Exhibit 5.1
November 15, 2021
PhenixFIN Corporation
445 Park Avenue, 10th Floor
New York, NY 10022
Ladies and Gentlemen:
We have acted as counsel to PhenixFIN Corporation, a Delaware corporation (the “Issuer”), in connection with the registration statement on Form N-2 (File No. 333-258913) (the “Registration Statement”) filed by the Issuer with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), declared effective by the Commission, relating to the public offering of securities of the Issuer that may be offered by the Issuer from time to time as set forth in the prospectus dated October 19, 2021, which forms a part of the Registration Statement (the “Prospectus”), and as may be set forth from time to time in one or more supplements to the Prospectus. This opinion is delivered in connection with the issuance and sale of $57,500,000 aggregate principal amount of the Issuer’s 5.25% Notes due 2028 (the “Securities”) as described in the Prospectus and a prospectus supplement dated November 9, 2021 (the “Prospectus Supplement”). All of the Securities are to be sold by the Issuer as described in the Registration Statement, the Prospectus and the Prospectus Supplement.
In rendering this opinion, we have examined copies of the following documents:
| A. | Registration Statement; |
| D. | Certificate of Incorporation of the Issuer and Amendments No. 1 and No. 2 to the Certificate of Incorporation of the Issuer; |
| E. | Bylaws of the Issuer and Amendments No. 1, No. 2 and No. 3 to the Bylaws of the Issuer; |
| F. | Indenture dated as of February 7, 2012 (the “Base Indenture”), as supplemented by the Fourth Supplemental Indenture dated as of November 15, 2021 (the “Fourth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank National Association, as trustee; |
1177 Avenue of the Americas New York NY 10036-2714 Phone 212.715.9100 Fax 212.715.8000
990 Marsh Road Menlo Park CA 94025-1949 Phone 650.752.1700 Fax 650.752.1800
47 Avenue Hoche 75008 Paris France Phone (33-1) 44 09 46 00 Fax (33-1) 44 09 46 01
www.kramerlevin.com
November 15, 2021
Page 2
| G. | Underwriting Agreement, dated as of November 9, 2021, between the Company and Oppenheimer & Co. Inc., as representative of the several underwriters named in Exhibit A thereto (the “Underwriting Agreement”), pursuant to which the Securities will be sold; |
| H. | Certificate of Good Standing with respect to the Issuer issued by the Secretary of State for the State of Delaware as of a recent date; |
| I. | Resolutions of the Board of Directors of the Issuer relating to, among other things, (i) the authorization and approval of the preparation and filing of the Registration Statement, (ii) the authorization, issuance and sale of the Securities and (iii) the authorization, execution and delivery of the Indenture and any supplements thereto; and |
| J. | A specimen copy of the form of the Securities to be issued pursuant to the Indenture in the form attached to the Indenture. |
We have also made such inquiries and reviewed such documents and records as we have deemed necessary or appropriate as a basis for our opinion. As to factual matters only, we have also relied upon the statements, representations and certificates of officers or other representatives of the Issuer, public officials and others. We have not independently verified the facts so relied on.
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that the Securities, when (i) delivered to the underwriters against payment therefor in accordance with the terms of the Underwriting Agreement and (ii) duly executed, authenticated, issued and delivered in accordance with the terms and conditions of the Indenture, will be legally issued and will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
We express no opinion as to any laws other than the laws of the State of New York and the federal laws of the United States of America (the “Relevant Laws”).
The opinions expressed herein are based upon the Relevant Laws and interpretations thereof in effect on the date hereof, and the facts and circumstances in existence on the date hereof, and we assume no obligation to revise or supplement this opinion letter should any such law or interpretation be changed by legislative action, judicial decision or otherwise or should there be any change in such facts or circumstances.
November 15, 2021
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We hereby authorize the addressee of this opinion to file it as an exhibit to a Current Report on Form 8-K of the Issuer and consent to the incorporation by reference of this opinion into the Registration Statement and the reference to us under the captions “Legal Matters” in the prospectus that is a part of the Registration Statement and the Prospectus Supplement, without admitting that we are an “expert” within the meaning of the Act or the rules and regulations of the Commission thereunder with respect to any part of the Registration Statement or the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| | Very truly yours, |
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| | /s/ Kramer Levin Naftalis & Frankel LLP |
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| | Kramer Levin Naftalis & Frankel LLP |
