As filed with the U.S. Securities and Exchange Commission on August 10, 2016

1933 Act File No. 333-205540
1940 Act File No. 811-22974

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



 

FORM N-2



 

x REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

o Pre-Effective Amendment No.  

x Post-Effective Amendment No. 5

and

x REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940

x Amendment No. 20



 

EAGLE POINT CREDIT COMPANY INC.

(Exact name of Registrant as specified in charter)



 

20 Horseneck Lane
Greenwich, CT 06830

(Address of Principal Executive Offices)

(203) 340-8500

(Registrant’s telephone number, including Area Code)

Thomas P. Majewski
20 Horseneck Lane
Greenwich, CT 06830

(Name and address of agent for service)

Copies of Communications to:

Thomas J. Friedmann
Philip T. Hinkle
Dechert LLP
One International Place, 40 th Floor
100 Oliver Street
Boston, Massachusetts 02110
(617) 728-7120



 

Approximate date of proposed public offering : As soon as practicable after the effective date of this Registration Statement.

If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x

It is proposed that this filing will become effective (check appropriate box):

o when declared effective pursuant to section 8(c).

If appropriate, check the following box:

o This post-effective amendment designates a new effective date for a previously filed registration statement.

o This form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act and the Securities Act registration statement number of the earlier effective registration statement for the same offering is            .

 

 

 
 

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EXPLANATORY NOTE

This Post-Effective Amendment No. 5 to the Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) (the “Registration Statement”) of Eagle Point Credit Company Inc. (the “Registrant”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of adding exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 5 consists only of a facing page, this explanatory note and Part C of the Registration Statement. This Post-Effective Amendment No. 5 does not modify any other part of the Registration Statement and pursuant to Rule 462(d) under the Securities Act, shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.

 
 

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PART C — OTHER INFORMATION

ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS

1. Financial Statements:

The Index to Financial Statements on page F-1 to the Registration Statement is hereby incorporated by reference.

2. Exhibits:

 
    
(a)(1)   Form of Certification of Incorporation (3)
(a)(2)   Certificate of Designation for the 7.75% Series A Term Preferred Stock due 2022 (4)
(b)   Second Amended and Restated Bylaws (9)
(c)   Not applicable
(d)(1)   Indenture, dated December 4, 2015, by and between the Registrant and American Stock Transfer & Trust Company, LLC, trustee (8)
(d)(2)   Form of Certificate of Designation for Preferred Stock (6)
(d)(3)   Form of Subscription Certificate (6)
(d)(4)   Form T-1 Statement of Eligibility of American Stock Transfer & Trust Company, LLC, as trustee, with respect to the Form of Indenture (5)
(d)(5)   Form of Subscription Agent Agreement (6)
(d)(6)   First Supplemental Indenture, dated December 4, 2015 by and between the Registrant and American Stock Transfer & Trust Company, LLC, trustee (8)
(e)   Dividend Reinvestment Plan (3)
(f)   Not applicable
(g)   Form of Investment Advisory Agreement by and between the Registrant and Eagle Point Credit Management LLC (1)
(h)(1)   Form of Underwriting Agreement for Equity Securities (6)
(h)(2)   Form of Underwriting Agreement for Debt Securities (6)
(h)(3)   Underwriting Agreement, dated December 1, 2015 by and among the Registrant, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Incapital LLC (8)
(h)(4)   Underwriting Agreement, dated May 13, 2016 by and among the Registrant, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Deutsche Bank Securities Inc. (10)
(h)(5)   Underwriting Agreement, dated May 31, 2016 by and among the Registrant, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Incapital LLC (11)
(i)   Not applicable
(j)(1)   Form of Custody Agreement by and between the Registrant and Deutsche Bank Trust Company Americas (1)
(j)(2)   Custody Agreement, dated as of July 20, 2016, among the Registrant and Wells Fargo Bank, National Association
(k)(1)   Form of Administration Agreement by and between the Registrant and Eagle Point Administration LLC (1)
(k)(2)   Form of License Agreement between the Registrant and Eagle Point Credit Management LLC (2)
(k)(3)   Form of Transfer Agency and Registrar Services Agreement between the Registrant and American Stock Transfer & Trust Company, LLC (3)
(k)(4)   Services Agreement, dated November 1, 2014 by and among SS&C Technologies, Inc., the Registrant, Eagle Point Administration LLC and Eagle Point Credit Management LLC (4)
(k)(5)   Securities Purchase Agreement, dated August 8, 2016 by and between the Registrant and each Buyer listed on Schedule A thereto

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(l)(1)   Opinion and Consent of Counsel (6)
(l)(2)   Opinion and Consent of Counsel (8)
(l)(3)   Opinion and Consent of Counsel (10)
(l)(4)   Opinion and Consent of Counsel (11)
(l)(5)   Opinion and Consent of Counsel
(m)   Not applicable
(n)   Consent of Independent Registered Public Accounting Firm (12)
(o)   Not applicable
(p)   Not applicable
(q)   Not applicable
(r)(1)   Code of Ethics of the Registrant (2)
(r)(2)   Code of Ethics of Eagle Point Credit Management LLC (10)
(s)(1)   Form of Prospectus Supplement for Common Stock Offerings (6)
(s)(2)   Form of Prospectus Supplement for Preferred Stock Offerings (7)
(s)(3)   Form of Prospectus Supplement for Subscription Rights Offerings (6)
(s)(4)   Form of Prospectus Supplement for Debt Securities (7)

(1) Previously filed on June 6, 2014 with the Registrant’s Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein.
(2) Previously filed on July 7, 2014 with Pre-effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein.
(3) Previously filed on September 30, 2014 with Pre-effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein.
(4) Previously filed on May 12, 2015 with Pre-effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-202914 and 811-22974) and incorporated by reference herein.
(5) Previously filed on August 11, 2015 with Pre-effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(6) Previously filed on November 5, 2015 with Pre-effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(7) Previously filed on November 23, 2015 with Pre-effective Amendment No. 5 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(8) Previously filed on December 4, 2015 with Post-effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(9) Previously filed on February 29, 2016 with the Registrant’s Semi-Annual Report on Form N-SAR (File No. 811-22974) and incorporated by reference herein.
(10) Previously filed on May 17, 2016 with Post-effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(11) Previously filed on May 17, 2016 with Post-effective Amendment No. 3 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.
(12) Previously filed on June 21, 2016 with Post-effective Amendment No. 4 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein.

ITEM 26. MARKETING ARRANGEMENTS

The information contained under the heading “Plan of Distribution” in the prospectus that forms a part of this Registration Statement is incorporated herein by reference.

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ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION

 
SEC registration fee   $ 30,210  
FINRA filing fee   $ 45,500  
NYSE listing fee   $ 60,000  
Rating agency fees   $ 50,000  
Printing and postage   $ 175,000  
Legal fees and expenses   $ 750,000  
Accounting fees and expenses   $ 400,000  
Miscellaneous   $ 50,000  
Total   $ 1,560,710  

Note: Except for the SEC registration fee, the FINRA filing fee and the rating agency fee, all listed amounts are estimates.

ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL

Eagle Point Credit Company Sub LLC, a Delaware limited liability company, is a wholly owned subsidiary of the Registrant and was included in the Registrant’s consolidated financial statements as of March 31, 2016.

Eagle Point Credit Company Sub (Cayman) Ltd., a Cayman Islands exempted company, is a wholly owned subsidiary of the Registrant and was included in the Registrant’s consolidated financial statements as of March 31, 2016.

ITEM 29. NUMBER OF HOLDERS OF SECURITIES

The following table sets forth the number of record holders of each class of the Registrant’s securities as of August 5, 2016:

 
Title of Class   Number of
Record Holders
Common stock, par value $0.001 per share     8  
Preferred stock, par value $0.001 per share     1  
7.00% Notes due 2020     1  

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ITEM 30. INDEMNIFICATION

Directors and Officers

As permitted by Section 102 of the General Corporation Law of the State of Delaware (the “DGCL”), the Registrant has adopted provisions in its certificate of incorporation, as amended, that limit or eliminate the personal liability of its directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to the Registrant or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for: any breach of the director’s duty of loyalty to the Registrant or its stockholders; any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or any transaction from which the director derived an improper personal benefit. These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission.

The Registrant’s certificate of incorporation and bylaws provide that all directors, officers, employees and agents of the Registrant shall be entitled to be indemnified by the Registrant to the fullest extent permitted by the DGCL, subject to the requirements of the Investment Company Act of 1940, as amended (the “1940 Act”). Under Section 145 of the DGCL, the Registrant is permitted to offer indemnification to its directors, officers, employees and agents.

Section 145(a) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise. Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.

Section 145(b) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise, against any expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145(g) of the DGCL provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise, against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, regardless of whether the corporation would have the power to indemnify the person against such liability under the provisions of the law. We have obtained liability insurance for the benefit of our directors and officers.

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Adviser and Administrator

The Investment Advisory Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Eagle Point Credit Management LLC (the “Adviser”) and its officers, managers, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of the Adviser’s services under the Investment Advisory Agreement or otherwise as an investment adviser of the Registrant.

The Administration Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Eagle Point Administration LLC (the “Administrator”) and its officers, managers, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of the Administrator’s services under the Administration Agreement or otherwise as administrator for the Registrant.

Insofar as indemnification for liability arising under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the U.S. Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

Each Underwriting Agreement provides that the underwriter agrees to indemnify, defend and hold harmless each of the Registrant, the 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 Registrant who signs the Registration Statement and each person, if any, who controls the Registrant, the Adviser and/or the Administrator within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Registrant or any such person may incur under the Securities Act, the Exchange Act, the 1940 Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning such sales agent furnished in writing by such sales agent to the Registrant expressly for use in this Registration Statement (or in the Registration Statement as amended by any post-effective amendment hereof by the Registrant) or in the prospectus (or any supplement thereto) contained in this Registration Statement, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in this Registration Statement or such prospectus (or supplement thereto) or necessary to make such information not misleading.

The Securities Purchase Agreement provides that each investor agrees to indemnify, defend and hold harmless each of the Registrant and its affiliates, directors, officers and employees from and against any and all losses, claims, damages, liabilities and expenses based on, arising out of or otherwise in respect of any material inaccuracy in, or material breach of, the representations and warranties of such investor in the Securities Purchase Agreement.

The Registrant has entered into indemnification agreements with its officers and directors. The indemnification agreements are intended to provide the Registrant’s officers and directors the maximum indemnification permitted under Delaware law and the 1940 Act. Each indemnification agreement provides that the Registrant shall indemnify the director who is a party to the agreement (an “Indemnitee”), including

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the advancement of legal expenses, if, by reason of his or her corporate status, the Indemnitee is, or is threatened to be, made a party to or a witness in any threatened, pending, or completed proceeding, other than a proceeding by or in the right of the Registrant.

ITEM 31. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER

A description of any other business, profession, vocation or employment of a substantial nature in which the Adviser, and each managing director, director or executive officer (other than Nauman S. Malik) of the Adviser, is or has been during the past two fiscal years, engaged in for his or her own account or in the capacity of director, officer, employee, partner or trustee, is set forth in Part A of this Registration Statement in the sections entitled “Management” and “The Adviser and the Administrator. ” Mr. Malik joined the Adviser in June 2015 as General Counsel. Mr. Malik was previously an associate at Dechert LLP. Additional information regarding the Adviser and its officers and directors is set forth in its Form ADV, as filed with the Securities and Exchange Commission (SEC File No. 801-77721), under the Investment Advisers Act of 1940, as amended, and is incorporated herein by reference.

ITEM 32. LOCATION OF ACCOUNTS AND RECORDS

All accounts, books, and other documents required to be maintained by Section 31(a) of the 1940 Act, and the rules thereunder are maintained at the offices of:

 
(1)   the Registrant, Eagle Point Credit Company Inc., 20 Horseneck Lane, Greenwich, CT 06830;
(2)   the Transfer Agent and Trustee, American Stock Transfer & Trust Company, LLC, 6201 15 th Avenue, Brooklyn, NY 11219;
(3)   the former Custodian, Deutsche Bank Trust Company Americas, 1761 East St. Andrews Place, Santa Ana, CA 92705; and
(4)   the Custodian, Wells Fargo Bank, National Association, 9062 Old Annapolis Rd., Columbia, MD 21045.
(5)   the Adviser, Eagle Point Credit Management LLC, 20 Horseneck Lane, Greenwich, CT 06830.

ITEM 33. MANAGEMENT SERVICES

Not applicable.

ITEM 34. UNDERTAKINGS

(1) The Registrant undertakes to suspend the offering of shares until the prospectus is amended if (1) subsequent to the effective date of its registration statement, the net asset value declines more than ten percent from its net asset value as of the effective date of the registration statement or (2) the net asset value increases to an amount greater than its net proceeds as stated in the prospectus.
(2) Not applicable.
(3) In the event that the securities being registered are to be offered to existing shareholders pursuant to rights, and any securities not taken by shareholders are to be reoffered to the public, the Registrant undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent reoffering thereof; and further, if any public offering by the underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the prospectus, to file a post-effective amendment to set forth the terms of such offering.
(4) The Registrant undertakes:
(a) to file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement: (1) to include any prospectus required by Section 10(a)(3) of the 1933 Act; (2) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (3) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

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(b) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof;
(c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(d) that, for the purpose of determining liability under the 1933 Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(e) that for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities: that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser: (1) any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act; (2) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and (3) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(5) Registrant undertakes that:
(a) for purposes of determining any liability under the Securities Act of 1933, as amended, the information omitted from the form of prospectus filed as part of the Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 497(h) under the Securities Act of 1933, as amended, shall be deemed to be part of this Registration Statement as of the time it was declared effective; and
(b) for purposes of determining any liability under the Securities Act of 1933, as amended, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.
(6) Not applicable.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant has duly caused this post-effective amendment no. 5 to the Registrant’s Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Greenwich, in the State of Connecticut, on the 10 th day of August, 2016.

EAGLE POINT CREDIT COMPANY INC.

By: /s/ Thomas P. Majewski

Name: Thomas P. Majewski
Title:  Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this post-effective amendment no. 5 to the Registrant’s Registration Statement on Form N-2 has been signed by the following persons in the capacities and on the dates indicated.

   
Signature   Title   Date
/s/ Thomas P. Majewski

Thomas P. Majewski 		  Chief Executive Officer and Director
(Principal Executive Officer) 		  August 10, 2016
/s/ Kenneth P. Onorio

Kenneth P. Onorio 		  Chief Financial Officer
(Principal Financial and Accounting Officer) 		  August 10, 2016
*

James R. Matthews 		  Chairman of the Board of Directors   August 10, 2016
*

Scott W. Appleby 		  Director   August 10, 2016
*

Kevin F. McDonald 		  Director   August 10, 2016
*

Paul E. Tramontano 		  Director   August 10, 2016
*

Jeffrey L. Weiss 		  Director   August 10, 2016

*By:

/s/ Thomas P. Majewski

Name: Thomas P. Majewski
Title: Attorney-in-fact

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Exhibit (j)(2)

 

CUSTODY AGREEMENT

 

 

CUSTODY AGREEMENT, dated as of July 20, 2016, among Eagle Point Credit Company Inc. (the “ Eagle Point ”), a Delaware corporation with its principal place of business at 20 Horseneck Lane, Greenwich, CT 06830, each of the entities listed on Schedule A hereto, as Schedule A may be amended from time to time pursuant to the terms hereof, (each a “ Subsidiary ”, and together with Eagle Point, each is referred to herein separately as a “ Company ” and collectively as the “ Companies ”), and Wells Fargo Bank, National Association, custodian (the “ Custodian ”), a national banking association organized under the laws of the United States of America with a principal place of business at 9062 Old Annapolis Rd., Columbia, MD 21045.

 

WHEREAS, the Eagle Point is registered under the Investment Company Act of 1940, as amended (the “ 1940 Act ”), as a closed-end investment company;

 

WHEREAS, the Investment Adviser (as defined below) has been appointed by Eagle Point as investment adviser of the Companies with authority to direct the Custodian with respect to investments and, to the extent applicable, cash management;

 

WHEREAS, the Companies desire to retain Wells Fargo Bank, National Association to act as custodian for the Companies;

 

WHEREAS, the Companies desire that the Companies’ Securities (as defined below) and cash be held and administered by the Custodian pursuant to this Agreement in compliance with Section 17(f) of the 1940 Act; and

 

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the parties do hereby agree as follows:

 

Section 1.         DEFINITIONS . Whenever used in this Agreement, the following terms shall have the meanings specified, insofar as the context will allow.

 

(a)           Appropriate Instructions : Attached hereto as Exhibit A is a list those persons authorized by the Companies to deliver instructions hereunder (the “ Authorized Signers ”) which may include officers and employees of the Investment Adviser. The Custodian may rely on any instruction given by an Authorized Signer. The term Appropriate Instructions shall mean an authorization, instruction, approval, item or set of data, or information of any kind in original writing containing signatures, or a copy of such document transmitted by facsimile transmission, electronic mail or other electronic transmission of text (including electronic records attached thereto) given by any Authorized Signer. The parties hereto assume full responsibility for the security of electronically transmitted communications which they send. Any electronic mail or other electronic transmission of text will be deemed signed by the sender if the sender’s name or electronic address appears as part of, or is transmitted with, the electronic record. Any communication addressed and mailed shall be deemed to be given when received; and any communication sent by electronic transmission shall be deemed to be given when actually received; and any communication delivered in person shall be deemed to be given when actually received by a Responsible Officer of the Custodian or the Company, as applicable. Any electronically delivered instructions, including by email or facsimile, received from or on behalf of any Authorized Signer, or any email or facsimile received from another individual on behalf of the Companies in which any Authorized Signers are also identified as copied, shall constitute Appropriate Instructions. The Custodian shall not incur any liability to anyone resulting from actions taken in good faith reliance on such communication or document. Nor shall the Custodian incur any liability in executing Appropriate Instructions from any Authorized Signer prior to receipt by the Custodian of notice of the revocation of such person or entity as an Authorized Signer.

 

 

 

 

(b)           Authorized Signer : The term Authorized Signer shall have the meaning set forth in Section 1(a) hereof.

 

(c)           Board : The term Board shall mean the Board of Directors of Eagle Point.

 

(d)           Book-Entry Account : The term Book-Entry Account shall mean an account maintained by a Federal Reserve Bank in which Book-Entry Securities are held.

 

(e)           Book-Entry Securities : The term Book-Entry Securities shall mean Securities issued by the United States Treasury and United States federal agencies and instrumentalities that are maintained in the book-entry system maintained by a Federal Reserve Bank.

 

(f)           Certificate : The term Certificate shall mean any notice, instruction, or other instrument in writing, authorized or required by this Agreement to be given to the Custodian, which is actually received by a Responsible Officer of the Custodian and signed on behalf of a Company by any two Authorized Signers.

 

(g)           Certificated Security : The term Certificated Security shall have the meaning ascribed to such term in Section 8-102(4) of the UCC (as defined below).

 

(h)           Clearing Member : The term Clearing Member shall mean a registered broker-dealer that is a member of a national securities exchange qualified to act as a custodian for an investment company, or any broker-dealer reasonably believed by the Custodian to be such a clearing member.

 

(i)            Company Business Day : The term Company Business Day shall mean any day other than a Saturday, a Sunday or a day on which banking and savings and loan institutions in the State of New York, the State of Maryland or the city in which the principal offices of the Custodian are located are authorized or obligated by law or executive order to be closed.

 

(j)            Contract Rights : The term Contract Rights shall mean contractual rights owned by a Company to receive distributions from one or more counterparties, the terms of which are notified by the Company or its designated agent to the Custodian. A Contract Right may constitute a Security.

 

(k)           Custodian : The term Custodian shall mean the Custodian in its capacity as custodian under this Agreement.

 

(l)            Depository : The term Depository shall mean The Depository Trust Company (“ DTC ”), Participants Trust Company (“ PTC ”), and any other clearing agency registered with the Securities and Exchange Commission under Section 17A of the Securities Exchange Act of 1934, its successor(s) and its nominee(s). The term “Depository” shall further mean and include any person authorized to act as a depository pursuant to Section 17, Rule 17f-4 or Rule 17f-5 under the 1940 Act, its successor(s) and its nominee(s), specifically identified in a certified copy of a resolution of the Board of Directors approving deposits therein by the Custodian.

 

(m)          Foreign Custodian : The term Foreign Custodian shall mean “eligible foreign custodian” as that term is defined in Rule 17f-5 under the 1940 Act.

 

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(n)           Foreign Securities : The term Foreign Securities shall mean “Foreign Securities” as that term is defined in Rule 17f-5 under the 1940 Act.

 

(o)           Investment Adviser : The term Investment Adviser shall mean Eagle Point Credit Management LLC, a Delaware limited liability company appointed by Eagle Point as investment adviser of the Companies with authority to direct the Custodian concerning investments and, to the extent applicable, cash management, which authority shall remain in force unless and until revoked by Eagle Point or a Company in writing to the Custodian, and any successor investment adviser appointed from time to time by Eagle Point or a Company.

 

(p)           Officers : The term Officers shall be deemed to include any Chief Executive Officer, Chief Operating Officer, President, Vice President, Secretary, Chief Financial Officer, Treasurer, any Assistant Secretary, any Assistant Treasurer or any other person or persons duly authorized by the Directors of Eagle Point to execute any Certificate, instruction, notice or other instrument on behalf of the Companies and listed in the Certificate attached hereto or such other Certificate as may be received by the Custodian from time to time.

 

(q)           Responsible Officer : means (i) with respect to the Custodian, any officer within the corporate trust office (or any successor group of the Custodian) of the Custodian set forth in Section 25 hereof (the “ Corporate Trust Office ”) including any vice president, assistant vice president or officer of the Custodian customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred at the Corporate Trust Office because of such person’s knowledge of and familiarity with the particular subject and in each case having direct responsibility for the administration of this Agreement, and (ii) any Authorized Signer of the Companies or any other person designated as a “Responsible Officer” in writing by a Company from time to time.

 

(r)           Securities : The term Security or Securities shall mean bonds, debentures, notes, stocks, shares, evidences of indebtedness, and other securities and investments from time to time owned by the Companies or a Subsidiary, as applicable.

 

(s)           Securities Depository : The term Securities Depository shall mean a system, domestic or foreign, for the central handling of securities in which all securities of any particular class or series of any issuer deposited within the system are treated as fungible and may be transferred or pledged by bookkeeping entry without physical delivery of the securities and shall include any system for the issuance of Book-Entry Securities.

 

(t)           Sub-Custodian : The term Sub-Custodian shall mean any person selected by the Custodian under Section 21 hereof and in accordance with the requirements of the 1940 Act to custody any or all of the Securities and cash of the Companies.

 

(u)          UCC : The term UCC shall mean the Uniform Commercial Code as in effect in the State of New York.

 

(v)          Uncertificated Security : The term Uncertificated Security shall mean a Security that is not represented by a physical certificate, other than such Security that is held in a Securities Depository.

 

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Section 2.         APPOINTMENT

 

(a)           Appointment . The Companies hereby appoint the Custodian as custodian of the Securities and cash of the Companies (collectively, the “ Assets ”) from time to time delivered to the Custodian hereunder, and the Custodian hereby accepts such appointment and agrees to perform the services and duties set forth in this Agreement subject to and in accordance with the provisions hereof.

 

(b)           Segregation . The Assets shall be and remain the sole property of the applicable Company and the Custodian shall have only custody thereof. The Custodian shall hold and physically segregate for each account all Assets, including all Securities that are maintained pursuant to Section 6 in a Securities Depository or Book-Entry Account, from other securities and non-cash property in the possession of the Custodian, and all such Assets shall be marked so as to clearly identify them as property of the applicable Company. The Custodian shall collect (other than instituting enforcement actions) all income, principal and other distributions due and payable on the Assets. Notwithstanding anything herein to the contrary, under no circumstances shall the Custodian be obligated to bring legal action or institute proceedings against any person on behalf of the Companies.

 

(c)           Securities Custodian Accounts . There shall be, and hereby is, established by each Company with the Custodian, a non-interest bearing trust account which will be separately identified for each Company as the custody account (each such account is referred to herein as the “ Custody Account ”) and in which the Custodian shall hold all Assets (other than Uncertificated Securities and Contract Rights) delivered to the Custodian pursuant to this Agreement, and which shall be governed by and subject to this Agreement. On the date hereof, the Custodian has established each Custody Account as set forth on Schedule B hereto. In addition, on and after the date hereof, the Custodian may establish any number of subaccounts to any Custody Account as deemed necessary or appropriate by the Custodian and Companies in administering each Custody Account (each such subaccount, a “ Subaccount ” and collectively with the Custody Accounts, the “ Accounts ”).

 

The Custodian shall not be required to credit or deposit Uncertificated Securities and Contract Rights in the Accounts but shall instead maintain a record (in book-entry form or in such other form as it shall deem necessary or desirable) of such Uncertificated Securities and Contract Rights owned by the Company containing such information as a Company and the Custodian may reasonably agree, provided that the Company shall have furnished to the Custodian such documents evidencing the Company’s investment in each such Uncertificated Security or rights under each such Contract Right, together with a description of the material terms of any such Uncertificated Security or Contract Right as requested by the Custodian (collectively, such documents and information are referred to herein as the “ Investment Documents ”). The Custodian’s sole duties as it relates to such Uncertificated Securities and Contract Rights of the Company shall be to (i) maintain a record of such Uncertificated Securities and Contract Rights (based on the information provided to the Custodian pursuant to the preceding sentence) (the “Recordkeeping Duties”) and (ii) to retain and hold the Investment Documents in respect of each Uncertificated Security and Contract Right held by a Company as a document custodian (the “Document Custody Duties”) and in a manner consistent with the manner in which the Custodian holds all other Assets of the Company pursuant to Section 2(b).

 

Assets or proceeds thereof shall be withdrawn from and credited to the Accounts only upon Authorized Instructions pursuant to the terms hereof.

 

All Assets to be delivered in physical form to the Custodian shall be delivered to the address set forth in Section 25 hereof and all assets to be delivered in book-entry form to the Custodian shall be delivered in accordance with delivery instructions separately provided by the Custodian. The Custodian shall not be responsible for any other assets of the Companies held or received by the Companies or others or any assets not delivered or furnished to the Custodian as set forth herein and accepted by the Custodian as hereinafter provided.

 

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Section 3.         DELIVERY OF EVIDENCE OF AUTHORITY

 

The Companies and/or the Investment Adviser may from time to time deliver to the Custodian a certificate revising Exhibit A and the Authorized Signers who may give Appropriate Instructions, and the Custodian shall be fully protected in acting in reliance thereon, until the Custodian receives a certificate amending Exhibit A to add or delete any Authorized Signer who may give Appropriate Instructions.

 

Section 4.         APPROPRIATE INSTRUCTIONS

 

For all purposes under this Agreement, the Custodian is authorized to act upon receipt of the Appropriate Instructions, which it in good faith believes to be genuine and delivered by an Authorized Signer.

 

Section 5.         DEPOSIT OF ASSETS

 

(a)          The Companies shall initially furnish, transfer and credit or deposit, or cause to be furnished, transferred and credited or deposited, with the Custodian all Assets owned by the Companies for which the Companies wish the Custodian to have custody, as contemplated by this Agreement, provided that the Custodian shall have the right, in its reasonable discretion, to refuse, upon providing written notice to the Companies, to accept any Securities or other property that are not in proper form for credit or deposit or recordkeeping, or for any other reason. Such transfer and credit or deposit shall be evidenced by Appropriate Instructions to receive such Assets. The Companies may cause additional Assets, including dividends or interest collected on Assets, as the same are acquired from time to time by the Companies, to be delivered to the Custodian pursuant to the terms hereof. The Companies may cause to be credited or deposited with the Custodian from time to time (i) the net proceeds of Assets sold, and (ii) Assets consisting of cash as may be acquired by the Companies.

 

(b)          The Custodian shall not be responsible for any Assets not furnished or delivered to Custodian as set forth herein and accepted by the Custodian as hereinafter provided. The Custodian shall have no obligation to accept or hold any security or other asset pursuant to the terms of this agreement to the extent it reasonably determines that such security or asset does not fall within the definition of “Asset” or holding such security or asset would violate any law, rule, regulation or internal policy applicable to the Custodian.

 

(i)          A Security other than an Uncertificated Security shall be deemed to be “delivered” to the Custodian when the Companies deliver such Security in the following manner: (a) if such Security is a Certificated Security or an instrument (other than a Security held in a Securities Depository), then in physical certificated form in the name of the Companies or its nominee, (b) if such Security is held in a Securities Depository, then delivery of confirmation that such Security is held in the Securities Depository or (c) in such other good delivery form that may be agreed to by the Custodian from time to time.

 

(ii)         A Security that is an Uncertificated Security or that is otherwise not evidenced by a “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC respectively, will be deemed to be “delivered” to the Custodian when a Company furnishes or cause to be furnished to the Custodian the Investment Documents. The Custodian’s sole duties with respect to such Uncertificated Securities shall be limited to the Recordkeeping Duties and Document Custody Duties. Nothing herein shall require the Custodian to credit to the Securities Account or to treat as a financial asset (within the meaning of Section 8-102(a)(9) of the UCC) any Uncertificated Security or other asset in the nature of a general intangible (as defined in Section 9-102(a)(42) of the UCC) or to “maintain” a sufficient quantity thereof.

 

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(iii)        On or prior to the date of delivery of any Investment Document to the Custodian with respect to any Uncertificated Security or Contract Rights owned by the Company, the Company shall deliver to the Custodian a checklist (the “Document Checklist”) which shall list each of the Documents being delivered to the Custodian and such other information as the Custodian may reasonably request from time to time. The Custodian shall take and retain custody of the Investment Documents delivered in accordance with the terms and conditions of this Agreement. Within five (5) Business Days of its receipt of any Investment Documents and the Document Checklist, the Custodian shall review the Investment Documents delivered to it and confirm in writing that all Documents required to be delivered pursuant to the Document Checklist have been delivered and are in the possession of the Custodian. In the event any of the Investment Documents identified on the Document Checklist are not delivered to the Custodian, the Custodian shall notify the Company. In order to facilitate the foregoing review by the Custodian, in connection with each delivery of Investment Documents hereunder to the Custodian, the Company shall provide to the Custodian an electronic file (in EXCEL or a comparable format acceptable to the Custodian) of the related Document Checklist that contains a list of all required Documents. For the avoidance of doubt, other than the foregoing, the Custodian shall not have any responsibility for reviewing any Investment Documents.

 

(iv)        The Custodian may assume the genuineness of any Investment Document it may receive and the genuineness and due authority of any signatures appearing thereon, and the Custodian shall be entitled to assume that each such Investment Document it may receive is what it purports to be.

 

(v)         If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or becomes available with respect to any Uncertificated Security for which Investment Documents have been furnished to the Custodian under this Agreement, it shall be the sole responsibility of the Company to make or cause delivery thereof to the Custodian, and the Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to be issued or made available in respect of any Security or to compel or cause delivery thereof to the Custodian.

 

Section 6.         DEPOSIT OF ASSETS WITH THIRD PARTIES

 

Unless otherwise held in the Account, the Companies hereby authorize the Custodian to deposit Assets as follows, provided that, in depositing Assets as described below the Custodian shall have exercised due care in accordance with reasonable commercial standards in discharging its duty as a securities intermediary with respect to such Assets:

 

(a)          With another bank licensed and regularly examined by the United States or any state thereof as a Company shall permit by Appropriate Instructions, including any third-party custodian designated by the Company for purposes of settling tri-party repurchase agreements.

 

(b)          In the Custodian or Sub-Custodian’s account(s) with any Securities Depository.

 

(c)          Book-Entry Securities belonging to the Companies or a Subsidiary in a Book-Entry Account maintained for the Custodian.

 

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So long as any deposit referred to in (b) or (c) above is maintained for a Company, the Custodian shall send to the applicable Company such reports of the systems of internal accounting control of the Custodian and its agents through which Securities are deposited as are available and as the Company may reasonably request from time to time.

 

Section 7.         REGISTRATION OF SECURITIES

 

The Securities held by the Custodian, other than Securities payable to bearer, Securities maintained in a Securities Depository or Book-Entry Account pursuant to Section 6 hereof or Uncertificated Securities, shall be registered in the name of the Custodian or in the name of its nominee for the account of the applicable Company, or if directed by Appropriate Instructions, in the name of the applicable Company or its nominee. Any such nominee of the Custodian shall be under the Custodian’s exclusive control and shall be identified to the Companies. In the event that any Securities are registered in the name of the applicable Company or its nominee, the applicable Company on its own behalf will endorse, or cause to be endorsed, to the Custodian dividend and interest checks, or will issue appropriate orders to the issuers of the Securities to pay dividends and interest to the Custodian. Securities, excepting bearer securities, delivered from time to time to the Custodian shall, in all cases, be in due form for transfer, or registered as above provided.

 

Section 8.         DISBURSEMENTS OF CASH

 

The Custodian is hereby authorized and directed to disburse cash to or from a Company from time to time only as follows:

 

(a)          For the purchase of Assets constituting Securities by any Company, upon receipt by the Custodian of (i) Appropriate Instructions specifying the Securities and stating the purchase price and the name of the broker, investment banker or other party to or upon whose order the purchase price is to be paid, such Appropriate Instructions to be received by the Custodian in accordance with the parties’ mutually agreed upon instruction deadline schedule, and (ii) either the Securities so purchased, in due form for transfer or already registered as provided in Section 7, or notification by a Securities Depository or a Federal Reserve Bank that the Securities have been credited to the Custodian’s account with the Securities Depository or Federal Reserve Bank.

 

(b)          For transferring funds, including mark-to-the-market payments, in connection with a repurchase agreement covering Securities that are to be delivered to a third party custodian as provided in Section 6 (a), upon receipt by the Custodian of Appropriate Instructions.

 

(c)          For exercising warrants and rights received upon the Securities, upon timely receipt of Appropriate Instructions authorizing the exercise of such warrants and rights and stating the consideration to be paid.

 

(d)          For repaying, in whole or in part, any loan of any applicable Company, or returning cash collateral for Securities loaned by any applicable Company, upon receipt of Appropriate Instructions directing payment and stating the Securities, if any, to be received against payment.

 

(e)          For transferring funds to any Sub-Custodian.

 

(f)          To advance or pay out accrued interest on bonds purchased, dividends on stocks sold and similar items, upon receipt of Appropriate Instructions.

 

(g)          To pay proper compensation and expenses of the Custodian, except as set forth herein, upon receipt of Appropriate Instructions.

 

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(h)          To pay, or provide the Companies with money to pay, taxes, upon receipt of Appropriate Instructions.

 

(i)           To transfer funds to a separate checking account or demand deposit accounts maintained by any applicable Company upon receipt of Appropriate Instructions.

 

(j)           For any other purpose directed by the applicable Company, but only upon receipt of Appropriate Instructions specifying the amount of the payment, and naming the person or persons to whom such payment is to be made.

 

Section 9.         DELIVERY OF SECURITIES

 

The Custodian is hereby authorized and directed to deliver Securities of a Company from time to time only as follows:

 

(a)          For completing sales of Securities sold by any applicable Company, upon receipt of (i) Appropriate Instructions specifying the Securities sold, the amount to be received and the broker, investment banker or other party to or upon whose order the Securities are to be delivered, such Appropriate Instructions to be received by the Custodian in accordance with the Schedule of Deadlines, and (ii) against payment of the net proceeds of sale in the amount specified in the Appropriate Instructions in accordance with the then current securities industry practices and in form satisfactory to the Custodian; provided, however, that the Custodian may accept payment in connection with the sale of Book-Entry Securities and Securities on deposit with a Securities Depository by means of a credit in the appropriate amount to the account described in Section 6(b) or (c) above. For exchanging Securities for other Securities (and cash, if applicable), upon timely receipt of (i) Appropriate Instructions stating the Securities to be exchanged, cash to be received and the manner in which the exchange is to be made and (ii) the other Securities (and cash, if applicable) as specified in the Appropriate Instructions.

 

(b)          For exchanging or converting Securities pursuant to their terms or pursuant to any plan of conversion, consolidation, recapitalization, reorganization, re-adjustment or otherwise, upon timely receipt of (i) Appropriate Instructions authorizing such exchange or conversion and stating the manner in which such exchange or conversion is to be made and (ii) the Securities, certificates of deposit, interim receipts, and/or cash to be received as specified in the Appropriate Instructions.

 

(c)          For presenting for payment Securities that have matured or have been called for redemption upon timely receipt of Appropriate Instructions authorizing such action;

 

(d)          Subject to the limitations set forth in Section 11 hereof, for depositing with the lender Securities to be held as collateral for a loan to any applicable Company or depositing with a borrower Securities to be loaned by any applicable Company, upon receipt of Appropriate Instructions directing delivery to the lender or borrower and suitable collateral or, if Securities are loaned, pursuant to the terms of a separate securities lending agreement.

 

(e)          For complying with a repurchase agreement, upon receipt of (i) Appropriate Instructions stating the securities to be delivered and the payment to be received and (ii) payment.

 

(f)          For depositing with a depository agent in connection with a tender or other similar offer to purchase Securities of any applicable Company upon receipt of Appropriate Instructions.

 

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(g)          For depositing Securities with the issuer thereof, or its agents, for the purpose of transferring such Securities into the name of any applicable Company, the Custodian or any nominee of either in accordance with Section 7, upon receipt of Appropriate Instructions.

 

(h)          For other proper purposes; provided that the Custodian shall receive Appropriate Instructions requesting such delivery.

 

(i)           Notwithstanding the foregoing, the Custodian may, without Appropriate Instructions, surrender and exchange Securities for other Securities in connection with any reorganization, recapitalization, or similar transaction in which the owner of the Securities is not given an option; provided, however, that the Custodian has no responsibility to effect any such exchange unless a Responsible Officer has received actual notice of the event permitting or requiring such exchange. To facilitate any such exchange, the Custodian is authorized to surrender against payment maturing obligations and obligations called for redemption and to effectuate the exchange in accordance with customary practices and procedures established in the market for exchanges.

 

Section 10.        [Reserved]

 

Section 11.        BORROWINGS AND USE OF SECURITIES AS COLLATERAL

 

If any applicable Company borrows money or engages in certain transactions and uses Securities as collateral, the applicable Company shall deliver to the Custodian Appropriate Instructions stating the Securities to be delivered as collateral, and Custodian shall deliver such Securities on the date specified in such Appropriate Instructions.

 

The Custodian shall deliver, from time to time, any Securities required as additional collateral for any transaction described in this Section, upon receipt of Appropriate Instructions. The Companies shall cause all Securities released from collateral status to be returned directly to the Custodian.

 

To effect such delivery in compliance with Section 17(f) of the 1940 Act, and for such other purposes as may be set forth in Appropriate Instructions, upon receipt of Appropriate Instructions, the Custodian shall establish and maintain on its books one or more additional segregated account or accounts (each such account, an “ Additional Controlled Account ”) for and on behalf of any applicable Company (subject to entry by the Custodian, any applicable Company and any applicable lender counterparty of one or more agreements (each such agreement, a “ Controlled Account Agreement ”) governing the terms of each Additional Controlled Account and agreement by any applicable Company of any additional applicable fees payable to the Custodian in connection with the opening and operation of such Additional Controlled Account), into which Additional Controlled Account may be transferred assets of the applicable Company, including Securities maintained by the Custodian in a Securities Depository, as directed pursuant to Appropriate Instructions, and the Custodian and any applicable Company may enter into the applicable Controlled Account Agreement with the lender or counterparty (as applicable) in connection therewith. The Custodian shall not be responsible for the determination of the type or amount of Assets to be held in any Additional Controlled Account referred to in this paragraph.

 

Section 12.        INDEBTEDNESS TO CUSTODIAN

 

The Companies hereby agree that the Custodian shall have a continuing lien and security interest, to the extent of any overdraft or indebtedness, including any amounts owed to the Custodian hereunder, in any property then held by the Custodian or its agents for the benefit of the Companies, or in which the Companies may have an interest.

 

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Section 13.        [RESERVED]

 

Section 14.       [ RESERVED ]

 

Section 15.        EXERCISE OF POWERS WITH RESPECT TO SECURITIES

 

The Custodian shall, reasonably promptly following receipt by the Custodian, furnish to the Companies all proxies or other appropriate authorizations with respect to Securities registered in the name of the Custodian or its nominee, so that the Companies or its designee may vote, consent or otherwise act, and the Custodian shall take such actions as may be directed by the Companies pursuant to Appropriate Instructions. The Companies or such persons as it may designate shall have the right to vote, consent or otherwise act with respect to such Securities in accordance with such Appropriate Instructions. Absent such Appropriate Instructions, the Custodian assumes no duty, obligation or responsibility whatsoever to exercise any voting or consent powers with respect to the Securities held by it from time to time hereunder.

 

Section 16.        COMPENSATION

 

The Companies agree, jointly and severally, to pay to the Custodian compensation for its services as set forth in a separate Fee Agreement, or as shall be set forth in written amendments to such separate Fee Agreement approved by Eagle Point and the Custodian from time to time. Except as otherwise noted, this fee covers account acceptance, set up and termination expenses, plus usual and customary related administrative services such as safekeeping, investment, collection and distribution of assets, including normal record-keeping/reporting requirements and any other services provided for herein. Any additional services beyond those specified in this Agreement, or activities requiring excessive administrator time or out-of-pocket expenses, shall be performed only after reasonable prior notice is given to the Custodian by the Companies and shall be deemed extraordinary expenses for which related costs, transaction charges and additional fees shall be billed at the Custodian's standard charges for such items. The Companies agree, jointly and severally, to pay or reimburse the Custodian upon request for all out-of-pocket costs and expenses (including without limitation reasonable fees and expenses of legal counsel) incurred, and any disbursements and advances made, in connection with the preparation, negotiation or execution of this Agreement, or in connection with or pursuant to consummation of the transactions contemplated hereby, or the administration of this Agreement or performance by the Custodian of its duties and services under this Agreement.

 

Section 17.        CORPORATE ACTIVITY

 

Reasonably promptly following receipt by the Custodian, the Custodian shall forward to the Companies all notices of shareholder meetings, proxy statements, annual reports, conversion notices, call notices, information concerning redemption rights that are exercisable at the Companies’ option, tender or exchange offers, or other notices or written materials of any kind (excluding share certificates and dividend, principal and interest payments) sent to the Custodian as registered owner of Securities.

 

The Companies shall instruct the Custodian in writing with regard to (a) the exercise of any rights or remedies with respect to the Assets, including, without limitation, waivers and voting rights, and (b) taking any other action in connection with the Assets, including, without limitation, any purchase, sale, conversion, redemption, exchange, retention or other transaction relating to the Assets. In the absence of any instructions provided to the Custodian by the Companies, the Custodian shall have no obligation to take any action with respect to the Assets. Notwithstanding anything herein to the contrary, under no circumstances shall the Custodian be obligated to bring legal action or institute proceedings against any person on behalf of the Companies.

 

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The Custodian shall cooperate with and supply necessary information to the entity or entities appointed by the Board of Directors of the Companies to keep the books of account of the Companies.

 

Section 18.        RECORDS; REPORTING

 

(a)          The Custodian shall create and maintain complete and accurate records relating to its activities under this Agreement with respect to the Assets held for the Companies under this Agreement. The Custodian acknowledges and agrees that all books and records maintained for the Companies in any capacity under this Agreement are the property of the Companies and may be inspected by the Companies, its duly authorized agents or any authorized regulatory agency at any reasonable time. Upon request all such books and records will be surrendered reasonably promptly to the Companies. The Custodian agrees to make available to the Companies upon request any records related to services provided under this Agreement. In addition, on or after the date hereof, t he Custodian shall keep such other books and records of a Company as the Company shall reasonably request that may be required by the 1940 Act.

 

(b)          The Custodian shall render to the Companies such customary and special monthly and daily reports as the Custodian and a Company may agree from time to time. In addition, the Custodian shall provide the Company with such reports as the Company may reasonably request from time to time on the internal controls and procedures for safeguarding Securities employed by the Custodian, including the Custodian’s SOC 1 report.

 

Section 19.        LIABILITY

 

The Custodian shall be obligated only for the performance of such duties as are specifically set forth in this Agreement and the Custodian shall satisfy those duties expressly set forth herein so long as it acts in good faith and without gross negligence or willful misconduct. The Custodian may rely and shall be protected in acting or refraining from acting on any written notice, request, waiver, consent or instrument believed in good faith by it to be genuine and to have been signed or presented by the proper party or parties. The Custodian shall have no duty to determine or inquire into the happening or occurrence of any event or contingency, and it is agreed that it has no duty to exercise any discretion hereunder. The Custodian may consult with and obtain advice from legal counsel with respect to any question as to any provision hereof or its duties hereunder and shall not be liable for action taken or omitted by it in good faith and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon.

 

The Custodian shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized hereby, except for actions arising from the gross negligence, willful misconduct or bad faith of the Custodian. Except as set forth in Section 25(e), the Custodian shall have no liability for loss arising from any cause beyond its control, including, but not limited to, the act, failure or neglect of any agent or correspondent selected with due care by the Custodian, any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator; or the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.

 

Notwithstanding anything in this Agreement to the contrary, in no event shall the Custodian be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits).

 

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Without limiting the generality of the foregoing, the Custodian shall not be subject to any fiduciary or other implied duties and the Custodian shall have no investment or management responsibility and, accordingly, shall have no duty to, or liability for its failure to, provide investment recommendations or investment advice to the parties hereto. It is the intention of the parties hereto that the Custodian shall never be required to use, advance or risk its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder unless it shall be furnished with indemnifications acceptable to it. The Custodian may exercise any of its rights or powers hereunder or perform any of its duties hereunder either directly or, by or through agents or attorneys, and the Custodian shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed and maintained hereunder with due care by the Custodian and appointed with the Companies’ prior written consent.

 

The Custodian is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of this Agreement or any part hereof (except with respect to the Custodian’s obligations hereunder) or for the transaction or transactions requiring or underlying the execution of this Agreement, the form or execution hereof or for the identity or authority of any person executing this Agreement or any part hereof (except with respect to the Custodian) or depositing the Assets. The Custodian shall not be deemed to have notice or knowledge of any matter hereunder unless written notice thereof is received by the Custodian. It is expressly acknowledged by the Companies that application and performance by the Custodian of its various duties hereunder may be based upon, and in reliance upon, data, information and notice provided to it by the Companies and/or any related bank agent, obligor or similar party with respect to the Assets, and the Custodian shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate).

 

The Custodian shall not be liable for the actions or omissions of, or any inaccuracies in the records of, the Companies or any clearing agency or depository or any other person and without limiting the foregoing, the Custodian shall not be under any obligation to monitor, evaluate or verify compliance by the Companies or any other person with any agreement or applicable law. The Custodian shall not be liable or responsible for or on account of any act or omission of any broker or other agent designated by the Companies to purchase or sell securities for the account of the Companies. The Custodian shall not be responsible for loss occasioned by the acts, neglects, defaults or insolvency of any broker, bank, trust company or other person with whom the Custodian may deal in the absence of bad faith, gross negligence or willful misconduct on the part of the Custodian.

 

For the avoidance of doubt and notwithstanding anything herein to the contrary, the Companies agree that the Custodian obligations to furnish reports shall be limited to those duties set forth herein, or as otherwise agreed to by the Companies and the Custodian and the Custodian shall not have nor shall be implied to have any other duties with respect to furnishing reports of the Companies. The Custodian shall only be obligated to furnish information to the Companies or to any third party to the extent directed by the Companies pursuant to Appropriate Instructions as set forth in this Agreement and agreed to by the Custodian, or as the Companies and Custodian may otherwise agree.

 

The Companies agree, jointly and severally, to indemnify, defend and hold the Custodian, its officers, directors, employees and agents (collectively, “ Indemnified Persons ”) harmless from and against any and all losses, claims, damages, demands, expenses, costs, causes of action, judgments or liabilities that may be incurred by any Indemnified Person arising directly or indirectly out of or in connection with this Agreement, including the reasonable legal costs and expenses as such expenses are incurred (including, without limitation, the expenses of any experts, counsel or agents) of investigating, preparing for or defending itself against any action, claim or liability in connection with its performance hereunder or thereunder. The Companies also hereby agree, jointly and severally, to hold the Custodian harmless from any liability or loss resulting from any taxes or other governmental charges, and any expense related thereto, which may be imposed, or assessed with respect to any Assets in the Account and also agrees to hold the Custodian and its respective nominees harmless from any liability as record holder of Assets in the Account. The Companies may remit payment for expenses and indemnities owed to the Custodian hereunder or, in the absence thereof, the Custodian may from time to time deduct payment of such amounts from the Account. In no event, however, shall the Companies be obligated to indemnify any Indemnified Person and hold any Indemnified Person harmless if a court of competent jurisdiction determines, on a judgment not subject to appeal, that such losses, claims, damages, demands, expenses, costs, causes of action, judgments or liabilities were incurred by any Indemnified Person as a result of its own bad faith, willful misconduct or gross negligence. The provisions of this section shall survive the termination of this Agreement.

 

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The Companies hereby grant to the Custodian a lien on all Assets to secure the payment of any amounts that may be owing to the Custodian hereunder, which lien may be enforced by the Custodian by set-off or appropriate foreclosure proceedings only where (a) the Custodian has provided each Company with at least ten (10) days’ prior written notice of its intent to commence such proceedings, and (b) no Company has cured any failure giving rise to such proceedings. The Companies hereby consent to and authorize such action by the Custodian, and the Custodian shall have no liability for any action taken pursuant to this authorization.

 

Section 20.        TAXES

 

For the avoidance of doubt, each respective Account (including income, if any, earned on the investments of funds in such account) will be owned by the applicable Company (as applicable), for federal income tax purposes. Each Company is required to provide to the Custodian (i) an IRS Form W-9 or appropriate IRS Form W-8 no later than the Closing Date, and (ii) any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by applicable law or upon the reasonable request of the Custodian as may be necessary (i) to reduce or eliminate the imposition of U.S. withholding taxes and (ii) to permit Custodian to fulfill its tax reporting obligations under applicable law with respect to the Account or any amounts paid to the Companies. If any IRS form or other documentation previously delivered becomes obsolete or inaccurate in any respect, each Company shall timely provide to the Custodian accurately updated and complete versions of such IRS forms or other documentation. Wells Fargo Bank, National Association, both in its individual capacity and in its capacity as Custodian, shall have no liability to the Companies or any other person in connection with any tax withholding amounts paid or withheld from the Account pursuant to applicable law arising from the Companies failure to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this paragraph. For the avoidance of doubt, no funds shall be invested with respect to such Account absent the Custodian having first received (i) the requisite Appropriate Instructions, and (ii) the IRS forms and other documentation required by this paragraph.

 

The Custodian shall not be liable for any taxes, assessments or governmental charges that may be levied or assessed upon the Securities held by it hereunder, or upon the income therefrom. Upon Appropriate Instruction, the Custodian may pay any such tax, assessment or charge and reimburse itself out of the monies of the Companies or the Securities held hereunder. The Custodian shall execute ownership and other certificates and affidavits for all federal and state tax purposes in connection with the receipt of income or other payments with respect to the Securities of the Companies held by it and in connection with transfers of such Securities.

 

Section 21.        FOREIGN SECURITIES

 

The Custodian shall be authorized, but not required, to provide services as an eligible foreign custodian and act as a foreign custody manager, as those terms are defined in Rule 17f-5 under the 1940 Act, as amended. The Custodian shall not maintain assets of the Companies with a foreign custodian or a foreign securities depository unless approved by the Board and shall not be responsible for acting as a foreign custody manager unless and until the Custodian accepts such delegation of responsibility pursuant to a separate Delegation Agreement or Foreign Custody Manager Agreement approved by the Board that describes the Custodian’s duties as a foreign custody manager and identifies the Companies for which the Custodian will so act.

 

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Section 22.        SUB-CUSTODIANS

 

The Custodian may from time to time appoint one or more Sub-Custodians, provided that, such Sub-Custodians possess the qualifications necessary to satisfy the requirements of Section 17(f) of the 1940 Act. The Custodian’s responsibility with respect to any Securities or cash held by a Sub-Custodian (other than an affiliate of the Custodian) is limited to the failure on the part of the Custodian to exercise reasonable care in the selection or retention of such Sub-Custodian in light of prevailing settlement and securities handling practices, procedures and controls in the relevant market. The Custodian shall notify the Companies of any such Sub-Custodian retained by the Custodian in respect of any Securities or other Assets of the Companies. If instructed by a Company to do so, the Custodian shall appoint a different Sub-Custodian in respect of the Securities and other Assets of such Company. With respect to any Losses incurred by the Companies as a result of the acts or the failure to act by any Sub-Custodian (other than an affiliate of the Custodian), the Custodian shall take appropriate action to recover such Losses from such Sub-Custodian; and the Custodian’s sole responsibility and liability to a Company shall be limited to amounts so received from such Sub-Custodian (exclusive of costs and expenses incurred by the Custodian).

 

Section 23.        EFFECTIVENESS, DURATION AND TERMINATION

 

This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original, and shall become effective on the date hereof. This Agreement shall remain in effect until terminated as hereinafter provided.

 

The Custodian may at any time resign hereunder by giving written notice of its resignation to the Companies at least ninety (90) days prior to the date specified for such resignation to take effect, and upon the effective date of such resignation, the Assets hereunder shall be delivered by it to such person as may be designated in writing by the Companies (a “successor custodian”), whereupon all the Custodian’s obligations hereunder shall cease and terminate.

 

The Companies may remove the Custodian at any time by giving the Custodian at least sixty (60) days’ prior written notice. The Companies may at any time immediately terminate this Agreement in the event of the appointment of a conservator or receiver for the Custodian by regulatory authorities or upon the happening of a like event at the direction of an appropriate regulatory agency or court of competent jurisdiction. Promptly following receipt of written notice from the Companies of the appointment of a successor custodian and receipt of Appropriate Instructions, the Custodian shall deliver all Assets hereunder to the successor custodian.

 

If no such successor custodian shall have been designated by such date, the Custodian shall keep safely all Assets then held by it and deliver the same to a person designated by the Companies or in accordance with the direction of a final order or judgment of a court of competent jurisdiction.

 

In any such case, upon request of the Companies and the successor custodian and upon payment of the Custodian’s reasonable charges and disbursements, the Custodian shall: (i) execute and deliver to the successor custodian an instrument approved by the successor custodian’s counsel transferring to the successor custodian all the rights, duties and obligations of the Custodian, (ii) transfer to the successor custodian the originals or copies of all books and records maintained by the Custodian hereunder and (iii) cooperate with, and provide reasonable assistance to, the successor custodian in the establishment of the books and records necessary to carry out the successor custodian’s responsibilities hereunder. Upon delivery of the Securities and other assets of the Companies and compliance with the other requirements of this Section 22, the Custodian shall have no further duty or liability hereunder. Termination shall not affect any of the liabilities either party owes to the other arising under this Agreement prior to such termination.

 

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Section 24.       REPRESENTATIONS AND WARRANTIES; COVENANTS

 

(a)           Representations of the Companies . Each Company represents and warrants to the Custodian that:

 

(i)          it has the power and authority to enter into and perform its obligations under this Agreement, and it has duly authorized and executed this Agreement so as to constitute its valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy laws and general principles of equity (whether considered in a suit at law or in equity); and

 

(ii)         in giving any instructions which purport to be Appropriate Instructions under this Agreement, each Company will act in accordance with the provisions of its certificate of incorporation and bylaws (or comparable governing documents) as well as any applicable laws and regulations.

 

(b)           Representations of the Custodian . The Custodian hereby represents and warrants to the Companies that:

 

(i)          it is a duly organized and validly existing national banking association in good standing under the laws of the United States and has the full corporate power, authority and legal right to execute, deliver and perform its obligations under this Agreement;

 

(ii)         it is a bank having the qualifications necessary to satisfy the requirements of Section 17(f) of the 1940 Act as of the date hereof and it shall confirm such qualifications in writing to the Companies upon the request of a Company;

 

(iii)        it has duly authorized the execution and delivery of this Agreement by all necessary action on its part, either in its individual capacity or as Custodian, so as to constitute its legal, valid and binding obligations, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy laws and general principles of equity (whether considered in a suit at law or in equity);

 

(iv)        its execution and delivery of this Agreement, performance of the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with, result in any breach of its articles of incorporation or bylaws or any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which it is a party or by which it or any of its property is bound;

 

(v)         its execution and delivery of this Agreement, performance of the transactions contemplated hereby and fulfillment of the terms hereof will not conflict with or violate applicable law; and

 

(vi)        it has obtained approvals, authorizations, consents, orders or other actions of any person or governmental authority applicable to it, required in connection with the execution and delivery of this Agreement, the performance by it of the transactions contemplated hereby and the fulfillment by it of the terms.

 

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(c)           Covenants of the Custodian :

 

(i)          The Custodian will comply in all material respects with applicable law.

 

(ii)         The Custodian will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation and qualify and remain qualified in good standing in each jurisdiction where failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a material adverse effect.

 

(iii)         The Custodian maintains and will continue to maintain physical and information security safeguards against the destruction, loss, theft or alteration of any confidential information of the Companies in the possession of the Custodian that will be no less rigorous than the greater of (i) the security Custodian applies to its own confidential information, (ii) commercially reasonable standards for institutions similar to the Custodian, or (iii) the requirements of applicable law and regulation. The Custodian will, at a minimum, update its policies to remain compliant with regulatory requirements. The Custodian will meet with one or more of the Companies, at their request, on an annual basis, and as otherwise reasonably requested by any Company, to discuss information security safeguards. If a Responsible Officer of the Custodian receives written notice or has actual knowledge that any Company’s confidential information has been accessed by or provided to an unauthorized person or otherwise compromised, the Custodian will notify the Companies as soon as reasonably practicable of the details of such violation, and will thereafter respond to a Company’s reasonable inquiries relating to such breach in accordance with the Custodian’s policies and procedures.

 

(iv)        The Custodian shall at all times employ a current version of a commercially available virus detection software program that employs regular updates to test the hardware and software applications used by it to deliver the services for the presence of any computer code designed to disrupt, disable, harm or otherwise impede the operation of such hardware or software. In the event of a cyber-attack that materially impacts the Custodian’s provision of services under this Agreement or compromises any confidential information or other information or data of any Company, the Custodian will notify the Companies as soon as reasonably practicable of the details of such attack, and will thereafter respond to a Company’s reasonable inquiries relating to such attack in accordance with the Custodian’s policies and procedures.

 

Section 25.        MISCELLANEOUS

 

(a)          This Agreement shall extend to and bind the parties hereto and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by the Companies without the written consent of the Custodian, or by the Custodian without the written consent of the Companies. This Agreement shall remain in full force and effect until it is terminated in accordance with Section 22 hereunder. The parties hereto shall not be bound by any modification, amendment, termination, cancellation, recission or supersession of this Agreement unless the same shall be in writing and signed by the parties hereto provided that Schedule A and Schedule B may be amended (i) to remove any Subsidiary and its respective Custody Account to the extent this Agreement has terminated with respect to such Subsidiary or (ii) to add any new Subsidiary and its respective Custody Account that is added to this Agreement pursuant to Section 25(b) below . Notwithstanding the foregoing, any organization or entity into which the Custodian may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger, conversion or consolidation to which the Custodia n shall be a party, or any organization or entity succeeding to all or substantially all of the corporate trust business of the Custodian, shall be the successor of the Custodian hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto.

 

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(b)          On or after the date hereof, Schedule A and Schedule B to this Agreement may be amended to add one or more additional Subsidiaries with the consent of the Custodian, Eagle Point and the applicable Subsidiary, but without the consent of any existing Subsidiaries. Upon the amendment of Schedule A and Schedule B hereto to add such additional Subsidiaries and its respective Custody Account, such Subsidiary shall be a party to this Agreement for all purposes hereof.

 

(c)          This Agreement shall be governed by and construed in accordance with the laws of the State of New York, except to the extent such laws are inconsistent with federal securities laws, including the 1940 Act. The Custodian and the Companies hereby consent to the non-exclusive jurisdiction of a state or federal court situated in the City of New York, New York, in connection with any dispute arising hereunder.

 

(d)          The captions inserted herein are for convenience of reference and shall not affect, in any way, the meaning or interpretation of this Agreement.

 

(e)          Neither the Companies nor Custodian shall be deemed responsible if it fails to perform any services as a result of one or more of the following causes: (i) the failure to receive Appropriate Instructions; (ii) interruptions or delays affected by information or communications systems; (iii) exchange or market rulings, disruptions in orderly trading on any exchange or market caused by market volatility or trading volume; (iv) suspension of trading; (v) computer, or operational system failures; (vi) “Acts of God”; (vii) any outbreak or escalation of hostilities, war, terrorism, riots, or civil disorders in any country; or (viii) other unusual circumstances not reasonably within the control of either party. The foregoing notwithstanding, the Custodial shall be absolved from liability under subsections (ii) and (v) above only if the Custodian has implemented and has in effect a business continuity/disaster recovery plan and backup systems that are customary in the industry.

 

(f)          Notwithstanding anything herein to the contrary, under no circumstances shall the Custodian be obligated to bring legal action or institute proceedings against any person on behalf of the Companies.

 

(g)          All service and performance standards are based upon the Custodian’s receipt of Appropriate Instructions, including but not limited to, trade orders in good order and properly authorized.

 

(h)          Any delivery of physical Assets, including Certificated Securities, or any notices or other communications hereunder (including Appropriate Instructions delivered to the Custodian) shall be in writing and given at the addresses stated below, by prepaid first class mail, overnight courier or facsimile.

 

If to the Companies:

 

Eagle Point Credit Company Inc.

20 Horseneck Lane

Greenwich, CT 06830

Attn: Operations—Kenneth Onorio

Fax: (203) 340-8537

Email: confirm@eaglepointcredit.com; konorio@eaglepointcredit.com

 

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If to the Custodian:

 

Wells Fargo Bank, N.A.
Corporate Trust Services Division
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services— Eagle Point Credit Company Inc
Fax: (410) 715-3748
Email: As instructed in writing from time to time

 

(i)           EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ITS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.

 

(j)           The Companies acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Custodian. The Companies hereby agree that it shall provide the Custodian with such information as it may request including, but not limited to, the Company’s name, physical address, tax identification number and other information that will help the Custodian to identify and verify the Company’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.

 

(k)          This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Facsimile signatures and signature pages provided in the form of a “pdf” or similar imaged document transmitted by electronic mail shall be deemed original signatures for all purposes hereunder.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed all as of the day and year first above written.

 

EAGLE POINT CREDIT COMPANY INC.  
     
By: /s/ Kenneth Onorio  
  Kenneth Onorio  
  Chief Financial Officer  
     
WELLS FARGO BANK, NATIONAL ASSOCIATION , as Custodian  
     
By: /s/ José M. Rodriguez  
  José M. Rodriguez  
  Vice President  

 

EACH OF THE COMPANIES SET FORTH ON SCHEDULE A HERETO
     
BY: /s/ Kenneth Onorio  
Kenneth Onorio, as Authorized Officer  
on behalf of each of the Companies  

 

 

 

 

Exhibit A

 

 

 

 

Schedule A

 

Subsidiaries

 

1. Eagle Point Credit Company Sub LLC

2. Eagle Point Credit Company Sub (Cayman) Ltd.

 

 

 

Schedule B

 

 

 

 

Exhibit ( k )(5)

 

SECURITIES PURCHASE AGREEMENT

 

This Securities Purchase Agreement (this “ Agreement ”), dated as of August 8, 2016, is by and between Eagle Point Credit Company Inc., a Delaware corporation (the “ Company ”), and the several persons listed on Schedule A hereto (each, a “ Buyer ”), acting through Thomas J. Herzfeld Advisors, Inc. (“ Herzfeld ”), acting not in its individual capacity but as each Buyer’s agent and investment adviser with discretionary authority over investment decisions.

 

WITNESSETH:

 

WHEREAS , the Company proposes to issue and sell to each Buyer listed on Schedule A hereto $10,000,000 aggregate principal amount of the Company’s 7.00% notes due 2020 (the “ Notes ”) in a reopening of the existing such series of notes pursuant to a prospectus supplement, dated August 8, 2016, and a prospectus, dated November 25, 2015 (collectively, the “ Prospectus ”); and

 

WHEREAS, the Notes will be issued under an indenture as supplemented by a first supplemental indenture, each dated as of December 4, 2015 (collectively, the “ Indenture ”), between the Company and American Stock & Trust Company, LLC, trustee (the “ Trustee ”);

 

NOW, THEREFORE , in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.           Issuance, Sale and Purchase of Notes; Closing . Subject to the terms and conditions of this Agreement, the Company shall issue and sell to each Buyer, and such Buyer shall purchase from the Company, the aggregate principal amount of Notes set forth opposite the Buyer’s name on Schedule A hereto at $24.95 per Note (the “ Purchase Price ”). Each Buyer shall make payment of the Purchase Price for the Notes set forth opposite its name on Schedule A to the Company in Federal or other funds immediately available to a bank account designated by the Company against delivery of such Notes for the account of such Buyer at 12:00 P.M. (New York City time), on August 10, 2016, or at such other time on the same or such other date as shall be agreed by the Company and such Buyer. The time and date of such payment are herein referred to as the “ Closing Date .” The Notes purchased by each Buyer shall be registered in such names and in such denominations as such Buyer shall request in writing not later than one full business day prior to the Closing Date, and the Notes shall be delivered to such Buyer through the facilities of The Depository Trust Company on the Closing Date for the account of such Buyer.

 

Section 2.           Representations and Warranties of the Buyer . Each Buyer severally represents and warrants to the Company, as of the date hereof and as of the Closing Date, as follows:

 

 

 

 

2.1            Organization; Authority . The Buyer is a legally competent individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, corporate, partnership or other applicable power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Buyer of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Buyer. This Agreement, when executed and delivered by the Buyer, shall constitute a valid and legally binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except as rights to indemnity may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Buyer’s obligations hereunder 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) regardless of whether enforcement is considered in a proceeding in equity or at law.

 

2.2            Investment Purpose . The Notes are being acquired by the Buyer for the Buyer’s own account for investment purposes only and not with a view to resale or distribution.

 

2.3            No General Solicitation . The Buyer was offered the Notes through private negotiations, not through any general solicitation or general advertising.

 

2.4            Knowledge and Experience; Information . The Buyer (a) either alone or together with its representatives (including Herzfeld) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Notes and make an informed decision to so invest, and has so evaluated the risks and merits of such investment, (b) has the ability to bear the economic risks of this investment and can afford a complete loss of such investment, (c) understands the terms of and risks associated with the acquisition of the Notes, including, without limitation, the risks associated with the industry in which the Company operates, (d) has had the opportunity to review the Prospectus, the Company’s Annual Report for the fiscal year ended December 31, 2015 and the unaudited financial statements of the Company for the quarter ended March 31, 2016 and such other disclosure regarding the Company, its business, its financial condition and its prospects as the Buyer has determined to be necessary in connection with the purchase of the Notes, and (e) has had an opportunity to ask such questions and make such inquiries concerning the Company, its business, its financial condition and its prospects as the Buyer has deemed appropriate in connection with such purchase and to receive satisfactory answers to such questions and inquiries.

 

2.5            No Conflicts; Advice . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Buyer is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which the Buyer is a party. The Buyer has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Notes.

 

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2.6            Non-Public Information . The Buyer is purchasing the Notes “on the basis of” (as defined in Rule 10b5-1 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) information provided in the Prospectus, the Company’s Annual Report for the fiscal year ended December 31, 2015 and the unaudited financial statements of the Company for the quarter ended March 31, 2016 and such other disclosure regarding the Company, its business, its financial condition and its prospects as the Buyer has determined to be necessary in connection with the purchase of the Notes, each of which document is publicly available on the EDGAR database of the U.S. Securities and Exchange Commission (the “ Commission ”). The Buyer is not purchasing the Notes “on the basis of” any material, non-public information about the Notes or the Company.

 

Section 3.           Representations and Warranties of the Company . The Company represents and warrants to each Buyer, as of the date hereof and as of the Closing Date, as follows:

 

3.1            Authorization of Agreement . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Company of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Company. This Agreement, when executed and delivered by the Company, shall constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity 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 hereunder 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) regardless of whether enforcement is considered in a proceeding in equity or at law.

 

3.2            Authorization of the Indenture . The Indenture has been duly authorized, executed and delivered by the Company. Assuming the due and valid authorization, execution and delivery by the Trustee, the Indenture represents a valid, binding and enforceable agreement of the Company, subject, as to enforcement, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).

 

3.3            Authorization of the Notes . The Notes have been duly authorized and, when executed and authenticated in the manner provided for in the Indenture and delivered against payment therefor as provided herein, will be legal, valid and binding obligations of the Company enforceable in accordance with their terms, subject, as to enforcement, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).

 

  3  

 

 

3.4            Registration Statement . A Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) relating to the Notes (the “ Registration Statement ”) has been filed with, and declared effective by, the Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto or to the use of the Prospectus 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.

 

3.5            No General Solicitation . No general solicitation or general advertising was used or employed in connection with the transactions contemplated by this Agreement.

 

Section 4.           Indemnification . The Company shall indemnify, defend and hold harmless each Buyer (and its respective affiliates, directors, officers, employees, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of any material inaccuracy in, or any material breach of, the representations or warranties of the Company and the agreements made by the Company in this Agreement. Each Buyer shall, severally and not jointly, indemnify, defend and hold harmless the Company (and its respective affiliates, directors, officers, employees, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of any material inaccuracy in, or any material breach of, the representations or warranties of such Buyer and the agreements made by such Buyer in this Agreement.

 

Section 5.           Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by facsimile (upon confirmation of receipt), or 72 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such address as that party may specify by notice to the other party.

 

Section 6.           Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives and permitted assigns.

 

Section 7.           Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

Section 8.           Severability . If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

 

Section 9.           Entire Agreement . This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto except as expressly set forth herein.

 

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Section 10.         Amendments; Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.

 

Section 11.         Further Assurances . Each of the Company and each Buyer hereby agrees and provides further assurances that it will, in the future, execute and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed, all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purposes of this Agreement.

 

Section 12.         Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Each of the parties hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

Section 13.         Confidentiality . Each of the parties hereto agrees that the names of the Buyers, as listed on Schedule A (the “ Confidential Information ”), shall not be disclosed by either party hereto (or its representatives) to any third party, or circulated or referred to publicly without the prior written consent of the other party hereto; provided that nothing in this Agreement shall obligate either party to refrain from disclosure of Confidential Information hereunder to the extent such disclosure is required by law, regulation or judicial process or at the request of a regulatory authority having jurisdiction over such disclosing party. In the event that any Confidential Information is required to be disclosed by law, including, without limitation, pursuant to the terms of a subpoena or similar document or in connection with litigation or other legal proceedings, the receiving party of such information hereby agrees, to the extent permitted by applicable law or regulation, to notify the disclosing party promptly of the existence, terms and circumstances surrounding such request. To the extent permitted by applicable law or regulation, the receiving party shall allow the disclosing party, in its sole discretion and at its sole expense, to contest the disclosure of Confidential Information on the disclosing party’s behalf, and the receiving party shall reasonably cooperate with the disclosing party in such efforts to contest such disclosure at the disclosing party’s expense.

 

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF , the parties hereto have duly executed this Agreement as of the date first above-written.

 

  EAGLE POINT CREDIT COMPANY INC.
     
  By: /s/ Kenneth P. Onorio
  Name: Kenneth P. Onorio
  Title: Chief Financial Officer and Chief Operating Officer

 

[Signature Page to Securities Purchase Agreement]

 

 

 

 

  each buyer listed in schedule a hereto and made a party hereof, severally and NOT jointly, acting through its agent, thomas j. herzfeld advisors, inc.
   
  BY: THOMAS J. HERZFELD ADVISORS, INC., as its agent and investment adviser
     
  By: /s/ Erik Herzfeld
  Name: Erik Herzfeld
  Title: President

 

[Signature Page to Securities Purchase Agreement]

 

 

 

 

Schedule A

 

 

 

 

Exhibit (l)(5)

 

One International Place, 40th Floor
100 Oliver Street
Boston, MA 02110-2605

+1 617 728 7100 Main

+1 617 426 6567 Fax

www.dechert.com

 

   

 

August 10, 2016

 

Eagle Point Credit Company Inc.

20 Horseneck Lane

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. 333-205540 and 811-22974) as originally filed with the U.S. Securities and Exchange Commission (the “ Commission ”) on July 7, 2015 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 as subsequently amended on July 22, 2015, August 11, 2015, September 11, 2015, November 5, 2015, November 23, 2015, December 4, 2015, May 17, 2016, June 1, 2016, June 20, 2016 and on or about the date hereof (the “ Registration Statement ”), relating to the proposed issuance by the Company of $10,000,000 aggregate principal amount of 7.00% notes due 2020 (the “ Notes ”) sold pursuant to a securities purchase agreement by and among the Company and certain investors named therein, substantially in the form filed as Exhibit (k)(5) to the Registration Statement (the “ Purchase 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 no opinion is expressed herein as to any matter other than as to the legality of the Indenture (as defined below) and the Notes.

 

The Notes have been issued pursuant to the indenture dated as of December 4, 2015 (the “ Base Indenture ”), between the Company and American Stock Transfer & Trust Company, LLC, trustee (the “ Trustee ”), as supplemented by the first supplemental indenture dated as of December 4, 2015 (together with Base Indenture, the “ Indenture ”), between the Company and the Trustee.

 

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 this opinion, including the following documents:

 

 

 

 

Eagle Point Credit Company Inc.

August 10, 2016

Page 2

 

(i) the Registration Statement;

 

(ii) the Purchase Agreement;

 

(iii) the Indenture;

 

(iv) the global note representing the Notes;

 

(v) the Certificate of Incorporation of the Company;

 

(vi) the Second Amended and Restated Bylaws of the Company;

 

(vii) 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

 

(viii) resolutions of the board of directors of the Company relating to, among other things, the authorization and issuance of the Notes.

 

As to the facts upon which this opinion is based, we have relied, to the extent we deem proper, upon certificates of public officials and certificates and written statements of officers, directors, employees and representatives of the Company.

 

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

 

On the basis of the foregoing and subject to the assumptions and qualifications set forth in this letter, we are of the opinion that:

 

1. The Indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

2. Assuming the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture, the Notes constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.

 

The opinions set forth herein are subject to the following assumptions and qualifications being true and correct at or before the issuance of the Notes:

 

 

 

 

Eagle Point Credit Company Inc.

August 10, 2016

Page 3

 

(i) the Indenture and the Notes have been duly authorized, executed and delivered by each party thereto (other than the Company); and

 

(ii) the terms of the Notes as established comply with the requirements of the Investment Company Act.

 

The opinions set forth herein as to enforceability of obligations of the Company are subject to: (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereinafter in effect affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and the discretion of the court or other body before which any proceeding may be brought; (ii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iii) an implied covenant of good faith and fair dealing.

 

We express no opinion as to the validity, legally binding effect or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a rate or in an amount which a court may determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular courts.

 

The opinions expressed herein are limited to the federal laws of the United States of America, 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.

 

We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus which forms a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Dechert LLP  
   
Dechert LLP