As filed with the U.S. Securities and Exchange
Commission on September 6, 2023
1933 Act File No. 333-272168
1940 Act File No. 811-23384
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
x REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
¨ Pre-Effective
Amendment No.
x Post-Effective
Amendment No. 1
and
x REGISTRATION
STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
x Amendment
No. 22
EAGLE POINT INCOME COMPANY INC.
(Exact name of Registrant as specified
in charter)
600 Steamboat Road, Suite 202
Greenwich, CT 06830
(Address of Principal Executive Offices)
(203) 340-8500
(Registrant’s telephone number,
including Area Code)
Thomas P. Majewski
600 Steamboat Road, Suite 202
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, 40th Floor
100 Oliver Street
Boston, Massachusetts 02110
(617) 728-7120
Approximate date of proposed public offering:
From time to time after the effective date of this Registration Statement.
¨
Check box if the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans.
x
Check box if any securities being registered on this Form will be offered on a delayed or continuous basis in reliance on Rule 415 under
the Securities Act of 1933 (“Securities Act”), other than securities offered in connection with a dividend reinvestment plan.
x
Check box if this Form is a registration statement pursuant to General Instruction A.2 or a post-effective amendment thereto.
¨
Check box if this Form is a registration statement pursuant to General Instruction B or a post-effective amendment thereto that will
become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act.
¨
Check box if this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction B to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act.
It is proposed that this filing will become
effective (check appropriate box):
¨
when declared effective pursuant to Section 8(c) of the Securities Act.
If appropriate, check the following box:
¨
This [post-effective] amendment designates a new effective date for a previously filed [post-effective amendment] [registration statement].
¨
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:
¨
This Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, and the Securities Act registration statement
number of the earlier effective registration statement for the same offering is:
x
This Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, and the Securities Act registration statement
number of the earlier effective registration statement for the same offering is: 333-272168
Check each box that appropriately characterizes
the Registrant:
x
Registered Closed-End Fund (closed-end company that is registered under the Investment Company Act of 1940 (“Investment Company
Act”)).
¨
Business Development Company (closed-end company that intends or has elected to be regulated as a business development company under
the Investment Company Act).
¨
Interval Fund (Registered Closed-End Fund or a Business Development Company that makes periodic repurchase offers under Rule 23c-3 under
the Investment Company Act).
x
A.2 Qualified (qualified to register securities pursuant to General Instruction A.2 of this Form).
¨
Well-Known Seasoned Issuer (as defined by Rule 405 under the Securities Act).
¨
Emerging Growth Company (as defined by Rule 12b-2 under the Securities Exchange Act of 1934 (“Exchange Act”).
¨
If an Emerging Growth Company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.
¨
New Registrant (registered or regulated under the Investment Company Act for less than 12 calendar months preceding this filing).
EXPLANATORY NOTE
This Post-Effective Amendment
No. 1 to the Registration Statement on Form N-2 (File Nos. 333-272168 and 811-23384) (the “Registration Statement”) of Eagle
Point Income 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. 1 consists only of a facing page, this explanatory note and Part C of the Registration Statement. This Post-Effective
Amendment No. 1 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.
PART C — OTHER INFORMATION
ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS
1. Financial Statements
The following financial statements of Eagle Point
Income Company Inc. (the “Registrant”) have been incorporated by reference in Part A of the Registration Statement:
Financial Statements for the Year Ended December
31, 2022 (Audited)
Statement of Assets and Liabilities
Schedule of Investments
Statement of Operations
Statement of Comprehensive
Income
Statements of Changes in Net
Assets
Statement of Cash Flows
Notes to Financial Statements
Financial Highlights
Supplemental Information
Report of Independent Registered
Public Accounting Firm
Financial Statements for the Period ended March
31, 2023 (Unaudited)
Statement of Assets and Liabilities
Schedule of Investments
Statement of Operations
Statement of Comprehensive
Income
Statements of Operations
Statements of Changes in Net
Assets
Statement of Cash Flows
Notes to the Financial Statements
Financial Highlights
Supplemental Information
Financial Statements for the Six-Months ended
June 30, 2023 (Unaudited)
Statement of Assets and Liabilities
Schedule of Investments
Statement of Operations
Statement of Comprehensive
Income
Statements of Operations
Statements of Operations
Statements of Changes in Net
Assets
Statement of Cash Flows
Notes to the Financial Statements
Financial Highlights
Supplemental Information
2. Exhibits
| (a)(1) |
|
Certificate
of Formation (incorporated by reference to Exhibit (a)(1) to the Registrant’s Registration Statement on Form N-2 (File Nos.
333-227716 and 811-23384) filed on October 5, 2018) |
| (a)(2) |
|
Certificate
of Incorporation (incorporated by reference to Exhibit (a)(2) to the Registrant’s Registration Statement on Form N-2 (File
Nos. 333-231921 and 811-23384) filed on June 3, 2019) |
| (b)(1) |
|
Amended
and Restated Limited Liability Company Operating Agreement (incorporated by reference to Exhibit (b)(1) to the Registrant’s
Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 5, 2018) |
| (b)(2) |
|
Form
of Bylaws (incorporated by reference to Exhibit (b)(2) to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716
and 811-23384) filed on October 5, 2018) |
| (c) |
|
Not applicable |
| (d)(1) |
|
Form
of Subscription Certificate (incorporated by reference to Exhibit (d)(3) to the Registrant’s Registration Statement on Form
N-2 (File Nos. 333-234243 and 811-23384) filed on October 17, 2019) |
| (d)(2) |
|
Form
of T-1 Statement of Eligibility of American Stock Transfer & Trust Company, LLC, as trustee, with respect to the Form of Indenture
(incorporated by reference to Exhibit (d)(2) to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-272168 and
811-23384) filed on May 24, 2023) |
| (d)(3) |
|
Form
of Subscription Agent Agreement (incorporated by reference to Exhibit (d)(5) to the Registrant’s Registration Statement on
Form N-2 (File Nos. 333-234243 and 811-23384) filed on October 17, 2019) |
| (d)(4) |
|
Certificate
of Designation of 5.00% Series A Term Preferred Stock (incorporated by reference to Registrant’s Current Report on Form 8-K
filed on October 22, 2021) |
| (d)(5) |
|
Certificate
of Increase of Shares Designated as 5.00% Series A Term Preferred Stock due 2026 (incorporated by reference to Exhibit (a)(4) to
the Registrant’s Registration Statement on Form N-2 (File Nos. 333-237583 and 811-23384) filed on December 22, 2021) |
| (e) |
|
Amended
and Restated Dividend Reinvestment Plan (incorporated by reference to Exhibit (e) to the Registrant’s Registration Statement
on Form N-2 (File Nos. 333-259029 and 811-23384) filed on August 23, 2021) |
| (f) |
|
Not applicable |
| (g) |
|
Investment
Advisory Agreement by and between Registrant and Eagle Point Income Management LLC (incorporated by reference to Exhibit (g) to the
Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 5, 2018) |
| (h)(1) |
|
Form
of Underwriting Agreement for Equity Securities (incorporated by reference to Exhibit (h)(1) to the Registrant’s Registration
Statement on Form N-2 (File Nos. 333-234243 and 811-23384) filed on October 17, 2019) |
| (h)(2) |
|
Form
of Underwriting Agreement for Debt Securities (incorporated by reference to Exhibit (h)(2) to the Registrant’s Registration
Statement on Form N-2 (File Nos. 333-234243 and 811-23384) filed on October 17, 2019) |
| (h)(3) |
|
Form
of Sales Agreement (incorporated by reference to Exhibit (h)(3) to the Registrant’s Registration Statement on Form N-2 (File
Nos. 333-234243 and 811-23384) filed on October 17, 2019) |
| (h)(4) |
|
Form
of Second Amended and Restated At Market Issuance Sales Agreement by and among the Registrant, Eagle Point Income Management LLC,
Eagle Point Administration LLC, and B. Riley Securities, Inc. (incorporated by reference to Exhibit (h)(4) to Pre-Effective Amendment
No. 1 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-272168 and 811-23384) filed on June 28, 2023) |
| (h)(5) |
|
Form
of Third Amended and Restated At Market Issuance Sales Agreement by and among the Registrant, Eagle Point Income Management LLC,
Eagle Point Administration LLC, and B. Riley Securities, Inc. (filed herewith) |
| (h)(6) |
|
Common
Stock Purchase Agreement by and among the Registrant, Eagle Point Income Management LLC, Eagle Point Administration LLC and B. Riley
Principal Capital II, LLC, dated August 16, 2022 (incorporated by reference to Exhibit (k)(5) on the Registrant’s Registration
Statement on Form N-2 (File Nos. 333-259029 and 811-23384) filed on August 16, 2022) |
| (h)(7) |
|
Amendment
No. 1 to Common Stock Purchase Agreement by and among B. Riley Principal Capital II, LLC, the Registrant, Eagle Point Income Management
LLC and Eagle Point Administration LLC, dated December 15, 2022 (incorporated by reference to Exhibit (k)(6) on the Registrant’s
Registration Statement on Form N-2 (File Nos. 333-266905 and 811-23384) filed on December 15, 2022) |
| (i) |
|
Not applicable |
| (j) |
|
Custody
Agreement, among the Registrant and Wells Fargo Bank, National Association (incorporated by reference to Exhibit (j) to the Registrant’s
Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 5, 2018) |
| (k)(1) |
|
Administration
Agreement by and between the Registrant and Eagle Point Administration LLC (incorporated by reference to Exhibit (k)(1) to the Registrant’s
Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 5, 2018) |
| (k)(2) |
|
Form
of Transfer Agency and Registrar Services Agreement between the Registrant and American Stock Transfer & Trust Company, LLC (incorporated
by reference to Exhibit (k)(2) to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384)
filed on October 5, 2018) |
| (k)(3) |
|
Form
of License Agreement by and between the Registrant and Eagle Point Income Management LLC (incorporated by reference to Exhibit (k)(3)
to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 5, 2018) |
| (k)(4) |
|
Services
Agreement by and between Eagle Point Administration LLC and SS&C Technologies, Inc. (incorporated by reference to Exhibit (k)(4)
to Pre-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-231921 and 811-23384)
filed on June 21, 2019) |
| (k)(5) |
|
Registration
Rights Agreement by and between the Registrant and B. Riley Principal Capital II, LLC, dated August 16, 2022 (incorporated by reference
to Exhibit (k)(6) on the Registrant’s Registration Statement on Form N-2 (File Nos. 333-234243 and 811-23384) filed on August
16, 2022) |
| (l)(1) |
|
Opinion
and Consent of Counsel (incorporated by reference to Exhibit (l) to the Registrant’s Registration Statement on Form N-2 (File
Nos. 333-272168 and 811-23384) filed on May 24, 2023) |
| (l)(2) |
|
Opinion
and Consent of Counsel (filed herewith) |
| (m) |
|
Not applicable |
| (n) |
|
Consent
of Independent Registered Public Accounting Firm (incorporated by reference to Exhibit (n) to Pre-Effective Amendment No. 1 to the
Registrant’s Registration Statement on Form N-2 (File Nos. 333-272168 and 811-23384) filed on June 28, 2023) |
| (o) |
|
Not applicable |
| (p) |
|
Contribution
Agreement (incorporated by reference to Exhibit (p) to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716
and 811-23384) filed on October 5, 2018) |
| (q) |
|
Not applicable |
| (r)(1) |
|
Code
of Ethics of the Registrant (incorporated by reference to Exhibit (r)(1) to Pre-Effective Amendment No. 1 to the Registrant’s
Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 9, 2018) |
| (r)(2) |
|
Code
of Ethics of Eagle Point Income Management LLC (incorporated by reference to Exhibit (r)(2) to Pre-Effective Amendment No. 2 to the
Registrant’s Registration Statement on Form N-2 (File Nos. 333-227716 and 811-23384) filed on October 16, 2018) |
| (s) |
|
Calculation
of Filing Fee Tables (incorporated by reference to Exhibit (s) to Pre-Effective Amendment No. 1 to the Registrant’s Registration
Statement on Form N-2 (File Nos. 333-272168 and 811-23384) filed on June 28, 2023) |
| (t) |
|
Power
of Attorney (incorporated by reference to Exhibit (t) to the Registrant’s Registration Statement on Form N-2 (File Nos. 333-272168
and 811-23384) filed on May 24, 2023) |
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.
ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
| SEC registration fee | |
$ | 27,550 | |
| FINRA filing fee | |
$ | 38,000 | |
| NYSE listing fee | |
$ | 88,633 | |
| Rating agency fee | |
$ | 120,000 | |
| Printing and postage | |
$ | 143,000 | |
| Legal fees and expenses | |
$ | 657,000 | |
| Accounting fees and expenses | |
$ | 508,000 | |
| Miscellaneous | |
$ | 7,817 | |
| Total | |
$ | 1,590,000 | |
Note: Except for the SEC registration fee and the FINRA filing fee,
all listed amounts are estimates.
ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
None
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 June 26, 2023:
| Title of Class | |
Number
of Record Holders | |
| Common stock, par value $0.001 per share | |
| 9 | |
| Series A Term Preferred Stock, par value $0.001 per share | |
| 1 | |
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 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.
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 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.
Insofar as indemnification for liability arising
under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, 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 of 1933, as amended (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.
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 Income 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.
Distribution Arrangements
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 the underwriter furnished in
writing by such underwriter 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 Amended
and Restated At Market Issuance Sales Agreement provides that the placement agent agrees to indemnify 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 Exchange Act
from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim) and expense whatsoever insofar as such loss, claim,
damage, liability or expense arises out of or is based upon untrue statements or omissions or alleged untrue statements or omissions
to written information relating to such placement agent furnished to the Registrant by such placement agent expressly for use in the
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.
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 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.” 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 Income Company
Inc., 600 Steamboat Road, Suite 202, Greenwich, CT 06830; |
| (2) | the Transfer Agent, American Stock Transfer
& Trust Company, LLC, 6201 15th Avenue, Brooklyn, NY 11219; |
| (3) | the Custodian, Wells Fargo Bank, National
Association, 9062 Old Annapolis Rd, Columbia, MD 21045; and |
| (4) | the Adviser, Eagle Point Income Management
LLC, 600 Steamboat Road, Suite 202, Greenwich, CT 06830. |
ITEM 33. MANAGEMENT SERVICES
Not applicable.
ITEM 34. UNDERTAKINGS
| 3. | The Registrant undertakes: |
| (a) | to
file, during any period in which offers or sales are being made, a post-effective amendment
to the registration statement: |
| (1) | to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; |
| (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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement. |
| (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. |
Provided, however, that paragraphs
a(1), a(2), and a(3) of this section do not apply if the registration statement is filed pursuant to General Instruction A.2 of this
Form and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference into the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
| (b) | that,
for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of those securities at that time shall be deemed
to be the initial bona fide offering thereof; |
| (c) | to
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering; |
| (d) | that,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (1) | in reliance on Rule 430B: |
| A. | Each prospectus filed by the Registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement;
and |
| B. | Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (x), or (xi) for the purpose
of providing the information required by Section 10(a) of the Securities Act of 1933 shall
be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior
to such effective date; or |
| (2) | each prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933 as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than prospectuses filed
in reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to such date of
first use. |
| (e) | that,
for the purpose of determining liability of the Registrant under the Securities Act of 1933
to any purchaser in the initial distribution of securities: |
The undersigned Registrant undertakes
that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to the purchaser:
| (1) | any preliminary prospectus or prospectus
of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424 under the Securities Act of 1933; |
| (2) | free writing prospectus relating to the
offering prepared by or on behalf of the undersigned Registrant or used or referred to by
the undersigned Registrant; |
| (3) | the portion of any other free writing prospectus
or advertisement pursuant to Rule 482 under the Securities Act of 1933 relating to the offering
containing material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and |
| (4) | any other communication that is an offer
in the offering made by the undersigned Registrant to the purchaser. |
| 4. | The Registrant undertakes that: |
| (a) | for
the purpose of determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the Registrant under Rule 424(b)(1)
under the Securities Act of 1933 shall be deemed to be part of this registration statement
as of the time it was declared effective; and |
| (b) | for
the purpose of determining any liability under the Securities Act of 1933, 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. |
| 5. | The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference into the registration statement shall
be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. |
| 6. | Insofar as indemnification for liabilities
arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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 Act and will be governed
by the final adjudication of such issue. |
| 7. | The Registrant hereby undertakes to send by
first class mail or other means designed to ensure equally prompt delivery, within two business
days of receipt of a written or oral request, any prospectus or Statement of Additional Information. |
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. 1 to its 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 6th day of September 2023.
| |
EAGLE POINT INCOME 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. 1 to its 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 |
|
Chief
Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
|
September 6, 2023 |
Thomas P. Majewski
|
|
|
|
| /s/
Kenneth P. Onorio |
|
Chief Financial
Officer (Principal Financial and Accounting Officer) |
|
September 6, 2023 |
Kenneth P. Onorio
|
|
|
|
| /s/
* |
|
Director |
|
September 6, 2023 |
James R. Matthews
|
|
|
|
|
| /s/
* |
|
Director |
|
September 6, 2023 |
Scott W. Appleby
|
|
|
|
|
| /s/
* |
|
Director |
|
September 6, 2023 |
Kevin F. McDonald
|
|
|
|
|
| /s/
* |
|
Director |
|
September 6, 2023 |
Paul E. Tramontano
|
|
|
|
|
| /s/
* |
|
Director |
|
September 6, 2023 |
| Jeffrey L. Weiss |
|
|
|
|
| |
|
|
|
|
| *By: |
/s/ Thomas P. Majewski |
|
| |
Thomas P. Majewski |
|
| |
Attorney-in-Fact Pursuant to Power of Attorney |
|
Exhibit (h)(5)
EAGLE POINT INCOME COMPANY INC.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
5.00% SERIES A TERM PREFERRED STOCK DUE 2026
7.75% SERIES B TERM PREFERRED STOCK DUE 2028
THIRD AMENDED AND RESTATED AT MARKET ISSUANCE
SALES AGREEMENT
DATED AUGUST 21, 2023
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
Eagle Point Income Company
Inc., a Delaware corporation (the “Company”), Eagle Point Income Management LLC, a Delaware limited liability company
(the “Investment Adviser”), Eagle Point Administration LLC, a Delaware limited liability company (the “Administrator”)
and B. Riley Securities, Inc. (“B. Riley Securities”) are parties to that certain Amended and Restated At Market
Issuance Sales Agreement dated December 20, 2021 (the “Original Sales Agreement”) and the Second Amended and Restated
At Market Issuance Sales Agreement dated June 29, 2023 (the “Amended Sales Agreement”, and together with the Original
Sales Agreement, the “Sales Agreement”). Each of the Company, the Investment Adviser and the Administrator and B. Riley
Securities (the “Placement Agent”) desire to amend and restate the Sales Agreement with this agreement (the “Agreement”),
and hereby agree as follows:
1. Description of Securities.
Each of the Company, the Investment
Adviser and the Administrator agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions
set forth herein, the Company may issue and sell through the Placement Agent, acting as agent and/or principal, shares of the Company’s
(i) common stock (the “Common Stock”), par value $0.001 per share, (ii) 5.00% Series A Term Preferred
Stock due 2026, par value $0.001 per share (the “Series A Preferred Stock,”), or (iii) 7.75% Series B
Term Preferred Stock due 2028, par value $0.001 per share (the “Series B Preferred Stock,” and together with the
Common Stock and Series A Preferred Stock the “Shares”), provided however, that in no event shall the Company
issue or sell through the Placement Agent such number or dollar amount of Shares that (a) exceeds the number or dollar amount of
Shares registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made or (b) exceeds
the number of authorized but unissued shares of Common Stock, Series A Preferred Stock, or Series B Preferred Stock, as applicable
(each of (a) and (b), as applicable, (the “Maximum Amount”). Notwithstanding anything to the contrary contained
herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 regarding the amount of Shares
to be issued and sold under this Agreement shall be the sole responsibility of the Company, and the Placement Agent shall have no obligation
in connection with such compliance. The issuance and sale of the Shares through the Placement Agent will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Shares.
The Company has filed with
the Commission a shelf registration statement on Form N-2 (File Nos. 333-272168 and 811-23384), including the base prospectus or
prospectuses, covering the registration of the Shares under the Securities Act of 1933, as amended (the “Securities Act”).
The registration statement as amended, including the exhibits and schedules thereto, at the time it became effective, including the information,
if any, deemed to be part of the registration statement at the time of its effectiveness pursuant to Rule 430C under the Securities
Act, and all documents incorporated or deemed to be incorporated therein by reference pursuant to the final rule and form amendments
adopted by the Commission to implement certain provisions of the Economic Growth, Regulatory Relief, and Consumer Protection Act (“CEF
Act”), is hereinafter referred to as the “Registration Statement”; the prospectus, dated as of June 28,
2023, included in the Registration Statement at the time it became effective on June 29, 2023 (including the information, if any,
deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430C under the Securities Act), in
the form in which it was distributed, is hereinafter referred to as the “Base Prospectus”; the prospectus supplement
dated August 22, 2023, filed with the Commission pursuant to Rule 424(b) under the Securities Act, or any other prospectus
supplements filed pursuant to Rule 424(b) under the Securities Act and all documents incorporated or deemed to be incorporated
therein by reference, and to be used to confirm sales is hereinafter referred to, together with the Base Prospectus, as the “Prospectus.”
If the Company has filed an abbreviated registration statement to register additional Shares pursuant to Rule 462(b) under the
Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration Statement.
The Company has entered into
(i) an investment advisory agreement with the Investment Adviser dated as of October 5, 2018 (“Investment Advisory
Agreement”), (ii) a custody agreement with Wells Fargo Bank, National Association dated as of October 3, 2018 (the
“Custody Agreement”), (iii) an administration agreement with the Administrator dated as of October 5, 2018
(the “Administration Agreement”), and (iv) a transfer agency and registrar services agreement with American Stock
Transfer & Trust Company, LLC dated as of October 16, 2018 (the “Transfer Agency Agreement”). Collectively,
the Investment Advisory Agreement, the Custodian Agreement, the Administration Agreement, and the Transfer Agency Agreement are herein
referred to as the “Company Agreements.” In addition, the Company has adopted a dividend reinvestment plan (the “Dividend
Reinvestment Plan”) pursuant to which holders of shares of Common Stock shall have their distributions automatically reinvested
in additional shares of Common Stock unless such holders elect to receive such distributions in cash.
The Investment Company Act
of 1940, as amended (the “Investment Company Act”) and the Securities Act are hereinafter referred to collectively
as the “Acts,” and the rules and regulations of the Commission under the Acts and under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) are hereinafter referred to collectively as the “Rules and
Regulations.”
All references in this Agreement
to the Registration Statement and the Prospectus, or any amendments or supplements to any of the foregoing shall be deemed to include
any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)
system.
“Applicable Time”
means the time of each sale of any Shares pursuant to this Agreement as agreed by the Company and the Placement Agent.
2. Placements.
Each time that the Company
wishes to issue and sell the Shares hereunder (each, a “Placement”), it will notify the Placement Agent by email notice
(or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires the Shares
to be sold, which shall at a minimum include the number of Shares to be issued and sold (the “Placement Shares”), the
time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day and any
minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such necessary minimum
sales parameters is attached hereto as Exhibit A. The Placement Notice shall originate from any of the individuals from the
Company set forth on Exhibit B (with a copy to each of the other individuals from the Company listed on such schedule), and
shall be addressed to each of the individuals from the Placement Agent set forth on Exhibit B, as such Exhibit B
may be amended from time to time.
The Placement Notice shall
be effective upon receipt by the Company of the Placement Agent’s written acceptance of the terms of the Placement Notice unless
and until (i) the entire amount of the Placement Shares has been sold, (ii) in accordance with the notice requirements set forth
in the second sentence of this paragraph, the Company terminates the Placement Notice, (iii) the Company issues a subsequent Placement
Notice with parameters superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated under the
provisions of Section 11 or (v) either party shall have suspended the sale of the Placement Shares in accordance with Section 4
below. The amount of any discount, commission or other compensation to be paid by the Company to the Placement Agent in connection with
the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Exhibit C. It is expressly
acknowledged and agreed that neither the Company nor the Placement Agent will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to the Placement Agent and the Placement Agent accepts
in writing the terms of such Placement Notice, and then only upon the terms specified in the Placement Notice and herein. In the event
of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement Shares
by the Placement Agent.
Subject to the provisions
of Section 7(a), the Placement Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell the Placement Shares up to the amount specified, and otherwise in accordance
with the terms of such Placement Notice. The Placement Agent will provide written confirmation to the Company no later than the opening
of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Placement Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined in Section 7(b)) payable to the Company, with an itemization of the
deductions made by the Placement Agent (as set forth in Section 7(b)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, the Placement Agent may sell Placement Shares by any method permitted by law deemed to be an “at
the market” offering as defined in Rule 415 of the Securities Act. For the purposes hereof, “Trading Day”
means any day on which shares of Common Stock, Series A Preferred Stock, or Series B Preferred Stock, as applicable, are purchased
and sold on the principal market on which the Common Stock, Series A Preferred Stock, or Series B Preferred Stock, as applicable,
are listed or quoted.
4. Suspensions of Sales.
(a) The Company or the
Placement Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other
party set forth on Exhibit B, if receipt of such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence
to each of the individuals of the other party set forth on Exhibit B), suspend any sale of Placement Shares; provided,
however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4(a) shall
be effective against the other unless it is made to one of the individuals named on Exhibit B hereto, as such Exhibit may
be amended from time to time.
(b) No sales of Shares
shall take place, the Company shall not request the sale of any Shares that would be sold, and the Placement Agent shall not be obligated
to sell Shares, during any period in which the Company is in possession of material non-public information.
5.
Representations and Warranties of the Company, the Investment Adviser and the Administrator.
The Company, the Investment
Adviser and the Administrator, jointly and severally, represent and warrant to and agree with the Placement Agent as of the date hereof
and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m),
as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Registration
Statement has been filed with, and declared effective by, the Commission; no notice of objection of the Commission to the use of such
Registration Statement or any post-effective amendment thereto or 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. The Prospectus delivered to the Placement Agent for use in connection
with this offering was and will be identical in all material respects to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. At the time of filing the Registration Statement and any
post-effective amendments thereto, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405 of the Rules and Regulations.
(b) At the respective
times the Registration Statement and any post-effective amendment thereto became or becomes effective, the Registration Statement and
any post-effective amendment thereto complied and will comply in all material respects with the requirements of the Acts and the Rules and
Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment or supplement thereto, contained
or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
Prospectus, at each Applicable Time, did not contain an untrue statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties in this paragraph do not apply to statements in or omissions from the
Registration Statement or the Prospectus made solely in reliance upon and in conformity with written information furnished to the Company
by the Placement Agent for use in the Registration Statement or Prospectus.
(c) The Company has been
duly organized and is validly existing in good standing as a corporation under the laws of the State of Delaware. The Company has full
power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and
to enter into and perform its obligations under this Agreement and is in good standing and is duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not have a material adverse effect on the condition, financial or
otherwise, or on the prospects, earnings, business or operations of the Company (a “Company Material Adverse Effect”).
The Company has no subsidiaries other than Eagle Point Income Company Sub II (Cayman) Ltd. and such other subsidiaries that the Company
may form from time to time, the formation of which shall be disclosed in writing by the Company to the Placement Agent.
(d) The Company is, and
at all times through the completion of the transactions contemplated hereby will be, in compliance in all material respects with the applicable
terms and conditions of the Acts and the Rules and Regulations. To the Company’s knowledge, no person is serving or acting
as an officer or director of, or investment adviser to, the Company except in accordance with the provisions of the Investment Company
Act and the Investment Advisers Act of 1940, as amended, including the rules and regulations thereunder (the “Advisers Act”).
Except as otherwise disclosed in the Registration Statement and the Prospectus, to the Company’s knowledge, no director of the Company
is an “interested person” of the Company or an “affiliated person” of the Placement Agent (each as defined in
the Investment Company Act).
(e) This Agreement has
been duly authorized, executed and delivered by the Company. Each Company Agreement complies with all applicable provisions of the Acts,
the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the
other parties thereto, each Company Agreement represents a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles
of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’
rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive
relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered
in a proceeding in equity or at law; provided that neither the Company nor the Investment Adviser makes any representation or warranty
as to the effect on the representations and warranties expressed herein of (i) the compliance and noncompliance of any other party
(other than the Company) to any of the foregoing Company Agreements with state, federal or other laws or regulations applicable to it
or them or (ii) the legal or regulatory status or nature of the business of such other party.
(f) None of (1) the
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement or (2) the
issue and sale by the Company of the Shares as contemplated by this Agreement conflicts with or will conflict with, result in, or constitute
a violation, breach of or default under, (x) the certificate of incorporation of the Company, as amended to date (the “Certificate
of Incorporation”), or the bylaws of the Company, as amended to date (the “Bylaws”), (y) any agreement,
indenture, note, bond, license, lease or other instrument or obligation binding upon the Company that is material to the Company or (z) any
law, rule or regulation applicable to the Company or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would
have neither (i) a Company Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions
contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of
any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by the Placement
Agent.
(g) No consent, approval,
authorization, order or permit of, license from, or qualification with, any governmental body, agency or authority, self-regulatory organization
or court or other tribunal, whether foreign or domestic, is required to be obtained by the Company prior to the Settlement Date for the
performance by the Company of its obligations under this Agreement or the Company Agreements, except such as have been obtained and as
may be required by (i) the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, (ii) the rules and
regulations of the Financial Industry Regulatory Authority, Inc., including legacy NASD rules (“FINRA”),
or of the New York Stock Exchange (“NYSE”), (iii) the securities or “blue sky” laws of the various
states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain
would have neither (x) a Company Material Adverse Effect or (y) a material adverse effect on the consummation of the transactions
contemplated by this Agreement.
(h) The capital stock
of the Company conforms in all material respects to the description thereof under the heading “Description of our Capital Stock”
in each of the Registration Statement and the Prospectus, and this Agreement, the Certificate of Incorporation, the Bylaws and the Company
Agreements conform in all material respects to the descriptions thereof contained in each of the Registration Statement and the Prospectus.
(i) This Agreement, the
certificate of designation for the Series A Preferred Stock, as amended (the “Series A Certificate of Designation”),
the certificate of designation for the Series B Preferred Stock, as amended (the “Series B Certificate of Designation”),
the Certificate of Incorporation and the Bylaws comply with all applicable provisions of the Acts, the Advisers Act and the applicable
Rules and Regulations, and all approvals of such documents required under the Investment Company Act by the Company’s stockholders
and, to the extent applicable, Board of Directors have been obtained and are in full force and effect.
(j) The Company Agreements
are in full force and effect and neither the Company nor, to the knowledge of the Company, any other party to any such agreement is in
default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default
by the Company thereunder, and the Company is not currently in breach of, or in default under, any other written agreement or instrument
to which it or its property is bound or affected, the default under or breach of which could reasonably be expected to have a Company
Material Adverse Effect.
(k) The shares of Common
Stock, the shares of Series A Preferred Stock, and the shares of Series B Preferred Stock (together, the “Preferred
Stock”), in each case outstanding prior to the date hereof, have been duly authorized and, are validly issued, fully paid and
non-assessable. None of the outstanding shares of Common Stock, Preferred Stock or any other capital stock of the Company was issued in
violation of any preemptive or other similar rights. Other than as contemplated in the Registration Statement and the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(l) The Common Stock
has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of the Common Stock will not be subject to any preemptive or similar rights. The Common Stock
conforms to the descriptions thereof under the heading “Description of our Capital Stock” contained in the Registration Statement
and such description conforms in all material respects to the rights set forth in the instruments defining the same.
(m) The Series A
Preferred Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement and the Series A
Certificate of Designation, will be validly issued, fully paid and non-assessable, and the issuance of the Series A Preferred Stock
will not be subject to any preemptive or similar rights. The Series A Preferred Stock conforms to the descriptions thereof under
the heading “Description of our Capital Stock” contained in the Registration Statement and such description conforms in all
material respects to the rights set forth in the instruments defining the same.
(n) The Series A
Preferred Stock conforms to the provisions of the Series A Certificate of Designation and the relative rights, preferences, interests
and powers of the Series A Preferred Stock are set forth in the Series A Certificate of Designation. The Series A Certificate
of Designation has been, or by the Settlement Date will be, duly authorized and executed by the Company in compliance with the Delaware
General Corporation Law and filed by the Company with Secretary of State of the State of Delaware. The Series A Certificate of Designation
is in full force and effect.
(o) The Series B
Preferred Stock has been duly authorized and, when issued and delivered in accordance with the terms of this Agreement and the Series B
Certificate of Designation, will be validly issued, fully paid and non-assessable, and the issuance of the Series B Preferred Stock
will not be subject to any preemptive or similar rights. The Series B Preferred Stock conforms to the descriptions thereof under
the heading “Description of our Capital Stock” contained in the Registration Statement and such description conforms in all
material respects to the rights set forth in the instruments defining the same.
(p) The Series B
Preferred Stock conforms to the provisions of the Series B Certificate of Designation and the relative rights, preferences, interests
and powers of the Series B Preferred Stock are set forth in the Series B Certificate of Designation. The Series B Certificate
of Designation has been, or by the Settlement Date will be, duly authorized and executed by the Company in compliance with the Delaware
General Corporation Law and filed by the Company with Secretary of State of the State of Delaware. The Series B Certificate of Designation
is in full force and effect.
(q) The Company will
submit a supplemental listing application for the listing of the Shares on the NYSE and use its best efforts to maintain such listing,
subject to official notice of issuance.
(r) The questionnaires
relating to FINRA Rule 5110 provided to the Placement Agent or its counsel in connection with letters, filings or other supplemental
information provided to FINRA pursuant to FINRA’s conduct rules (Rules 5100, 5110 or 5121) are, to the Company’s
knowledge, true and correct in all material respects.
(s) There has not occurred
any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition,
financial or otherwise, or in the prospects, earnings, business or operations of the Company, and there have been no transactions entered
into by the Company which are material to the Company, other than those in the ordinary course of its business.
(t) There are no legal
or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party or to which any of
the properties of the Company is subject (i) other than proceedings accurately described in all material respects in the Prospectus
and proceedings that would not have a Company Material Adverse Effect, or that would not have a material adverse effect on the power or
ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus
or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described. Each officer
signing or delivering a certificate pursuant to this Agreement may rely upon his or her knowledge as to legal or governmental proceedings
threatened.
(u) The statements in
the Registration Statement and the Prospectus under the headings “Prospectus Supplement Summary-Operating and Regulatory Structure,”
“Prospectus Supplement Summary-Conflicts of Interest,” “Description of the Series A Term Preferred Stock,”
and “Description of the Series B Term Preferred Stock” and in the Base Prospectus under the captions “Prospectus
Summary-Operating and Regulatory Structure,” “Prospectus Summary-Conflicts of Interest,” “The Adviser and the
Administrator-Investment Advisory Agreement,” “The Adviser and the Administrator-The Administrator and the Administration
Agreement,” “Regulation as a Closed-End Management Investment Company,” “U.S. Federal Income Tax Matters”
and “Description of our Capital Stock” and “Description of our Preferred Stock” insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(v) The Company has all
necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and
registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations
and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described
in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in a Company Material Adverse
Effect.
(w) Each of the Registration
Statement and the Prospectus, as of the respective dates thereof, complied as to form in all material respects with the Acts and the applicable
Rules and Regulations.
(x) The financial statements
included in the Registration Statement and the Prospectus, together with the related notes thereto (collectively, the “Company
Financial Statements”), present fairly in all material respects the financial condition of the Company as of the respective
dates indicated, comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and have
been prepared in conformity with generally accepted accounting principles (“GAAP”). The supporting schedules
to such Company Financial Statements, if any, present fairly in accordance with GAAP the information required to be stated therein. KPMG
LLP, whose report appears in the Registration Statement and the Prospectus and who have certified the audited Company Financial Statements
and supporting schedules, if any, included in the Registration Statement, is an independent registered public accounting firm within the
meaning of, and as required by, the Acts and the applicable Rules and Regulations.
(y) There are no material
restrictions, limitations or regulations with respect to the ability of the Company to invest its assets as described in the Registration
Statement and the Prospectus, other than as described therein.
(z) Neither the Company
nor any of its agents or representatives (other than the Placement Agent in its capacity as such) has prepared, made, used, authorized,
approved or referred to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Shares other
than the Registration Statement and the Prospectus, and any amendment or supplement to any of the foregoing.
(aa) Subsequent to the respective
dates as of which information is given in each of the Registration Statement and the Prospectus, (i) the Company has not incurred
any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased
any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock,
other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock, short-term debt
or long-term debt of the Company, except in each case as contemplated in the Registration Statement and the Prospectus, respectively.
(bb) The Company owns or possesses,
or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business now operated by it, and the Company has not received any notice
of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a Company Material Adverse Effect.
(cc) The Common Stock, Series A
Preferred Stock, and Series B Preferred Stock are each listed on the NYSE under the ticker symbols “EIC,” “EICA,”
and “EICB,” respectively. The Company has not received any notice that it is not in compliance with the listing or maintenance
requirements of the NYSE with respect to the Common Stock, Series A Preferred Stock, and Series B Preferred Stock. The Company
believes that it is, and has no reason to believe that it will not in the foreseeable future continue to be, in material compliance with
all such listing and maintenance requirements.
(dd) To the extent that the
Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated by the Commission and the NYSE thereunder (the
“Sarbanes-Oxley Act”), have been applicable to the Company, there is and has been no failure on the part of the Company
to comply with any applicable provision of the Sarbanes-Oxley Act that would reasonably be expected to have a Company Material Adverse
Effect.
(ee) The Company maintains
a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations and with the applicable requirements of the Acts; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and compliance
with the books and records requirements under the Acts; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Since the date of the Company’s most recent audited financial
statements included in the Prospectus, there has been (i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated); (ii) no fraud, whether or not material, that involves management or employees who have a role
in the Company’s internal controls; and (iii) no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ff) The Company maintains
“disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act); such disclosure
controls and procedures are effective as required by the Investment Company Act and the applicable Rules and Regulations and the
Company is not aware of any material weakness in such controls and procedures.
(gg) Any statistical and market-related
data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable
and accurate.
(hh) There are no contracts
or documents which are required to be described in the Registration Statement or the Prospectus (or the documents incorporated by reference
therein) or to be filed as exhibits thereto by the Securities Act or the Investment Company Act which have not been so described and filed
as required.
(ii) The operations of
the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) Neither the Company nor,
to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company, the Investment Adviser or the Administrator
is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA and the Company, the Investment Adviser and the Administrator,
and to the knowledge of the Company, the Investment Adviser and the Administrator, their affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith.
(kk) Neither the Company nor,
to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company, the Investment Adviser or the Administrator
is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”)
and none of the Company, the Investment Adviser and the Administrator will directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person or any country or territory currently subject to any U.S. sanctions administered by
OFAC.
(ll) The Company is insured
by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the
businesses in which it is engaged; all policies of insurance insuring the Company or its business, assets, employees, officers and directors,
including the Company’s directors and officers errors and omissions insurance policy and its fidelity bond required by Rule 17g-1
of the Rules and Regulations, are in full force and effect, and the Company is in compliance with the terms of such policies and
fidelity bond in all material respects; and there are no claims by the Company under any such policies or fidelity bond as to which any
insurance company is denying liability or defending under a reservation of rights clause; the Company has not been refused any insurance
coverage sought or applied for; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage
and fidelity bond as and when such coverage and fidelity bond expires or to obtain similar coverage and fidelity bond from similar insurers
as may be necessary to continue its business at a cost that would not result in a Company Material Adverse Effect, except as set forth
in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(mm) Except as set forth in
or contemplated in the Registration Statement and the Prospectus, the Company (i) does not have any material lending or other relationship
with any bank or lending affiliate of the Placement Agent (the description of such arrangements and outstanding indebtedness thereunder
is true, accurate and complete in all respects) and (ii) does not intend to use any of the proceeds from the sale of the Shares hereunder
to repay any outstanding debt owed to any affiliate of the Placement Agent.
(nn) There are no business
relationships or related-party transactions involving the Company or any other person required to be described in the Registration Statement
or the Prospectus which have not been described as required, it being understood and agreed that the Company, the Investment Adviser and
the Administrator make no representation or warranty with respect to such relationships involving the Placement Agent or any affiliate
and any other person that have not been disclosed to the Company by the Placement Agent in connection with this offering.
(oo) The Company has not taken,
directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute,
cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(pp) The Company owns, leases
or has rights to use all such properties as are necessary to the conduct of its operations as presently conducted.
(qq) There are no stock or
other transfer taxes, stamp duties, capital duties or other similar duties, taxes or charges payable in connection with the execution
or delivery of this Agreement by the Company or the issuance or sale by the Company of the Shares to be sold by the Company to the Placement
Agent hereunder.
(rr) The Company operates
in compliance in all material respects with the requirements to be taxed as, and has duly elected to be taxed as (which election has not
been revoked), a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”).
The Company intends to direct the investment of the net proceeds received by it from the sale of the Shares in the manner specified in
the Registration Statement and the Prospectus under the caption “Use of Proceeds” and in such a manner as to continue to comply
with the requirements of Subchapter M of the Code.
(ss) Each investment held
by the Company, except as otherwise disclosed in the Registration Statement and the Prospectus, is, to the Company’s knowledge,
current, in all material respects, with all its obligations under the applicable terms of the investment, no event of default (or a default
which with the giving of notice or the passage of time would become an event of default) has occurred in respect of such investment, except
to the extent that any such failure to be current in any such obligations and any such default would not reasonably be expected to result
in a Company Material Adverse Effect.
Any certificate signed by
or on behalf of the Company and delivered to the Placement Agent or its counsel in connection with the offering of the Shares shall be
deemed to a representation and warranty by the Company as to the matters covered therein to the Placement Agent.
6.
Representations and Warranties of the Investment Adviser and the Administrator.
The Investment Adviser and
the Administrator represent and warrant to and agree with the Placement Agent as of the date hereof and as of each Representation Date
(as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as
of each Settlement Date (as defined below) as follows:
(a) Each of the Investment
Adviser and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the laws
of the State of Delaware with the power and authority to own its property and to conduct its business as described in the Registration
Statement and the Prospectus and enter into this Agreement and the other Company Agreements to which the Investment Adviser or the Administrator
is a party, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings,
business or operations of the Investment Adviser or the Administrator, as the case may be (an “Adviser/Administrator Material
Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries. The Administrator has no subsidiaries.
(b) The Investment Adviser
is duly registered as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company
Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement
and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or,
to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has
been duly authorized, executed and delivered by the Investment Adviser and/or the Administrator, as applicable. This Agreement and each
Company Agreement to which the Investment Adviser or the Administrator is a party comply with the applicable provisions of the Acts, the
Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other
parties thereto, each Company Agreement to which the Investment Adviser or the Administrator is a party represents a valid and binding
agreement of the Investment Adviser or the Administrator, as applicable, enforceable against the Investment Adviser or the Administrator,
as applicable, in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state
securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s
or the Administrator’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles
(including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality
reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) in the
case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness
of compensation payable thereunder.
(d) The execution and
delivery by the Investment Adviser and/or the Administrator, as applicable, of, and the performance by the Investment Adviser and/or the
Administrator, as applicable, of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or
constitute a violation, breach of, or default under, (x) the limited liability company operating agreement of the Investment Adviser
and/or the Administrator, as applicable (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation
binding upon the Investment Adviser and/or the Administrator, as applicable, that is material to the Investment Adviser and/or the Administrator,
as applicable, or (z) any law, rule or regulation applicable to the Investment Adviser and/or the Administrator, as applicable,
or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser and/or the
Administrator, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither
(i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions
contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of
any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by the Placement
Agent.
(e) No consent, approval,
authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory
organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser and/or the
Administrator, as applicable, for the performance by the Investment Adviser and/or the Administrator, as applicable, of its obligations
under this Agreement or any Company Agreement to which it is a party, except such as have been obtained and as may be required by (i) the
Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA
or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection
with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser/Administrator
Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal
or governmental proceedings pending or, to the knowledge of the Investment Adviser and the Administrator, threatened to which the Investment
Adviser and/or the Administrator is a party or to which any of the properties of the Investment Adviser and/or the Administrator is subject
(i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings
that would not have an Adviser/Administrator Material Adverse Effect, as applicable, or that would not have a material adverse effect
on the power or ability of the Investment Adviser and/or the Administrator, as applicable, to perform its obligations under this Agreement
or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described
in the Registration Statement or the Prospectus and are not so described.
(g) There are no contracts
or documents which are required to be described in the Registration Statement or the Prospectus (or the documents incorporated by reference
therein) or to be filed as exhibits thereto by the Securities Act or by the Rules and Regulations which have not been so described
and filed as required.
(h) Each of the Investment
Adviser and the Administrator has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates,
permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory
organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the
manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing
would not result in an Adviser/Administrator Material Adverse Effect.
(i) Each of the Investment
Adviser and Administrator has the financial resources available to it necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus and by this Agreement and each Company Agreement to which it is a party.
(j) The Investment Advisory
Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment Adviser, any other party
to the Investment Advisory Agreement is in default thereunder, and no event has occurred which with the passage of time or the giving
of notice or both would constitute a default by the Investment Adviser under such document.
(k) Each of the Investment
Adviser and the Administrator are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety
bonds insuring the Investment Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Investment Adviser and the Administrator are in compliance with the terms of such policies and instruments
in all material respects; there are no claims by the Investment Adviser or the Administrator under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights clause; none of the Investment Adviser or
the Administrator has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have
an Adviser/Administrator Material Adverse Effect.
(l) All information furnished
by the Investment Adviser or the Administrator for use in the Registration Statement and Prospectus, including, without limitation, the
description of the Investment Adviser does not, and on the Settlement Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make such information not misleading (and in the case of the Prospectus, in light of the
circumstances under which such information is provided).
(m) There has not occurred
any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition,
financial or otherwise, or in the prospects, earnings, business or operations of the Investment Adviser or the Administrator from that
set forth in the Registration Statement and the Prospectus, and there have been no transactions entered into by the Investment Adviser
that are material to the Investment Adviser other than those in the ordinary course of its business or as described in the Registration
Statement and the Prospectus.
(n) None of the Investment
Adviser or the Administrator, nor to their knowledge, any of its respective affiliates, has taken, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization
or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(o) The operations of
the Investment Adviser and the Administrator are and have been conducted at all times in compliance with applicable Money Laundering Laws
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment
Adviser or the Administrator with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser or the
Administrator, threatened.
(p) None of the Investment
Adviser or the Administrator nor, to their knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser or
the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the
FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Investment
Adviser or the Administrator, and, to their knowledge, the Investment Adviser and the Administrator, and each of their affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance therewith.
(q) None of the Investment
Adviser or the Administrator nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser or the
Administrator is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser and the Administrator will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(r) The Investment Adviser
maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under
the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access
to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(s) The Administrator
maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it
has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of
the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (ii) the
recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
Any certificate signed by
or on behalf of the Investment Adviser or the Administrator and delivered to the Placement Agent or its counsel in connection with the
offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser or the Administrator, as applicable,
as to the matters covered therein to the Placement Agent.
7.
Agreements to Sell and Purchase.
(a) Sale of Placement
Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth,
upon the Placement Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Placement Agent, for
the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
Each of the Company, the Investment Adviser and the Administrator acknowledges and agrees that (i) there can be no assurance that
the Placement Agent will be successful in selling Placement Shares, (ii) the Placement Agent will incur no liability or obligation
to the Company, the Investment Adviser, the Administrator or any other person or entity if it does not sell Placement Shares for any reason
other than a failure by the Placement Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such Placement Shares as required under this Section 7 and (iii) the Placement Agent shall be under no obligation to
purchase Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Placement Agent in the Placement Notice.
(b) Settlement of
Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur
on the second (2nd) Trading Day (or such shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from
time to time) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Placement Agent at which such Placement Shares were sold, after deduction for
(i) the Placement Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2
and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c) Delivery of Placement
Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting the Placement Agent’s or its designee’s account (provided the Placement Agent shall have given
the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company (“DTC”) through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Placement
Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 10, the Company will
(i) hold the Placement Agent harmless against any loss, liability, claim, damage, or expense whatsoever (including reasonable legal
fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable)
and (ii) pay to the Placement Agent any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default.
(d) Denominations;
Registration. The certificates for the Shares, if any, shall be in such denominations and registered in such names as the Placement
Agent may request in writing at least one full business day before the Settlement Date. The certificates for the Shares, if any, will
be made available for examination and packaging by the Placement Agent in The City of New York not later than noon (New York City time)
on the business day prior to the Settlement Date. The Company shall deliver the Shares, if any, through the facilities of DTC unless the
Placement Agent shall otherwise instruct.
(e) Limitations on
Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to
the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the Maximum Amount. Under
no circumstances shall the Company cause or request the offer or sale of any shares of Series A Preferred Stock or Series B
Preferred Stock that would cause the Company to exceed the asset coverage ratio permitted under the Investment Company Act, which as of
the date hereof is 200%, as measured at the time of the issuance of any such shares of Series A Preferred Stock or Series B
Preferred Stock, as required by the Investment Company Act. Under no circumstances shall the Company cause or request the offer or sale
of (i) any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company
and notified to the Placement Agent in writing or (ii) any shares of Common Stock pursuant to this Agreement at a price (net of the
Placement Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof)
lower than the Company’s then current net asset value per share of Common Stock (as determined pursuant to Section 23(b) of
the Investment Company Act), unless the Company has received the requisite approval from stockholders as required pursuant to the Investment
Company Act.
8.
Conditions to the Placement Agent’s Obligations.
The respective obligations
of the Company, the Investment Adviser and the Administrator, and the obligations of the Placement Agent, hereunder are subject to the
condition that the Registration Statement has become effective and at the Settlement Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Securities Act and no proceedings with respect thereto shall have been initiated
or, to the Company’s knowledge, threatened by the Commission, and any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel to the Placement Agent.
The obligations of the Placement
Agent are subject to the following further conditions:
(a) The Registration
Statement and any Rule 462(b) Registration Statement shall have become effective and shall be available for (i) all sales
of Placement Shares issued pursuant to all prior Placement Notices and (ii) the sale of all Placement Shares contemplated to be issued
by any Placement Notice.
(b) None of the following
events shall have occurred and be continuing: (i) receipt by the Company or the Investment Adviser or the Administrator of any request
for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting
to the use of the Registration Statement or order pursuant to Section 8(e) of the Investment Company Act having been issued
and proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any material statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires
the making of any changes in the Registration Statement, related Prospectus or such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) The Placement Agent
shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in the Placement Agent’s reasonable opinion is material, or omits to state a fact that in the Placement
Agent’s opinion is material and is required to be stated therein or is necessary in order to make the statements therein not misleading
(and in the case of the Prospectus, in light of the circumstances under which they were made).
(d) Except as contemplated
in the Prospectus, there shall not have been any material change, on a consolidated basis, in the authorized capital stock of the Company
or any Company Material Adverse Effect.
(e) The Placement Agent
shall have received (i) the favorable opinions of Company Counsel (as defined below), required to be delivered pursuant to Section 9(n) on
or before the date on which such delivery of such opinion is required, and (ii) the opinion of Duane Morris LLP, counsel to the Placement
Agent, on or before the date on which Company Counsel is required to deliver an opinion pursuant to Section 9(n), with respect to
such matters as the Placement Agent may reasonably require.
(f) The Placement Agent
shall have received the Officer’s Certificates on or before the date on which delivery of such certificate is required pursuant
to Section 9(m).
(g) The Placement Agent
shall have received the Comfort Letter and the CEO/CFO Certificate required to be delivered pursuant to Section 9(o) on or before
the date on which such delivery of such letter and certificate are required pursuant to Section 9(o).
(h) The Placement Shares
shall have been approved for listing on the NYSE, subject only to notice of issuance.
(i) Prior to the issuance
of any Placement Notice, FINRA shall have confirmed in writing that it has no objection with respect to the fairness and reasonableness
of the sales terms and arrangements.
(j) Trading in the Common
Stock, Series A Preferred Stock, or Series B Preferred Stock shall not have been suspended on the NYSE.
(k) On each date on which
the Company is required to deliver an Officer’s Certificate, counsel for the Placement Agent shall have been furnished with such
certificates, letters, opinions and other documents as they may require for the purpose of enabling them to pass upon the issuance and
sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment
of any of the conditions, contained in this Agreement.
(l) There shall not have
occurred any event that would permit the Placement Agent to terminate this Agreement pursuant to Section 11(a).
(m) All filings with
the Commission required by Rule 424(b) under the Securities Act to have been filed prior to the issuance of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424(b).
9.
Covenants of the Company, the Investment Adviser and the Administrator.
In further consideration of
the agreements of the Placement Agent herein contained, the Company covenants and agrees, and the Investment Adviser and the Administrator,
covenant and agree with the Placement Agent as follows:
(a) After the date of
this Agreement and during any period in which a Prospectus relating to any Placement Shares is required to be delivered by the Placement
Agent under the Securities Act, (i) the Company will notify the Placement Agent promptly of the time when any subsequent amendment
to the Registration Statement has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus
has been filed and of any comment letter from the Commission or any request by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon
the Placement Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the opinion of
counsel for the Company and for the Placement Agent, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Placement Agent (provided, however, that the failure of the Placement Agent to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect the Placement Agent’s right to rely on the representations
and warranties made by the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration
Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof has
been submitted to the Placement Agent within a reasonable period of time before the filing and the Placement Agent has not reasonably
objected thereto (provided, however, that the failure of the Placement Agent to make such objection shall not relieve the
Company of any obligation or liability hereunder, or affect the Placement Agent’s right to rely on the representations and warranties
made by the Company in this Agreement); and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to Rule 424(b) of the Securities Act. The Company will also promptly effect the necessary
post-effective amendment and the filings required pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus.
(b) The Company will
advise the Placement Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by
the Commission of any stop order suspending the effectiveness of the Registration Statement or of any other order preventing or suspending
the use of the Prospectus, or of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction
or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening of any proceedings for
any of such purposes, or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement
or if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the
Shares. The Company will make every reasonable effort to prevent the issuance of any stop order, the suspension of any qualification of
the Shares for offering or sale and any loss or suspension of any exemption from any such qualification, and if any such stop order is
issued or any such suspension or loss occurs, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will
furnish to the Placement Agent and its counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus and
all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which
a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act, in each case as soon as reasonably
practicable, and in such quantities and at such locations as the Placement Agent may from time to time reasonably request. The copies
of the Registration Statement and the Prospectus and any supplements or amendments thereto furnished to the Placement Agent will be identical
to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) If at any time when
a Prospectus is required by the Securities Act to be delivered in connection with a pending sale of the Placement Shares, any event shall
occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Placement Agent and for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of each counsel, at any
such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities
Act, the Company will promptly notify the Placement Agent to suspend the offering of Placement Shares during such period and the Company
will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Placement Agent
such number of copies of such amendment or supplement as the Placement Agent may reasonably request.
(e) The Company and the
Investment Adviser will not take any action designed to cause or result in the manipulation of the price of any security of the Company
to facilitate the sale of Shares in violation of the Securities Act or the Exchange Act and the applicable Rules and Regulations,
or the securities or “blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale
of Shares.
(f) The Company will
use its commercially reasonable efforts, in cooperation with the Placement Agent, to endeavor to qualify the Shares for offer and sale
under the securities or “blue sky” laws of such jurisdictions as the Placement Agent shall reasonably request; provided,
however, that the Company shall not be obligated to file any general consent of service of process or to qualify as a foreign
entity or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(g) During any period
in which the Prospectus relating to the Placement Shares is required to be delivered by the Placement Agent under the Securities Act with
respect to a pending sale of the Placement Shares, the Company will use its best efforts to effect the listing of the Shares on the NYSE,
subject to official notice of issuance.
(h) The Company, during
any period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with
the Commission pursuant to the Exchange Act and the Investment Company Act within the time periods required by the Exchange Act and the
Investment Company Act, as the case may be.
(i) The Company will
not, without (i) giving the Placement Agent at least one (1) business day prior written notice specifying the nature of the
proposed sale and the date of such proposed sale and (ii) the Placement Agent suspending activity under this program for such period
of time as requested by the Company or as deemed appropriate by the Placement Agent in light of the proposed sale, (A) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of, directly or indirectly, any Common Stock,
Series A Preferred Stock, or Series B Preferred Stock, or securities convertible into or exchangeable or exercisable for or
repayable with Common Stock, Series A Preferred Stock, or Series B Preferred Stock, or file any registration statement under
the Securities Act with respect to any of the foregoing or (B) enter into any swap or other agreement or any transaction that transfers
in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Common Stock, Series A Preferred
Stock, or Series B Preferred Stock, or any securities convertible into or exchangeable or exercisable for or repayable with Common
Stock, Series A Preferred Stock, or Series B Preferred Stock, whether any such swap or transaction described in clause (A) or
(B) above is to be settled by delivery of Common Stock, Series A Preferred Stock, or Series B Preferred Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (x) the Common Stock, the Series A Preferred Stock,
or to the Series B Preferred Stock to be offered and sold through the Placement Agent pursuant to this Agreement and (y) the
Common Stock issued pursuant to the Dividend Reinvestment Plan as it may be amended from time to time.
(j) The Company will,
at any time during a fiscal quarter in which the Company intends to tender a Placement Notice or sell Placement Shares, advise the Placement
Agent promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect
in any material respect any opinion, certificate, letter or other document provided to the Placement Agent pursuant to this Agreement.
(k) The Company will
cooperate with any reasonable due diligence review conducted by the Placement Agent or its agents in connection with the transactions
contemplated hereby, including, without limitation, providing information and making available documents and senior officers, during regular
business hours and at the Company’s principal offices, as the Placement Agent may reasonably request. The parties acknowledge that
the due diligence review contemplated by this Section 9(k) will include, without limitation, during the term of this Agreement
a quarterly diligence conference to occur within five (5) Trading Days after the filing of the Company’s annual report and
semi-annual report on Form N-CSR and N-CSRS, respectively, and interim reports containing financial statements filed pursuant to
Rule 30b2-1(b) (collectively, with any successor forms that may be required by the Commission, the “Reports”),
whereby the Company will make its senior corporate officers available to address diligence inquiries of the Placement Agent and will provide
such additional information and documents as the Placement Agent may reasonably request.
(l) The Company will
disclose in its annual report and semi-annual report on Form N-CSR and N-CSRS, respectively, and interim reports containing financial
statements filed pursuant to Rule 30b2-1(b), as applicable, the number of Placement Shares sold through the Placement Agent, the
Net Proceeds to the Company and the compensation payable by the Company to the Placement Agent with respect to such Placement Shares.
To the extent the information set forth in this Section 9(l) is filed in a prospectus supplement, the Company agrees to deliver
such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required
by the rules or regulations of such exchange or market.
(m) On or prior to the
date that the first Placement Notice is issued, and within five (5) Trading Days after the Company:
(i) (A) files the
Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or supplement relating to the Placement Shares, or (B) files a Rule 424(b) filing
(other than a Rule 424(b) filing solely to update management’s estimates of the Company’s financial metrics as of
the most recent month end (“Financial Metrics 424(b)”)); and
(ii) files a Report (to
the extent not already covered by subsection (i) of this Section 9(m)) (each such date of filing of one or more of the documents
referred to in clauses (i) and (ii) and any time of request pursuant to this Section 9(m) shall be a “Representation
Date”);
each of the Company, the Investment Adviser and the Administrator shall furnish the Placement Agent with a certificate,
in the forms attached hereto as Exhibit D-1, Exhibit D-2, and Exhibit D-3, as applicable (each, an
“Officer’s Certificate”).
With respect to post-effective amendments to the
Registration Statement contemplated by this Section 9(m), the Representation Date shall be the date the Commission declares
such amendment effective and all Representation Date deliveries relating thereto which are required by Section 9 shall be
delivered on or as promptly as practicable following the date of effectiveness of such amendment.
The requirement to provide a certificate under
this Section 9(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which
waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such
waiver shall not apply for any Representation Date on which the Company files its annual report on Form N-CSR. Notwithstanding the
foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such
waiver and did not provide the Placement Agent with a certificate under this Section 9(m), then before the Company delivers the Placement
Notice or the Placement Agent sells any Placement Shares, each of the Company, the Investment Adviser and the Administrator shall provide
the Placement Agent with the applicable Officer’s Certificate dated the date of the Placement Notice.
(n) On or prior to the
date of the first Placement Notice and within five (5) Trading Days of each Representation Date with respect to which the Company,
the Investment Adviser and the Administrator are obligated to deliver the applicable Officer’s Certificate, as applicable, for which
no waiver is applicable, the Company shall cause to be furnished to the Placement Agent written opinions and negative assurances of Dechert
LLP (“Company Counsel”), or other counsel satisfactory to the Placement Agent, in form and substance satisfactory to
the Placement Agent and its counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached
hereto as Exhibit E, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, that in lieu of such opinions for subsequent Representation Dates, any such counsel may
furnish the Placement Agent with a letter to the effect that the Placement Agent may rely on a prior opinion delivered under this Section 9(n) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(o) On or prior to the
date of the first Placement Notice and within five (5) Trading Days of each Representation Date with respect to which the Company,
the Investment Adviser and the Administrator are obligated to deliver the applicable Officer’s Certificate, for which no waiver
is applicable, the Company shall cause (A) its independent accountants (and any other independent accountants whose report is included
in the Registration Statement or the Prospectus) to furnish to the Placement Agent letters (collectively, the “Comfort Letter”),
dated the date the Comfort Letter is delivered, in form and substance satisfactory to the Placement Agent, (i) confirming that they
are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company
Accounting Oversight Board, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings (the first such letters, the “Initial Comfort Letter”) and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified
as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter and (B) the
Chief Executive Officer and the Chief Financial Officer to furnish to the Placement Agent a certificate (the “CEO/CFO Certificate”)
dated the date that the certificate is required to be delivered, in form and substance satisfactory to the Placement Agent. In addition,
on or prior to the date of the first Placement Notice, the Company shall cause such independent accountants to deliver to the Placement
Agent an “agreed-upon procedures letter” dated the date the agreed-upon procedures letter is delivered, in form and substance
satisfactory to the Placement Agent, containing statements and information of the type ordinarily included in such letters with respect
to certain financial information contained in the Registration Statement and the Prospectus.
(p) On or prior to the
date of the first Placement Notice, each time Shares are delivered to the Placement Agent as principal on a Settlement Date and within
five (5) Trading Days of each Representation Date with respect to which the Company, the Investment Adviser and the Administrator
are obligated to deliver the applicable Officer’s Certificate, as applicable, for which no waiver is applicable, each of the Company,
the Adviser and the Administrator shall furnish the Placement Agent with a certificate of its respective Secretary, dated the date such
certificate is required to be delivered, in substantially the form attached hereto as Exhibit F-1, Exhibit F-2
and Exhibit F-3, as applicable.
(q) Within five (5) Trading
Days of the Company filing with the Commission a Financial Metrics 424(b), the Company shall cause to be furnished to the Placement Agent
a CEO/CFO Certificate certifying the information included in the Financial Metrics 424(b), in a form and substance satisfactory to the
Placement Agent.
(r) The Company will
not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares
or (ii) sell, bid for, or purchase the Shares, or pay anyone any compensation for soliciting purchases of the Shares other than the
Placement Agent; provided, however, that the Company may bid for and purchase its Common Stock, Series A Preferred
Stock, or Series B Preferred Stock in accordance with Rule 10b-18 under the Exchange Act.
(s) The Company will
comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley
Act, and will use reasonable efforts to cause the Company’s directors and officers, in their capabilities, as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions of Sarbanes-Oxley Act.
(t) The Company will
use reasonable best efforts to comply with the requirements of Subchapter M of the Code to qualify as a regulated investment company under
the Code, with respect to any fiscal year in which the Company is an investment company registered under the Investment Company Act.
(u) The Company, the
Investment Adviser and the Administrator will use their reasonable efforts to perform all of the agreements required of them by this Agreement
and discharge all conditions of theirs to closing as set forth in this Agreement.
(v) The Company will
use the Net Proceeds as described in the Prospectus.
(w) As soon as practicable,
the Company will make generally available to its security holders and to the Placement Agent an earnings statement or statements of the
Company which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(x) The Company will
use its best efforts to effect the listing of the Shares on the NYSE as and when required by this Agreement.
(y) The Company agrees
to pay all costs, fees and expenses incurred in connection with performance of its obligations hereunder and in connection with the transactions
contemplated under this Agreement, including, without limitation, (i) all expenses incident to the issuance and delivery of the Placement
Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar, transfer agent of the Shares, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Placement Shares, (iv) all fees and
expenses of the Company’s counsel and the Company’s independent public or certified public accountants and other advisors,
(v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of experts) and the Prospectus, and all amendments
and supplements thereto and this Agreement, (vi) all filing fees, distribution fees, attorneys’ fees and expenses incurred
by the Company in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or
any part of the Placement Shares for offer and sale under the state securities or blue sky laws or any other country, including, if requested
by the Placement Agent, the preparation by counsel for the Placement Agent and printing of a “Blue Sky Survey,” an “International
Blue Sky Survey” or other memorandum, and any supplements thereto, advising the Placement Agent of such qualifications, registrations
and exemptions, (vii) the fees and expenses associated with listing the Placement Shares on NYSE, (viii) the filing fees incident
to the review by FINRA of the terms of the sale of the Placement Shares, (ix) the fee and expense of counsel to the Placement Agent
in an amount not to exceed (A) $75,000 in connection with due diligence and the preparation of this Agreement (inclusive of expenses
previously paid in connection with the Original Sales Agreement) and (B) $3,750 on the first day of each calendar quarter that this
Agreement is in effect, commencing on July 1, 2023 and (x) all other fees, costs and expenses incident to the performance by
the Company of its obligations hereunder.
10. Indemnity and Contribution.
(a) Each of the Company,
the Investment Adviser and the Administrator, jointly and severally, agree to indemnify and hold harmless the Placement Agent, each person,
if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, each selling agent of the Placement Agent and each director, officer, member, shareholder or affiliate of the Placement
Agent within the meaning of Rule 405 under the Rules and Regulations (each, a “Placement Agent Indemnified Party”)
from and against any and all losses, claims, damages, liabilities (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim) and expense whatsoever, caused by, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment
thereof, including any information deemed to be a part thereof pursuant to Rule 430B or Rule 424(b) under the Securities
Act, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon written
information furnished to the Company by the Placement Agent expressly for use therein.
(b) The Placement Agent
agrees to indemnify and hold harmless each of the Company, the Investment Adviser and the Administrator, and each of their respective
partners, directors, trustees, managers, members and shareholders (as the case may be), and each officer of the Company who signs the
Registration Statement and each person, if any, who controls the Company, the Investment Adviser and/or the Administrator within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”)
to the same extent as the foregoing indemnity from the Company, the Investment Adviser and the Administrator to the Placement Agent, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions, to written information relating to the
Placement Agent furnished to the Company by the Placement Agent expressly for use in the Registration Statement or Prospectus, as originally
filed with the Commission, or any amendment thereof. The Company, the Investment Adviser and the Administrator acknowledge that the Placement
Agent has not furnished any information to the Company for inclusion in the Prospectus.
(c) In case any proceeding
(including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant
to Section 10(a) or 10(b), such person (the “indemnified party”) shall promptly notify the person against
whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements reasonably incurred of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with an actual conflict of interest, or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees
and expenses reasonably incurred of more than one separate firm (in addition to any local counsel) for all Placement Agent Indemnified
Parties, collectively, and (ii) the fees and expenses reasonably incurred of more than one separate firm (in addition to any local
counsel) for all Company Indemnified Parties, collectively. In the case of any such separate firm for Placement Agent Indemnified Parties,
such firm shall be designated in writing by the Placement Agent. In the case of any such separate firm for the Company Indemnified Parties,
such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for the reasonable fees and expenses of counsel as contemplated by the second and third sentences of this Section 10(c), the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the material terms of such settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of the indemnified party.
(d) To the extent the
indemnification provided for in Section 10(a) or 10(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company,
the Investment Adviser and/or the Administrator on the one hand and the Placement Agent on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 10(d)(i) above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 10(d)(i) above but also the relative fault of the Company, the Investment
Adviser and/or the Administrator on the one hand and of the Placement Agent on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Company, the Investment Adviser and/or the Administrator on the one hand and the Placement Agent on the other hand in
connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and the total discounts and commissions received by the Placement Agent,
in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company, the Investment Adviser and/or the Administrator on the one hand and the Placement Agent on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company, the Investment Adviser or the Administrator
or by the Placement Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the
Investment Adviser, the Administrator and the Placement Agent agree that it would not be just or equitable if contribution pursuant to
this Section 10 were determined by pro rata allocation (even if Placement Agent were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 10(d) shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10,
the Placement Agent shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares
sold by it and distributed to the public were offered to the public exceeds the amount of any damages that the Placement Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 10 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and
contribution provisions contained in this Section 10 and the representations, warranties and other statements of the Company, the
Investment Adviser and the Administrator contained in this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Placement Agent Indemnified Party
or by or on behalf of any Company Indemnified Party and (iii) acceptance of and payment for any of the Shares.
(g) No party shall be
entitled to indemnification under this Section 10 if such indemnification of such party would violate Section 17(i) of
the Investment Company Act.
11. Termination.
(a) The Placement Agent
may terminate this Agreement by notice given to the Company, if after the execution and delivery of this Agreement and prior to the Settlement
Date (i) any Company Material Adverse Effect, Investment Adviser Material Adverse Effect, or Administrator Material Adverse
Effect, has occurred which, in the reasonable judgment of the Placement Agent may materially impair the investment quality of the Placement
Shares, (ii) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the NYSE, the
NYSE MKT, the NASDAQ Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(iii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iv) a
material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (v) any moratorium
on commercial banking activities shall have been declared by Federal or New York State authorities or (vi) there shall have occurred
any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Placement Agent’s
judgment, is material and adverse and which, singly or together with any other event specified in this clause (vi), makes it, in the Placement
Agent’s judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Prospectus. If the Placement Agent elects to terminate this Agreement as provided in this Section 11(a),
the Placement Agent shall provide the required notice as specified in Section 16 (Notices).
(b) The Company and the
Placement Agent shall each have the right, by giving three (3) days’ notice to the other party as hereinafter specified, unless
such notice is waived by such other party, to terminate this Agreement in its sole discretion at any time after the date of this Agreement.
(c) Unless earlier terminated
pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of the Maximum Amount through
the Placement Agent on the terms and subject to the conditions set forth herein.
(d) This Agreement shall
remain in full force and effect unless terminated pursuant to this Section 11 or otherwise by mutual agreement of the parties.
(e) Any termination of
this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Placement Agent or the Company, as the
case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12. Entire Agreement.
(a) This Agreement supersedes
all prior agreements and understandings (whether written or oral) between and among the Company, the Investment Adviser, the Administrator
and the Placement Agent, or any of them, with respect to the subject matter hereof.
(b) Each of the Company,
the Investment Adviser and the Administrator acknowledges that in connection with the offering of the Shares: (i) the Placement Agent
is acting solely in such capacity in connection with the sale of the Shares and no fiduciary, advisory or agency relationship between
the Company, the Investment Adviser and the Administrator, on the one hand, and the Placement Agent, on the other hand, has been created
in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not the Placement Agent has advised or
is advising the Company, the Investment Adviser or the Administrator on other matters, (ii) the public offering price of the Shares
and the price to be paid by the Placement Agent for the Shares set forth in this Agreement were established by the Company, the Investment
Adviser and the Administrator following discussions and arms-length negotiations with the Placement Agent, (iii) it is capable of
evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement,
(iv) the Placement Agent owes the Company, the Investment Adviser and the Administrator only those duties and obligations set forth
in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (v) the Placement Agent
may have interests that differ from those of the Company, the Investment Adviser and the Administrator, and (vi) it waives, to the
fullest extent permitted by law, any claims it may have against the Placement Agent for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that the Placement Agent shall not have any liability (whether direct or indirect, in contact, tort or otherwise)
to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the
Company, the Investment Adviser or the Administrator or any stockholders, employees or creditors of the Company, the Investment Adviser
or the Administrator.
13.
Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
14.
Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New
York applicable to contracts made and to be performed within the State of New York.
15.
Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not
be deemed a part of this Agreement.
16.
Notices. All communications hereunder shall be in writing and effective only upon receipt and (i) if to B. Riley Securities,
shall be sufficient in all respects if delivered, mailed or sent to B. Riley Securities, Inc., 299 Park Avenue, 21st Floor,
New York, NY 10171, with a copy to Duane Morris LLP, 1540 Broadway, New York, NY 10036 (facsimile no. (973) 556-1406), Attention: Dean
M. Colucci, and (ii) if to the Company, the Investment Adviser or the Administrator, shall be sufficient in all respects if delivered,
mailed or sent to the Company, the Investment Adviser or the Administrator, as applicable, at the offices of the Company at 600 Steamboat
Road, Suite 202, Greenwich, Connecticut 06830, Attention: Thomas P. Majewski (facsimile no. (203) 340-8501), with a copy to Dechert
LLP, 100 Oliver Street, Boston MA 02110, Attention: Thomas J. Friedmann (facsimile no. (617) 275-8389).
| |
Very truly yours, |
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EAGLE POINT INCOME COMPANY INC. |
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By: |
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Name: Kenneth P. Onorio |
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Title: Chief Financial Officer |
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EAGLE POINT INCOME MANAGEMENT LLC |
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By: |
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Name: Kenneth P. Onorio |
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Title: Chief Financial Officer |
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EAGLE POINT ADMINISTRATION LLC |
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By: |
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Name: Kenneth P. Onorio |
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Title: Chief Financial Officer |
[Company Signature Page to Third Amended and
Restated At Market Issuance Sales Agreement]
| Accepted as of the date hereof |
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| B. RILEY SECURITIES, INC. |
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| By: |
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Name: |
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Title: |
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[Placement Agent Signature Page to Third Amended and Restated At
Market Issuance Sales Agreement]
EXHIBIT A
FORM OF PLACEMENT NOTICE
EXHIBIT B
EXHIBIT C
COMPENSATION
EXHIBIT D-1
EAGLE POINT INCOME COMPANY INC.
OFFICER’S CERTIFICATE
EXHIBIT D-2
EAGLE POINT INCOME MANAGEMENT LLC
OFFICER CERTIFICATE
EXHIBIT D-3
EAGLE POINT ADMINISTRATION LLC
OFFICER CERTIFICATE
EXHIBIT E
COMPANY COUNSEL OPINION
EXHIBIT F-1
EAGLE POINT INCOME COMPANY INC.
EXHIBIT F-2
EAGLE POINT INCOME MANAGEMENT LLC
MANAGING PARTNER’S CERTIFICATE
EXHIBIT F-3
EAGLE POINT ADMINISTRATION LLC
SECRETARY’S CERTIFICATE
Exhibit (l)(2)
 |
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 22, 2023
Eagle Point Income Company Inc.
600 Steamboat Road, Suite 202
Greenwich, Connecticut 06830
| Re: | Eagle Point Income Company Inc. |
Ladies and Gentlemen:
We have acted as counsel to Eagle Point
Income Company Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a
Registration Statement on Form N-2 (the “Registration Statement”), as originally declared effective on June 29,
2023, by the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “Securities Act”), the prospectus supplement, dated June 30, 2023 (the “June Prospectus
Supplement”) and the prospectus supplement, dated August 22, 2023 (the “August Prospectus Supplement” and,
together with the June Prospectus Supplement and the base prospectus dated as of June 29, 2023, included in the Registration
Statement, the “Prospectus”) in connection with the proposed issuance and sale of up to $75,000,000 aggregate
amount of the Company’s common stock, par value $0.001 per share (the “Common Stock”), up to 1,000,000
shares of the Company’s 5.00% Series A Term Preferred Stock due 2026, par value $0.001 per share (the “Series A Term
Preferred Stock”), and up to 1,000,000 shares of the Company’s 7.75% Series B Term Preferred Stock due 2028, par
value $0.001 per share (the “Series B Term Preferred Stock” and together with the Common Stock and the Series A
Term Preferred Stock, the “Securities”), filed with the Commission pursuant to Rule 424 and Rule 430B under the
Securities Act, in connection with an “at-the-market” sales program (the “Offering”).
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 of 1940, as amended, and we express
no opinion herein as to any matter other than as to the legality of the Securities.
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 the opinions set forth below,
including the following documents:
| (i) | the Registration Statement; |
|
August 22, 2023
Page 2 |
| (iii) | the Certificate of Incorporation of the Company; |
| (iv) | the Bylaws of the Company; |
| (v) | the certificates of designation for the Series A Term Preferred Stock and Series B Term Preferred Stock
(together, the “Preferred Stock”); |
| (vi) | the form of underwriting agreement for equity securities; |
| (vii) | the Third Amended and Restated at Market Issuance Sales Agreement by and among the Company, Eagle Point
Income Management LLC, Eagle Point Administration LLC, and B. Riley Securities, Inc.; |
| (viii) | 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; |
| (ix) | a certificate from the Secretary of the State of Connecticut as to the authorization of the Company to
do business in the State of Connecticut; and |
| (x) | resolutions of the board of directors of the Company, relating to, among other things, the authorization
and approval of the preparation and filing of the Registration Statement and Prospectus and the authorization, issuance, offer and sale
of the Securities pursuant to the Prospectus. |
As to the facts upon which this opinion letter
is based, we have relied, to the extent we deem proper, upon certificates of public officials and certificates and written statements
of agents, officers, directors, employees and representatives of the Company without having independently verified such factual matters.
In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as original documents, the conformity to original documents of all
documents submitted to us as copies, the legal capacity of natural persons who are signatories to the documents examined by us and the
legal power and authority of all persons signing on behalf of the parties to such documents.
|
August 22, 2023
Page 3 |
On the basis of the foregoing and subject to the
assumptions, qualifications and limitations set forth in this letter, we are of the opinion that, with respect to the following Securities sold by the Company pursuant to the Offering:
| 1. | The Common Stock has been duly authorized by the Company and, when the Common Stock is issued and delivered
against receipt by the Company of payment therefor at a price per share not less than the par value per share of the Common Stock as contemplated
by the Registration Statement and the Prospectus, the shares will be validly issued, fully paid and nonassessable. |
| 2. | The Preferred Stock has been duly authorized by the Company and, when the Preferred Stock are issued and
delivered against receipt by the Company of payment therefor at a price per share not less than the par value per share of the Preferred
Stock as contemplated by the Registration Statement and the Prospectus, the shares will be validly issued, fully paid and nonassessable. |
The opinions set forth herein are subject to the
following assumptions, qualifications, limitations and exceptions being true and correct at or before the time of the delivery of any
Securities offered pursuant to the Registration Statement and the Prospectus: the Securities shall be issued and sold in compliance with
all U.S. federal and state securities laws and solely in the manner stated in the Registration Statement and the Prospectus and there
shall not have occurred any change in law affecting the validity of the opinions rendered herein.
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.
We are members of the bar of the State of New
York, and the foregoing opinions are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
This opinion letter has been prepared for your
use solely in connection with the Registration Statement. 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
letter 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 |
|
Grafico Azioni Eagle Point Income (NYSE:EIC)
Storico
Da Ott 2024 a Nov 2024
Grafico Azioni Eagle Point Income (NYSE:EIC)
Storico
Da Nov 2023 a Nov 2024
