ECC Eagle Point Credit Company Inc

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): January 23, 2024

 

 

Eagle Point Credit Company Inc.

(Exact name of Registrant as specified in its charter)

 

 

Delaware		811-22974		47-2215998
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

600 Steamboat Road, Suite 202, Greenwich, CT 06830

(Address of Principal Executive Offices) (Zip Code)

 

Registrant’s telephone number, including area code: (203) 340-8500

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.001 per share		ECC		New York Stock Exchange
6.50% Series C Term Preferred Stock due 2026		ECCC		New York Stock Exchange
6.75% Series D Preferred Stock		ECC PRD		New York Stock Exchange
6.6875% Notes due 2028		ECCX		New York Stock Exchange
5.375% Notes due 2029		ECCV		New York Stock Exchange
6.75% Notes due 2031		ECCW		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

 

¨ Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

Item 1.01.

Entry into a Material Definitive Agreement.

 

On January 23, 2024, Eagle Point Credit Company Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) by and among the Company, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Ladenburg Thalmann & Co. Inc., in connection with the issuance and sale of 400,000 shares (the “Offering”) of the Company’s 8.00% Series F Term Preferred Stock due 2029 (the “Series F Term Preferred Stock”). The Offering is expected to close on January 24, 2024, subject to customary closing conditions.

 

The Series F Term Preferred Stock are expected to be listed on the New York Stock Exchange and to trade under the trading symbol “ECCF”.

 

The Offering is being made pursuant to a registration statement on Form N-2 (333-269139), filed with the Securities and Exchange Commission (the “Commission”).

 

The foregoing description of the terms of the Underwriting Agreement for the Series F Term Preferred Stock is not complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement for the Series F Term Preferred Stock, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated by reference herein.

   

Item 9.01.

Financial Statements and Exhibits.

 

(d)

Exhibits

 

EXHIBIT NUMBER		DESCRIPTION
1.1		Underwriting Agreement, dated January 23, 2024, by and among the Company, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Ladenburg Thalmann & Co. Inc.
5.1		Opinion of Dechert LLP.
23.1		Consent of Dechert LLP (contained in the opinion filed as Exhibit 5.1 hereto).

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, Eagle Point Credit Company Inc. has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	Eagle Point Credit Company Inc.
Date: January 23, 2024	By:	/s/ Kenneth P. Onorio
		Kenneth P. Onorio
		Chief Financial Officer and Chief Operating Officer

 

 

 

 

Exhibit 1.1

 

400,000 SHARES
EAGLE POINT CREDIT COMPANY INC.
8.00% SERIES F TERM PREFERRED STOCK DUE 2029
$0.001 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT

 

January 23, 2024

 

Ladenburg Thalmann & Co. Inc 

640 Fifth Avenue, 4th Floor 

New York, New York 10019

 

Ladies and Gentlemen:

 

Eagle Point Credit Company Inc., a corporation organized under the laws of Delaware (the “Company”), is a non-diversified closed-end management investment company that has registered as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”). Eagle Point Credit Management LLC, a Delaware limited liability company (the “Investment Adviser”), acts as the Company’s investment adviser. Eagle Point Administration LLC, a Delaware limited liability company (the “Administrator”), acts as the Company’s administrator.

 

The Company proposes to issue and sell to Ladenburg Thalmann & Co. Inc. (“Ladenburg”) 400,000 shares (the “Firm Shares”) of the Company’s 8.00% Series F Term Preferred Stock due 2029, $0.001 par value per share (the “Series F Term Preferred Stock”). The Firm Shares may be also referred to herein as the “Shares.”

 

The Company has entered into (i) an amended and restated investment advisory agreement with the Investment Adviser dated as of May 16, 2017 (the “Investment Advisory Agreement”), (ii) a custody agreement with Wells Fargo Bank, National Association dated as of July 20, 2016 (as assigned to Computershare Trust Company, N.A) (the “Custody Agreement”) and (iii) an administration agreement with the Administrator dated as of June 6, 2014 (the “Administration Agreement”), and (iv) a transfer agency and registrar services agreement with Equiniti Trust Company, LLC dated as of September 16, 2014 (as amended, the “Transfer Agency Agreement”). Collectively, the Investment Advisory Agreement, the Custody Agreement, Administration Agreement and the Transfer Agency Agreement are herein referred to as the “Company Agreements.”

 

The Investment Company Act and the Securities Act of 1933, as amended (the “Securities Act”), are hereinafter referred to collectively as the “Acts” and the rules and regulations of the Securities and Exchange Commission (the “Commission”) under the Acts and under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereinafter referred to collectively as the “Rules and Regulations.”

 

 

Prior to the Closing Date (as defined below), the Company will file a Certificate of Designation establishing and designating the Series F Term Preferred Stock (the “Certificate of Designation”) with the Secretary of State of the State of Delaware.

 

The Company has filed with the Commission a shelf registration statement on Form N-2 (File Nos. 333-269139 and 811-22974) under the Securities Act in respect of shares of its common stock, par value $0.001 per share (the “Common Stock”); shares of its preferred stock, including the Series C Term Preferred Stock, the Series D Preferred Stock, and the Series F Term Preferred Stock; debt securities and subscription rights. The registration statement as amended, including the exhibits and schedules thereto, at the time it became effective, including the information, if any, deemed to be part of the registration statement at the time of its effectiveness pursuant to paragraph (a) Rule 430C under the Securities Act and all documents incorporated or deemed to be incorporated therein by reference pursuant to the final rule and form amendments adopted by the Commission to implement certain provisions of the Economic Growth, Regulatory Relief, and Consumer Protection Act (“CEF Act”) is hereinafter referred to as the “Registration Statement.” The prospectus included in the Registration Statement at the time it became effective (including the information, if any, deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430C under the Securities Act) in the form in which it was distributed is hereinafter referred to as the “Base Prospectus.” The final prospectus, which includes the final prospectus supplement to be dated January 23, 2024, and filed with the Commission pursuant to Rule 424(b) under the Securities Act, or any other prospectus supplements filed pursuant to Rule 424(b) under the Securities Act and, when and if applicable, all documents incorporated or deemed to be incorporated therein by reference pursuant to the final rule and form amendments adopted by the Commission to implement certain provisions of the CEF Act, and to be used to confirm sales is hereinafter referred to, together with the Base Prospectus, as the “Prospectus.”

 

All references in this Agreement to the Registration Statement and the Prospectus, or any amendments or supplements to any of the foregoing shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) system.

 

For purposes of this Agreement, “Omitting Prospectus” means any written advertisement used with the written consent of the Company in the public offering of the Shares and filed pursuant to Rule 482 under the Securities Act (“Rule 482”). As used herein, the terms “Registration Statement” and “Prospectus” shall include the documents, if any, incorporated by reference therein.

 

“Applicable Time” means 2:15 P.M. (New York City time) on January 23, 2024 or such other time as agreed by the Company and Ladenburg.

 

1.            Representations and Warranties of the Company, the Investment Adviser and the Administrator. The Company, the Investment Adviser and the Administrator, jointly and severally, represent and warrant to and agree with Ladenburg as of the date hereof, the Applicable Time and the Closing Date (as defined below) as follows:

 

(a)            The Company meets the requirements for use of Form N-2 under the Securities Act and the Rules and Regulations. The Registration Statement has been filed with, and declared effective by, the Commission; no notice of objection of the Commission to the use of such Registration Statement, any document filed pursuant to the Exchange Act which will be incorporated by reference, or deemed to be incorporated by reference pursuant to the Rules and Regulations, any post-effective amendment thereto has been received by the Company; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission. The Prospectus delivered to Ladenburg for use in connection with this offering is and will be identical in all material respects to the electronically transmitted copy thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. At the time of filing the Registration Statement and any post-effective amendments thereto, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act.

 

 

(b)            At the respective times the Registration Statement and any post-effective amendment thereto (filed before the Closing Date) became or becomes effective and at the Closing Date, the Registration Statement, the documents incorporated or deemed to be incorporated by reference thereto and any post-effective amendment thereto complied and will comply in all material respects with the requirements of the Acts and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment or supplement thereto, as of the respective dates thereof and at the Closing Date, contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus, at the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this paragraph do not apply to statements in or omissions from the Registration Statement or the Prospectus made solely in reliance upon and in conformity with written information furnished to the Company by Ladenburg for use in the Registration Statement or Prospectus.

 

(c)            The Company has been duly organized and is validly existing in good standing as a corporation under the laws of the State of Delaware. The Company has full power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and is in good standing and is duly qualified to transact business in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Company (a “Company Material Adverse Effect”). The Company has no subsidiaries other than Eagle Point Credit Company Sub (Cayman) Ltd., Eagle Point Credit Company Sub II (Cayman) Ltd and Eagle Point Credit Company Sub II (US) LLC.

 

(d)            The Company is, and at all times through the completion of the transactions contemplated hereby will be, in compliance in all material respects with the applicable terms and conditions of the Acts and the Rules and Regulations. To the Company’s knowledge, no person is serving or acting as an officer or director of, or investment adviser to, the Company except in accordance with the provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, including the rules and regulations thereunder (the “Advisers Act”). Except as otherwise disclosed in the Registration Statement and the Prospectus, to the Company’s knowledge, no director of the Company is an “interested person” of the Company or an “affiliated person” (each as defined in the Investment Company Act) of Ladenburg.

 

 

(e)            This Agreement has been duly authorized, executed and delivered by the Company. Each Company Agreement complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, each Company Agreement represents a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law; provided that neither the Company nor the Investment Adviser makes any representation or warranty as to the effect on the representations and warranties expressed herein of (i) the compliance and noncompliance of any other party (other than the Company) to any of the foregoing Company Agreements with state, federal or other laws or regulations applicable to it or them or (ii) the legal or regulatory status or nature of the business of such other party.

 

(f)             None of (1) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement or (2) the issue and sale by the Company of the Shares as contemplated by this Agreement conflicts with or will conflict with, result in, or constitute a violation, breach of or default under, (x) the certificate of incorporation of the Company, as amended to date (the “Certificate of Incorporation”), or the second amended and restated bylaws of the Company, as amended to date (the “Bylaws”), (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Company that is material to the Company or (z) any law, rule or regulation applicable to the Company or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, whether foreign or domestic; except, with respect to clauses (y) or (z), any conflict, violation, breach or default which would have neither (i) a Company Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Ladenburg.

 

(g)            No consent, approval, authorization, order or permit of, license from or qualification with, any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Company prior to the Closing Date for the performance by the Company of its obligations under this Agreement or the Company Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, (ii) the rules and regulations of the Financial Industry Regulatory Authority, Inc., (“FINRA”) or of the New York Stock Exchange (the “NYSE”), (iii) the securities or “blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (x) a Company Material Adverse Effect nor (y) a material adverse effect on the consummation of the transactions contemplated by this Agreement.

 

 

(h)            The capital stock of the Company conforms in all material respects to the description thereof under the heading “Description of Our Capital Stock” in each of the Registration Statement and the Prospectus and this Agreement, the Certificate of Incorporation, the Bylaws and the Company Agreements conform in all material respects to the descriptions thereof contained in each of the Registration Statement and the Prospectus.

 

(i)             This Agreement, the Certificate of Designation, the Certificate of Incorporation and the Bylaws comply with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations and all approvals of such documents required under the Investment Company Act by the Company’s stockholders and, to the extent applicable, Board of Directors have been obtained and are in full force and effect.

 

(j)             The Company Agreements are in full force and effect and neither the Company nor, to the knowledge of the Company, any other party to any such agreement is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Company thereunder, and the Company is not currently in breach of, or in default under, any other written agreement or instrument to which it or its property is bound or affected, the default under or breach of which could reasonably be expected to have a Company Material Adverse Effect.

 

(k)            The outstanding shares of Common Stock, shares of the Company’s 6.50% Series C Term Preferred Stock due 2026, par value $0.001 per share (the “Series C Term Preferred Stock”), shares of the Company’s 6.75% Series D Preferred Stock, par value $0.001 per share (the “Series D Preferred Stock”) and shares of the Series F Term Preferred Stock have been duly authorized and are validly issued, fully paid and non-assessable. None of the outstanding shares of Common Stock, shares of Series C Term Preferred Stock, shares of Series D Preferred Stock, shares of Series F Term Preferred Stock or any other capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. Other than as contemplated in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.

 

(l)             The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Shares will not be subject to any preemptive or similar rights. The Shares conform to the descriptions thereof under the heading “Description of Our Preferred Stock” contained in the Registration Statement and under the heading “Description of the Series F Term Preferred Stock” contained in the Prospectus, and such descriptions conform in all material respects to the rights set forth in the instruments defining the same.

 

 

(m)           The Company will submit a listing application for the listing of the Shares on the NYSE and use its best efforts to maintain such listing.

 

(n)            The Shares conform to the provisions of the Certificate of Designation and the relative rights, preferences, interests and powers of such Shares are set forth in the Certificate of Designation. The Certificate of Designation has been duly authorized and executed by the Company in compliance with the Delaware General Corporation Law (the “DGCL”) and filed by the Company with Secretary of State of the State of Delaware. The Certificate of Designation is in full force and effect.

 

(o)            Each Omitting Prospectus (i) complies in all material respects with the requirements of Rule 482 and (ii) complied and will comply in all material respects with the Acts, the Rules and Regulations and the rules and regulations of FINRA, as applicable. Except for the Omitting Prospectuses identified on Schedule III hereto, the Company has not prepared, used or referred to and will not, without Ladenburg’sprior consent, prepare, use or refer to any Omitting Prospectus.

 

(p)            The questionnaires relating to FINRA Rule 5110 provided to Ladenburg or to counsel for Ladenburg in connection with letters, filings or other supplemental information provided to FINRA pursuant to FINRA’s conduct rules (Rules 5100, 5110 or 5121) are, to the Company’s knowledge, true and correct in all material respects.

 

(q)            Since the date of the most recent financial statements included in the Prospectus, there has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Company, and there have been no transactions entered into by the Company which are material to the Company, other than those in the ordinary course of its business or as described in the Prospectus.

 

(r)             There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party or to which any of the properties of the Company is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a Company Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described. Each officer signing or delivering a certificate pursuant to Section 6(b) hereof may rely upon his or her knowledge as to legal or governmental proceedings threatened.

 

(s)            The statements in the Registration Statement and the Prospectus, as applicable, under the headings “Prospectus Summary—Operating and Regulatory Structure,” “Prospectus Summary—Conflicts of Interest,” “The Adviser and the Administrator—Investment Advisory Agreement,” “The Adviser and the Administrator—The Administrator and the Administration Agreement,” “Regulation as a Closed-End Management Investment Company,” “U.S. Federal Income Tax Matters,” “Description of Our Capital Stock” and “Description of the Series F Term Preferred Stock” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries in all material respects of such legal matters, agreements, documents or proceedings.

 

 

(t)            The Company has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all necessary filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, in order to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in a Company Material Adverse Effect.

 

(u)            Each of the Registration Statement and the Prospectus, as of the respective dates thereof, complied as to form in all material respects with the Acts and the applicable Rules and Regulations.

 

(v)            The financial statements included in the Registration Statement and the Prospectus, together with the related notes thereto (collectively, the “Company Financial Statements”), present fairly in all material respects the financial condition of the Company as of the respective dates indicated, comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and have been prepared in conformity with generally accepted accounting principles (“GAAP”). The supporting schedules to such Company Financial Statements, if any, present fairly in accordance with GAAP the information required to be stated therein. KPMG LLP, whose report appears in the Registration Statement and the Prospectus and who have certified the audited Company Financial Statements and supporting schedules, if any, included in the Registration Statement, is an independent registered public accounting firm within the meaning of, and as required by, the Acts and the applicable Rules and Regulations.

 

(w)           Except for applicable restrictions, limitations, or regulations under the Investment Company Act and the Code (as defined herein), there are no material restrictions, limitations or regulations with respect to the ability of the Company to invest its assets as described in the Registration Statement and the Prospectus, other than as described therein.

 

(x)            Neither the Company nor any of its agents or representatives (other than Ladenburg in its capacity as such) has prepared, made, used, authorized, approved or referred to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Shares without the prior written consent of Ladenburg other than (i) the Registration Statement and the Prospectus, and any amendment or supplement to any of the foregoing, and (ii) the Omitting Prospectuses, if any, identified on Schedule III hereto. All other promotional material (including “road show slides” or “road show scripts”), if any, prepared by the Company or the Investment Adviser for use in connection with the offering and sale of the Shares (“Road Show Material”) is not inconsistent with the Registration Statement or the Prospectus, and, at the Applicable Time, did 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 light of the circumstances under which they were made, not misleading. All advertisements authorized by the Company in writing for use in the offering of the Shares complied and will comply in all material respects with the requirements of the Acts, the applicable Rules and Regulations and the rules and regulations of FINRA, and there are no such advertisements other than (i) the Omitting Prospectuses identified in Schedule III hereto and (ii) any advertisement that complies with Rule 135a under the Securities Act.

 

 

(y)            Subsequent to the respective dates as of which information is given in each of the Registration Statement and the Prospectus, (i) the Company has not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction not in the ordinary course of business, (ii) the Company has not repurchased or entered into any agreement or arrangement to repurchase any of its outstanding capital stock, (iii) the Company has not declared, paid or otherwise made any dividend or distribution of any kind on its capital stock, other than ordinary and customary dividends and (iv) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company, except in each case as contemplated in the Registration Statement and the Prospectus, respectively.

 

(z)            The Company owns or possesses, or can acquire on reasonable terms, all material 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 and trade names currently employed by them in connection with the business now operated by it, and the Company has not received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Company Material Adverse Effect.

 

(aa)          The computer systems, networks, hardware, software, databases, websites and equipment used to process, store, maintain and operate data, information and functions used in connection with the business of the Company (the “IT Systems”) of the Adviser and the Administrator, as applicable, are reasonably 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, free and clear, to the Company’s knowledge, of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. Each of the Company, the Adviser, and the Administrator, as applicable, has implemented and maintains commercially reasonable controls, policies, procedures, and safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security of all material IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with its businesses, and to the Company’s knowledge there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. Each of the Company, the Adviser, and the Administrator, as applicable, 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, internal 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, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

 

 

(bb)         To the extent that the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated by the Commission and the NYSE thereunder (the “Sarbanes-Oxley Act”), have been applicable to the Company, there is and has been no failure on the part of the Company to comply with any applicable provision of the Sarbanes-Oxley Act that would reasonably be expected to have a Company Material Adverse Effect.

 

(cc)          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 authorizations and with the applicable requirements of the Acts, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and compliance with the books and records requirements under the Acts, (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 the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the date of the Company’s most recent audited financial statements included in the Prospectus, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated), (ii) no fraud, whether or not material, that involves management or employees who have a role in the Company’s internal controls and (iii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

(dd)         The Company 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 effective as required by the Investment Company Act and the applicable Rules and Regulations and the Company is not aware of any material weakness in such controls and procedures.

 

(ee)          Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.

 

(ff)           There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus, (or the documents incorporated by reference therein) or to be filed as exhibits thereto by the Securities Act or the Investment Company Act which have not been so described and filed as required.

 

(gg)         The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

 

(hh)         Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company, the Investment Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Investment Adviser and the Administrator, and to the knowledge of the Company, the Investment Adviser or the Administrator, their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

(ii)            Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company, the Investment Adviser or the Administrator is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) and none of the Company, the Investment Adviser and the Administrator will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person or any country or territory currently subject to any U.S. sanctions administered by OFAC.

 

(jj)            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 directors, including the Company’s directors and officers errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 under the Investment Company Act, are in full force and effect, and the Company is in compliance with the terms of such policies and fidelity bond in all material respects; there are no claims by the Company under any such policies 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 result in a Company Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).

 

(kk)          Except as set forth in or contemplated in the Registration Statement and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of Ladenburg (the description of such arrangements and outstanding indebtedness thereunder is true, accurate and complete in all respects) and (ii) does not intend to use any of the proceeds from the sale of the Shares hereunder to repay any outstanding debt owed to any affiliate of Ladenburg.

 

 

(ll)            There are no business relationships or related-party transactions involving the Company or any other person required to be described in the Registration Statement or the Prospectus which have not been described as required, it being understood and agreed that the Company, the Investment Adviser and the Administrator make no representation or warranty with respect to such relationships involving Ladenburg or any affiliate and any other person that have not been disclosed to the Company by Ladenburg in connection with this offering.

 

(mm)        The Company has not taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.

 

(nn)         The Company owns, leases or has rights to use all such properties as are necessary to the conduct of its operations as presently conducted.

 

(oo)         The Company has elected to be treated (which election has not been revoked), and has operated, and intends to continue to operate, its business in such a manner to enable the Company to qualify to be taxed as, a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). The Company intends to direct the investment of the net proceeds received by it from the sale of the Shares in the manner specified in the Registration Statement and the Prospectus under the caption “Use of Proceeds” and in such a manner as to continue to comply with the requirements of Subchapter M of the Code.

 

(pp)         The Company has paid (or caused to be paid) all federal, state, local, and foreign taxes required by law to be paid, and have filed (or caused to be filed) all tax returns required by law to be filed (taking into account any applicable extensions), in each case, through the date hereof, except where the failure to pay such taxes or file such returns would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. Except as otherwise disclosed in the Registration Statement and the Prospectus, there is no tax deficiency that has been, or, to the knowledge of the Company, would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets that, in any case, would reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect.

 

(qq)          With respect to each investment held by the Company as of the date hereof, except as otherwise disclosed in the Registration Statement and the Prospectus, to the Company’s knowledge, no event of default (or a default which with the giving of notice or the passage of time would become an event of default) has occurred in respect of such investment, except to the extent that any such default would not reasonably be expected to result in a Company Material Adverse Effect.

 

Any certificate signed by or on behalf of the Company and delivered to Ladenburg or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Company as to the matters covered therein to Ladenburg.

 

 

2.            Representations and Warranties of the Investment Adviser and the Administrator. The Investment Adviser and the Administrator represent and warrant to and agree with Ladenburg as of the date hereof as follows:

 

(a)            Each of the Investment Adviser and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware with the power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the other Company Agreements to which the Investment Adviser or the Administrator is a party, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser or the Administrator, as the case may be (an “Adviser/Administrator Material Adverse Effect”).

 

(b)            The Investment Adviser is duly registered as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.

 

(c)            This Agreement has been duly authorized, executed and delivered by the Investment Adviser and/or the Administrator, as applicable. This Agreement and each Company Agreement to which the Investment Adviser or the Administrator is a party comply with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, each Company Agreement to which the Investment Adviser or the Administrator is a party represents a valid and binding agreement of the Investment Adviser or the Administrator, as applicable, enforceable against the Investment Adviser or the Administrator, as applicable, in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s or the Administrator’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.

 

(d)            The execution and delivery by the Investment Adviser and/or the Administrator, as applicable, of, and the performance by the Investment Adviser and/or the Administrator, as applicable, of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of or default under, (x) the limited liability company operating agreement of the Investment Adviser and/or the Administrator, as applicable (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser and/or the Administrator, as applicable, that is material to the Investment Adviser and/or the Administrator, as applicable, or (z) any law, rule or regulation applicable to the Investment Adviser and/or the Administrator, as applicable, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser and/or the Administrator, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Ladenburg.

 

 

(e)            No consent, approval, authorization, order or permit of, license from or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser and/or the Administrator, as applicable, prior to the Closing Date for the performance by the Investment Adviser, and/or the Administrator, as applicable, of its obligations under this Agreement or any Company Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser/Administrator Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.

 

(f)            There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser and the Administrator, threatened to which the Investment Adviser and/or the Administrator is a party or to which any of the properties of the Investment Adviser and/or the Administrator is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus, and proceedings that would not have an Adviser/Administrator Material Adverse Effect, as applicable, or that would not have a material adverse effect on the power or ability of the Investment Adviser and/or the Administrator, as applicable, to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus, or (ii) that are required to be described in the Registration Statement or the Prospectus, and are not so described.

 

(g)            There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus (or the documents incorporated by reference therein) or to be filed as exhibits thereto by the Securities Act or by the Rules and Regulations which have not been so described and filed as required.

 

(h)            Each of the Investment Adviser and the Administrator has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all necessary filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, in order to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser/Administrator Material Adverse Effect.

 

 

(i)             Each of the Investment Adviser and Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus, and by this Agreement and each Company Agreement to which it is a party.

 

(j)             The Investment Advisory Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document.

 

(k)            Each of the Investment Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged; all policies of insurance and any fidelity or surety bonds insuring the Investment Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Investment Adviser and the Administrator are in compliance with the terms of such policies and instruments in all material respects; there are no claims by the Investment Adviser or the Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; none of the Investment Adviser or the Administrator has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an Adviser/Administrator Material Adverse Effect.

 

(l)            All information furnished by the Investment Adviser or the Administrator for use in the Registration Statement and Prospectus, including, without limitation, the description of the Investment Adviser (the “Investment Adviser Information” and the “Administrator Information,” respectively) does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading (and in the case of the Prospectus, in light of the circumstances under which such information is provided).

 

(m)            There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Investment Adviser or the Administrator from that set forth in the Registration Statement and the Prospectus, and there have been no transactions entered into by the Investment Adviser other than those in the ordinary course of its business or which would not have a material adverse effect on either (1) the ability of the Investment Adviser to provide services to the Company pursuant to the Advisory Agreement or (2) the offering of the Shares, other than as described in the Registration Statement and the Prospectus.

 

 

(n)            None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.

 

(o)            The operations of the Investment Adviser and the Administrator are and have been conducted at all times in compliance 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 Investment Adviser or the Administrator with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser or the Administrator, threatened.

 

(p)            None of the Investment Adviser or the Administrator nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Investment Adviser or the Administrator, and, to their respective knowledge, the Investment Adviser and the Administrator, and each of their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintained policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

(q)            Each of the Investment Adviser and the Administrator has no subsidiaries.

 

(r)             None of the Investment Adviser or the Administrator nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser or the Administrator is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser and the Administrator will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

(s)            The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.

 

(t)            The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

 

Any certificate signed by or on behalf of the Investment Adviser or the Administrator and delivered to Ladenburg or counsel for Ladenburg in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser or the Administrator, as applicable, as to the matters covered therein to Ladenburg.

 

3.            Agreements to Sell and Purchase. The Company hereby agrees to sell to Ladenburg, and Ladenburg, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase from the Company the respective numbers of Firm Shares set forth in Schedule I hereto opposite its name at $24.21875 per share (the “Purchase Price”).

 

The Company hereby agrees that, without the prior written consent of Ladenburg, it will not, during the period ending 30 days after January 11, 2024 (1) 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, any preferred stock issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable for preferred stock issued or guaranteed by the Company or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any preferred stock issued or guaranteed by the Company whether any such transaction described in clause (1) or (2) above is to be settled by delivery of securities issued or guaranteed by the Company or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission relating to the offering of any preferred stock issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable for any preferred stock issued or guaranteed by the Company other than a post-effective amendment to the Company’s shelf registration statement on Form N-2 to update the financial information included therein, to respond to comment from the staff of the Commission and to make other non-material changes. The agreements contained in this paragraph shall not apply to (a) the Shares to be sold hereunder, (b) any issuance of Common Stock pursuant to the Company’s dividend reinvestment plan, (c) any issuance of Common Stock, Series C Term Preferred Stock or Series D Preferred Stock pursuant to the Company’s “at the market” program pursuant to the Company’s amended and restated at market sales agreement with B. Riley Securities, Inc, or (d) any issuance of Series F Term Preferred Stock pursuant to the exercise of an option to purchase up to an additional 210,000 shares of Series F Term Preferred Stock within 30 days of January 11, 2024, granted to Ladenburg, as the representative of several underwriters, in connection with that certain underwriting agreement dated as of January 11, 2024, by and among the Company, the Administrator, the Investment Adviser and Ladenburg, as representative of several underwriters.

 

4.            Terms of Public Offering. The Company, the Investment Adviser and the Administrator each understands that Ladenburg proposes to make a public offering of the Shares as soon as Ladenburg deems advisable after this Agreement has been executed and delivered. The Company, the Investment Adviser and the Administrator each further understands that the Shares are to be offered to the public initially at $25.00 per share (plus any accrued and unpaid dividends) (the “Public Offering Price”).

 

 

5.            Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal or other funds immediately available to a bank account designated by the Company against delivery of such Firm Shares for the account of Ladenburg at 10:00 A.M. (New York City time), on January 24, 2024, or at such other time on the same or such other date as shall be designated in writing by Ladenburg. The time and date of such payment are herein referred to as the “Closing Date.”

 

The Firm Shares shall be registered in such names and in such denominations as Ladenburg shall request in writing not later than one full business day prior to the Closing Date, as the case may be. The Firm Shares shall be delivered to Ladenburg through the facilities of The Depository Trust Company on the Closing Date for the account Ladenburg.

 

6.            Conditions to Ladenburg’s Obligations. The respective obligations of the Company, the Investment Adviser and the Administrator, and the several obligations of Ladenburg, hereunder are subject to the condition that at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings with respect thereto shall have been initiated or, to the Company’s knowledge, threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to Ladenburg.

 

The several obligations of Ladenburg are subject to the following further conditions:

 

(a)            Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Company, the Investment Adviser or the Administrator, from that set forth in the Prospectus that, in Ladenburg’s reasonable judgment, is material and adverse and that makes it, in Ladenburg’s reasonable judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.

 

(b)            Ladenburg shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Ladenburg shall also have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Investment Adviser, to the effect that the representations and warranties of the Investment Adviser contained in this Agreement are true and correct as of the Closing Date and that the Investment Adviser has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Ladenburg shall also have received on the Closing Date a certificate, dated the Closing Date and signed by an authorized person of the Administrator, to the effect that the representations and warranties of the Administrator contained in this Agreement are true and correct as of the Closing Date and that the Administrator has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.

 

 

(c)            Ladenburg shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Chief Financial Officer of the Company, to the effect that such officer has reviewed (i) the unaudited estimate of the range of the Company’s NAV per share of common stock as of December 31, 2023 appearing in the Prospectus, and (ii) certain financial information contained or incorporated by reference in each of the Registration Statement and the Prospectus, and based on such officer’s familiarity with the Company’s accounting, operations and records systems, such estimates and disclosures were made in good faith and are based on the most recently available records of the Company, and with respect to the unaudited estimate of the range of the Company’s NAV per share of common stock as of December 31, 2023, to the best of such officer’s knowledge represents a reasonable estimate of the Company’s NAV per share of common stock as of December 31, 2023.

 

(d)            Each of the Investment Adviser, the Administrator and the Company shall have performed all of its respective obligations to be performed hereunder on or prior to the Closing Date.

 

(e)            Ladenburg shall have received on the Closing Date an opinion and negative assurance letter of Dechert LLP, counsel for the Company, the Investment Adviser and the Administrator, dated the Closing Date.

 

(f)             Ladenburg shall have received on the Closing Date the favorable opinion of Duane Morris LLP, counsel for Ladenburg, dated the Closing Date and covering such matters as Ladenburg shall reasonably request.

 

(g)            Ladenburg shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Ladenburg, from KPMG LLP, independent registered public accountants (“KPMG”), containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.

 

(h)            Ladenburg shall have received, on the date hereof, an “agreed-upon procedures letter” dated the date hereof in form and substance satisfactory to Ladenburg, from KPMG, containing statements and information of the type ordinarily included in such letters with respect to certain financial information contained in the Registration Statement and the Prospectus.

 

(i)             All filings, applications and proceedings taken by the Company, the Investment Adviser and the Administrator in connection with the registration of the Shares under the Securities Act and the applicable Rules and Regulations shall be satisfactory in form and substance to Ladenburg and counsel for Ladenburg.

 

(j)             No action, suit, proceeding, inquiry or investigation shall have been instituted or threatened by the Commission which would adversely affect the Company’s standing as a registered investment company under the Investment Company Act or the standing of the Investment Adviser as a registered investment adviser under the Advisers Act.

 

 

7.            Covenants of the Company, the Investment Adviser and the Administrator. In further consideration of the agreements of Ladenburg herein contained, the Company covenants and agrees, and the Investment Adviser and the Administrator, covenant and agree with Ladenburg as follows:

 

(a)            To notify Ladenburg as soon as practicable, and confirm such notice in writing, of the occurrence of any event during the period mentioned in Section 7(f) below which in the judgment of the Company makes any statement in the Registration Statement or the Prospectus untrue in any material respect or which requires the making of any change in or addition to the Registration Statement or the Prospectus in order to make the statements therein not misleading in any material respect. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal of such order at the earliest possible moment.

 

(b)            Prior to the termination of the offering of the Shares, to comply with the requirements of Rule 430C and to promptly notify Ladenburg, and confirm the notice in writing, (i) when the Registration Statement, any Rule 462(b) Registration Statement or any post-effective amendment to the Registration Statement shall be declared or become effective, or when the Prospectus or any Omitting Prospectus or any amendment or supplement to any of the foregoing (including any document pursuant to the Exchange Act which will be incorporated by reference or deemed to be incorporated by reference) shall have been filed, (ii) of the receipt of any comments from the Commission relating to the Registration Statement (and shall promptly furnish Ladenburg with a copy of any comment letters and any transcript of oral comments, and shall furnish Ladenburg with copies of any written responses thereto a reasonable amount of time prior to the proposed filing thereof with the Commission and will not file any such response to which Ladenburg or counsel for Ladenburg shall reasonably object), (iii) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus or any Omitting Prospectus or any amendment or supplement to any of the foregoing, or any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction or of the loss or suspension of any purposes.

 

(c)            To furnish to Ladenburg in New York City, without charge, prior to 10:00 A.M. (New York City time) on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(f) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as Ladenburg may reasonably request.

 

(d)            Prior to the termination of the offering of the Shares, before amending or supplementing the Registration Statement (other than a post-effective amendment to the Company’s shelf registration statement on Form N-2 to update the financial information included therein, to respond to comments from the staff of the Commission and to make other non-material changes), the Prospectus, to furnish to Ladenburg a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which Ladenburg reasonably objects, and to file with the Commission within the applicable period specified in Rule 424 under the Securities Act any prospectus required to be filed pursuant thereto.

 

 

(e)            To furnish to Ladenburg a copy of each proposed Omitting Prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Omitting Prospectus to which Ladenburg reasonably objects.

 

(f)             [OMITTED]

 

(g)            The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Registration Statement and the Prospectus.

 

(h)            The Company and the Investment Adviser will not take any action designed to cause or result in the manipulation of the price of any security of the Company to facilitate the sale of Shares in violation of the Acts or the Exchange Act and the applicable Rules and Regulations, or the securities or “blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale of Shares.

 

(i)             If, during such period after the first date of the public offering of the Shares as in the reasonable opinion of either counsel for Ladenburg or counsel for the Company, the Prospectus is required by law to be delivered in connection with sales by Ladenburg, any event shall occur or condition exist 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 when the Prospectus is delivered to a purchaser, not misleading, or if, in the reasonable opinion of either counsel for Ladenburg or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to Ladenburg either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law, as applicable.

 

(j)             To endeavor to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as Ladenburg shall reasonably request; provided, however, that the Company shall not be obligated to file any general consent of service of process or to qualify as a foreign entity 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.

 

(k)            Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company and the Investment Adviser under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Prospectus, and any Omitting Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to Ladenburg and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the preparation, issuance, execution, authentication and delivery of the Shares to Ladenburg, (iii) the cost of printing or producing any “blue sky” memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(j) hereof, including filing fees and the reasonable fees and disbursements of counsel for Ladenburg in connection with such qualification and in connection with the “blue sky” memorandum, (iv) all costs and expenses incident to listing the Shares on the NYSE, (v) all costs and expenses of qualifying the Shares for inclusion in the book entry settlement system of DTC, (vi) the fees paid to Egan Jones Ratings Company in connection with the rating of the Shares, (vii) the document production charges and expenses associated with printing this Agreement, (viii) out-of-pocket accountable expenses of Ladenburg, including the reasonable fees and expenses of counsel, actually incurred by Ladenburg in connection with this Agreement or the offering contemplated hereunder, up to $10,000 in the aggregate, and (ix) all other costs and expenses of the Company incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section 7(k). It is understood, however, that except as provided in this Section 7 and in Section 8 entitled “Indemnity and Contribution,” Ladenburg will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them, the travel and lodging expenses of Ladenburg in connection with any road show presentations, and any advertising expenses connected with any offers they may make.

 

 

If this Agreement shall be terminated by Ladenburg because of any failure or refusal on the part of the Company, the Investment Adviser or the Administrator to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company, the Investment Adviser or the Administrator shall be unable to perform its obligations under this Agreement, the Company, the Investment Adviser and the Administrator, jointly and severally, will reimburse Ladenburg, severally, for all out-of-pocket accountable expenses (including the reasonable fees and disbursements of their counsel) actually incurred by Ladenburg in connection with this Agreement or the offering contemplated hereunder.

 

(l)             The Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and will use reasonable efforts to cause the Company’s directors and officers, in their capabilities, as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of Sarbanes-Oxley Act.

 

(m)            The Company will use reasonable best efforts to comply with the requirements of Subchapter M of the Code to qualify as a regulated investment company under the Code, with respect to any fiscal year in which the Company is an investment company registered under the Investment Company Act.

 

(n)            The Company, the Investment Adviser and the Administrator will use their reasonable efforts to perform all of the agreements required of them by this Agreement and discharge all conditions of theirs to closing as set forth in this Agreement.

 

(o)            Before using, approving or referring to any Road Show Material, the Company will furnish to Ladenburg and counsel to Ladenburg a copy of such material for review and will not make, prepare, use authorize, approve or refer to any such material to which Ladenburg reasonably objects.

 

(p)            As soon as practicable, the Company will make generally available to its security holders and to Ladenburg an earnings statement or statements of the Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.

 

(q)            The Company will use its best efforts to effect the listing of the Shares on the NYSE within 30 days of delivery of the Shares pursuant to this Agreement and to maintain such listing.

 

 

8.            Indemnity and Contribution.

 

(a)            Each of the Company, the Investment Adviser and the Administrator, jointly and severally, agrees to indemnify and hold harmless Ladenburg, each person, if any, who controls Ladenburg within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each director, officer, member, shareholder or affiliate of Ladenburg within the meaning of Rule 405 under the Securities Act (each, an “Underwriter Indemnified Party”) from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), caused by, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any Road Show Material, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon written information furnished to the Company by Ladenburg expressly for use therein.

 

(b)            Ladenburg agrees to indemnify and hold harmless each of the Company, the Investment Adviser and the Administrator, and each of their respective partners, directors, trustees, managers, members and shareholders (as the case may be), and each officer of the Company who signs the Registration Statement and each person, if any, who controls the Company, the Investment Adviser and/or the Administrator within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) to the same extent as the foregoing indemnity from the Company, the Investment Adviser and the Administrator to Ladenburg, but only with reference to written information relating to Ladenburg furnished to the Company by Ladenburg on behalf of itself expressly for use in the Registration Statement, as originally filed with the Commission, or any amendment thereof, any Omitting Prospectus, any Road Show Material or the Prospectus.

 

(c)            In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements reasonably incurred of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with an actual conflict of interest, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses reasonably incurred of more than one separate firm (in addition to any local counsel) for all Underwriter Indemnified Parties, collectively, and (ii) the fees and expenses reasonably incurred of more than one separate firm (in addition to any local counsel) for all Company Indemnified Parties, collectively. In the case of any such separate firm for the Underwriter Indemnified Parties, such firm shall be designated in writing by Ladenburg. In the case of any such separate firm for the Company Indemnified Parties, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for the reasonable fees and expenses of counsel as contemplated by the second and third sentences of this Section 8(c), the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the material terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the indemnified party.

 

 

(d)            To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Investment Adviser and/or the Administrator on the one hand and Ladenburg on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the relative fault of the Company, the Investment Adviser and/or the Administrator on the one hand and of Ladenburg on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Investment Adviser and/or the Administrator on the one hand and Ladenburg on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by Ladenburg, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company, the Investment Adviser and/or the Administrator on the one hand and Ladenburg on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Investment Adviser or the Administrator or by Ladenburg and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

(e)            The Company, the Investment Adviser, the Administrator and Ladenburg agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, Ladenburg shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that Ladenburg has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

 

(f)            The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company, the Investment Adviser and the Administrator contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter Indemnified Party or by or on behalf of any Company Indemnified Party and (iii) acceptance of and payment for any of the Shares.

 

(g)            No party shall be entitled to indemnification under this Section 8 if such indemnification of such party would violate Section 17(i) of the Investment Company Act.

 

9.            Termination. Ladenburg may terminate this Agreement by notice given by Ladenburg to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the NYSE, the NYSE American, the Nasdaq Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in Ladenburg’s judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in Ladenburg’s judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Prospectus, or (vi)(x) a downgrading shall have occurred in the rating accorded the Shares by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (y) such an organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Shares.

 

10.          Effectiveness. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

 

11.          Entire Agreement.

 

(a)            This Agreement supersedes all prior agreements and understandings (whether written or oral) between and among the Company, the Investment Adviser, the Administrator and Ladenburg, or any of them, with respect to the subject matter hereof.

 

(b)            Each of the Company, the Investment Adviser and the Administrator acknowledges that in connection with the offering of the Shares: (i) Ladenburg is acting solely as an underwriter in connection with the sale of the Shares and no fiduciary, advisory or agency relationship between the Company, the Investment Adviser and the Administrator, on the one hand, and Ladenburg, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not Ladenburg has advised or is advising the Company, the Investment Adviser or the Administrator on other matters, (ii) the public offering price of the Shares and the price to be paid by Ladenburg for the Shares set forth in this Agreement were established by the Company, the Investment Adviser and the Administrator following discussions and arms-length negotiations with Ladenburg, (iii) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement, (iv) Ladenburg owes the Company, the Investment Adviser and the Administrator only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (v) Ladenburg may have interests that differ from those of the Company, the Investment Adviser and the Administrator, and (vi) it waives, to the fullest extent permitted by law, any claims it may have against Ladenburg for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that none of Ladenburg shall have any liability (whether direct or indirect, in contact, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Investment Adviser or the Administrator or any stockholders, employees or creditors of the Company, the Investment Adviser or the Administrator.

 

 

12.          Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

13.         Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts made and to be performed within the State of New York, notwithstanding any otherwise applicable conflicts of law principles.

 

14.          Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

 

15.          Notices. All communications hereunder shall be in writing and effective only upon receipt and (i) if to Ladenburg, shall be sufficient in all respects if delivered, mailed or sent to  Ladenburg Thalmann & Co. Inc., 640 Fifth Avenue, 4th Floor, New York, New York 10019, Attention: Syndicate Desk (facsimile no. (212) 409-2169), with a copy to Duane Morris LLP, 1540 Broadway, New York, NY 10036, Attention: Dean M. Colucci (email: dmcolucci@duanemorris.com) and (ii) if to the Company, the Investment Adviser or the Administrator, shall be sufficient in all respects if delivered, mailed or sent to the Company, the Investment Adviser or the Administrator, as applicable, at the offices of the Company at 600 Steamboat Road, Suite 202, Greenwich, Connecticut 06830, Attention: General Counsel (facsimile no. (203) 340-8543), with a copy to Dechert LLP, One International Place, 40th Floor, 100 Oliver Street, Boston, Massachusetts 02110, Attention: Thomas J. Friedmann (facsimile no. (617) 275-8389).

 

[Signature pages follow]

 

 

	Very truly yours,
	EAGLE POINT CREDIT COMPANY INC.
	By:	/s/ Kenneth P. Onorio
		Name: Kenneth P. Onorio
		Title:   Chief Financial Officer
	EAGLE POINT CREDIT MANAGEMENT LLC
	By:	/s/ Kenneth P. Onorio
		Name: Kenneth P. Onorio
		Title:   Chief Financial Officer
	EAGLE POINT ADMINISTRATION LLC
	By:	/s/ Kenneth P. Onorio
		Name: Kenneth P. Onorio
		Title:   Chief Financial Officer

 

[Company Signature Page to Underwriting Agreement]

 

 

Accepted as of the date hereof.
LADENBURG THALMANN & CO. INC.
By:  Ladenburg Thalmann & Co. Inc.
By:	/s/ Jeffrey Caliva
	Name: Jeffrey Caliva
	Title: Managing Director

 

[Signature Page to Underwriting Agreement]

 

 

SCHEDULE I

 

Underwriter		Number of Firm Shares To Be Purchased
Ladenburg Thalmann & Co. Inc.			400,000
Total			400,000

 

 

SCHEDULE II

 

[OMITTED]

 

 

SCHEDULE III
OMITTING PROSPECTUSES

 

None.

 

 

Exhibit 5.1

 

	One International Place, 40th Floor 100 Oliver Street Boston, MA 02110-2605 +1 617 728 7100 Main +1 617 275 8374 Fax www.dechert.com

 

January 23, 2024

 

Eagle Point Credit Company Inc.

600 Steamboat Road, Suite 202

Greenwich, CT 06830

 

Re:

Registration Statement on Form N-2

 

Ladies and Gentlemen:

 

We have acted as counsel to Eagle Point Credit Company Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a registration statement on Form N-2 (File Nos. 333-269139 and 811-22974) as originally filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on January 6, 2023 under the Securities Act of 1933, as amended (the “Securities Act”), and under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the pre-effective amendments thereto filed by the Company with the Commission on May 26, 2023 and June 8, 2023 under the Securities Act and Investment Company Act (the registration statement, as amended, at the time when it most recently became effective, including the prospectus and the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430C of the Commission under the Securities Act, being hereinafter referred to collectively as the “Registration Statement”), and the final prospectus supplement, dated January 23, 2024 (including the base prospectus filed therewith, the “Prospectus Supplement”), filed with the Commission on January 23, 2024 pursuant to Rule 424 under the Securities Act, relating to the proposed issuance by the Company of 400,000 shares of its 8.00% Series F Term Preferred Stock Due 2029, $0.001 par value per share (the “Shares”), to be sold to an underwriter pursuant to an underwriting agreement in substantially the form filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Commission on January 23, 2024 (the “Underwriting Agreement”). This opinion letter is being furnished to the Company in accordance with the requirements of Item 25 of Form N-2 under the Investment Company Act, and we express no opinion herein as to any matter other than as to the legality of the Shares.

 

 

Eagle Point Credit Company Inc. January 23, 2024 Page 2

 

In rendering the opinions expressed below, we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for rendering the opinions set forth below, including the following documents:

 

(i)

the Registration Statement;

 

(ii)

the Prospectus Supplement;

 

(iii)

the Underwriting Agreement;

 

(iv)

the Certificate of Incorporation of the Company, as amended to date, including the certificate of designation relating to the Shares;

 

(v)

the Second Amended and Restated Bylaws of the Company;

 

(vi)

a certificate of good standing with respect to the Company issued by the Secretary of State of the State of Delaware as of a recent date; and

 

(vii)

resolutions approved by the board of directors of the Company (the “Board”) and resolutions approved by the pricing committee of the Board relating to, among other things, the authorization and issuance of the Shares.

 

As to the facts upon which this opinion is based, we have relied, to the extent we deem proper, upon certificates of public officials and certificates and written statements of agents, officers, directors, employees and representatives of the Company without having independently verified such factual matters.

 

In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as original documents and the conformity to original documents of all documents submitted to us as copies. In addition, we have assumed (i) the legal capacity of natural persons who are signatories to the documents examined by us and (ii) the legal power and authority of all persons signing on behalf of the parties to such documents (other than the Company).

 

On the basis of the foregoing and subject to the assumptions and qualifications set forth in this letter, we are of the opinion that the Shares have been duly authorized and that: when (i) the Underwriting Agreement has been duly executed and delivered by the parties thereto and (ii) the Shares are (a) issued and delivered against receipt by the Company of payment therefor of such lawful consideration as the Board (or a duly authorized committee thereof) may lawfully determine and at a price per Share not less than the par value per Share as contemplated by the Registration Statement and the prospectus contained therein and in accordance with the terms of the Underwriting Agreement and (b) if applicable, countersigned by the transfer agent, the Shares will be validly issued, fully paid and nonassessable.

 

The opinions expressed herein are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware. We are members of the bar of the State of New York.

 

 

Eagle Point Credit Company Inc. January 23, 2024 Page 3

 

This opinion letter has been prepared solely in connection with the Registration Statement. The opinions expressed herein are based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect, and facts known to us on the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion.

 

We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on January 23, 2024 and to the reference to this firm under the caption “Legal Matters” in the prospectus which forms a part of the Registration Statement and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Dechert LLP

 

 

v3.23.4

Cover	Jan. 23, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jan. 23, 2024
Entity File Number	811-22974
Entity Registrant Name	Eagle Point Credit Co Inc.
Entity Central Index Key	0001604174
Entity Tax Identification Number	47-2215998
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	600 Steamboat Road
Entity Address, Address Line Two	Suite 202
Entity Address, City or Town	Greenwich
Entity Address, State or Province	CT
Entity Address, Postal Zip Code	06830
City Area Code	203
Local Phone Number	340-8500
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	ECC
Security Exchange Name	NYSE
6.50% Series C Term Preferred Stock due 2031 [Member]
Document Information [Line Items]
Title of 12(b) Security	6.50% Series C Term Preferred Stock due 2026
Trading Symbol	ECCC
Security Exchange Name	NYSE
6.75% Series D Preferred Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	6.75% Series D Preferred Stock
Trading Symbol	ECC PRD
Security Exchange Name	NYSE
6.6875% Notes due 2028 [Member]
Document Information [Line Items]
Title of 12(b) Security	6.6875% Notes due 2028
Trading Symbol	ECCX
Security Exchange Name	NYSE
5.375% Notes due 2029 [Member]
Document Information [Line Items]
Title of 12(b) Security	5.375% Notes due 2029
Trading Symbol	ECCV
Security Exchange Name	NYSE
6.75% Notes due 2031 [Member]
Document Information [Line Items]
Title of 12(b) Security	6.75% Notes due 2031
Trading Symbol	ECCW
Security Exchange Name	NYSE

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