XFLT 8-K
XAI Floating Rate & Alternative Income Trust (XFLT)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 9, 2021 (September 8, 2021)
XAI Octagon Floating Rate & Alternative Income Term Trust
(Exact name of registrant as specified in its charter)
| Delaware | 811-23247 | 82-235867 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 321 North Clark Street, Suite 2430, Chicago, Illinois | 60654 | |
| (Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code (312) 374-6930
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Shares of Beneficial Interest | XFLT | New York Stock Exchange | ||
| 6.50% Series 2026 Term Preferred Shares (Liquidation Preference $25.00) | XFLTPRA | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
☐ Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
| Item 1.01. | Entry into a Material Definitive Agreement. |
On September 8, 2021, XAI Octagon Floating Rate & Alternative Income Term Trust (NYSE: XFLT) (the “Trust”) entered into a purchase agreement (the “Purchase Agreement”) between the Trust and the purchasers named therein (the “Purchasers”), in connection with the issuance and sale of 400,000 shares of the Trust's 6.50% Series 2026 Term Preferred Shares, par value $0.01 per share (the “Preferred Shares”) at a price of $25.00 per Preferred Share, plus accrued dividends from July 31, 2021 up to, but not including, the date of delivery, in a registered direct offering (the “Offering”).
The Offering has been made pursuant a prospectus supplement, dated September 8, 2021 and the accompanying prospectus, dated February 2, 2021, each of which constitute part of the Trust’s effective shelf registration statement on Form N-2 (File No. 333-251542) previously filed with the Securities and Exchange Commission (the “Registration Statement”).
The Trust has not retained a placement agent, underwriter, broker or dealer with respect to the Offering.
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement filed herewith as Exhibit 10.1 incorporated herein by reference.
Pursuant to a letter agreement between the Trust and the investment manager of the Purchasers (the “Investment Manager”), the Investment Manager has agreed to vote or cause to be voted at any annual or special meeting of shareholders of the Trust all 2026 Preferred Shares held by the Purchasers, the Investment Manager, any person controlled by the Investment Manager, the Investment Manager’s immediate parent company, or any other investment vehicles or accounts sponsored or managed by the Investment Manager or any person controlled by the Investment Manager’s immediate parent company, or which the Investment Manager or any person controlled by the Investment Manager’s immediate parent company otherwise has or shares the power to vote, or to direct the voting of, as of the record date for the applicable annual or special meeting of shareholders of the Trust in the same proportion as the vote of all other holders, subject to certain exceptions. The foregoing is qualified in its entirety by reference to the full text of the Letter Agreement filed herewith as Exhibit 10.2 and incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On September 8, 2021, the Trust adopted Amendment No. 1 to the Statement of Preferences of Term Preferred Shares (the “Statement of Preferences”) establishing and fixing the rights and preferences of the Preferred Shares. The Statement of Preferences, as amended, authorizes 1,596,000 Preferred Shares, liquidation preference $25.00 per share. A copy of Amendment No. 1 to the Statement of Preferences is filed as Exhibit 3.1 to this report and incorporated herein by reference.
| Item 8.01. | Other Events |
On September 9, 2021, the Trust conducted the Offering pursuant to the Trust’s Registration Statement. A copy of the opinion of Skadden, Arps, Slate, Meagher & Flom LLP relating to the legality of the Preferred Shares is filed herewith as Exhibit 5.1 and incorporated herein by reference.
The Trust incorporates by reference the exhibits filed herewith into the Registration Statement.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| XAI OCTAGON FLOATING RATE & ALTERNATIVE INCOME TERM TRUST | ||
| Date: September 9, 2021 | By: |
/s/ Benjamin D. McCulloch |
| Name: | Benjamin D. McCulloch | |
| Title: | Secretary and Chief Legal Officer | |
Exhibit 3.1
XAI OCTAGON FLOATING RATE & ALTERNATIVE INCOME TERM TRUST
AMENDMENT TO
STATEMENT OF PREFERENCES
OF
TERM PREFERRED SHARES
DATED MARCH 23, 2021
(“STATEMENT OF PREFERENCES”)
The undersigned officer of XAI Octagon Floating Rate & Alternative Income Term Trust (the “Trust”), a Delaware statutory trust, hereby certifies as follows:
WHEREAS, the Trust has established a Series of Term Preferred Shares designated as the “Series 2026 Term Preferred Shares” pursuant to Appendix A to the Statement of Preferences.
WHEREAS, pursuant to Section 2.12 of the Statement of Preferences, the Board of Trustees may, by resolution duly adopted, without shareholder approval (except as otherwise provided by this Statement of Preferences or required by applicable law) amend the Appendix to the Statement of Preferences relating to a Series so as to reflect any amendments to the terms applicable to such Series including an increase in the number of authorized shares of such Series.
NOW THEREFORE
1. The following amendment to Appendix A to the Statement of Preferences has been duly adopted and approved by the Board of Trustees of the Fund:
The number of shares of the Trust’s Series 2026 Term Preferred Shares be increased from 1,196,000 to 1,596,000.
2. Except as amended hereby, the Statement of Preferences, including Appendix A thereto, remains in full force and effect.
3. An original copy of this Amendment shall be lodged with the records of the Trust and filed in such places as the Trustees deem appropriate.
[Signature Page Follows]
IN WITNESS WHEREOF, XAI Octagon Floating Rate & Alternative Income Term Trust, has caused these presents to be signed as of September 8, 2021 in its name and on its behalf by its Chief Financial Officer and Treasurer and attested by its Chief Legal Officer and Secretary. Said officers of the Trust have executed this amendment as officers and not individually, and the obligations and rights set forth in this amendment are not binding upon any such officers, or the trustees or shareholders of the Trust, individually, but are binding only upon the assets and property of the Trust.
| XAI OCTAGON FLOATING RATE & ALTERNATIVE INCOME TERM TRUST | |||
| By: | /s/ Derek Mullins | ||
| Name: | Derek Mullins | ||
| Title: | Chief Financial Officer and Treasurer | ||
| ATTEST: | ||
| /s/ Benjamin D. McCulloch | ||
| Name: | Benjamin D. McCulloch | |
| Title: | Chief Legal Officer and Secretary | |
Exhibit 5.1
|
Skadden, Arps, Slate, Meagher & Flom llp 155 North Wacker Drive Chicago, Illinois 60606-1720 ______
TEL: (312) 407-0700 FAX: (312) 407-0411 www.skadden.com
September 9, 2021 |
FIRM/AFFILIATE OFFICES --------- BOSTON HOUSTON LOS ANGELES PALO ALTO WASHINGTON, D.C. WILMINGTON --------- BEIJING BRUSSELS FRANKFURT HONG KONG LONDON MOSCOW MUNICH PARIS | |
|
XAI Octagon Floating Rate & Alternative Income Term Trust 321 North Clark Street, Suite 2430 Chicago, Illinois 60654 |
SÃO PAULO SEOUL SHANGHAI SINGAPORE TOKYO TORONTO | |
| Re: | XAI Octagon Floating Rate & Alternative Income Term Trust — Registration Statement on Form N-2 |
Ladies and Gentlemen:
We have acted as special counsel to XAI Octagon Floating Rate & Alternative Income Term Trust, a statutory trust (the “Trust”) created under the Delaware Statutory Trust Act (the “DSTA”), in connection with the issuance and sale by the Trust of 400,000 preferred shares (the “Shares”) of the Trust’s 6.50% Series 2026 Term Preferred Shares, par value $0.01 per share (the “Preferred Shares”).
This opinion is being furnished to you in accordance with the requirements of sub-paragraph (l) of item 25.2 of part C of Form N-2 under the Securities Act of 1933 (the “Securities Act”), and the Investment Company Act of 1940, as amended (the “1940 Act”).
In rendering the opinion stated herein, we have examined and relied upon the following:
(i) the notification of registration on Form N-8A (File No. 811-23247) of the Trust filed with the Securities and Exchange Commission (the “Commission”) under the 1940 Act on April 7, 2017;
(ii) the registration statement on Form N-2 (File Nos. 333-251542 and 811-23247) of the Trust, filed with the Commission on December 18, 2020 under the Securities Act and the 1940 Act, allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Securities Act Rules and Regulations”), Pre-Effective Amendments Nos. 1 and 2 thereto, including information deemed to be a part of the registration statement pursuant to Rule 430B of the Securities Act Rules and Regulations, and the Notice of Effectiveness of the Commission posted on its website declaring such registration statement effective on February 2, 2021 (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);
XAI Octagon Floating Rate & Alternative Income Term Trust
September 9, 2021
Page 2
(iii) the prospectus and Statement of Additional Information of the Trust, each dated February 2, 2021, in the form filed with the Commission on March 23, 2021 pursuant to Rule 424(b) of the Securities Act Rules and Regulations (such prospectus and Statement of Additional Information being hereinafter referred to collectively as the “Base Prospectus”);
(iv) the prospectus supplement of the Trust, dated September 8, 2021 (together with the Base Prospectus, the “Prospectus”), relating to the offering of the Shares, in the form filed with the Commission on September 8, 2021 pursuant to Rule 424(b) of the Securities Act Rules and Regulations;
(v) an executed copy of the Purchase Agreement, dated September 8, 2021 (the “Purchase Agreement”), between the Trust and the purchasers named therein (the “Purchasers”), relating to the sale by the Trust to the Purchasers of the Shares;
(vi) an executed copy of a certificate of Benjamin D. McCulloch, Secretary of the Trust, dated the date hereof (the “Secretary’s Certificate”);
(vii) a copy of the Trust’s Certificate of Trust, dated April 4, 2017, as amended by Certificates of Amendment dated July 13, 2017 and August 31, 2017, certified by the Secretary of State of the State of Delaware as of September 7, 2021 and certified pursuant to the Secretary’s Certificate;
(viii) a copy of the Trust’s Second Amended and Restated Agreement and Declaration of Trust, by the trustees of the Trust, dated July 13, 2017, as amended by the Certificate of Amendment to the Trust’s Second Amended and Restated Agreement and Declaration of Trust, dated August 31, 2017, by the trustees of the Trust, certified pursuant to the Secretary’s Certificate;
(ix) a copy of the Statement of Preferences, dated March 23, 2021, as amended on September 8, 2021, establishing and fixing the rights and preferences of the Preferred Shares, certified pursuant to the Secretary’s Certificate;
(x) a copy of the Trust’s Amended and Restated By-Laws, as amended and in effect as of the date hereof, certified pursuant to the Secretary’s Certificate;
(xi) copies of certain resolutions of the Board of Trustees of the Trust, adopted on September 22, 2020, February 23, 2021, March 23, 2021 and September 1, 2021, and certain resolutions of an offering committee of the Board of Trustees of the Trust, adopted on March 24, 2021, certified pursuant to the Secretary’s Certificate; and
(xii) a copy of a certificate, dated the date hereof, from the Secretary of State of the State of Delaware with respect to the Trust’s existence and good standing in the State of Delaware.
XAI Octagon Floating Rate & Alternative Income Term Trust
September 9, 2021
Page 3
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Trust and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Trust and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below.
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinion stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Trust and others and of public officials, including the facts and conclusions set forth in the Secretary’s Certificate and the factual representations and warranties contained in the Purchase Agreement.
In making our examination of documents, we have assumed that the parties thereto, other than the Trust, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties.
We do not express any opinion with respect to the laws of any jurisdiction other than the DSTA.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Shares have been duly authorized by all requisite statutory trust action on the part of the Trust under the DSTA and, when (i) the Shares are issued and sold in accordance with the terms of the Purchase Agreement and (ii) the issuance of the Shares has been duly registered into the share record books of the Trust and delivered to and paid for by the Purchasers as contemplated by the Purchase Agreement, the Shares will be validly issued and fully paid, and under the DSTA, the holders of the Shares will have no obligation to make further payments for the purchase of such Shares or contributions to the Trust solely by reason of their ownership of such Shares except for their obligation to repay any funds wrongfully distributed to them.
XAI Octagon Floating Rate & Alternative Income Term Trust
September 9, 2021
Page 4
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the Securities Act Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Skadden, Arps, Slate, Meagher & Flom LLP |
KTH
Exhibit 10.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of September 8, 2021, by and between XAI Octagon Floating Rate & Alternative Income Term Trust, a Delaware statutory trust (the “Trust”), and each purchaser identified on Appendix A hereto (each, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), the Trust desires to issue, and each Purchaser, severally and not jointly, desires to purchase shares of the Trust’s 6.50% Series 2026 Term Preferred Shares, liquidation preference $25.00 per share (the “Preferred Shares”) upon the terms and conditions as more particularly provided herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Trust and each Purchaser hereby agree as follows:
ARTICLE
I
PURCHASE AND SALE; CLOSING
1.1 Purchase and Sale of the Shares. At the Closing (as defined in Section 1.2), the Trust shall sell to each Purchaser, and each Purchaser, severally and not jointly, shall buy from the Trust, upon the terms and conditions hereinafter set forth, the number of Preferred Shares as specified on Appendix A to Agreement (all such Preferred Shares, the “Shares”), and at the purchase price of $25.00 per Share (plus accrued dividends from July 31, 2021 up to, but not including, the Closing Date in amount equal to $0.17604 per share).
1.2 The Closing. The completion of the purchase and sale of the Shares (the “Closing”) shall occur at [10:00] a.m. (Eastern time), on September 9, 2021 (the “Closing Date”) at the offices of the Trust, or at such other time, date and location as the parties shall mutually agree. At the Closing, (a) the purchase price for the Shares being purchased by each Purchaser (the “Purchase Price”) shall be delivered by or on behalf of such Purchaser to the Trust as more particularly provided in Section 1.3 and (b) the Trust shall cause DST Systems, Inc., the Trust’s transfer agent (the “Transfer Agent”), to deliver to each Purchaser the number of Shares as specified on Appendix A to this Agreement and as more particularly provided in Section 1.4.
1.3. Delivery of the Purchase Price. At the Closing, each Purchaser shall remit by wire transfer the amount of funds equal to the Purchase Price with respect to the Shares being purchased by it to the account designated by the Trust on Appendix B hereto.
1.4 Delivery of the Shares. On the Closing Date, each Purchaser shall direct the broker-dealer at which the account or accounts to be credited with the Shares being purchased by such Purchaser are maintained (which broker/dealer shall be a Depository Trust Company participant) to set up a Deposit/Withdrawal at Custodian (“DWAC”) instructing the Transfer Agent to credit such account or accounts with the Shares purchased by such Purchaser by means of an electronic book-entry delivery. Such DWAC shall indicate the Closing Date as the settlement date for the deposit of the Shares being purchased by such Purchaser. Immediately following the delivery to the Trust by or on behalf of each Purchaser of the Purchase Price in accordance with and pursuant to Section 1.3, the Trust shall direct the Transfer Agent to credit such Purchaser’s account or accounts with the Shares being purchased by such Purchaser pursuant to the information contained in the DWAC.
1.5 Conditions to the Trust’s Obligations. The Trust’s obligation to sell and issue the Shares to each Purchaser will be subject to the receipt by the Trust of the respective Purchase Price from such Purchaser as set forth in Section 1.3 and the accuracy of the representations and warranties made by such Purchaser and the fulfillment of those undertakings of such Purchaser to be fulfilled prior to the Closing Date.
1.6 Conditions to Purchaser’s Obligations. Each Purchaser’s obligation to purchase the respective Shares to be purchased by it hereunder is subject to the fulfillment to each such Purchaser’s reasonable satisfaction, prior to or at such Closing, of the following conditions:
(a) The representations and warranties of the Trust in this Agreement shall be correct when made and at such Closing.
(b) The Trust shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at such Closing.
(c) The Trust shall have delivered to each such Purchaser an officer’s certificate from the Trust’s Vice President, dated the date of such Closing, certifying that the conditions specified in Sections 1.6(a) and 1.6(b) have been fulfilled.
(d) The Trust shall have delivered to each such Purchaser a certificate of its Secretary, dated the date of such Closing, certifying as to (i) the resolutions attached thereto and other trust proceedings relating to the authorization, issuance and sale of the Shares and the authorization, execution and delivery of this Agreement and (ii) the Trust’s organizational documents as then in effect.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
2.1 Purchaser Representations and Warranties. In connection with the purchase and sale of the Shares, each Purchaser represents and warrants, severally and not jointly, to the Trust that:
(a) Such Purchaser is acquiring the Shares for such Purchaser’s account and with no view to the distribution thereof. Such Purchaser has no present intent, agreement, understanding or arrangement to sell, assign or transfer all or any part of the Shares, or any interest therein, to any other person.
(b) Such Purchaser in connection with its decision to purchase the Shares, relied only upon the Prospectus (as hereinafter defined) and the representations and warranties of the Trust contained herein. Further, such Purchaser acknowledges that the Prospectus Supplement (as defined below) was made available to Purchaser before this Agreement (or any contractual obligation of such Purchaser to purchase the Shares) will be deemed to be effective.
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(c) Such Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. Eagle Point Credit Management, LLC, in its capacity as agent and/or investment manager of each Purchase is duly authorized and empowered to execute this Agreement on behalf of each Purchaser. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Purchaser and this Agreement constitutes a valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms.
(d) Such Purchaser understands that nothing in this Agreement or any other materials presented to Purchaser in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. Such Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
2.2 Trust Representations and Warranties. In connection with the purchase and sale of the Shares, the Trust represents and warrants to each Purchaser that:
(a) The Trust (i) has been duly formed and has legal existence as a statutory trust and is in good standing under the laws of the State of Delaware; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business as described in the Registration Statement (as defined below) and the Prospectus ; (iii) is duly licensed and qualified to transact business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, except where the failure to so qualify or to be in good standing would not have a material adverse effect on the Trust.
(b) The Trust has full power and authority to enter into this Agreement and to perform all of the terms and provisions hereof to be carried out by it. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Trust. Assuming due authorization, execution and delivery by the other parties thereto, this Agreement constitutes a legal, valid and binding obligation of the Trust enforceable in accordance with its terms, subject to the qualification that the enforceability of the Trust’s obligations thereunder may be limited by U.S. bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as enforcement of rights to indemnity or contribution thereunder may be limited by federal or state securities laws.
(c) The Shares to be issued and delivered to and paid for by the Purchasers in accordance with this Agreement against payment therefor as provided by this Agreement have been duly authorized and when issued and delivered to the Purchasers will have been validly issued and will be fully paid and nonassessable.
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(d) The offering and sale of the Shares hereunder are being made pursuant to an effective Registration Statement on Form N-2 (File No. 333-251542 and 811-23247), initially filed with the Securities and Exchange Commission (the “Commission”) on December 18, 2020, as amended by Pre-Effective Amendments No. 1 and 2 (the “Registration Statement”), and the Prospectus, dated February 2, 2021, including the statement of additional information and all documents incorporated by reference therein (the “Base Prospectus”), as supplemented by the Prospectus Supplement, dated the date hereof (the “Prospectus Supplement”), that will be filed with the Commission on or before the Closing Date. “Prospectus,” as used herein, means the Base Prospectus and the Prospectus Supplement (including the statement of additional information and all documents incorporated therein by reference). No stop order or other order suspending the Registration Statement has been issued and, to the best of the Trust’s knowledge, no proceedings for that purpose have been initiated or threatened by the Trust or any other governmental authority.
(e) The Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, management, net assets or results of operations of the Trust, whether or not arising in the ordinary course of business (other than changes resulting from changes in securities markets generally).
(f) The financial statements, including the statement of assets and liabilities, together with any related notes or schedules thereto, included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position of the Trust as of the dates and for the periods indicated and said statements were prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis.
(g) None of (i) the execution and delivery by the Trust of this Agreement, (ii) the issuance and sale by the Trust of the Shares as contemplated by this Agreement, the Registration Statement and the Prospectus and (iii) the performance by the Trust of its obligations under this Agreement (A) conflicts with or will conflict with, or results in or will result in a breach or violation of the declaration of trust (as amended and restated from time to time), Statement of Preferences of Term Preferred Shares (“Statement of Preferences”), bylaws or similar organizational documents of the Trust, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or results in or will result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Trust under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Trust is a party or by which it may be bound or to which any of the property or assets of the Trust is subject, except which breach, violation, default, lien, charge or encumbrance would not have a material adverse effect on the Trust, or (C) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Trust or having jurisdiction over the Trust’s properties, except which violation would not have a material adverse effect on the Trust.
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(h) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Trust for the consummation by the Trust of the transactions to be performed by the Trust or the performance by the Trust of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in this Agreement, the Registration Statement and the Prospectus, except such as (i) may be required and have been obtained under the Securities Act, the Securities Exchange Act of 1934, the Investment Company Act of 1940 (the “Investment Company Act”) or the Investment Advisors Act of 1940 or (ii) which failure to obtain would not have a material adverse effect on the Trust.
(i) Except as otherwise set forth in the Registration Statement or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Trust or to which the Trust is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending or, to the knowledge of the Trust, threatened against the Trust, except which would not have a material adverse effect on the Trust.
(j) The operations of the Trust are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money Laundering Control Act of 1986, as amended, the Bank Secrecy Act, as amended, the United and Strengthening of America by Providing Appropriate tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2011, the money laundering statutes of all applicable jurisdictions, 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 Trust with respect to the Money Laundering Laws is pending or, to the knowledge of the Trust after reasonable inquiry, threatened.
(k) The Trust intends to direct the investment of the proceeds of the offering of the Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and has qualified and will continue to operate in compliance with the requirements to maintain its qualification as a regulated investment company under Subchapter M of the Code.
(l) Neither the Trust, nor to the knowledge of the Trust, after reasonable inquiry, any trustee, officer, agent, employee or affiliate of the Trust is (i) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any other relevant sanctions authority or (ii) located, organized or resident in a country or territory that is subject to sanctions by OFAC or any other relevant sanctions authority; and the Trust 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 or any other relevant sanctions authority.
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(m) The Trust is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company; the provisions of the Trust’s declaration of trust (as amended and restated from time to time), Statement of Preferences and bylaws comply in all material respects with the requirements of the Investment Company Act.
(n) The Trust shall, by 5:30 p.m. Eastern time on the second trading day immediately following the date of this Agreement, issue a Current Report on Form 8-K including the form of this Agreement and an opinion of legal counsel as to the validity of the Shares as exhibits thereto.
ARTICLE
III
OTHER AGREEMENT OF THE PARTIES
3.1 It is the intent of the parties to this Agreement that in no event shall Purchasers, by reason of this Agreement or the transactions contemplated thereby, be deemed to control, directly or indirectly, the Trust, and Purchasers shall not exercise, or be deemed to exercise, directly or indirectly, a controlling influence over the management or policies of the Trust.
ARTICLE
IV
GENERAL PROVISIONS
4.1 Survival of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Trust and each Purchaser hereby will survive the execution of this Agreement, the delivery to such Purchaser of the Shares and the payment by such Purchaser of the Purchase Price therefor for a period of one year.
4.2 Entire Agreement. This Agreement represents the entire agreement among the parties with respect to the transactions contemplated herein and supersedes all prior agreements, written or oral, with respect thereto.
4.3 Amendment and Waiver. The provisions of this Agreement may be amended only with the prior written consent of the Trust and each Purchaser. The failure of any party to insist upon strict adherence to any one or more of the covenants and restrictions in this Agreement, on one or more occasion, shall not be construed as a waiver, nor deprive such party of the right to require strict compliance thereafter with the same. All waivers must be in writing and signed by the waiving party.
4.4 Expenses. Each Purchaser and the Trust will pay its own respective expenses, including attorneys’ fees, in connection with the negotiation of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated by this Agreement.
4.5 Successors and Assigns. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any party without the prior written consent of each other party, except that the Shares may be transferred by each Purchaser without the consent of the Trust.
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4.6 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof.
4.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute a single agreement. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
4.8 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
4.9 Construction. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any person, or which such person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such person, whether or not expressly specified in such provision. The construction of this Agreement shall not be affected by which party drafted this Agreement.
4.10 Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
4.11 Further Assurances. In connection with this Agreement and the transactions contemplated herein, the parties to this Agreement shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and such transactions.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement on the date first written above.
| XAI OCTAGON FLOATING RATE & ALTERNATIVE INCOME TERM TRUST | ||
| /s/ Kimberly A Flynn | ||
| Name: | Kimberly A. Flynn | |
| Title: | Vice President | |
| PURCHASERS: | |||
| By: | EAGLE POINT CREDIT MANAGEMENT, LLC | ||
| On behalf of each Purchaser listed on Appendix A hereto | |||
| /s/ Taylor Pine | |||
| Name: | Taylor Pine | ||
| Title: | Director | ||
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Exhibit 10.2
XAI Octagon Floating Rate & Alternative Income Term Trust
321 North Clark Street, Suite 2430
Chicago, Illinois 60654
September 8, 2021
Eagle Point Credit Management LLC
600 Steamboat Road, Suite 202
Greenwich, CT 06830
Ladies and Gentlemen:
This letter agreement (this “Letter Agreement”) is being entered into in connection with the Purchase Agreement, dated as of September 8, 2021 (the “Purchase Agreement”), between XAI Octagon Floating Rate & Alternative Income Term Trust (the “Trust”) and each purchaser party thereto (each, a “Purchaser”) relating to the purchase of shares of the Trust’s 6.50% Series 2026 Term Preferred Shares, liquidation preference $25.00 per share (the “2026 Preferred Shares”). Eagle Point Credit Management LLC (“Eagle Point”) is the investment manager of each Purchaser. The Trust and Eagle Point do hereby agree:
1. Eagle Point will vote or cause to be voted at any annual or special meeting of shareholders of the Trust all Eagle Point Shares (as defined below) in accordance with the Voting Condition (as defined below); provided however that:
| (a) | Upon written notice to the Trust at least 10 days prior to the date of any annual or special meeting of shareholders of the Trust, Eagle Point may elect to vote or cause to be voted up to 5% of the Eagle Point Shares in a manner other than in accordance with the Voting Condition and shall vote or cause to be voted at least 95% of the Eagle Point Shares in accordance with the Voting Condition; and |
| (b) | During any Voting Period (as defined in Section 2.6(b)(i) of the Trust’s Statement of Preferences of Term Preferred Shares) and at any time that the Eagle Point Shares represent less than 5% of the then outstanding shares of 2026 Preferred Shares, Eagle Point shall not be required to vote or cause to be voted any Eagle Point Shares in accordance with the Voting Condition and instead shall be permitted to vote the Eagle Point Shares in any manner it or the Purchasers determine in their sole discretion to do so. |
“Eagle Point Shares” shall mean all 2026 Preferred Shares held by the Purchaser, Eagle Point, any person controlled by Eagle Point Holdings LP, Eagle Point’s immediate parent company (“Eagle Point Parent”), or any other investment vehicles or accounts sponsored or managed by Eagle Point or any person controlled by Eagle Point Parent, or which Eagle Point or any person controlled by Eagle Point Parent otherwise has or shares the power to vote, or to direct the voting of, as of the record date for the applicable annual or special meeting of shareholders of the Trust.
The “Voting Condition” shall require Eagle Point to vote or cause to be voted the Eagle Point Shares as follows:
| (i) | on any matter for which common shares and preferred shares of the Trust vote together as a single class, in the same proportion as the vote of all other holders of common shares and preferred shares of the Trust; |
| (ii) | on any matter for which preferred shares of the Trust vote as a separate class, in the same proportion as the vote of all other holders of preferred shares of the Trust; and |
| (iii) | on any matter for which the 2026 Preferred Shares vote as a separate class, in the same proportion as the vote of all other holders of 2026 Preferred Shares. |
2. Upon the request of the Trust, Eagle Point shall promptly provide to the Trust a written certification listing the number of Eagle Point Shares as of the record date of such meeting and identifying the intermediary(s), if any, through which such Eagle Point Shares are held. The Trust (or its agent) shall cooperate with Eagle Point in connection with Eagle Point’s compliance with its obligations hereunder.
3. All notices shall be in writing and shall be delivered by registered or overnight mail, facsimile, or electronic mail to the address for each party specified below or to such other person or address as such party may designate for receipt of such notice.
If to the Trust:
XAI Octagon Floating Rate & Alternative Income Term Trust
c/o XA Investments LLC
321 North Clark Street, Suite 2430
Chicago, Illinois 60654
Attention: General Counsel
E-mail: [email protected]
If to Eagle Point:
Eagle Point Credit Management LLC
600 Steamboat Road, Suite 202
Greenwich, CT 06830
4. The execution and delivery by each of the Trust and Eagle Point of this Letter Agreement and the performance by each of the Trust and Eagle Point of its respective obligations hereunder have been duly authorized by all necessary action of the Trust and Eagle Point. Each of the Trust and Eagle Point hereby represents and warrants that this Letter Agreement is enforceable against it in accordance with its terms.
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5. Each party hereto hereby acknowledges and agrees that irreparable harm will occur in the event any of the provisions of this Letter Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek specific performance hereunder, including, without limitation, an injunction or injunctions to prevent and enjoin breaches of the provisions of this Letter Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they may be entitled at law or in equity. Any requirements for the securing or posting of any bond with respect to any such remedy are hereby waived. All rights and remedies under this Letter Agreement are cumulative, not exclusive, and will be in addition to all rights and remedies available to any party at law or in equity.
6. The parties hereto hereby irrevocably and unconditionally consent to and submit to the jurisdiction of the state or federal courts in the State of Delaware for any actions, suits or proceedings arising out of or relating to this Letter Agreement or the transactions contemplated hereby. The parties irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Letter Agreement, or the transactions contemplated hereby, in the state or federal courts in the State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Each of the Trust and Eagle Point waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Letter Agreement.
7. This Letter Agreement represents the entire agreement among the parties with respect to the transactions contemplated herein and supersedes all prior agreements, written or oral, with respect thereto.
8. The provisions of this Letter Agreement may be amended or modified only with the prior written consent of the Trust and Eagle Point. The failure of any party to insist upon strict adherence to any one or more of the covenants and restrictions in this Letter Agreement, on one or more occasion, shall not be construed as a waiver, nor deprive such party of the right to require strict compliance thereafter with the same. All waivers must be in writing and signed by the waiving party.
9. This Letter Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that neither this Letter Agreement nor any of the rights, interests or obligations hereunder may be assigned by any party without the prior written consent of each other party.
10. This Letter Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof.
11. This Letter Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute a single agreement. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
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12. The provisions of this Letter Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Letter Agreement, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Letter Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have executed this Letter Agreement as of the date first above written.
| XAI OCTAGON FLOATING RATE & ALTERNATIVE INCOME TERM TRUST | ||
| By: | /s/ Kimberly A. Flynn | |
| Name: Kimberly A. Flynn | ||
| Title: Vice President | ||
| EAGLE POINT CREDIT MANAGEMENT LLC | ||
| By: | /s/ Taylor Pine | |
| Name: Taylor Pine | ||
| Title: Director | ||
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