Securities Act of 1933 — Rule 486(b)
Eagle Point Credit Company Inc.
February 14, 2018
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
DIVISION OF INVESTMENT MANAGEMENT
File No. 811-22974
Your letter dated February 14, 2018, requests our assurance that we would not recommend enforcement action to the Securities and Exchange Commission (“Commission”) under Section 5(b) or Section 6(a) of the Securities Act of 1933 (the “Securities Act”) against Eagle Point Credit Company Inc. (the “Fund”), which filed and had declared effective by the Commission a shelf registration statement on Form N-2 (“Registration Statement”), if the Fund files a post-effective amendment to its Registration Statement pursuant to Rule 486(b) under the Securities Act, under the circumstances set forth in your letter.
You state that the Fund is a closed-end management investment company registered under the Investment Company Act of 1940 (the “Investment Company Act”). The Fund filed and had declared effective by the Commission its Registration Statement pursuant to which it may issue common stock, preferred stock, subscription rights representing rights to purchase common stock (“subscription rights”), and debt securities (collectively, the “Securities”) on a delayed and continuous basis in accordance with Rule 415(a)(1)(x) under the Securities Act and the positions of the Commission staff. Eagle Point Credit Management LLC serves as the investment adviser to the Fund. The Fund has issued common stock, two series of preferred stock, and two series of unsecured notes, which are registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, and are listed and traded on the New York Stock Exchange. The Fund has a fiscal year end of December 31.
You state that the Fund’s board of directors (the “Board”), including a majority of independent directors, has concluded that the continued ability to raise capital through the public offering of additional Securities on a delayed or continuous basis, and a continuously effective shelf registration statement in connection with the Securities, would be beneficial to the Fund, its shareholders and potential investors. You state that the Fund, therefore, needs a continuously effective Registration Statement, and annually would have to file post-effective amendments to its Registration Statement pursuant to Section 8(c) of the Securities Act (“Post-Effective Amendments”) to bring the Fund’s financial statements up to date or to make other non-material changes. You further state that the Fund, its shareholders and potential investors would benefit if Post-Effective Amendments filed for the purpose of bringing the Fund’s financial statements up to date or to make any other non-material changes were effective immediately, as permitted by Rule 486(b) under the Securities Act available to certain registered closed-end investment companies. You state that utilization of Rule 486(b) would help ensure that the Fund has the ability to raise capital as the opportunity arises, and could reduce expenses incurred by the Fund in the Post-Effective Amendment process. You further state that due to the limited purpose for which the Fund would use Rule 486(b), no erosion of investor protection would occur and investors could have faster access to important information about the Fund, including its updated financial information.
Rule 486(b) under the Securities Act, in relevant part, states that a post-effective amendment to a registration statement filed by a registered closed-end management investment company which makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act (“Interval Fund”) shall become effective on the date on which it is filed with the Commission, provided that certain conditions are met. The conditions of Rule 486(b) require, among other things, that the post-effective amendment be filed for no purpose other than, among other things, bringing the financial statements up to date or making non-material changes, and that the registrant make certain representations concerning the purpose for which the amendment is filed.
In adopting Rule 486(b) in 1994, the Commission recognized that Interval Funds may have a need to raise capital continuously, and therefore need continuously effective registration statements and would benefit if certain filings could become effective automatically. The Commission staff in 1998 recognized that registered closed-end management investment companies such as the Fund, which is not an Interval Fund, also may benefit from the flexibility to take advantage of favorable market conditions to raise additional capital through continuous or delayed offerings of their securities. You assert that the Fund, its shareholders and potential investors also would benefit if the Fund’s Post-Effective Amendments that comply with the conditions of Rule 486(b) could become effective immediately pursuant to that Rule.
You represent that each filing concerning the Securities that is made in reliance on the requested relief would be made in compliance with the conditions of Rule 486(b), and that the Fund will file a Post-Effective Amendment containing a prospectus pursuant to Section 8(c) of the Securities Act prior to any offering of its common shares of beneficial interest at a price below, or any subscription rights exercisable at a price equivalent to less than, the then-current net asset value per share (exclusive of any per share commission or underwriting discount). You also represent that in relying on the requested relief to sell or issue Securities (including shares of its common stock or any subscription rights), the Fund will not sell any new shares of common stock, at a price lower, or issue any subscription rights exercisable at a price equivalent to less, than the sum of the Fund’s net asset value per share of common stock plus any per share commission or underwriting discount.
Based on the facts and representations set forth in your letter, we would not recommend that the Commission take any enforcement action under Section 5(b) or Section 6(a) of the Securities Act against the Fund if it files Post-Effective Amendments to its Registration Statement pursuant to Rule 486(b) under the Securities Act in connection with the Securities. This response expresses our view on enforcement action only and does not express any legal or interpretive conclusion on the issues presented. Because our position is based upon all of the facts and representations in your letter, any different facts or representations may require a different conclusion. We note that the Fund has acknowledged that the staff may withdraw any assurance granted in this letter if the staff finds that the Fund is misusing Rule 486(b) or for any other reason.
 See Nuveen Virginia Premium Income Municipal Fund, SEC Staff No-Action Letter (Oct. 6, 2006) (“Nuveen Letter”); Pilgrim America Prime Rate Trust, SEC Staff No-Action Letter (May 1, 1998) (“Pilgrim Letter”).
 The Fund is organized as a Delaware corporation that is governed by a board of directors.
 See Post-Effective Amendments to Investment Company Registration Statements, Investment Company Act Release No. 20486 (Aug. 17, 1994), n.22 and accompanying text. An Interval Fund operates pursuant to a fundamental policy that requires the Interval Fund to make periodic offers to repurchase its common stock in an amount not less than five percent of the outstanding shares. See Rule 23c-3 under the Investment Company Act. These repurchase offers may create a need for the Interval Fund to replenish its assets by making a continuous or intermittent offering of its common stock. See Continuous or Delayed Offerings by Certain Closed-End Management Investment Companies; Automatic Effectiveness of Certain Registration Statements and Post-Effective Amendments, Investment Company Act Release No. 19391 (Apr. 7, 1993).
 See Pilgrim Letter, supra note 1, n.12 and accompanying text.
 See Pilgrim Letter, Nuveen Letter supra note 1.
 The Division of Investment Management generally permits third parties to rely on no-action or interpretive letters to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request for a no-action or interpretive letter. See Informal Guidance Program for Small Entities, Investment Company Act Release No. 22587 (Mar. 27, 1997), n.20. In light of the very fact-specific nature of the Fund’s request, however, the position expressed in this letter applies only to the Fund, and no other entity may rely on this position. The staff is willing to consider similar requests from other registered closed-end management investment companies.
The Incoming Letter is in Acrobat format.