As filed with the Securities and Exchange Commission on March 14, 2012
Registration No. 333-176637
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-2
x REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PRE-EFFECTIVE AMENDMENT NO. |
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POST-EFFECTIVE AMENDMENT NO. 3 |
PROSPECT CAPITAL CORPORATION
(Exact Name of Registrant as Specified in Charter)
10 East 40th Street, 44th Floor
New York, NY 10016
(Address of Principal Executive Offices)
Registrant’s Telephone Number, including Area Code: (212) 448-0702
John F. Barry III
Brian H. Oswald
c/o Prospect Capital Management LLC
10 East 40th Street, 44th Floor
New York, NY 10016
(212) 448-0702
(Name and Address of Agent for Service)
Copies of information to:
Richard T. Prins
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
(212) 735-3000
Approximate Date of Proposed Public Offering:
From time to time after the effective date of this Registration Statement
If any of the securities being registered on this form are offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x
EXPLANATORY NOTE
This Post-Effective Amendment No. 3 to the Registration Statement on Form N-2 (File No. 333-176637) of Prospect Capital Corporation (the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of filing exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 3 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 3 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 3 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.
PART C—OTHER INFORMATION
ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS
(1) Financial Statements
The following statements of Prospect Capital Corporation (the “Company” or the “Registrant”) are included in Part A of this Registration Statement:
INDEX TO FINANCIAL STATEMENTS
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Page |
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AUDITED FINANCIAL STATEMENTS |
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM |
F-2 |
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CONSOLIDATED STATEMENTS OF ASSETS AND LIABILITIES—June 30, 2011 and June 30, 2010 |
F-3 |
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CONSOLIDATED STATEMENTS OF OPERATIONS—For the Years Ended June 30, 2011, June 30, 2010 and June 30, 2009 |
F-4 |
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CONSOLIDATED STATEMENTS OF CHANGES IN NET ASSETS—For the Years Ended June 30, 2011, June 30, 2010 and June 30, 2009 |
F-5 |
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CONSOLIDATED STATEMENTS OF CASH FLOWS—For the Years Ended June 30, 2011, June 30, 2010 and June 30, 2009 |
F-6 |
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CONSOLIDATED STATEMENTS OF INVESTMENTS—June 30, 2011 and June 30, 2010 |
F-7 |
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS |
F-29 |
(2) Exhibits
The agreements included or incorporated by reference as exhibits to this registration statement contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
The Company acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this registration statement not misleading.
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Exhibit No. |
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Description |
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(l) |
(1) |
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Opinion and Consent of Venable LLP, as special Maryland counsel for Registrant(13) |
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(l) |
(2) |
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Opinion and Consent of Venable LLP, as special Maryland counsel for the Registrant(15) |
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(l) |
(3) |
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Opinion and Consent of Skadden, Arps, Slate, Meagher & Flom LLP, as special New York counsel for the Registrant(15) |
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(l) |
(4) |
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Opinion and Consent of Venable LLP, as special Maryland counsel for the Registrant(16) |
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(l) |
(5) |
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Opinion and Consent of Skadden, Arps, Slate, Meagher & Flom LLP, as special New York counsel for the Registrant(16) |
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(m) |
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Not Applicable |
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(n) |
(1) |
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Consent of independent registered public accounting firm(14) |
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(n) |
(2) |
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Report of independent registered public accounting firm on “Senior Securities” table(14) |
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(n) |
(3) |
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Power of Attorney(12) |
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(o) |
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Not Applicable |
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(p) |
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Not Applicable |
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(q) |
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Not Applicable |
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(r) |
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Code of Ethics(12) |
(1) Incorporated by reference to the corresponding exhibit number to the Registrant’s Registration Statement under the Securities Act of 1933, as amended, on Form N-2 (File No. 333-114552), filed on April 16, 2004.
(2) Incorporated by reference to the corresponding exhibit number to the Registrant’s Pre-effective Amendment No. 2 to the Registration Statement under the Securities Act of 1933, as amended, on Form N-2 (File No. 333-114552), filed on July 6, 2004.
(3) Incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed on August 26, 2011.
(4) Incorporated by reference to the corresponding exhibit number to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement under the Securities Act of 1933, as amended, on Form N-2 (File No. 333-114552), filed on July 23, 2004.
(5) Incorporated by reference to Exhibit 99.1 of the Registrant’s Form 8-K filed on January 20, 2011.
(6) Incorporated by reference to Exhibit 2.1 of the Registrant’s Form 8-K filed on August 5, 2009.
(7) Incorporated by reference to the corresponding exhibit number to the Registrant’s Pre-effective Amendment No. 3 to the Registration Statement under the Securities Act of 1933 as amended, on Form N-2 (File No. 333-143819), filed on September 5, 2007.
(8) Incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed on September 7, 2010.
(9) Incorporated by reference to the corresponding exhibit number to the Registrant’s Post-effective Amendment No. 1 to the Registration Statement under the Securities Act of 1933, as amended, on Form N-2 (File No. 333-170724), filed on April 6, 2011.
(10) Incorporated by reference to Exhibit 4.1 of the Registrant’s Form 8-K filed on December 21, 2010.
(11) Incorporated by reference to Exhibit 4.1 of the Registrant’s Form 8-K filed on February 18, 2011.
(12) Incorporated by reference to the corresponding exhibit number to the initial filing of this Registration Statement, filed on September 1, 2011.
(13) Incorporated by reference to the corresponding exhibit number to Pre-Effective Amendment No. 1 of this Registration Statement, filed on October 11, 2011.
(14) Incorporated by reference to the corresponding exhibit number to Pre-Effective Amendment No. 2 of this Registration Statement, filed on October 18, 2011.
(15) Incorporated by reference to the corresponding exhibit number to Post-Effective Amendment No. 1 of this Registration Statement, filed on March 1, 2012.
(16) Incorporated by reference to the corresponding exhibit number to Post-Effective Amendment No. 2 of this Registration Statement, filed on March 8, 2012.
† Filed herewith.
* To be filed by amendment.
ITEM 26. MARKETING ARRANGEMENTS
The information contained under the heading “Plan of Distribution” on this Registration Statement is incorporated herein by reference and any information concerning any underwriters will be contained in the accompanying prospectus supplement, if any.
ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION**
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Commission registration fee |
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$ |
37,837 |
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NASDAQ Global Select Additional Listing Fees |
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65,000 |
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FINRA filing fee |
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22,433 |
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Accounting fees and expenses |
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250,000 |
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Legal fees and expenses |
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500,000 |
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Printing and engraving |
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200,000 |
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Miscellaneous fees and expenses |
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25,000 |
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Total |
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$ |
1,100,270 |
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** These amounts are estimates.
All of the expenses set forth above shall be borne by the Company.
ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
As of June 30, 2011 the Registrant owns a controlling interest in the following companies: a 100% interest in AIRMALL USA, Inc, 100% of the membership units of AWCNC, 100% of Coalbed, Inc., 100% interest of Freedom Marine Holdings Inc., 95.0% of NMMB Holdings, Inc., a 90.7% interest in Nupla, a 100% interest in Borga, a 77.7% interest in Ajax Acquisitions Corp., a Delaware corporation; a 40% interest in C&J Cladding, LLC, a Delaware limited liability company; a 100% interest in Change Clean Energy Holdings, Inc., a Delaware corporation (as well as an indirect controlling interest in DownEast Power Company, LLC, a Delaware limited liability company); a 51% interest in Worcester Energy Corporation, a Maine limited liability company; a 100% interest in Worcester Energy Holdings, Inc., a Maine corporation (as well as an indirect controlling interest in Biochips LLC, a Maine corporation 51% owned by Worcester Energy Holdings, Inc.); a 51% interest in Worcester Energy Partners, Inc., a Delaware corporation (as well as an indirect controlling interest in Precision Logging & Landclearing, Inc., a Delaware corporation 100% owned by Worcester Energy Partners, Inc.); a 49% interest in Integrated Contract Services, Inc., a Delaware corporation; a 100% interest in The Healing Staff, f/k/a Lisamarie Fallon, Inc., a Texas corporation; a 100% interest in Vets Securing America, Inc., a Delaware corporation; a 57.8% interest in Iron Horse Coiled Tubing, Inc., an Alberta corporation; a 100% interest in Gas Solutions Holdings, Inc., a Delaware corporation; a 80% interest in NRG Manufacturing, Inc., a Texas corporation; a 74.1% interest in R-V Industries, Inc., a Pennsylvania corporation; and a 100% interest in Yatesville Coal Holdings, Inc., a Delaware corporation (as well as indirect controlling interests in Eastern Kentucky Coal Holdings, Inc., a Delaware corporation, North Fork Collieries LLC, a Delaware limited liability company, E&L Construction Inc., a Kentucky corporation and C&A Construction Inc., a Kentucky corporation, each of which is 100% owned by Yatesville, and Genesis Coal Corp., a Kentucky corporation 78% owned by Yatesville).
Prospect Capital Management LLC, a Delaware limited liability company, does not own any shares of the Registrant. Without conceding that Prospect Capital Management controls the Registrant, an
affiliate of Prospect Capital Management is the general partner of, and may be deemed to control, the following entities:
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Name |
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Jurisdiction of
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Prospect Street Ventures I, LLC |
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Delaware |
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Prospect Management Group LLC |
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Delaware |
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Prospect Street Broadband LLC |
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Delaware |
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Prospect Street Energy LLC |
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Delaware |
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Prospect Administration LLC |
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Delaware |
ITEM 29. NUMBER OF HOLDERS OF SECURITIES
The following table sets forth the approximate number of record holders of our common stock at March 1, 2012.
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Title of Class |
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Number of Record Holders |
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Common Stock, par value $.001 per share |
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80 |
ITEM 30. INDEMNIFICATION
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law, subject to the requirements of the 1940 Act.
Our charter authorizes us, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to obligate ourselves to indemnify any present or former director or officer or any individual who, while a director or officer and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. Our bylaws obligate us, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any present or former director or officer or any individual who, while a director or officer and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be made, a party to the proceeding by reason of his or her service in any such capacity from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The charter and bylaws also permit us to indemnify and advance expenses to any person who served a predecessor of us in any of the capacities described above and any of our employees or agents or any employees or agents of our predecessor. In accordance with the 1940 Act, we will not indemnify any person for any liability to which such person would be subject by reason of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office.
Maryland law requires a corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of
his or her service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
The Investment Advisory Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Prospect Capital Management LLC (the “Adviser”) and its officers, managers, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Company for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of the Adviser’s services under the Investment Advisory Agreement or otherwise as an Investment Adviser of the Company.
The Administration Agreement provides that, absent willful misfeasance, bad faith or negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Prospect Administration LLC and its officers, manager, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Company for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of Prospect Administration LLC’s services under the Administration Agreement or otherwise as administrator for the Company.
The Administrator is authorized to enter into one or more sub-administration agreements with other service providers (each a “Sub-Administrator”) pursuant to which the Administrator may obtain the services of the service providers in fulfilling its responsibilities hereunder. Any such sub-administration agreements shall be in accordance with the requirements of the 1940 Act and other applicable U.S. Federal and state law and shall contain a provision requiring the Sub-Administrator to comply with the same restrictions applicable to the Administrator.
ITEM 31. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
A description of any other business, profession, vocation or employment of a substantial nature in which the Adviser, and each managing member, director or executive officer of the Adviser, is or has been during the past two fiscal years, engaged in for his or her own account or in the capacity of director, officer, employee, partner or trustee, is set forth in Part A of this Registration Statement in the section entitled “Management.” Additional information regarding the Adviser and its officers and directors is set forth in its Form ADV, as filed with the Securities and Exchange Commission (SEC File No. 801-62969), and is incorporated herein by reference.
ITEM 32. LOCATION OF ACCOUNTS AND RECORDS
All accounts, books and other documents required to be maintained by Section 31(a) of the Investment Company Act of 1940, and the rules thereunder are maintained at the offices of:
(1) the Registrant, Prospect Capital Corporation, 10 East 40th Street, 44th Floor, New York, NY 10016;
(2) the Transfer Agent, American Stock Transfer & Trust Company, LLC;
(3) the Custodian, U.S. Bank National Association; and
(4) the Adviser, Prospect Capital Management LLC, 10 East 40th Street, 44th Floor, New York, NY 10016.
ITEM 33. MANAGEMENT SERVICES
Not Applicable.
ITEM 34. UNDERTAKINGS
1. The Registrant undertakes to suspend the offering of shares until the prospectus is amended if (1) subsequent to the effective date of its registration statement, the net asset value declines more than ten percent from its net asset value as of the effective date of the registration statement; or (2) the net asset value increases to an amount greater than the net proceeds as stated in the prospectus.
2. The Registrant undertakes if the securities being registered are to be offered to existing stockholders pursuant to warrants or rights, and any securities not taken by stockholders are to be reoffered to the public, to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the prospectus, we will file a post-effective amendment to set forth the terms of such offering.
3. The Registrant undertakes:
(a) to file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:
(1) to include any prospectus required by Section 10(a)(3) of the 1933 Act;
(2) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(3) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(b) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof;
(c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(d) that, for the purpose of determining liability under the 1933 Act to any purchaser, each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(e) that, for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser: (1) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act; (2) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (3) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York, on the 14th day of March, 2012.
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PROSPECT CAPITAL CORPORATION |
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By: |
/s/ JOHN F. BARRY III |
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John F. Barry III
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on March 14, 2012. This document may be executed by the signatories hereto on any number of counterparts, all of which constitute one and the same instrument.
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Signature |
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Title |
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/s/ JOHN F. BARRY III |
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Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
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John F. Barry III |
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/s/ M. GRIER ELIASEK |
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Chief Operating Officer and Director |
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M. Grier Eliasek |
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/s/ BRIAN H. OSWALD |
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Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) |
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Brian H. Oswald |
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/s/ WILLIAM J. GREMP* |
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Director |
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William J. Gremp |
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/s/ ANDREW C. COOPER* |
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Director |
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Andrew C. Cooper |
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/s/ EUGENE S. STARK* |
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Director |
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Eugene S. Stark |
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*By: |
/s/ M. GRIER ELIASEK |
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M. Grier Eliasek |
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as Attorney-in-Fact |
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INDEX TO EXHIBITS
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(d) |
(13) |
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Agreement of Resignation, Appointment and Acceptance dated as of March 12, 2012, by and among the Registrant, American Stock Transfer & Trust Company, LLC, as Retiring Trustee, and U.S. Bank National Association, as Successor Trustee |
Exhibit (d)(13)
AGREEMENT
OF
RESIGNATION, APPOINTMENT AND ACCEPTANCE
BETWEEN
PROSPECT CAPITAL CORPORATION
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
AS RETIRING TRUSTEE
AND
U.S. BANK NATIONAL ASSOCIATION,
AS SUCCESSOR TRUSTEE
DATED AS OF MARCH 12, 2012
THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, effective as of March 12, 2012 (the “Agreement”), by and among Prospect Capital Corporation, a Maryland corporation (the “Company”), American Stock Transfer & Trust Company, LLC (“Retiring Trustee”), and U.S. Bank National Association, (“Successor Trustee”).
RECITALS
WHEREAS , the Company and Retiring Trustee executed and delivered an Indenture, dated as of February 16, 2012 (the “Base Indenture”), to provide for the issuance by the Company from time to time of the Company’s unsecured debentures, notes or other evidence of indebtedness (the “Securities”), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, the Company and Retiring Trustee executed and delivered a Supplemental Indenture, dated as of February 27, 2012 (the “First Supplemental Indenture”), to provide for the issuance and sale of $4,000,000.00 aggregate principal amount of the Company’s senior notes due 2022;
WHEREAS, the Company and Retiring Trustee executed and delivered a Supplemental Indenture, dated as of March 8, 2012 (the “Second Supplemental Indenture” and together with the First Supplemental Indenture and the Base Indenture, the “Indenture”), to provide for the issuance and sale of $1,465,000 aggregate principal amount of the Company’s senior notes due 2022;
WHEREAS, the Company appointed Retiring Trustee as the Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture;
WHEREAS, the Indenture provides that the Trustee may at any time resign with respect to the relevant Securities by giving written notice of such resignation to the Company, effective upon the acceptance by a successor Trustee of its appointment as a successor Trustee;
WHEREAS, the Indenture provides that, if the Trustee shall resign, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the relevant Securities;
WHEREAS, the Indenture provides that any successor Trustee appointed in accordance with the Indenture shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment under the Indenture, and thereupon the resignation of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, indemnities, protections, powers, trusts and duties of, or afforded to, retiring Trustee;
WHEREAS, Retiring Trustee wishes to resign as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture;
WHEREAS, the Company desires to appoint Successor Trustee as successor Trustee, Security Registrar, Paying Agent and Authenticating Agent to succeed Retiring Trustee in such capacities under the Indenture; and
WHEREAS, Successor Trustee is willing to accept such appointment as successor Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture;
NOW, THEREFORE, the Company, Retiring Trustee and Successor Trustee, for and in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby consent and agree as follows:
RETIRING TRUSTEE
1.1 Retiring Trustee hereby resigns as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture.
1.2 Retiring Trustee hereby represents and warrants to Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been waived by Retiring Trustee or, to the knowledge of the Responsible Officer of Retiring Trustee, by the Holders of the percentage in aggregate principal amount of the Securities required by the Indenture to effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the knowledge of the Responsible Officer of Retiring Trustee, threatened against Retiring
Trustee before any court or any governmental authority arising out of any act or omission of Retiring Trustee as Trustee under the Indenture.
(c) As of the effective date of this Agreement, Retiring Trustee will hold no moneys or property under the Indenture.
(d) Retiring Trustee has duly authenticated and delivered each of the Securities delivered to it for authentication, all of which are outstanding as of the effective date hereof in the following amounts:
(i) $4,000,000; CUSIP Number: 74349BAA8
(ii) $1,465,000; CUSIP Number: 74349BAB6
(e) To the knowledge of the Responsible Officer of Retiring Trustee, the registers in which it has registered and transferred registered Securities accurately reflect the amount of Securities issued and outstanding and the amounts payable thereon.
(f) Each person who, on behalf of Retiring Trustee, so authenticated the Securities was duly elected, qualified and acting as an officer or authorized signatory of Retiring Trustee and empowered to authenticate the Securities at the respective times of such authentication and the signature of such person or persons appearing on such Securities is each such person’s genuine signature.
(g) Retiring Trustee has provided all documentation, information and data to Successor Trustee relating to the Securities and the Indenture.
(h) This Agreement has been duly authorized, executed and delivered on behalf of Retiring Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(i) To the knowledge of the Responsible Officer of Retiring Trustee, no event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under the Indenture.
1.3 Retiring Trustee hereby assigns, transfers, delivers and confirms to Successor Trustee all right, title and interest of Retiring Trustee in and to the trust under the Indenture and all the rights, powers, trusts and duties of the Trustee under the Indenture. Retiring Trustee shall execute and deliver such further instruments and shall do such other things as Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in Successor Trustee all the rights, powers, trusts and duties hereby assigned, transferred, delivered and confirmed to Successor Trustee as Trustee. Upon the effectiveness of this Agreement, Retiring Trustee shall have no further duties or obligations under the Indenture. Retiring Trustee shall have no responsibility or liability for the action or inaction of Successor Trustee or any other party under the Indenture. Successor Trustee shall have no responsibility or liability for the action or inaction of Retiring Trustee or any other party under the Indenture.
THE COMPANY
1.4 The Company hereby accepts the resignation of Retiring Trustee as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture.
1.5 The Company hereby certifies that attached hereto as Exhibit A is a copy of the Board Resolution which was duly adopted by the Board of Directors of the Company, is in full force and effect on the date hereof, and which authorizes the Company to: (a) accept Retiring Trustee’s resignation as Trustee under the Indenture; (b) appoint Successor Trustee as Trustee under the Indenture; and (c) execute and deliver such agreements and other instruments as may be necessary or desirable to effectuate the succession of Successor Trustee as Trustee under the Indenture.
1.6 The Company hereby appoints Successor Trustee as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture to succeed to, and hereby vests Successor Trustee with, all the rights, indemnities, protections, powers, trusts and duties of, or afforded to, Retiring Trustee under the Indenture with like effect as if originally named as Trustee, Security Registrar, Paying Agent and Authenticating Agent in the Indenture.
1.7 Promptly after the effective date of this Agreement, the Company (with the assistance of Successor Trustee) shall cause a notice to be sent to each Holder of the Securities in accordance with the provisions of the Indenture.
1.8 The Company hereby represents and warrants to Retiring Trustee and Successor Trustee that:
(a) The Company is a corporation duly and validly organized and existing pursuant to the laws of its jurisdiction of organization.
(b) The Indenture was validly and lawfully executed and delivered by the Company and the Securities of which it is the issuer were validly issued by the Company.
(c) The Company has performed or fulfilled prior to the date hereof, and will continue to perform and fulfill after the date hereof, each covenant, agreement, condition, obligation and responsibility under the Indenture.
(d) No event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under the Indenture.
(e) No covenant or condition contained in the Indenture has been waived by the Company or, to the best of the Company’s knowledge, by Holders of the percentage in aggregate principal amount of the Securities required to effect any such waiver.
(f) There is no action, suit or proceeding pending or, to the best of the Company’s knowledge, threatened against the Company before any court or any governmental authority arising out of any act or omission of the Company under the Indenture.
(g) This Agreement has been duly authorized, executed and delivered on behalf of the Company and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.
(h) Upon the acceptance and execution of this Agreement by Successor Trustee, all conditions precedent relating to the appointment of Successor Trustee under the Indenture have been complied with by the Company.
SUCCESSOR TRUSTEE
1.9 Successor Trustee hereby represents and warrants to Retiring Trustee and to the Company that:
(a) Successor Trustee is not disqualified under, and is eligible under, the provisions of the Indenture to act as Trustee under the Indenture.
(b) This Agreement has been duly authorized, executed and delivered on behalf of Successor Trustee and constitutes its legal, valid and binding obligation, enforceable against Successor Trustee in accordance with its terms.
1.10 Successor Trustee hereby accepts its appointment as successor Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture and accepts the rights, indemnities, protections, powers, trusts and duties of, or afforded to, Retiring Trustee as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture, upon the terms and conditions set forth therein and herein, with like effect as if originally named as Trustee, Security Registrar, Paying Agent and Authenticating Agent under the Indenture.
1.11 Successor Trustee shall have no responsibility or liability for the action or inaction of Retiring Trustee or any other party under the Indenture.
1.12 References in the Indenture to “Corporate Trust Office” or other similar terms shall be deemed to refer to the corporate trust office of Successor Trustee, which is presently located at 100 Wall Street, Suite 1600, New York, New York 10005.
MISCELLANEOUS
1.13 Except as otherwise expressly provided herein or unless the context otherwise requires, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
1.14 This Agreement and the resignation, appointment and acceptance effected hereby shall be effective as of the date first written above.
1.15 Retiring Trustee hereby acknowledges payment or provision for payment in full by the Company of compensation for all services rendered by Retiring Trustee in its capacity as
Trustee under the Indenture and reimbursement in full by the Company of the expenses, disbursements and advances incurred or made by Retiring Trustee in its capacity as Trustee in accordance with the provisions of the Indenture, except for expenses and legal fees and disbursements in connection with this Agreement. Retiring Trustee acknowledges that it relinquishes any lien it may have upon all property or funds held or collected by it to secure any amounts due it pursuant to the provisions of the Indenture. This Agreement does not constitute a waiver or assignment by Retiring Trustee of any compensation, reimbursement, expenses or indemnity to which it is or may be entitled pursuant to the Indenture. The Company acknowledges its obligation set forth in the Indenture to indemnify Retiring Trustee for, and to hold Retiring Trustee harmless against, any loss, liability, damage, claim or expense incurred without gross negligence, willful misconduct or bad faith on the part of Retiring Trustee and arising out of or in connection with the acceptance or administration of the trust evidenced by the Indenture (which obligation shall survive the execution hereof).
1.16 This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law principles thereof.
1.17 This Agreement may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
1.18 The Company, Retiring Trustee and Successor Trustee hereby acknowledge receipt of an executed counterpart of this Agreement and the effectiveness thereof.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Resignation, Appointment and Acceptance to be duly executed, effective as of the day and year first above written.
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PROSPECT CAPITAL CORPORATION |
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By: |
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/s/ Brian H. Oswald |
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Name: |
Brian H. Oswald |
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Title: |
Chief Financial Officer and Chief Compliance Officer |
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U.S. BANK NATIONAL ASSOCIATION |
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as Successor Trustee |
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By: |
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/s/ Beverly A. Freeney |
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Name: |
Beverly A. Freeney |
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Title: |
Vice President |
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC |
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as Retiring Trustee |
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By: |
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/s/ Karishma P. Kadian |
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Name: |
Karishma P. Kadian |
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Title: |
Counsel |
UNANIMOUS CONSENT IN WRITING
IN LIEU OF A SPECIAL MEETING
OF THE BOARD OF DIRECTORS
OF PROSPECT CAPITAL CORPORATION
March 6, 2012
The undersigned, constituting all of the members of the Board of Directors of Prospect Capital Corporation, a Maryland corporation, hereby consent to the adoption of the following resolutions and approve and adopt such resolutions with the same force and effect as if they had been approved and adopted at a duly convened meeting of the Board of Directors and direct that this Action by Unanimous Written Consent be filed with the records of proceedings of the Board of Directors.
WHEREAS , the Board of Directors (the “ Board ”) of Prospect Capital Corporation (the “ Corporation ”) previously approved and the Corporation entered into an indenture (the “ Base Indenture ”) by and between the Corporation and American Stock Transfer & Trust Company, LLC, as trustee (the “ Current Trustee ”), dated as of February 16, 2012;
WHEREAS , the Indenture was filed as an exhibit to the Corporation’s shelf registration statement on Form N-2 (Commission File No. 333-176637) (the “ Registration Statement ”) on September 1, 2011 and qualified under the United States Trust Indenture Act of 1939, as amended, when the Registration Statement became effective on October 21, 2011;
WHEREAS , the Corporation issued $4,000,000 aggregate principal 7.000% Senior Notes due 2022 (the “ Notes ”) under the first supplemental indenture (the “ First Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”) dated as of March 1, 2012;
WHEREAS , the Board has determined that it is in the best interests of the Corporation to cause U.S. Bank, N.A. to succeed the Current Trustee as trustee under the Indenture and any subsequent supplemental indentures thereto and for the Current Trustee to resign as trustee under the Indenture;
NOW THEREFORE BE IT RESOLVED , that U.S. Bank, N.A. be and it hereby is appointed as trustee, and successor to the Current Trustee, under the Indenture and any subsequent supplemental indentures thereto (the “ New Trustee ”), as paying agent for the Corporation for the payment of principal and interest with respect to any debt securities issued thereunder and as registrar and transfer agent for the purpose of registering the ownership and transfer of such debt securities, if such New Trustee shall require certain resolutions to be adopted by the Board to evidence the authority conferred upon it by these resolutions, any officer of the Corporation be, and each of them individually hereby is, authorized, in the name and on behalf of the Corporation, to prepare and certify the appropriate form of resolutions so required, and such resolutions shall thereupon be incorporated and adopted by reference herein to the same extent as if presented to and adopted by the Board, and the Secretary of the Corporation is directed to file a copy of any such resolutions with this consent; and further
RESOLVED , that any of the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer and any other executive officer of the Corporation (each an “ Authorized
Officer ” and collectively, the “ Authorized Officers ”) be, and each of them hereby is, authorized and directed, in the name and on behalf of the Corporation, with the assistance of counsel, to prepare, cause to be prepared, execute, deliver, file and cause to be filed all reports, statements, documents and information required to be filed by the Corporation pursuant to federal securities laws, including the Securities Exchange Act of 1934, as amended, and the Securities Act of 1933, as amended, (the “ Securities Act ”) including, without limitation, any amendments to the Registration Statement (including post-effective amendments), any supplements to the prospectus or prospectuses contained therein, any exhibits and amendments to any exhibits thereto and all other certificates, letters, reports, statements, applications, and any other documents or information connected therewith, which may be required to be filed with the Securities and Exchange Commission (the “ Commission ”) with respect to the registration of offering, issuance and sale from time to time of any debt securities, and to take any and all action that counsel for the Corporation shall advise or that any of such Authorized Officers taking such action shall determine to be necessary, advisable or appropriate, such determination to be evidenced conclusively by the taking of such action; and further
RESOLVED , that the Authorized Officers be, and each of them hereby is, authorized and empowered, with full power and authority to delegate such authority to one or more attorneys-in-fact or agents acting for him pursuant to a power of attorney, to execute and cause to be filed with the Commission under the Securities Act, the Registration Statement, with such changes to the form thereof referred to above as the person executing the same shall approve, such approval to be conclusively evidenced by the execution thereof by such person, and to further execute and cause to be filed any amendments to the Registration Statement (including post-effective amendments) and any supplements to the prospectus or prospectuses contained therein as counsel for the Corporation may deem necessary or advisable or appropriate; and further
RESOLVED , that the Authorized Officers shall be and each of them acting alone is hereby authorized, empowered and directed for and on behalf of the Corporation and in its name: (i) to execute and deliver any and all certificates, agreements and other documents, including but not limited to any certificate required under the Indenture and any subsequent supplemental indenture and any agreement to effectuate succession of the New Trustee as trustee under the Indenture and any subsequent supplemental indenture and (ii) to take any and all steps and to do any and all acts and things which they, or any of them, may deem necessary, advisable or appropriate in order to effectuate the purposes of each and all of the foregoing resolutions; and further
RESOLVED , that all acts and things heretofore done by any of such Authorized Officers, on or prior to the date of this Unanimous Written Consent in which the foregoing resolutions were adopted, in connection with the transactions contemplated by such resolutions be, and the same hereby are, in all respects ratified, confirmed, approved and adopted as acts by and on behalf of the Corporation.
IN WITNESS WHEREOF , the undersigned have executed this Unanimous Consent of the Board of Directors effective as of March 6, 2012.
The undersigned further direct that this consent shall be filed in the minute book of the Corporation.
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/s/ John F. Barry III |
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/s/ M. Grier Eliasek |
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John F. Barry III |
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M. Grier Eliasek |
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Director |
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Director |
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/s/ Andrew C. Cooper |
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/s/ William J. Gremp |
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Andrew C. Cooper |
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William J. Gremp |
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Director |
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Director |
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/s/ Eugene S. Stark |
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Eugene S. Stark |
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Director |
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