have received as of each Closing Time the opinions dated as of the date thereof substantially in the form of Schedules B-1, B-2, B-3, B-4, B-5 and B-6 and C-1, C-2 and C-3 to this Underwriting Agreement from the counsel identified in each such Schedules. |
(f) | The Managing Representatives must have received as of each Closing Time from Skadden, Arps, Slate, Meagher & Flom LLP an opinion dated as of the date thereof with respect to the Company, the Shares, the Registration Statement and the Prospectus and this Underwriting Agreement in a form reasonably satisfactory in all respects to the Managing Representatives. The Company, the Manager and the Selling Shareholder must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion. |
(g) | The Managing Representatives must have received on the date of this Underwriting Agreement a signed report from Ernst & Young LLP, dated such date, and in form and substance satisfactory to the Managing Representatives containing statements and information of the type ordinarily included in accountants’ reports with respect to the financial information of the Company contained in the Registration Statement, the General Disclosure Package and the Prospectus. The Managing Representatives also must have received from Ernst & Young LLP a report, as of each Closing Time, dated as of the date thereof, in form and substance satisfactory to the Managing Representatives, to the effect that they reaffirm the statements made in the earlier report, except that the specified date referred to shall be a date not more than three business days prior to such Closing Time. |
(h) | The Managing Representatives shall have received on and as of the Firm Shares Closing Time or the Additional Shares Closing Time, as the case may be, satisfactory evidence of the good standing of the Company from the office of the Secretary of State of the State of Delaware, satisfactory evidence of the |
(i) | The Managing Representatives have received the Lock Up Agreements, each substantially in the form of Schedule D hereto, of those individuals listed on Schedule E hereto, and each such agreement shall be in full force and effect at each Closing Time. |
(j) | At the Closing Time, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance. |
(k) | FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities. |
(l) | At the Firm Shares Closing Time and at each Additional Shares Closing Time (if any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and delivery of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. |
(m) | Concurrently with the Firm Shares Closing Time and each Additional Shares Closing Time, the Selling Shareholder shall have furnished to the Managing Representatives evidence reasonably satisfactory to the Managing Representatives of the closing of the PSI Offering. |
(n) | Each condition precedent to the Underwriters’ obligations set forth in Section 5 of the PSI Underwriting Agreement shall have been satisfied or waived by the person with the authority to give such waiver (other than any such conditions which by their nature are to be satisfied at the applicable Closing Time or the applicable delivery of PSI Shares or any additional PSI Shares, but subject to the satisfaction or waiver of those conditions at such Closing Time or such delivery of PSI Shares or any additional PSI Shares. |
8. | Termination. This Underwriting Agreement may be terminated by the Managing Representatives by notifying the Company: |
(a) | any time as of or before any Closing Time if, in the sole judgment of the Managing Representatives, payment for and delivery of any Shares is rendered impracticable or inadvisable because (i) trading in the equity securities of the Company is suspended by the Commission or by the principal exchange that lists the Shares, (ii) trading in securities generally on the NYSE, NYSE American or the NASDAQ Stock Market shall have been suspended or limited or minimum or maximum prices shall have been generally established on such exchange or over-the-counter market, (iii) additional material adverse governmental restrictions, not in force on the date of this Underwriting Agreement, have been imposed upon trading in securities or trading has been suspended on any U.S. securities exchange, (iv) a general banking moratorium has been established by U.S. federal or New York authorities or (v) if there has occurred (A) any material adverse change in the financial or securities markets in the United States or the international financial markets, (B) any material adverse change in the political, financial or economic conditions in the United States, (C) any outbreak of hostilities or escalation thereof or other calamity, terrorist activity, crises or any change or development involving a prospective change in national or international political, financial or economic conditions or (D) declaration by the United States of a national emergency or war or other calamity shall have occurred, the effect of any of which is such as to make it, in the sole judgment of the Managing Representatives, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated by the Prospectus; or |
(b) | any time as of or before any Closing Time, if any of the conditions specified in Section 7 with respect to such Closing Time have not been fulfilled when and as required by this Underwriting Agreement, and the Managing Representatives shall have given the Company and the Manager notice thereof and a reasonable opportunity to fulfill such condition. |
9. | Substitution of Underwriters. If one or more of the Underwriters fails (other than for a reason sufficient to justify the termination of this Underwriting Agreement) to purchase as of any Closing Time the Shares agreed to be purchased as of such Closing Time by such Underwriter or Underwriters, the Managing Representatives may find one or more substitute underwriters to purchase such Shares or make such other arrangements as the Managing Representatives deems advisable, or one or more of the remaining Underwriters may agree to purchase such Shares in such proportions as may be approved by the Managing Representatives, in each case upon the terms set forth in this Underwriting Agreement. If no such arrangements have been made within 36 hours after the date of such Closing Time, and |
(a) | the number of Shares to be purchased by the defaulting Underwriters as of such Closing Time does not exceed 10% of the Shares that the Underwriters are obligated to purchase as of such Closing Time, each of the nondefaulting Underwriters will be obligated to purchase such Shares on the terms set forth in this Underwriting Agreement in proportion to their respective obligations under this Underwriting Agreement, or |
(b) | the number of Shares to be purchased by the defaulting Underwriters as of such Closing Time exceeds 10% of the Shares to be purchased by all the Underwriters as of such Closing Time, the Company will be entitled to an additional period of 24 hours within which to find one or more substitute underwriters reasonably satisfactory to the Managing Representatives to purchase such Shares on the terms set forth in this Underwriting Agreement. |
10. | Indemnity and Contribution. |
(a) | The Company agrees, the Manager agrees, and the Selling Shareholder agrees, to indemnify, defend and hold harmless each Underwriter, its partners, the directors, members, managers, officers, employees, agents and affiliates and any person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such person may incur under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, common law or otherwise, insofar as such loss, damage, expense, liability or claim (i) arises out of or is based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Company) or arises out of or is based upon an omission or alleged omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) arises out of or is based upon an untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the General Disclosure Package, the Prospectus, any Sales Material, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any “roadshow” as defined in Rule 433(h) |
(b) | Each Underwriter severally agrees to indemnify, defend and hold harmless the Company, the Manager, the Selling Shareholder, and each of their respective shareholders, partners, managers, members, trustees, directors and officers, and any person who controls the Company, the Manager or the Selling Shareholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation), which, jointly or severally, the Company, the Manager, the Selling Shareholder or any such person may incur under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon an untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning such Underwriters furnished in writing by or on behalf of any Underwriter to the Company, the Manager or the Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the General Disclosure Package or the Prospectus as set forth in Section 10(f) hereof, or arises out of or is based upon an omission or alleged omission to state a material fact in connection with such information required to be stated in the Registration Statement, any preliminary prospectus, the General Disclosure Package or the Prospectus or necessary to make such information (with respect to any preliminary prospectus, the General Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading. |
(c) | If the indemnification provided for in this Section 10 is unavailable to an indemnified party under subsections (a) and (b) of this Section 10 in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Manager and the Selling Shareholder on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, the Manager and the Selling Shareholder on the one hand and of the Underwriters on the other in connection with the statements or omissions, which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Manager and the Selling Shareholder on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, bear to the aggregate public offering price of the Shares. The relative fault of the Company, the Manager and the Selling Shareholder on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company, the Manager or the Selling Shareholder or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to include any reasonably incurred and documented out-of-pocket legal fees or expenses incurred by such party in connection with investigating, preparing to defend or defending any Proceeding. |
(d) | The Company, the Manager, the Selling Shareholder and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (c) above. Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the fees and commissions received by such Underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 10 are several in proportion to their respective underwriting commitments and not joint. |
(e) | The indemnity and contribution agreements contained in this Section 10 and the covenants, warranties and representations of the Company, the Manager and the Selling Shareholder contained in this Underwriting Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter, its partners, the directors, members, managers, officers, employees, agents and affiliates or any person (including each partner, officer or director of such person) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Company, the Manager, the Selling Shareholder, each of their respective shareholders, partners, advisers, members, trustees, directors or officers or any person who controls the Company, the Manager or the Selling Shareholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall survive any termination of this Underwriting Agreement or the issuance and delivery of the Shares. The Company, the Manager, the Selling Shareholder and each Underwriter agree promptly to notify each other of the commencement of any Proceeding against it and, in the case of the Company, the Manager or the Selling Shareholder, against any of the Company’s trustees, directors or officers, or any of the Manager’s or the Selling Shareholder’s shareholders, partners, managers, members, trustees, directors or officers in connection with the issuance and sale of the Shares, or in connection with the Registration Statement or Prospectus. |
(f) | The Company, the Manager and the Selling Shareholder each acknowledge that the statements in the Prospectus with respect to the names and addresses of the Underwriters and number of Common Shares allocated for purchase by such Underwriters, the selling concessions and reallowances of selling concessions, the statements regarding stabilization, penalty bids and syndicate short selling, and the statements regarding electronic delivery of prospectuses, all as described under the caption “Underwriting” in the Disclosure Package and the Prospectus, constitute the only information furnished in writing by or on behalf of any Underwriter through the Managing Representatives to the Company expressly for inclusion in the Registration Statement, the Disclosure Package or the Prospectus (as amended or supplemented). The Underwriters severally confirm that these statements are correct in all material respects and were so furnished by or on behalf of each of the Underwriters severally for use in the Disclosure Package or the Prospectus. |
(g) | Notwithstanding any other provisions in this Section 10, no party shall be entitled to indemnification or contribution under this Underwriting Agreement against any loss, claim, liability, expense or damage arising by reason of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of its duties in the performance of its duties hereunder in violation of Section 17(i) of the Investment Company Act (and shall return any payments previously made if it is finally judicially determined such loss, claim, liability expense or damage arose by reason of such conduct). The parties hereto acknowledge that the foregoing provision shall be applicable solely as to matters arising under Section 17(i) of the Investment Company Act, and shall not be construed to impose any duties or obligations upon any such parties under this Underwriting Agreement other than as specifically set forth herein (it being understood that the Underwriters have no duty hereunder to the Company to perform any due diligence investigation). |
(h) | No indemnified party shall be entitled to recover any amount pursuant to this Section 10 in respect of any loss, damage, expense, liability or claim (including the reasonable cost of investigation) to the extent such indemnified party has already recovered in respect of such loss, damage, expense, liability or claim (including the reasonable cost of investigation) pursuant to the PSI Underwriting Agreement or any other agreement between any indemnifying party and the indemnified party or any affiliate thereof. |
11. | No Fiduciary Relationship. The Company, the Manager and the Selling Shareholder hereby acknowledge and agree that the Underwriters are acting solely as underwriters in connection with the purchase and sale of the Shares contemplated by this Underwriting Agreement. The Company, the Manager and the Selling Shareholder further acknowledge and agree that the Underwriters are acting pursuant to a contractual relationship created solely by this Underwriting Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of such purchase and sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, the Manager or the Selling Shareholder, either in connection with the transactions contemplated by this Underwriting Agreement or any matters leading up to such transactions, and the Company, the Manager and the |
12. | Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013 Attention: General Counsel, [email], UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Syndicate [email], BofA Securities, Inc., One Bryant Park, New York, New York 10036, Attention: [ ][email], Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: [ ] [email], and Wells Fargo Securities, LLC, 500 West 33rd Street, New York, New York 10001, Attention: Equity Syndicate Department [email]; and if to the Company, the Manager or the Selling Shareholder, shall be sufficient in all respects if delivered or sent to the Company, the Manager or the Selling Shareholder, as the case may be, at the offices of the Company, the Manager or the Selling Shareholder at 787 Eleventh Avenue, 9th Floor, New York, NY 10019, Attention: Chief Legal officer (email: legal@persq.com). |
13. | Governing Law; Construction. This Underwriting Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Underwriting Agreement (“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York. The Section headings in this Underwriting Agreement have been inserted as a matter of convenience of reference and are not a part of this Underwriting Agreement. |
14. | Submission to Jurisdiction. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company and the Underwriters each consent to the jurisdiction of such courts and personal service with respect thereto. EACH OF THE UNDERWRITERS, THE Company (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS AND AFFILIATES), THE Manager (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS PARTNERS AND AFFILIATES) AND THE SELLING SHAREHOLDER (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS AND AFFILIATES) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS UNDERWRITING AGREEMENT. Each of the Company, the Manager and the Selling Shareholder agrees that a final judgment in any such action, proceeding or counterclaim brought in any |
15. | Parties at Interest. The Underwriting Agreement herein set forth has been and is made solely for the benefit of the Underwriters, the Company, the Manager and the Selling Shareholder and to the extent provided in Section 10 hereof the controlling persons, shareholders, partners, members, trustees, managers, directors, officers, employees, agents and affiliates referred to in such section, and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser of Shares from any of the Underwriters, in such capacity as purchaser) shall acquire or have any right under or by virtue of this Underwriting Agreement. |
16. | Counterparts. This Underwriting Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of this Underwriting Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this Underwriting Agreement will constitute due and sufficient delivery of such counterpart. |
17. | Successors and Assigns. This Underwriting Agreement shall be binding upon the Underwriters, the Company, the Manager, the Selling Shareholder and any successor or assign of any substantial portion of the Company’s, the Manager’s, the Selling Shareholder’s or any of the Underwriters’ respective businesses and/or assets, as the case may be. |
18. | Recognition of the U.S. Special Resolution Regimes. |
(a) | In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Underwriting Agreement, and any interest and obligation in or under this Underwriting Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
(b) | In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Underwriting Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Underwriting Agreement were governed by the laws of the United States or a state of the United States. |
(i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
(ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
(iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
Very truly yours, | |||
PERSHING SQUARE USA, LTD. | |||
By: Title: | |||
PERSHING SQUARE CAPITAL MANAGEMENT, L.P. | |||
By: Title: | |||
PERSHING SQUARE INC. | |||
By: Title: | |||
Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A | |||
CITIGROUP GLOBAL MARKETS INC. | |||
By: | |||
Title: | |||
UBS SECURITIES LLC | |||
By: | |||
Title: | |||
By: | |||
Title: | |||
BOFA SECURITIES, INC. | |||
By: | |||
Title: | |||
JEFFERIES LLC | |||
By: | |||
Title: | |||
WELLS FARGO SECURITIES, LLC | |||
By: | |||
Title: | |||
Underwriters | Number of Shares | ||
Citigroup Global Markets Inc. | [ ] | ||
UBS Securities LLC | [ ] | ||
BofA Securities, Inc. | [ ] | ||
Jefferies LLC | [ ] | ||
Wells Fargo Securities, LLC | [ ] | ||
[ ] | [ ] | ||
Total | [ ] | ||
Yours very truly, | |||
Print Name: | |||