CALAMOS CONVERTIBLE AND HIGH INCOME FUND UP TO 5,000,000 COMMON SHARES OF BENEFICIAL INTEREST CAPITAL ON DEMAND™ SECOND AMENDED AND RESTATED SALES AGREEMENT
Exhibit h.6
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
UP TO 5,000,000 COMMON SHARES OF BENEFICIAL INTEREST
CAPITAL ON DEMAND™
SECOND AMENDED AND RESTATED
May 14, 2010
JONESTRADING INSTITUTIONAL SERVICES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CALAMOS CONVERTIBLE AND HIGH INCOME FUND, a Delaware statutory trust (the “Fund”),
CALAMOS ADVISORS LLC, a Delaware limited liability company (the “Adviser”) and JONESTRADING
INSTITUTIONAL SERVICES LLC (“▇▇▇▇▇”) previously entered into an amended and restated sales
agreement dated April 14, 2009 (the “Original Agreement”). The parties hereby terminate the
Original Agreement and confirm their agreement in the form of this Second Amended and Restated
Sales Agreement (this “Agreement”) as follows:
1. Issuance and Sale of Shares. The Fund agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue
and sell through ▇▇▇▇▇, acting as agent and/or principal, up to five million (5,000,000) of the
Fund’s common shares of beneficial interest, no par value per
share (the “Shares”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance
with the limitations set forth in this Section 1 on the number of Shares issued and sold
under this Agreement shall be the sole responsibility of the Fund, and ▇▇▇▇▇ shall have no
obligation in connection with such compliance. The issuance and sale of Shares through ▇▇▇▇▇ will
be effected pursuant to the Registration Statement (as defined below) filed by the Fund and
declared effective by the Securities and Exchange Commission (the “Commission”).
The Fund has entered into (i) an Investment Management Agreement with the Adviser dated as of
May 1, 2003, (ii) a Master Custodian Agreement with State Street Bank and Trust Company dated as of September 11, 2009, (iii) a Stock
Transfer Agency Agreement with The Bank of New York dated as of June 15, 2007, (iv) an Amended and
Restated Financial Accounting Services Agreement with the Adviser dated as of December 13, 2004,
and (v) a Master Services Agreement with State Street Bank and Trust Company dated as of March 15,
2004, as effective with respect to the Fund as of October 21, 2004 and such agreements are herein
referred to as the “Advisory Agreement,” the “Custodian Agreement”, the “Transfer Agency
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Agreement,” the “Accounting Agreement” and the “Master Services
Agreement,” respectively. Collectively, the Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Accounting Agreement and the Master
Services Agreement are herein referred to as the “Fund Agreements.” In addition, the Fund
has adopted a dividend reinvestment plan pursuant to which holders of Shares shall have their
dividends automatically reinvested in additional Shares unless they elect to receive such dividends
in cash, and such plan is herein referred to as the “Dividend Reinvestment Plan.”
The Fund has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Securities Act”) and
the Investment Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively, the “Investment Company Act”), with the Commission a registration statement
on Form N-2 (File Nos. 333-146947 and 811-21319) (the “Original Registration Statement”),
including a base prospectus (“Basic Prospectus”), with respect to the Shares. The Fund
shall prepare one or more supplements relating to the Shares (collectively, the “Prospectus
Supplement”) to the Basic Prospectus, to be filed with the Commission pursuant to Rule 497
under the Securities Act. The Fund shall furnish to ▇▇▇▇▇, for use by ▇▇▇▇▇, copies of the Basic
Prospectus, as supplemented by the Prospectus Supplement, relating to the Shares. Except where the
context otherwise requires, the Original Registration Statement, as amended when it became
effective, including all documents filed as part thereof, and including any information contained
in a Prospectus Supplement subsequently filed with the Commission pursuant to Rule 497 under the
Securities Act is herein called the “Registration Statement.” The Basic Prospectus, as it
may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or
Prospectus Supplement have most recently been filed by the Fund with the Commission pursuant to
Rule 497 under the Securities Act, is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, the Prospectus, or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”).
2. Placements. Each time that the Fund wishes to issue and sell Shares hereunder
(each, a “Placement”), it will notify ▇▇▇▇▇ by e-mail 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 (the
“Placement Shares”), the time period during which sales are requested to be made, any
limitation on the number of Placement 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
minimum sales parameters necessary, is attached hereto as Schedule 1. The Placement Notice
shall originate from any of the individuals from the Fund set forth on Schedule 3 (with a
copy to each of the other individuals from the Fund listed on such schedule), and shall be
addressed to each of the individuals from ▇▇▇▇▇ set forth on Schedule 3, as such
Schedule 3 may be amended from time to time. The Placement Notice shall be effective upon
receipt by ▇▇▇▇▇ unless and until (i) in accordance with the notice requirement set forth in
Section 4, ▇▇▇▇▇ declines to accept the terms contained therein for any reason, in its sole
discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) in accordance with
the notice requirements set forth in Section 4, the Fund suspends or terminates the
Placement Notice, (iv) the Fund issues a subsequent Placement Notice with parameters superseding
those on the earlier dated Placement
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Notice, or (v) the Agreement has been terminated under the provisions of Section 11.
The amount of any discount, commission or other compensation to be paid by the Fund to ▇▇▇▇▇ in
connection with the sale of the Placement Shares shall be calculated in accordance with the terms
set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Fund nor
▇▇▇▇▇ will have any obligation whatsoever with respect to a Placement or any Placement Shares
unless and until the Fund delivers a Placement Notice to ▇▇▇▇▇ and ▇▇▇▇▇ does not decline, within
the time period specified in Section 4, such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein 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 ▇▇▇▇▇. Subject to the terms and conditions herein set
forth, upon the Fund’s issuance 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, ▇▇▇▇▇, 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, and otherwise in accordance with the terms of such
Placement Notice. ▇▇▇▇▇ will provide written confirmation to the Fund 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 Fund with respect to such sales, with an itemization of deductions made
by ▇▇▇▇▇ (as set forth in Section 5(a)) from the gross proceeds that it receives from such
sales, and the Net Proceeds (as defined below) payable to the Fund. The Fund and the Adviser each
acknowledge that ▇▇▇▇▇ intends to sell the Placement Shares in privately negotiated transactions
and/or any other method permitted by law, including sales made directly on the New York Stock
Exchange, the then-existing trading market for the Shares or sales made to or through a market
maker or through an electronic communications network, or in any other manner that may be deemed to
be an “at-the-market” offering as defined in Rule 415 of the Securities Act. To the extent that
▇▇▇▇▇ acts as the Fund’s agent with respect to any such sale, ▇▇▇▇▇ covenants that it will comply
with all prospectus delivery requirements imposed under applicable federal and state securities
laws. The Fund and the Adviser each acknowledge and agree that (i) there can be no assurance that
▇▇▇▇▇ will be successful in selling Placement Shares, and (ii) ▇▇▇▇▇ will not incur any liability
or obligation to the Fund or the Adviser or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by ▇▇▇▇▇ to use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell such Placement Shares as
required under this Section 3. For the purposes hereof, “Trading Day” means any
day on which Shares are purchased and sold on the principal exchange or market on which the Shares
are listed or quoted.
4. Suspension of Sales. The Fund or ▇▇▇▇▇ may, upon notice to the other party in
writing within two business days following the delivery or receipt, as applicable, of the Placement
Notice (including by e-mail correspondence to all of the individuals of the other party set forth
on Schedule 3 or by telephone (confirmed immediately by verifiable facsimile transmission
or e-mail correspondence to all of the individuals of the other party set forth on Schedule
3)), suspend or refuse to undertake any sale of Placement Shares; provided,
however, that such suspension or refusal 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 hereto
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agrees that no such notice shall be effective against the other unless it is made to the
individuals named on Schedule 3 hereto in accordance with this Section 4, as such
Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Business Day (or such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to
be delivered to the Fund on a Settlement Date against the receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price at which such Placement Shares
were sold, after deduction for (i) ▇▇▇▇▇’▇ commission, discount or other compensation for such
sales payable by the Fund pursuant to Section 2 hereof, (ii) any other amounts due and
payable by the Fund to ▇▇▇▇▇ hereunder pursuant to Section 7(e) hereof, including any
Reimbursable Amounts, and (iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
(b) Delivery of Shares. On or before each Settlement Date, the Fund will, or will
cause its transfer agent to, electronically transfer the Placement Shares being sold by crediting
▇▇▇▇▇’▇ or its designee’s account at The Depository Trust Company through its Deposit and
Withdrawal at Custodian (“DWAC”) System or by such other means of delivery as may be
mutually agreed upon by the parties hereto and, upon receipt of such Placement Shares, which in all
cases shall be freely tradable, transferable, registered shares in good deliverable form, ▇▇▇▇▇
will deliver the related Net Proceeds in same day funds to an account designated by the Fund prior
to the Settlement Date. The Fund agrees that if the Fund defaults on its obligation to deliver
Placement Shares on a Settlement Date, the Fund and the Adviser each agree that, in addition to and
in no way limiting the rights and obligations set forth in Section 9(a) hereto, it will (i)
hold ▇▇▇▇▇ harmless against any loss, claim, damage, or expense (including reasonable legal fees
and expenses), as incurred, arising out of or in connection with such default by the Fund and (ii)
pay to ▇▇▇▇▇ any commission, discount, or other compensation to which it would otherwise have been
entitled absent such default.
6. Representations and Warranties of the Fund and Adviser.
(a) Representations and Warranties by the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, represent and warrant to ▇▇▇▇▇ as of the date hereof and as of each
Representation Date (as defined in Section 7(k) below), and agree with ▇▇▇▇▇, as follows:
(1) Compliance with Registration Requirements. The Registration Statement has
been declared effective by the Commission under the Securities Act. The Fund has complied
to the Commission’s satisfaction with all requests of the Commission for additional or
supplemental information. No order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose have been instituted or are
pending or, to the knowledge of the Fund, are contemplated by the Commission.
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The Prospectus when filed complied in all material respects with the Securities Act and
Investment Company Act. On each Representation Date, (1) the Registration Statement, as
amended as of any such time, and the Prospectus, as amended or supplemented as of any such
time, complied or will comply in all material respects with the applicable requirements of
the Securities Act and Investment Company Act, (2) the Registration Statement, as amended as
of any such time, did not, does not and will not contain any untrue statement of a material
fact and did not, does not and will not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and (3) the
Prospectus, as amended or supplemented as of any such time, did not and will not contain an
untrue statement of a material fact, and did not and will not omit to state a material fact
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 set forth in the
immediately preceding sentence do not apply to, and neither the Fund nor the Adviser makes
any representations or warranties as to, statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information relating to
▇▇▇▇▇ furnished to the Fund by ▇▇▇▇▇ in writing expressly for use therein.
The Fund’s registration statement on Form 8-A under the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (the “Exchange Act”) is
effective.
(2) Independent Accountants. Deloitte & Touche LLP, who audited the financial
statements and financial highlights included in the Registration Statement and the
Prospectus, are independent registered public accountants as required by the Securities Act
and the Investment Company Act.
(3) Financial Statements. The financial statements of the Fund included in the
Registration Statement and the Prospectus, together with the related schedules (if any) and
notes, present fairly the financial position of the Fund at the dates indicated and the
results of operations and cash flows of the Fund for the periods specified; and all such
financial statements have been prepared in conformity with U.S. generally accepted
accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved and comply with all applicable accounting requirements under the Securities Act and
the Investment Company Act. The supporting schedules, if any, included in the Registration
Statement present fairly, in accordance with GAAP, the information required to be stated
therein, and the other financial and statistical information and data included in the
Registration Statement, the Prospectus Supplement and the Prospectus are accurately derived
from such financial statements and the books and records of the Fund.
(4) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Prospectus except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Fund, whether or not arising in the ordinary course of
business (any such change is called a “Fund Material Adverse Effect”) and (B) there
have been no transactions entered into by the Fund which are material with respect to the
5
Fund other than those in the ordinary course of its business as described in the
Prospectus.
(5) Good Standing of the Fund. The Fund has been duly formed and is validly
existing in good standing as a statutory trust under the laws of the State of Delaware and
has power and authority to own, lease and operate its properties 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 the Fund Agreements; and the Fund is duly qualified
to transact business and is in good standing under the laws of each jurisdiction which
requires qualification, except for any such jurisdiction where failure to be in good
standing would not have a Fund Material Adverse Effect.
(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered under the Investment
Company Act as a closed-end, diversified management investment company under the Investment
Company Act, and the Investment Company Act Notification has been duly filed with the
Commission. The Fund has not received any notice from the Commission pursuant to
Section 8(e) of the Investment Company Act with respect to the Investment Company
Act Notification or the Registration Statement. “Investment Company Act
Notification” means a notification of registration of the Fund as an investment company
under the Investment Company Act on Form N-8A, as the Investment Company Act Notification
may be amended from time to time.
(8) Officers and Trustees. No person is serving or acting as an officer,
trustee or investment adviser of the Fund except in accordance with the provisions of the
Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules
and regulations thereunder (the “Advisers Act”). Except as disclosed in the
Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested
person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person”
(as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this
Section 6(a)(8), the Fund and the Adviser shall be entitled to rely on
representations from such officers and trustees.
(9) Capitalization. The Fund’s authorized, issued and outstanding (i) common
shares of beneficial interest and (ii) preferred shares are as set forth in the Prospectus.
All of the Fund’s issued and outstanding common shares of beneficial interest and preferred
shares have been duly authorized and validly issued and are fully paid and non-assessable
and have been offered and sold or exchanged by the Fund in compliance with all applicable
laws (including, without limitation, federal and state securities laws); none of the Fund’s
outstanding common shares of beneficial interest or preferred shares were issued in
violation of any preemptive or other similar rights of any security holder of the Fund. The
Placement Shares have been duly authorized and, when issued and delivered against payment
therefore in accordance with this Agreement, will be validly issued, fully paid and
non-assessable and free of any preemptive or other similar rights.
6
(10) Power and Authority. The Fund has full power and authority to enter into
this Agreement and the Fund Agreements; the execution and delivery of, and the performance
by the Fund of its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund; and this Agreement and the Fund Agreements have been
duly executed and delivered by the Fund and constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance with their terms, except
as rights to indemnity and contribution may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund’s obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws relating to or affecting creditors’ rights generally
and by general equitable principles.
(11) Agreements’ Compliance with Law. This Agreement and each of the Fund
Agreements comply in all material respects with all applicable provisions of the Investment
Company Act and the Advisers Act.
(12) Absence of Defaults and Conflicts. The Fund is not (i) in violation of the
Fund’s Agreement and Declaration of Trust and any amendments thereto (the “Declaration
of Trust”) or the Fund’s bylaws, (ii) in breach or default in the performance of the
terms of any indenture, contract, lease, mortgage, declaration of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject or (iii) in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to the Fund or of
any decree of the Commission, the Financial Industry Regulatory Authority (“FINRA”),
any state securities commission, any foreign securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory, self regulatory
or administrative agency or any official having jurisdiction over the Fund, except in the
case of (ii) and (iii) for such breaches, defaults or violations which would not have a Fund
Material Adverse Effect.
(13) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Fund, threatened, against or affecting the
Fund which is required to be disclosed in the Prospectus (other than as disclosed therein),
or that could reasonably be expected to result in a Fund Material Adverse Effect, or that
could reasonably be expected to materially and adversely affect the properties or assets of
the Fund or the consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations under this Agreement or the Fund Agreements; the
aggregate of all pending legal or governmental proceedings to which the Fund is a party or
of which any of its property or assets is the subject which are not described in the
Prospectus or to be filed as an exhibit to the Registration Statement that are not described
or filed as required by the Securities Act or the Investment Company Act, including
ordinary routine litigation incidental to the business, could not reasonably be expected to
result in a Fund Material Adverse Effect.
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(14) Accuracy of Descriptions and Exhibits. The statements set forth under the
headings “Closed-End Fund Structure,” “Certain Provisions of the Agreement and Declaration
of Trust and Bylaws” and “Certain Federal Income Tax Matters” in the Prospectus and “Federal
Income Tax Matters” in the Statement of Additional Information, insofar as such statements
purport to summarize certain provisions of the Investment Company Act, the Delaware
Statutory Trust Act, the Fund’s Declaration of Trust, U.S. federal income tax law and
regulations or legal conclusions with respect thereto, fairly and accurately summarize such
provisions in all material respects; all descriptions in the Registration Statement and the
Prospectus of any Fund documents are accurate in all material respects; and there are no
franchises, contracts, indentures, mortgages, deeds of trust, loan or credit agreements,
bonds, notes, debentures, evidences of indebtedness, leases or other instruments or
agreements required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not described
or filed as required by the Securities Act or the Investment Company Act which have not been
so described and filed as required.
(15) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no authorization, approval,
vote or other consent of any other person or entity, is necessary or required for the
performance by the Fund of its obligations under this Agreement or the Fund Agreements, for
the offering, issuance, sale or delivery of the Placement Shares hereunder, or for the
consummation of any of the other transactions contemplated by this Agreement or the Fund
Agreements, in each case on the terms contemplated by the Registration Statement and the
Prospectus, except such as have been already obtained and under the Securities Act, the
Investment Company Act, the rules and regulations of FINRA and the New York Stock Exchange
(“NYSE”) and such as may be required under state securities laws.
(16) Non-Contravention. Neither the execution, delivery or performance of this
Agreement and the Fund Agreements nor the consummation by the Fund of the transactions
herein or therein contemplated (i) constitutes or will constitute a breach of the
Declaration of Trust or bylaws of the Fund, (ii) constitutes or will constitute a breach of
or a default under, any agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound or (iii) violates or will
violate any statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which the Fund is a party or by which the Fund may
be bound or to which any of the property or assets of the Fund is subject.
(17) Possession of Licenses and Permits. The Fund has such licenses, permits,
and authorizations of governmental or regulatory authorities (“permits”) as are
necessary to own its property and to conduct its business in the manner described in the
Prospectus; the Fund has fulfilled and performed all its material obligations with respect
to such permits and no event has occurred which allows or, after notice or lapse of time,
would allow, revocation or termination thereof or results in any other material impairment
of the
8
rights of the Fund under any such permit, subject in each case to such qualification as
may be set forth in the Prospectus; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the Fund.
(18) Distribution of Offering Material. The Fund has not distributed and, prior
to the later to occur of (i) the Settlement Date and (ii) completion of the distribution of
the Placement Shares, will not distribute any offering material in connection with the
offering and sale of the Placement Shares other than the Registration Statement, the
Prospectus, the sales material or other materials permitted by the Securities Act or the
Investment Company Act.
(19) Absence of Registration Rights. There are no persons with registration
rights or other similar rights to have any securities (debt or equity) (A) registered
pursuant to the Registration Statement or included in the offering contemplated by this
Agreement or (B) otherwise registered by the Fund under the Securities Act or the Investment
Company Act. There are no persons with tag-along rights or other similar rights to have any
securities (debt or equity) included in the offering contemplated by this Agreement or sold
in connection with the sale of Placement Shares by the Fund pursuant to this Agreement.
(20) NYSE. The Placement Shares are duly listed and admitted and authorized for
trading, subject to official notice of issuance and evidence of satisfactory distribution,
on the NYSE.
(21) FINRA Matters. All of the information provided to ▇▇▇▇▇ or to counsel for
▇▇▇▇▇ by the Fund, its officers and Trustees in connection with letters, filings or other
supplemental information provided to FINRA pursuant to FINRA’s conduct rules is true,
complete and correct.
(22) Tax Returns. The Fund has filed all tax returns that are required to be
filed and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such tax, assessment, fine or penalty that is currently being contested in
good faith by appropriate actions and except for such taxes, assessments, fines or penalties
the nonpayment of which would not, individually or in the aggregate, have a Fund Material
Adverse Effect.
(23) Subchapter M. The Fund intends to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”) to
qualify as a regulated investment company under the Code and intends to direct the
investment of the Net Proceeds in such a manner as to comply with the requirements of
Subchapter M of the Code.
(24) Insurance. The Fund’s trustees and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the Investment Company Act are in
full force and effect; the Fund is in compliance with the terms of such policy and fidelity
bond in all material respects; and there are no claims by the Fund under any such policy
9
or fidelity bond as to which any insurance company is denying liability or defending
under a reservation of rights clause; the Fund has not been refused any insurance coverage
sought or applied for; and the Fund has no 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 a Fund Material Adverse Effect, except as set forth in or contemplated in the
Prospectus.
(25) Accounting Controls and Disclosure Controls. The Fund maintains a system
of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management’s general or specific
authorizations and with the investment objectives, policies and restrictions of the Fund and
the applicable requirements of the Securities Act, the Investment Company Act and the Code;
(B) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability to calculate net asset value and
to maintain material compliance with the books and records requirements under the Investment
Company Act; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Fund employs “disclosure controls and procedures” (as such term is
defined in Rule 30a-3 under the Investment Company Act); such disclosure controls and
procedures are currently in effect.
(26) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure
on the part of the Fund or any of the Fund’s trustees or officers, in their capacities as
such, to comply in any material respect with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated in connection therewith (the “Sarbanes Oxley
Act”), including Sections 302 and 906 related to certifications.
(27) Fund Compliance with Policies and Procedures. The Fund has adopted and
implemented written policies and procedures reasonably designed to prevent violation of the
Federal Securities Laws (as that term is defined in Rule 38a-1 under the Investment Company
Act) by the Fund, including policies and procedures that provide oversight of compliance for
each investment adviser, administrator and transfer agent of the Fund.
(28) Absence of Manipulation. The Fund has not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Placement Shares and the Fund is not
aware of any such action taken or to be taken by any affiliates of the Fund, other than such
actions as taken by ▇▇▇▇▇ pursuant to this Agreement, so long as such actions are in
compliance with all applicable law.
(29) Statistical, Demographic or Market-Related Data. Any statistical,
demographic or market-related data included in the Registration Statement or the Prospectus
is based on or derived from sources that the Fund believes to be reliable and
10
accurate and all such data included in the Registration Statement or the Prospectus
accurately reflects the materials upon which it is based or from which it was derived.
(30) Advertisements. All advertising, sales literature or other promotional
material (including “prospectus wrappers”, “broker kits”, “road show slides” and “road show
scripts”), whether in printed or electronic form, authorized in writing by or prepared by or
at the direction of the Fund or the Adviser for use in connection with the offering and sale
of the Placement Shares (collectively, “sales material”) complied and comply in all
material respects with the applicable requirements of the Securities Act and the rules and
interpretations of FINRA and if required to be filed with FINRA under FINRA’s conduct rules
were provided to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for ▇▇▇▇▇, for filing. No sales material
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Representations and Warranties by the Adviser. The Adviser represents and warrants
to ▇▇▇▇▇ as of the date hereof and as of each Representation Date (as defined in
Section 7(k) below), and agree with ▇▇▇▇▇, as follows:
(1) Investment Manager Status. The 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 Advisory Agreement, or the Accounting Agreement as
contemplated by the Prospectus.
(2) Capitalization. The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in the
Prospectus and under this Agreement and the Advisory Agreement, and the Accounting
Agreement.
(3) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Adviser, whether or not arising in the ordinary course
of business (any such change is called an “Adviser Material Adverse Effect”) and
(B) there have been no transactions entered into by the Adviser in connection with the Fund
which are material with respect to the Adviser other than those in the ordinary course of
its business as described in the Prospectus.
(4) Good Standing. The Adviser has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the State of Delaware and has
power and authority to own, lease and operate its properties 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 the Fund Agreements to which it is a party; and the
Adviser is duly qualified to transact business and is in good standing under the laws of
each jurisdiction which requires qualification, except for any such jurisdiction where
failure to be in good standing would not have an Adviser Material Adverse Effect.
11
(5) Power and Authority. The Adviser has full power and authority to enter into
this Agreement, the Advisory Agreement, and the Accounting Agreement, the execution and
delivery of, and the performance by the Adviser of its obligations under this Agreement, the
Advisory Agreement, and the Accounting Agreement have been duly and validly authorized by
the Adviser; and this Agreement, the Advisory Agreement, and the Accounting Agreement have
been duly executed and delivered by the Adviser and constitute the valid and legally binding
agreements of the Adviser, enforceable against the Adviser in accordance with their terms,
except as rights to indemnity and contribution may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the Adviser’s obligations
hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws relating to or affecting creditors’ rights
generally and by general equitable principles.
(6) Description of the Adviser. The description of the Adviser and its business
and the statements attributable to the Adviser in the Prospectus complied and comply in all
material respects with the provisions of the Securities Act, the Investment Company Act and
the Advisers Act and did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(7) Non-Contravention. Neither the execution, delivery or performance of this
Agreement, the Advisory Agreement, or the Accounting Agreement nor the consummation by the
Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the organizational documents of
the Adviser, including without limitation, its articles of organization, certificate of
formation or similar organizational documents and its operating agreement, limited liability
company agreement, membership agreement or other similar agreement, (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Adviser is a party or by which
it or any of its properties may be bound or (iii) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the Adviser or
any of its properties or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Adviser pursuant to the terms of any
agreement or instrument to which the Adviser is a party or by which the Adviser may be bound
or to which any of the property or assets of the Adviser is subject.
(8) Agreements’ Compliance with Laws. This Agreement, the Advisory Agreement,
and the Accounting Agreement comply in all material respects with all applicable provisions
of the Investment Company Act and the Advisers Act.
(9) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Adviser, threatened, against or affecting
the Adviser which is required to be disclosed in the Prospectus (other than as disclosed
therein), or that could reasonably be expected to result in an Adviser Material
12
Adverse Effect, or that could reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions contemplated in
this Agreement or the performance by the Adviser of its obligations under this Agreement,
the Advisory Agreement, or the Accounting Agreement; the aggregate of all pending legal or
governmental proceedings to which the Adviser is a party or of which any of its property or
assets is the subject which are not described in the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to result in an
Adviser Material Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no authorization, approval,
vote or other consent of any other person or entity, is necessary or required for the
performance by the Adviser of its obligations under this Agreement, the Advisory Agreement,
or the Accounting Agreement, except such as have been already obtained under the Securities
Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE and such as
may be required under state securities laws.
(11) Possession of Permits. The Adviser has such permits (as defined herein) as
are necessary to own its property and to conduct its business in the manner described in the
Prospectus; the Adviser has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other material
impairment of the rights of the Adviser under any such permit.
(12) Adviser Compliance with Policies and Procedures. The Adviser has adopted
and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act
reasonably designed to prevent violation of the Advisers Act by the Adviser and its
supervised persons.
(13) Absence of Manipulation. The Adviser has not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Placement Shares, and the Adviser is
not aware of any such action taken or to be taken by any affiliates of the Adviser, other
than such actions as taken by ▇▇▇▇▇ pursuant to this Agreement, so long as such actions are
in compliance with all applicable law.
(c) Certificates. Any certificate signed by any authorized officer of the Fund or the
Adviser identified on Schedule 3 attached hereto, as such Schedule may be updated from time
to time pursuant to notice properly delivered to ▇▇▇▇▇ pursuant to
Section 12 of this
Agreement and delivered to the representatives or to counsel for ▇▇▇▇▇ shall be deemed a
representation and warranty by the Fund or the Adviser, as the case may be, to ▇▇▇▇▇ as to the
matters covered thereby.
7. Covenants of the Fund and the Adviser. The Fund and the Adviser, jointly and
severally, covenant and agree with ▇▇▇▇▇ that:
13
(a) The Fund will promptly advise ▇▇▇▇▇ (i) when, during any period that a prospectus relating
to the offer or sale of Placement Shares is required to be delivered under the Securities Act, any
amendment to the Registration Statement affecting the Placement Shares shall have become effective,
(ii) of any request by the Commission for any amendment or supplement to the Registration Statement
or the Prospectus, or for any additional information, affecting or in respect of the Placement
Shares, (iii) of the issuance by the Commission of any order suspending the effectiveness of the
Registration Statement affecting the Placement Shares or the institution or threatening of any
proceeding for that purpose, and (iv) the receipt by the Fund of any notification with respect to
the suspension of the qualification of the Placement Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Fund will not file any amendment
to the Registration Statement affecting the Placement Shares or any supplement to the Prospectus
affecting the Placement Shares unless the Fund has furnished ▇▇▇▇▇ with a copy for its review prior
to filing, and will not file any such proposed amendment or supplement affecting the Placement
Shares to which ▇▇▇▇▇ reasonably objects, in any event until after the end of the period during
which a prospectus is required to be delivered to purchasers of the Placement Shares under the
Securities Act. Subject to the foregoing sentence, the Fund will cause the Prospectus Supplement
to be transmitted to the Commission for filing pursuant to Rule 497 under the Securities Act. The
Fund will use its best efforts to prevent the issuance of any order suspending the effectiveness of
the Registration Statement affecting the Placement Shares and, if issued, to obtain as soon as
possible the withdrawal thereof. The Fund will timely file the requisite copies of the Prospectus
with the Commission pursuant to Rule 497(c) or Rule 497(h) under the Securities Act, whichever is
applicable or, if applicable, will timely file the certification permitted by Rule 497(j) under the
Securities Act and will advise ▇▇▇▇▇ of the time and manner of such filing.
(b) During any period in which a Prospectus relating to the Placement Shares is required to be
delivered by ▇▇▇▇▇ under the Securities Act with respect to a pending sale of the Placement Shares,
the Fund will comply so far as it is able with all requirements imposed upon it by the Securities
Act and the Investment Company Act, as from time to time in force, so far as necessary to permit
the continuance of sales of the Placement Shares during such period in accordance with the
provisions hereof and the Prospectus, and will file with the Commission and the NYSE all documents
pursuant to the Securities Act and the Investment Company Act in the manner and within the time
periods required by the Securities Act and the Investment Company Act. If during such period any
event occurs as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Fund will promptly notify ▇▇▇▇▇ to suspend the offering of
Placement Shares during such period and the Fund will promptly amend or supplement the Registration
Statement or Prospectus so as to correct such statement or omission or effect such compliance.
(c) During any period in which the Prospectus relating to the Placement Shares is required to
be delivered by ▇▇▇▇▇ under the Securities Act with respect to a pending sale of the Placement
Shares, the Fund will use its best efforts to cause the Placement Shares to be listed on the NYSE
and to qualify, if necessary, the Placement Shares for sale under the securities laws of such
United States jurisdictions as ▇▇▇▇▇ reasonably designates and to continue
14
such qualifications in effect so long as required for the distribution of the Placement
Shares; provided, however, that the Fund shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities, file a general consent to
service of process in any jurisdiction, or meet any other requirement in connection with this
Section 7(c) deemed by the Fund to be unduly burdensome.
(d) The Fund will make generally available to its security holders as soon as practicable, but
in any event not later than 15 months after the end of the Fund’s current fiscal quarter, an
earnings statement covering a 12-month period that satisfies the provisions of Section 11(a) of the
Securities Act.
(e) The Fund 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 and 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 Fund’s counsel and the Fund’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 Fund 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 preparation by counsel for ▇▇▇▇▇ and printing of a
“Blue Sky Survey,” an “International Blue Sky Survey” or other memorandum, and any supplements
thereto, advising ▇▇▇▇▇ of such qualifications, registrations and exemptions, (vii) the fees and
expenses associated with listing the Placement Shares on the NYSE, (viii) the filing fees incident
to the review by FINRA of the terms of the sale of the Placement Shares, and (ix) all other fees,
costs and expenses incident to the performance by the Fund of its obligations hereunder.
Notwithstanding anything to the contrary in this Agreement, the Fund shall reimburse ▇▇▇▇▇ for
one-half of all fees and expenses of ▇▇▇▇▇’ counsel reasonably incurred in connection with the
transactions contemplated by this Agreement (the “Reimbursable Amounts”). Except with
respect to Reimbursable Amounts, the aggregate amount of any discount, commission or other
compensation to be paid by the Fund to ▇▇▇▇▇ in connection with ▇▇▇▇▇’ performance of its
obligations under this Agreement shall be as set forth on Schedule 2 attached hereto. The Fund
shall pay to ▇▇▇▇▇ the Reimbursable Amounts in addition to such discount, commissions and other
compensation payable to ▇▇▇▇▇ as contemplated by Schedule 2. The Adviser agrees to pay all
costs, fees and expenses of its counsel.
(f) The Fund will use the Net Proceeds as described in the Prospectus.
(g) During either the pendency of any Placement Notice given hereunder, or any period in which
the Prospectus relating to the Placement Shares is required to be delivered by ▇▇▇▇▇, the Fund
shall provide ▇▇▇▇▇ notice as promptly as reasonably possible before it offers to sell, contracts
to sell, sells, grants any option to sell or otherwise disposes of any Shares (other
15
than Placement Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Shares, warrants or any rights to purchase or acquire Shares;
provided, that such notice shall not be required in connection with the (i) issuance or sale of
Shares, options to purchase Shares issuable upon the exercise of options, (ii) the issuance or sale
of Shares pursuant to the Dividend Reinvestment Plan, or (iii) any Shares issuable upon conversion
of securities or the exercise of warrants, options or other rights in effect or outstanding.
(h) The Fund will, at any time during the term of this Agreement, as supplemented from time to
time, advise ▇▇▇▇▇ immediately 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 required to be provided to ▇▇▇▇▇ pursuant to this Agreement.
(i) The Fund will cooperate with any due diligence review conducted by ▇▇▇▇▇ or its agents,
including, without limitation, providing information and making available documents and senior
corporate officers, as ▇▇▇▇▇ may reasonably request; provided, however, that the
Fund shall be required to make available documents and senior corporate officers only (i) at the
Fund’s principal offices and (ii) during the Fund’s ordinary business hours. The parties
acknowledge that the due diligence review contemplated by this Section 7(i) will include
during the term of this Agreement (i) a bring-down diligence conference among ▇▇▇▇▇ and certain
officers of the Fund’s operations or legal departments upon the issuance by the Fund of a Placement
Notice and (ii) a quarterly diligence conference to occur as promptly as practicable following the
Fund’s filing of each of its annual and semi-annual reports on Form N-CSR and N-CSRS, respectively
(the “Reports”) and quarterly schedule of investments whereby the Fund will make its senior
corporate officers, including portfolio managers, available to address certain diligence inquiries
of ▇▇▇▇▇ and will provide such additional information and documents as ▇▇▇▇▇ may reasonably
request; provided, however that, notwithstanding anything to the contrary in this
Section 7(i), the Fund’s portfolio managers shall not be required to participate with respect to
quarterly diligence conferences to be held in connection with the filing of the Fund’s quarterly
schedule of investments.
(j) The Fund agrees that on such dates as the Securities Act shall require, the Fund will
(i) file a Prospectus Supplement with the Commission under Rule 497 under the Securities Act, which
Prospectus Supplement will set forth, within the relevant period, the amount of Placement Shares
sold through ▇▇▇▇▇, the Net Proceeds to the Fund and the compensation payable by the Fund to ▇▇▇▇▇
with respect to such Placement Shares, and (ii) 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.
(k) During the term of this Agreement, each time the Fund (i) files the Prospectus relating to
the Placement Shares, (ii) amends or supplements the Registration Statement or the Prospectus
relating to the Placement Shares by means of a post-effective amendment, or supplement or
(iii) files a Report (to the extent not already covered by subsection (ii) of this Section 7(k)),
each of the Fund and the Adviser shall furnish ▇▇▇▇▇ with a certificate, in the form attached
hereto as Exhibit 7(k)(1). (Each date contemplated in subsections (i), (ii)
16
and (iii) of this Section 7(k) is referred to herein as the “Representation Date”).
With respect to post-effective amendments to the Registration Statement contemplated by this
Section 7(k), 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 7 shall be delivered on or as promptly as practicable following the date of
effectiveness of such amendment. Upon the filing of a post-effective amendment to the Registration
Statement with the Commission which filing is deemed a Representation Date under this Section
7(k), the Fund shall cause to be furnished to ▇▇▇▇▇ (i) the opinion of Fund Counsel
contemplated pursuant to Section 7(l) below and (ii) to the extent such post-effective amendment
includes additional, amended or revised financial information, the certificate in the form attached
hereto as Exhibit 7(k)(2), certifying that the information contained in the items
referenced in such certificate, which information shall be limited to financial information that is
not covered by a prior Comfort Letter delivered pursuant to Section 7(n), is correct,
complete and accurate in all material respects. The deliveries required in the immediately
preceding sentence shall be required only to the extent the Prospectus is still current under
Section 10(a)(3) of the Securities Act.
(l) Except as otherwise provided in the last sentence of this Section 7(l), on the date hereof
and thereafter as of each Representation Date, the Fund shall cause to be furnished to ▇▇▇▇▇ with a
written opinion of K&L Gates LLP (the “Fund Counsel”), dated the Representation Date, in
substantially the form attached hereto as Exhibit 7(l)(1) (for the filing of the initial
Prospectus relating to the Placement Shares), and Exhibit 7(l)(2) (for subsequent dates),
but modified, as necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented; provided, however, that in lieu of such opinion, counsel
may furnish ▇▇▇▇▇ with a letter to the effect that ▇▇▇▇▇ may rely on a prior opinion delivered
under this Section 7(l) 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). Insofar as
any opinion of Fund Counsel relates to or is dependent upon matters governed by Delaware law, Fund
Counsel will be permitted to rely on the opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP. In the
event that a Representation Date is triggered by the filing of the Fund’s semi-annual report, only
the opinion identified in Exhibit 7(l)(2) shall be required.
(m) Except as otherwise provided in the last sentence of this Section 7(m), on the date hereof
and thereafter as of each Representation Date, the Adviser shall cause to be furnished to ▇▇▇▇▇
with a written opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Adviser, or another attorney
employed by the Adviser, who is reasonably acceptable to ▇▇▇▇▇ (the “Adviser Counsel”),
dated the Representation Date, in substantially the form attached hereto as Exhibit 7(m)(1)
(for the filing of the initial Prospectus relating to the Placement Shares), but modified, as
necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, that in lieu of such opinion, counsel may furnish
▇▇▇▇▇ with a letter to the effect that ▇▇▇▇▇ may rely on a prior opinion delivered under this
Section 7(m) 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). In the event that a
Representation Date is triggered by the filing of the Fund’s semi-annual report, no opinion
identified in this Section 7(m) shall be required.
17
(n) On the date hereof and thereafter as of each Representation Date, or any period in which
the Prospectus relating to the Placement Shares is required to be delivered by ▇▇▇▇▇, each time
that the Registration Statement is amended or the Prospectus supplemented to include additional
audited amended financial information the Fund shall cause its independent accountants to furnish
▇▇▇▇▇ letters (the “Comfort Letters”), dated the date of each Representation Date, in form
and substance satisfactory to ▇▇▇▇▇, (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission,
(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 letter, 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 provided, however, that any
Comfort Letter delivered in connection with the filing of the Fund’s semi-annual report shall not
include item by item support and verification (“tickmarking”).
(o) On the date hereof and thereafter as of each Representation Date, each of the Fund and the
Adviser shall furnish ▇▇▇▇▇ with a certificate of its respective Secretary, in substantially the
form attached hereto as Exhibit 7(o).
(p) Each Placement Notice issued by the Fund to ▇▇▇▇▇ shall be deemed to be an affirmation
that the representations and warranties made by it in this Agreement are true and correct in all
material respects at the time such Placement Notice is issued, and that the Fund has complied in
all material respects with all of the agreements to be performed by it hereunder at or prior to
such time.
(q) The Fund (including its agents and representatives, other than ▇▇▇▇▇ in its capacity as
such) will not make, use, prepare, authorize, approve or refer to any written communication (as
defined in Rule 405 under the Act), required to be filed with the Commission, that constitutes an
offer to sell or solicitation of an offer to buy Placement Shares hereunder, except by means of the
Prospectus.
(r) The Fund will comply with all requirements imposed upon it by the Securities Act, the
Exchange Act and the Investment Company Act as from time to time in force, so far as necessary to
permit the continuance of sales of, or dealings in, the Placement Shares as contemplated by the
provisions hereof and the Prospectus.
(s) Without the written consent of ▇▇▇▇▇, the Fund will not, directly or indirectly, offer to
sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Shares (other
than the Placement Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Shares, warrants or any rights to purchase or acquire, Shares
during the period beginning on the fifth (5th) Trading Day immediately prior to the date
on which any Placement Notice is delivered to ▇▇▇▇▇ hereunder and ending on the fifth
(5th) Trading Day immediately following the final Settlement Date with respect to
Placement Shares sold pursuant to such Placement Notice; the Fund will not directly or indirectly
in any
18
other “at-the-market” or continuous equity transaction offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Shares of (other than the Placement Shares
offered pursuant to the provisions of this Agreement) or securities convertible into or
exchangeable for Shares, warrants or any rights to purchase or acquire, Shares prior to the tenth
(10th) Trading Day immediately following the final Settlement Date with respect to
Placement Shares sold pursuant to such Placement Notice; provided, however, that
such restrictions will not be required in connection with the Fund’s issuance or sale of Shares
pursuant to (i) the Dividend Reinvestment Plan, and (ii) conversion of securities or the exercise
of warrants, options or other rights in effect or outstanding as of the date of this Agreement.
(t) The Fund will furnish to ▇▇▇▇▇ and its counsel (at the expense of the Fund) copies of the
Registration Statement, the Prospectus and all amendments and supplements to the Registration
Statement or Prospectus relating to the registration and issuance of the Placement Shares pursuant
to this Agreement that are filed with the Commission during the 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 as ▇▇▇▇▇ may from time to time reasonably
request.
(u) Each of the Fund and the Adviser acknowledges and agrees that ▇▇▇▇▇ has informed the Fund
that ▇▇▇▇▇ may, to the extent permitted under the Securities Act, Exchange Act and the Investment
Company Act, purchase and sell Placement Shares for its own account at the same time as Placement
Shares are being sold by the Fund pursuant to this Agreement, provided that (i) the Fund shall not
be deemed to have authorized or consented to any such purchases or sales by ▇▇▇▇▇ and (ii) no such
purchases or sales shall take place while a Placement Notice is in effect (except to the extent
▇▇▇▇▇ may engage in sales of Placement Shares (i) purchased or deemed purchased from the Fund as a
“riskless principal” or in a similar capacity or (ii) with respect to errors that cause ▇▇▇▇▇ to
take an unplanned principal positions).
(v) The Fund 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 Fund to facilitate the sale or resale of the
Placement Shares or (ii) sell, bid for, or purchase the Placement Shares, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than ▇▇▇▇▇; provided,
however, the Fund may issue and sell Shares pursuant to the Dividend Reinvestment Plan.
(w) The Fund and the Adviser will furnish to ▇▇▇▇▇ for a period of two years from the date of
this Agreement such information as reasonably requested by ▇▇▇▇▇ regarding the Fund or the Adviser.
8. Conditions to ▇▇▇▇▇’▇ Obligations. The obligations of ▇▇▇▇▇ hereunder with respect
to a Placement will be subject to the continuing accuracy and completeness of the representations
and warranties made by the Fund and the Adviser herein, to the due performance by the Fund and the
Adviser of their respective obligations hereunder, to the completion by ▇▇▇▇▇ of a due diligence
review satisfactory to ▇▇▇▇▇ in its reasonable judgment, and to the continuing satisfaction (or
waiver by ▇▇▇▇▇ in its sole discretion) of the following additional conditions:
19
(a) The Registration Statement shall have become effective and shall be available for the sale
of (i) all Placement Shares issued pursuant to all prior Placements and not yet sold by ▇▇▇▇▇ and
(ii) all Placement Shares contemplated to be issued by the Placement Notice relating to such
Placement.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the
Fund 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 amendments or supplements to the Registration Statement or the
Prospectus relating to or affecting the Placement Shares; (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 Fund, threatened by the Commission; (iii) receipt by the Fund 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; (iv) the occurrence of any event that makes any 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 or Prospectus so that, in the case of the Registration
Statement, it will not contain any 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 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; and (v) the Fund’s reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate.
(c) ▇▇▇▇▇ shall not have advised the Fund that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of a material fact regarding
▇▇▇▇▇ that in ▇▇▇▇▇’ opinion is material, or omits to state a fact regarding ▇▇▇▇▇ that in ▇▇▇▇▇’
opinion is material and is required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which it was made, not misleading.
(d) Except as contemplated or disclosed in the Prospectus, there shall not have been any
material change, on a consolidated basis, in the authorized capital stock of the Fund or any Fund
Material Adverse Effect or Adviser Material Adverse Effect, or any development that may reasonably
be expected to cause a Fund Material Adverse Effect or Adviser Material Adverse Effect, or a
downgrading in or withdrawal of the rating assigned to any of the Fund’s securities by any rating
organization or a public announcement by any rating organization that it has under surveillance or
review its rating of any of the Fund’s securities, the effect of which, in the case of any such
action by a rating organization described above, in the sole judgment of ▇▇▇▇▇ (without relieving
the Fund of any obligation or liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and
in the manner contemplated in the Prospectus.
20
(e) ▇▇▇▇▇ shall have received the opinion of Fund Counsel required to be delivered pursuant
Section 7(l) on or before the date on which such delivery of such opinion is required
pursuant to Section 7(l).
(f) ▇▇▇▇▇ shall have received the opinion of Adviser Counsel required to be delivered pursuant
to Section 7(m) on or before the date on which such delivery of such opinion is required
pursuant to Section 7(m).
(g) ▇▇▇▇▇ shall have received the Comfort Letter required to be delivered pursuant to
Section 7(n) on or before the date on which such delivery of such letter is required
pursuant to Section 7(n).
(h) ▇▇▇▇▇ shall have received the certificates required to be delivered pursuant to
Section 7(k) and Section 7(o) on or before the date on which delivery of such
certificate is required pursuant to Section 7(k) and Section 7(o), respectively.
(i) Trading in the Shares shall not have been suspended on the NYSE.
(j) On each date on which the Fund is required to deliver a certificate pursuant to
Section 7(k), the Fund shall have furnished to ▇▇▇▇▇ such appropriate further information,
certificates and documents as ▇▇▇▇▇ may reasonably request. All such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof. The Fund will furnish
▇▇▇▇▇ with such conformed copies of such opinions, certificates, letters and other documents as
▇▇▇▇▇ shall reasonably request.
(k) All filings with the Commission required by Rule 497 under the Securities Act to have been
filed prior to the giving of any Placement Notice hereunder shall have been made within the
applicable time period prescribed for such filing by Rule 497.
(l) The Placement Shares shall have been approved for listing on the NYSE, subject only to
notice of issuance.
(m) There shall not have occurred any event that would permit ▇▇▇▇▇ to terminate this
Agreement pursuant to Section 11(a).
(n) Prior to the date hereof, FINRA shall have confirmed that it has no objection with respect
to the fairness and reasonableness of the placement terms and arrangements set forth herein.
9. Indemnification and Contribution.
(a) Indemnification by the Fund and the Adviser. The Fund and the Adviser, jointly and
severally, agree to indemnify and hold harmless ▇▇▇▇▇, its directors, members, officers and each
person, if any, who controls ▇▇▇▇▇ within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(1) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material
21
fact contained in the Registration Statement (or any amendment thereto) including any
information deemed to be a part thereof pursuant to Rule 430A or Rule 497 under the
Securities Act, or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading, or arising out
of any untrue statement or alleged untrue statement of a material fact included in any sales
material, any Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 9(e) below)
any such settlement is effected with the written consent of the Fund and the Adviser; and
(3) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by ▇▇▇▇▇), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (1) or (2) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Fund or the Adviser by ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), any sales material, or in any Prospectus (or any amendment or
supplement thereto).
(b) Indemnification by ▇▇▇▇▇. ▇▇▇▇▇ agrees to indemnify and hold harmless each of the
Fund and the Adviser, each of their directors, trustees, members, each of their officers who signed
the Registration Statement, and each person, if any, who controls the Fund or the Adviser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and
all loss, liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 9, as incurred, but only with respect to (i) any
failure by ▇▇▇▇▇ to comply with the prospectus delivery requirements applicable to the Placement
Shares; and (ii) untrue statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), any sales material, or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with written information
furnished to the Fund or the Adviser by ▇▇▇▇▇ expressly for use in the Registration Statement (or
any amendment thereto), any sales material, or any Prospectus (or any amendment or supplement
thereto). The Fund and the Adviser acknowledge that ▇▇▇▇▇ has not furnished any information to the
Fund for inclusion in the Prospectus.
22
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. Counsel to the indemnified
parties shall be selected as follows: counsel to ▇▇▇▇▇, its directors, members, officers, and each
person, if any, who controls ▇▇▇▇▇ within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall be selected by ▇▇▇▇▇; counsel to the Fund, its directors,
trustees, members, each of its officers who signed the Registration Statement and each person, if
any, who controls the Fund within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall be selected by the Fund; and counsel to the Adviser and each person, if any,
who controls such Adviser within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall be selected by such Adviser. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified party) also be counsel
to the indemnified party. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for ▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇ within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for the Fund, each of
their directors, trustees, members, each of its officers who signed the Registration Statement and
each person, if any, who controls the Fund within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, the fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for the Adviser, and the fees and expenses of
more than one counsel, in each case in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 9 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 9(a)(2) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
23
(e) Other Agreements with Respect to Indemnification and Contribution. The provisions
of this Section 9 hereof shall not affect any agreements among the Fund and the Adviser
with respect to indemnification of each other or contribution between themselves.
(f) Contribution.
(1) If the indemnification provided for in this Section 9 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Fund and the
Adviser on the one hand and ▇▇▇▇▇ on the other hand from the offering of the Placement
Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Fund
and the Adviser on the one hand and of ▇▇▇▇▇ on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
(2) The relative benefits received by the Fund and the Adviser on the one hand and
▇▇▇▇▇ on the other hand in connection with the offering of the Placement Shares pursuant to
this Agreement shall be deemed to be in the same respective proportions as the Net Proceeds
from the offering of the Placement Shares pursuant to this Agreement (before deducting
expenses) received by the Fund and the Adviser and the total discounts and commissions
received by ▇▇▇▇▇, in each case as set forth on the cover of the Prospectus, bear to the
aggregate initial public offering price of the Placement Shares as set forth on such cover.
(3) The relative fault of the Fund and the Adviser on the one hand and ▇▇▇▇▇ on the
other hand shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Fund, by the Adviser or by ▇▇▇▇▇ and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(4) The Fund, the Adviser and ▇▇▇▇▇ agree that it would not be just and equitable if
contribution pursuant to this Section 9(f) were determined by pro rata allocation
(even if ▇▇▇▇▇ were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in
this Section 9(f). The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 9(f)
shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
24
(5) Notwithstanding the provisions of this Section 9(f), ▇▇▇▇▇ shall not be
required to contribute any amount in excess of the amount by which the total price of the
Placement Shares actually distributed by ▇▇▇▇▇ exceeds the amount of any damages that ▇▇▇▇▇
has otherwise been required to pay by reason of any such untrue or alleged untrue statement
or omission or alleged omission.
(6) 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.
(7) For purposes of this Section 9(f), each person, if any, who controls ▇▇▇▇▇
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contributions as ▇▇▇▇▇, and each person who controls the Fund
or the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each officer of the Fund and the Adviser and each trustee, director or member
of the Fund and the Adviser shall have the same rights to contribution as the Fund and the
Adviser.
(g) The indemnity and contribution agreements contained in this Section 9 and the
representation and warranties of the Fund and Adviser set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made by or on behalf of
▇▇▇▇▇, its partners, officers or employees, or any person controlling ▇▇▇▇▇, within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and or by or on behalf of the
Fund and/or the Adviser, its directors and officers or any person who controls the Fund and/or the
Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
(ii) delivery and acceptance of the Placement Shares and payment therefor, or (iii) any termination
of this Agreement. A successor to ▇▇▇▇▇ or to the Fund or the Adviser, its respective directors or
officers, or any person controlling the Fund or the Adviser, shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this Section 9.
10. Representations and Agreements to Survive Delivery. All representations and
warranties of the Fund and the Adviser herein or in certificates delivered pursuant hereto shall
survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of
▇▇▇▇▇, any controlling persons, or the Fund and/or the Adviser (or any of their respective
officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) ▇▇▇▇▇ shall have the right by giving notice as hereinafter specified at any time to
terminate this Agreement if (i) any Fund Material Adverse Effect or Adviser Material Adverse
Effect, has occurred which, in the reasonable judgment of ▇▇▇▇▇, may materially impair the
investment quality of the Placement Shares, (ii) the Fund or the Adviser shall have failed, refused
or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Fund or the Adviser to deliver (or cause another
person to deliver) any certification, opinion, or letter required under Sections 7(k),
7(l),
25
7(m), or 7(n) ▇▇▇▇▇’▇ right to terminate shall not arise unless such failure
to deliver (or cause to be delivered) continues for more than thirty (30) days from the date of
such Representation Date pursuant to which such delivery was required; provided,
further, that, ▇▇▇▇▇ shall have the right to suspend its obligations hereunder,
regardless of whether a Placement Notice is pending, beginning on the sixth (6th) day
after the date of any Representation Date if any certification, opinion, or letter referenced in
the foregoing proviso has not yet been (or caused to be) delivered; (iii) any other condition of
▇▇▇▇▇’▇ obligations hereunder is not fulfilled, or (iv) any suspension or limitation of trading in
the Placement Shares or in securities generally on the NYSE shall have occurred. Any such
termination shall be without liability of any party to any other party except that the provisions
of Section 7(e), Section 9, Section 10, Section 15,
Section 17 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination. If ▇▇▇▇▇ elects to terminate this Agreement as provided in this
Section 11, ▇▇▇▇▇ shall provide the required notice as specified herein.
(b) The Fund shall have the right, by giving notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Section 7(e),
Section 9, Section 10, Section 15, Section 17 and
Section 19 hereof shall remain in full force and effect notwithstanding such termination.
(c) ▇▇▇▇▇ shall have the right, by giving notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time following the period of twelve (12) months after
the date of this Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(e), Section 9,
Section 10, Section 15, Section 17 and Section 19 hereof shall
remain in full force and effect notwithstanding such termination.
(d) This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), (b) or (c) above or otherwise by mutual agreement of the
parties; provided, however, that any such termination by mutual agreement shall in
all cases be deemed to provide that Section 7(e), Section 9, Section 10,
Section 15 Section 17 and Section 19 shall remain in full force and effect.
(e) Except as otherwise provided in Sections 11(b) and 11(c), 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 ▇▇▇▇▇ or the Fund or Adviser, 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.
(f) Upon termination of this Agreement in accordance with Sections 11(a),
11(b) or 11(c), ▇▇▇▇▇ shall not be entitled to reimbursement for its out-of-pocket
expenses except to the extent otherwise agreed by the parties.
12. Notices. All notices or other communications required or permitted to be given by
any party to any other party pursuant to the terms of this Agreement shall be in writing and if
sent to ▇▇▇▇▇, shall be delivered to ▇▇▇▇▇ at JonesTrading Institutional Services LLC, 32133
Lindero
▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
General Counsel, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax no.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or if sent to the Fund or the Adviser, shall be
delivered to Calamos Advisors LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, fax no.: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to K&L Gates LLP, 70 West Madison Street,
Ste. 3100, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇ fax:
(▇▇▇) ▇▇▇-▇▇▇▇. Each party to this Agreement may change such address for notices by sending to the
parties to this Agreement written notice of a new address for such purpose. Each such notice or
other communication shall be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business
Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next
Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall
mean any day on which the NYSE and commercial banks in the City of New York are open for business.
13. Successors. This Agreement shall inure to the benefit of and be binding upon
▇▇▇▇▇, the Fund and the Adviser and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or corporation, other
than ▇▇▇▇▇, the Fund and the Adviser and their respective successors and the controlling persons
and directors, officers, members and trustees referred to in Section 9 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of ▇▇▇▇▇, the Fund and the Adviser and
their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Placement Shares from ▇▇▇▇▇ shall be deemed to be a successor by reason merely of such
purchase.
14. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
15. Governing Law Provisions.
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the state of New York applicable to agreements made and to be performed
in such state.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby may be instituted in the federal
or state courts of the United States of America located in the Southern District of New York and
borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in regard to
27
the enforcement of a judgment of any such court, as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. Service of any process,
summons, notice or document by mail to such party’s address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or
other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
16. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof, including
the Original Agreement which is hereby terminated. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings, titled and captions herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
17. Waiver of Jury Trial. The Fund, the Adviser and ▇▇▇▇▇ each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based upon or arising out
of this Agreement or any transaction contemplated hereby.
18. Adjustments for Stock Splits. The parties acknowledge and agree that all share
related numbers contained in this Agreement shall be adjusted to take into account any stock split,
stock dividend or similar event effected with respect to the Shares.
19. Absence of Fiduciary Relationship. Each of the Fund and the Adviser acknowledges
and agrees that:
(a) ▇▇▇▇▇ is acting solely as a placement agent in connection with the public offering of the
Placement Shares and no fiduciary, advisory or agency relationship between the Fund or the Adviser,
on the one hand, and ▇▇▇▇▇, on the other hand, has been or will be created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether or not ▇▇▇▇▇ has advised or is
advising the Fund or the Adviser on other matters and ▇▇▇▇▇ has no obligations to the Fund or the
Adviser with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;
(b) the public offering price of the Placement Shares and the commission, discount or other
compensation received by ▇▇▇▇▇ in connection with the offering of the Placement Shares set forth in
this Agreement were established by the Fund following discussions and arms-length negotiations with
the Representatives;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
28
(d) in connection with each transaction contemplated by this Agreement and the process leading
to such transactions, ▇▇▇▇▇ is and has been acting solely as principal and not as fiduciary,
advisor or agent of the Fund or the Adviser or any of their respective affiliates;
(e) ▇▇▇▇▇ has not provided any legal, accounting, regulatory or tax advice to the Fund or the
Adviser with respect to the transactions contemplated by this Agreement and it has consulted its
own legal, accounting, regulatory and tax advisers to the extent it has deemed appropriate; it is
aware that ▇▇▇▇▇ and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Fund and the Adviser, and ▇▇▇▇▇ has no obligation to
disclose such interests and transactions to the Fund or the Adviser by virtue of any fiduciary,
advisory or agency relationship; and
(f) it waives, to the fullest extent permitted by law, any claims it may have against ▇▇▇▇▇
for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that ▇▇▇▇▇ shall not
have any liability (whether direct or indirect, in contract, 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 on
behalf of the Fund or the Adviser.
[Remainder of Page Intentionally Blank]
29
If the foregoing correctly sets forth the understanding between the Fund, the Adviser and
▇▇▇▇▇, please so indicate in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Fund, the Adviser and ▇▇▇▇▇.
| Very truly yours, | ||||||
| CALAMOS CONVERTIBLE AND HIGH INCOME FUND | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | Vice President and Chief Financial Officer | |||||
| CALAMOS ADVISORS LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | President of Distribution and Operations | |||||
| ACCEPTED as of the date first-above written: |
||||||
| JONESTRADING INSTITUTIONAL SERVICES LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
30
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From:
|
[ | ] | ||
Cc:
|
[ | ] | ||
To:
|
[ | ] | ||
Date:
|
[ | ] |
Subject: Capital On Demand — Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Capital On Demand™ Sales
Agreement between Calamos Convertible and High Income Fund (the “Fund”), Calamos Advisors
LLC (the “Adviser”) and JonesTrading Institutional Services LLC (“▇▇▇▇▇”) dated
, 2009 (the “Agreement”), I hereby request on behalf of the Fund that ▇▇▇▇▇
sell up to [ ] shares of the Fund’s common shares of beneficial interest, no par value per share,
at a minimum market price of $______ per share.
The time period during which sales are requested to be made shall be .
[No
more than shares may be sold in any one trading day.]
ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE
MANNER IN WHICH SALES ARE TO BE MADE BY ▇▇▇▇▇, AND/OR THE CAPACITY IN WHICH ▇▇▇▇▇ MAY ACT IN
SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH).
S-1
SCHEDULE 2
Compensation
The amount of any discount, commission or other compensation (other than the Reimbursable Amounts)
to be paid by the Fund to ▇▇▇▇▇ shall range between 100 and 250 basis points of the gross proceeds
with respect to sales actually effected by ▇▇▇▇▇, with the exact amount of such discount,
commission or other compensation to be mutually agreed upon by the parties from time to time.
S-2
SCHEDULE 3
JONESTRADING INSTITUTIONAL SERVICES LLC
▇▇▇▇▇▇ “Moe” ▇▇▇▇▇
Managing Director
JonesTrading Institutional Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Managing Director
JonesTrading Institutional Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Chief Operating Officer & General Counsel
JonesTrading Institutional Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Chief Operating Officer & General Counsel
JonesTrading Institutional Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
JonesTrading Institutional Services LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Chief Financial Officer
JonesTrading Institutional Services LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Head Trader
Calamos Advisors LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Senior Vice President and Head Trader
Calamos Advisors LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Stathy ▇▇▇▇▇
▇▇▇▇▇▇▇ Investments
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇ Investments
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
S-3
Exhibit 7(k)(1)
FUND OFFICER CERTIFICATE
The
undersigned, the duly qualified and elected of CALAMOS CONVERTIBLE
AND HIGH INCOME FUND (“Fund”), a Delaware statutory trust, does hereby certify in such
capacity and on behalf of the Fund, pursuant to Section 7(k) of the Second Amended and
Restated Sales Agreement dated , 2010 (the “Sales Agreement”) between the Fund,
Calamos Advisors LLC and JonesTrading Institutional Services LLC, that to the best of the knowledge
of the undersigned:
(i) Except for non-material exceptions as may be set forth on Annex A hereto, the
representations and warranties of the Fund in Section 6(a) of the Sales Agreement are true
and correct on and as of the date hereof, with the same force and effect as if expressly made on
and as of the date hereof; and
(ii) The Fund has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
| By: | ||||
| Name: | ||||
| Title: | ||||
Date:
Exhibit 7(k)(1) (Cont’d)
ADVISER OFFICER CERTIFICATE
The undersigned, the duly qualified and elected of CALAMOS ADVISORS
LLC (“Adviser”), a Delaware limited liability company, does hereby certify in such capacity
and on behalf of the Adviser, pursuant to Section 7(k) of the Second Amended and Restated
Sales Agreement dated , 2010 (the “Sales Agreement”) between the Adviser,
Calamos Convertible and High Income Fund and JonesTrading Institutional Services LLC, that to the
best of the knowledge of the undersigned:
(i) Except for non-material exceptions as may be set forth on Annex A hereto, the
representations and warranties of the Adviser in Section 6(b) of the Sales Agreement are
true and correct on and as of the date hereof, with the same force and effect as if expressly made
on and as of the date hereof; and
(ii) The Adviser has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
| By: | ||||
| Name: | ||||
| Title: | ||||
Date:
Exhibit 7(k)(2)
___, 2009
JonesTrading Institutional Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This officer’s certificate of Calamos Convertible and High Income Fund, a Delaware
statutory trust (the “Fund”), is being delivered on behalf of the Fund by [▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Vice President and Chief Financial Officer/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer] of the Fund,
in connection with the Second Amended and Restated Sales Agreement, dated ___,
2010, among the Fund and JonesTrading Institutional Services LLC (the “Agent”) in
relation to the issuance and sale from time to time of shares of up to 5,000,000 of the
Fund’s common shares of beneficial interest through the Agent.
(1) I hereby certify that I am the duly elected [Vice President and Chief Financial
Officer/Treasurer] of the Fund.
(2) For purposes of this certificate, I have read the information identified by you
on the attached copies of certain pages of the Fund’s Post-Effective Amendment No.
___to its Registration Statement on Form N-2 (File Nos. 333-146947 and 811-21319),
and hereby certify that the information contained in the items referenced in this
paragraph is correct, complete and accurate in all material respects.
[Remainder of page intentionally blank]
Signed by
me this ___ day of , 2009.
| Title: |
Exhibit 7(l)(1)
FORM OF OPINION OF K&L GATES LLP
1. The Fund has been duly formed and is validly existing in good standing as a statutory trust
under the Delaware Statutory Trust Act, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement and the
Prospectus.
2. The Fund is duly registered with the Commission pursuant to Section 8 of the Investment
Company Act as a closed-end, diversified management investment company and the Investment Company
Act Notification has been duly filed with the Commission; all action has been taken by the Fund as
required by the Securities Act and the Investment Company Act to permit the Fund to issue and sell
the Placement Shares to make the public offering and consummate the sale of the Placement Shares as
contemplated by the Sales Agreement; the Sales Agreement and each of the Fund Agreements complies
in all material respects with all applicable provisions of the Securities Act, the Investment
Company Act; and to the best knowledge of such counsel, the Fund has not received any notice from
the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the
Investment Company Act Notification or the Registration Statement.
3. The Fund’s Declaration of Trust and by-laws comply in all material respects with the
Investment Company Act.
4. The Fund has full power and authority to enter into the Sales Agreement and the Fund
Agreements; the execution and delivery of, and the performance by the Fund of its obligations under
the Sales Agreement and the Fund Agreements have been duly and validly authorized by the Fund; the
Sales Agreement and the Fund Agreements constitute valid and legally binding agreements of the
Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity
and contribution thereunder may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund’s obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors’ rights generally and by general equitable principles.
5. Neither the issuance and sale of the Placement Shares in accordance with the Sales
Agreement, the execution, delivery or performance of the Sales Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated herein or
therein or the adoption of the Fund’s Dividend Reinvestment Plan (i) constitutes or will constitute
a breach of the Declaration of Trust or by-laws of the Fund, (ii) constitutes or will constitute a
breach of or a default under, any material contract of the Fund, as described in or included as an
exhibit to the Registration Statement or Prospectus, or (iii) violates or will violate any existing
United States of America or State of Illinois statute, law or regulation (assuming compliance with
all applicable state securities and blue sky laws, and except that, in the published opinion of the
Commission, the indemnification provisions in the Sales Agreement and the Fund Agreements, insofar
as they relate to indemnification for liabilities arising under the Securities Act, are against
public policy as expressed in the Securities
Act and therefore unenforceable) or violates any filing or judgment, injunction, order or decree
known to us to be applicable to the Fund or any of its properties or will result in the creation or
imposition of any security interest, lien, charge or encumbrance upon any property or assets of the
Fund pursuant to the terms of any agreement or instrument to which the Fund is a party or by which
the Fund may be bound or to which any of the property or assets of the Fund is subject (except in
each case for such conflicts, violations, breaches or defaults of liens, charges or encumbrances
that would not have a material adverse effect on the ability of the Fund to perform its obligations
under the Sales Agreement and the Fund Agreements).
6. None of the offering, issuance, sale or delivery of the Placement Shares pursuant to the
Sales Agreement, or the consummation of any of the other transactions contemplated by the Sales
Agreement or the Fund Agreements, in each case on the terms contemplated by the Registration
Statement and the Prospectus, requires any consent, approval, authorization or other order of or
registration or filing with, the Commission, FINRA, or any national securities exchange, or
governmental body or agency of the United States of America, or State of Illinois or State of
Delaware or, based solely on a review of our litigation docket and based solely on the Docket
Search (as that term is defined in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Opinion the form of which is set forth on
Schedule II), an order of any court or arbitrator of the United States of America or State of
Illinois or any Delaware Court (as that term is defined in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Opinion), except
(1) the absence of which, either individually or in the aggregate, would not have a material
adverse effect on the Fund or the offering of the Placement Shares as contemplated in the Sales
Agreement; (2) such as may have been obtained prior to the date hereof; and (3) such as may be
required for compliance with state securities or blue sky laws of various jurisdictions.
7. The Fund has an authorized, issued and outstanding capitalization as set forth in the
Prospectus and the authorized capitalization of the Fund conforms to the description thereof
contained in the Registration Statement and the Prospectus; all of the outstanding common shares of
beneficial interest and preferred shares have been duly authorized and validly issued, and, subject
to the qualification in the last sentence of this paragraph, are fully paid and non-assessable; the
Placement Shares have been duly authorized by all necessary action of the Fund under the Delaware
Act and, when issued and delivered against payment therefor in accordance with the Sales Agreement,
will be validly issued, and, subject to the qualification in the last sentence of this paragraph,
fully paid and non-assessable representing undivided beneficial ownership interests in the assets
of the Fund and will not have been issued in violation of or subject to any preemptive right,
co-sale right, registration right, right of first refusal or other similar right; the Placement
Shares are duly listed, and admitted and authorized for trading, subject to official notice of
issuance and evidence of satisfactory distribution, on the NYSE; we express no opinion with respect
to the liability of any holder of Securities who is, was or may become a named trustee of the Fund.
8. No holders of outstanding common shares of beneficial interest are entitled as such to any
preemptive or other rights to subscribe for any common shares of beneficial interest under any
applicable contract, under the Fund’s Declaration of Trust or the by-laws or under the Delaware
Act; and, except as set forth in 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 Fund are outstanding.
9. The statements set forth under the headings “Description of Securities” in the Prospectus,
“Certain Provisions of the Agreement and Declaration of Trust and Bylaws” and “Certain Federal
Income Tax Matters” in the Prospectus and Statement of Additional Information, insofar as such
statements purport to summarize certain provisions of the Investment Company Act, the Delaware Act,
the common shares of beneficial interest or the Fund’s Declaration of Trust, United States federal
income tax law and regulations or legal conclusions with respect thereto, fairly and accurately
summarize such provisions in all material respects.
10. To the knowledge of such counsel, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Fund or its property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there are no agreements,
franchises, contracts, indentures, mortgages, loan agreements, notes, leases, permits or other
instruments that are required to be described in the Registration Statement and the Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as required by the Securities
Act or the Investment Company Act.
11. The Registration Statement has become effective under the Securities Act; any required
filing of the Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the
manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened by the Commission, and at the time the
Registration Statement became effective and as of the date hereof, the Registration Statement and
the Prospectus and each amendment or supplement thereto (other than the financial statements and
other financial and statistical information contained therein, as to which such counsel need
express no statement) complied, and as of the date hereof, comply as to form in all material
respects with the applicable requirements of the Securities Act and the Investment Company Act.
In addition, we have participated in conferences with officers and other representatives of
the Fund, representatives of the independent public accountants for the Fund, and your counsel and
representatives, at which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although we have not verified the accuracy or completeness of the
statements contained in the Registration Statement or the Prospectus, nothing has come to such
counsel’s attention that would lead it to believe that:
(i) the Registration Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading (other than the financial statements and schedules
and any other financial or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or appendices included or
incorporated by reference therein, as to which such counsel expresses no opinion), or
(ii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements and schedules and any other financial or
statistical information or calculations contained therein or incorporated therein by reference and
other than any exhibits, schedules or appendices included or incorporated by reference therein, as
to which such counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of the laws of any jurisdiction other than the State of Delaware (other than the Delaware Statutory
Trust Act), the State of Illinois or the Federal laws of the United States to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for ▇▇▇▇▇, (B) as to matters involving
the application of the Delaware Statutory Trust Act to the extent they deem proper and specified in
such opinion, upon the opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP or other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel for ▇▇▇▇▇ and (C) as
to matters of fact, to the extent they deem proper, on certificates of responsible officers of the
Fund and public officials. References to the Prospectus shall also include any supplements thereto
at the Settlement Date.
Schedule II
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & ▇▇▇▇▇▇▇ LLP
1. The Fund has been duly formed and is validly existing in good standing as a statutory trust
under the Delaware Statutory Trust Act (the “Delaware Act”). The Fund has the statutory trust power
and authority to own property and conduct its business as described in the Prospectus.
2. Under the Delaware Act and the Governing Instrument, the execution and delivery of the
Sales Agreement and each of the Fund Agreements by the Fund, and the performance by the Fund of its
obligations thereunder, have been duly authorized by all requisite statutory trust action on the
part of the Fund.
3. The Placement Shares have been duly authorized for issuance by the Fund and, when issued
and delivered against payment therefor in accordance with the terms, conditions, requirements and
procedures set forth in the Sales Agreement, will be validly issued and, subject to the
qualifications below, fully paid and non-assessable beneficial interests in the Series. The holders
of Placement Shares will be, subject to the terms of the Governing Instrument, entitled to the same
limitation of personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided, however, that we
express no opinion with respect to liability of any holder of Placement Shares who is, was or may
become a named Trustee of the Fund.
4. Under the Governing Instrument and the Delaware Act, the issuance of the Placement Shares
is not subject to preemptive rights.
5. The form of Placement Shares Certificate complies with all applicable requirements of the
Delaware Act.
6. No authorization, approval, consent or order of any governmental authority or agency of the
State of Delaware or, based solely on the Docket Search, an order of any Delaware Court, is
required to be obtained by the Fund solely as a result of the issuance and sale of the Placement
Shares, the consummation by the Fund of the transactions contemplated by the Sales Agreement and
the Fund Agreements or the performance by the Fund of its obligations thereunder, or the adoption
of the Dividend Reinvestment Plan.
7. The execution and delivery by the Fund of the Sales Agreement and the Fund Agreements, the
consummation by the Fund of the transactions contemplated by the Sales Agreement and the Fund
Agreements, the performance by the Fund of its obligations thereunder, the issuance and sale by the
Fund of the Placement Shares and the adoption of the Dividend Reinvestment Plan will not violate
(i) the Certificate or the Governing Instrument or (ii) any applicable Delaware law or
administrative regulation.
8. Based solely on the Docket Search, there is not in any Delaware Court any action, suit or
proceeding pending against the Fund.
Exhibit 7(l)(2)
Matters to be Covered by Subsequent Fund Counsel Opinions
The Registration Statement, when it became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission, complied as to form in all
material respects with the requirements for registration statements on Form N-2 under the
Securities Act and the rules and regulations of the Commission thereunder; it being understood,
however, that we express no opinion with respect to the financial statements, schedules or other
financial data included in, or omitted from, the Registration Statement or the Prospectus. In
passing upon the compliance as to form of the Registration Statement and the Prospectus, we have
assumed that the statements made therein are correct and complete.
The Registration Statement has become effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted by the Commission.
In addition, we have participated in conferences with officers and other representatives of
the Fund, representatives of the independent public accountants for the Fund, and your counsel and
representatives, at which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although we have not verified the accuracy or completeness of the
statements contained in the Registration Statement or the Prospectus, nothing has come to our
attention that has caused us to believe that (i) at the time the Registration Statement became
effective, the Registration Statement (other than the financial statements, including supporting
schedules and other financial and statistical information derived therefrom or included in the
Registration Statement, as to which we express no comment) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) as of its date and the date hereof the
Prospectus (except as aforesaid) contained or contains any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Exhibit 7(m)(1)
FORM OF OPINION OF ADVISER COUNSEL
1. The Adviser is a limited liability company existing and in good standing under the Delaware
Limited Liability Company Act (“DLLCA”) and is duly qualified to do business and is in good
standing in the State of Illinois. The Adviser has the limited liability company power to own and
lease its properties and to conduct its business as described in the Registration Statement and
Prospectus and to execute and deliver the Transaction Agreements. The Adviser is duly qualified to
do business as a foreign limited liability company and is in good standing in each other
jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have an Adviser Material Adverse Effect.
2. The Adviser is duly registered with the Commission as an investment adviser under the
Advisers Act and to such counsel’s knowledge is not prohibited by the Advisers Act or the
Investment Company Act from acting under the Advisory Agreement as investment adviser to the
Company, as contemplated by the Registration Statement and Prospectus. To such counsel’s
knowledge, there does not exist any proceeding or inquiry pending or threatened, which could
reasonably be expected to adversely affect the registration of the Adviser with the Commission.
3. The Adviser has duly authorized, executed and delivered the Sales Agreement, the Advisory
Agreement and the Accounting Agreement to the respective counterparties. Each of the Sales
Agreement, the Advisory Agreement and the Accounting Agreement is a valid and binding obligation of
the Adviser, and each of the Avisory Agreement and the Accounting Agreement is enforceable against
the Adviser in accordance with its terms, except: (i) as limited by the effect of bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights or remedies of creditors; and (ii) as limited by the
effect of the general principles of equity, whether enforcement is considered in proceedings in
equity or at law (including the possible unavailability of specific performance or injunctive
relief).
4. The Sales Agreement, the Advisory Agreement and the Accounting Agreement comply in all
material respects with all applicable provisions of the Advisers Act and the Investment Company
Act.
5. The description in the Prospectus of the Adviser and its business complies in all material
respects with all applicable requirements of the Securities Act and the Investment Company Act.
6. The Adviser’s execution and delivery of the Sales Agreement, the Advisory Agreement and the
Accounting Agreement do not, and the Adviser’s performance of its obligations thereunder will not
(a) violate or conflict with any existing provisions of the
Adviser’s organizational documents, (b) constitute a violation by the Adviser of any
applicable provision of any law, statute or regulation of the State of Illinois, the General
Corporation Law of the State of Delaware or the United States of America (except with respect to
compliance with any disclosure requirement or any prohibition against fraud or misrepresentation or
as to whether performance of the indemnification or contribution provisions in the Sales Agreement
would be permitted, as to which such counsel expresses no opinion for purposes of this paragraph)
or (c) breach, or result in a default under (nor constitute any event which with notice, lapse of
time or both would result in any breach or violation of or constitute a default under), the
contracts of the Adviser set forth on Exhibit A hereto (provided that such counsel
expresses no opinion with respect to any financial test or cross-default provision in any such
agreement), except for such conflicts, breaches, violations or defaults that would not have an
Adviser Material Adverse Effect.
7. Such counsel does not have actual knowledge of any action, proceeding or investigation
pending or overtly threatened in writing against the Adviser before any United States, Delaware or
Illinois court, governmental agency or arbitrator that: (a) asserts the invalidity of the Sales
Agreement, the Advisory Agreement and/or the Accounting Agreement or (b) seeks to prevent the
consummation of the transactions contemplated by the Sales Agreement.
8. Nothing has come to such counsel’s attention that has caused it to conclude that the
issuance of the Placement Shares will be subject to any contractual preemptive or similar rights.
9. Such counsel does not have actual knowledge that any provision in any Court Order (as
defined below) would be breached or otherwise violated by the Adviser’s execution or delivery of
the Sales Agreement or its performance of its obligations under the Sales Agreement, the Advisory
Agreement and the Accounting Agreement. For purposes of this opinion letter, the term “Court
Order” means a court or administrative order, writ, judgment or decree that names the Adviser
and is specifically directed to the Adviser or its property. For purposes of this opinion letter,
such counsel has not undertaken any investigation to identify Court Orders to which the Adviser may
be subject, other than to review the relevant provisions of the Adviser’s Form ADV filed with the
SEC.
10. No further consents, authorizations, approvals or filings by the Adviser are required
under any Illinois state or U.S. federal law, regulation or rule in order to perform its
obligations under the Sales Agreement, the Advisory Agreement and the Accounting Agreement.
11. To such counsel’s knowledge, there is no pending or threatened action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the
Adviser or its property of a character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there are no agreements, franchises, contracts,
indentures, mortgages, loan agreements, notes, leases, permits or other instruments that are
required to be described in the Registration Statement or the Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required by the Securities Act or the
Investment Company Act.
* * * * *
I make no representation that I have independently verified the accuracy, completeness or fairness
of the Registration Statement or Prospectus or that the actions taken in connection with the
preparation of the registration Statement or Prospectus (including the actions described in the
next paragraph) were sufficient to cause the Registration Statements or Prospectus to be accurate,
complete or fair. I am not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the Registration Statement or Prospectus except to the extent otherwise
explicitly indicated in numbered paragraphs 5 and 11 above.
I can, however, confirm that I have participated in conferences with representatives of the
Advisor during which disclosures in the Registration Statement and Prospectus and related matters
were discussed. In addition, I have reviewed certain Advisor records.
Based upon my participation in the conferences and my document review identified in the
preceding paragraph and subject to the limitations described in the preceding two paragraphs, my
understanding of applicable law and the experience I have gained thereunder, I can advise you that
nothing has come to my attention that has caused me to conclude that solely with respect to the
description of the Adviser and its business (a) the Registration Statement or any further amendment
or supplement thereto made by the Fund prior to the date hereof (other than financial statements
and related notes and other financial, statistical and accounting data included in the Registration
Statement, as to which no opinion is given) at its effective date contained an untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (b) the Prospectus or any further amendment or
supplement thereto made by the Fund prior to the date hereof (other than financial statements and
related notes and other financial, statistical and accounting data included in the Prospectus, as
to which no opinion is given) at the date it bears or on the date of this letter contained an
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading.
Exhibit A
Material Contracts
Exhibit 7(o)
FUND SECRETARY’S CERTIFICATE
I, , certify that I am the Secretary of Calamos Convertible and High Income
Fund, a Delaware statutory trust (the “Company”), and that, as such, I am authorized to execute
this certificate on behalf of the Company, and in connection with the Second Amended and Restated
Sales Agreement dated as of ___, 2010 (the “Sales Agreement”), among the Company,
Calamos Advisors LLC and JonesTrading Institutional Services LLC (“JonesTrading”), do hereby
further certify that (capitalized terms shall have the meanings ascribed to them in the Sales
Agreement):
1. Attached as Exhibit A is a true and complete copy of the Amended and Restated
Agreement and Declaration of Trust of the Company as is in full force and effect as of the date
hereof and as has been in full force and effect at all times since . No proceedings
for any amendment to such Amended and Restated Agreement and Declaration of Trust have been
instituted or are pending.
2. Attached as Exhibit B is a true and complete copy of the By-Laws of the Company as
are in full force and effect as of the date hereof and as have been in full force and effect at all
times since .
3. Attached as Exhibit C is a true copy of certain resolutions duly adopted by the
Board of Trustees of the Company on
___, 200___ and ___, 200_, authorizing, among
other things, (i) the issuance and sale of up to 6.6 million shares of the Company’s common stock,
(ii) filing a new shelf registration statement on Form N-2 with the Securities and Exchange
Commission, and (iii) the execution and delivery by the Company of the Sales Agreement. Such
resolutions have not been modified or revoked, are in full force and effect and such resolutions
are the only resolutions adopted by the Board of Trustees or any committee thereof relating to the
matters covered thereby.
4. is and has been at all times since ___, 200_, the Vice
President and Chief Financial Officer of the Company, and the signature of the above-named officer
set forth below immediately opposite his name is his true and correct signature:
| Vice President and Chief Financial Officer |
5. Attached as Exhibit D is a specimen stock certificate for the Company’s Common
Stock.
6. All comments received by the Company or its representatives, accountants or counsel from
the Securities and Exchange Commission relating to the Registration Statement (whether oral or
written) have been communicated to counsel for JonesTrading.
7. Except for any such records that are labeled or have otherwise been reasonably identified
as drafts, the corporate records of the Company that have been made available to counsel for
JonesTrading are true and complete copies thereof, and have not been modified or revoked, are in
full force and effect.
[Signature Page Follows]
IN
WITNESS WHEREOF, I have executed this Certificate as of the ___ day of , 200_.
| CALAMOS CONVERTIBLE AND HIGH INCOME FUND |
||||
| By: | ||||
| Secretary | ||||
The undersigned, being the Vice President and Chief Financial Officer of the Company, does
hereby certify that is and has been at all times since ___, 200_, a duly
elected and acting Secretary of the Company and the above signature of such officer is her true and
correct signature.
| CALAMOS CONVERTIBLE AND HIGH INCOME FUND |
||||
| By: | ||||
| Vice President and Chief Financial Officer | ||||
Exhibit 7(o)
CALAMOS ADVISORS LLC
SECRETARY’S CERTIFICATE
___, 200_
The undersigned DOES HEREBY CERTIFY that he is the duly elected, qualified and acting
authorized Secretary of Calamos Advisors LLC, a limited liability company organized and existing
under the laws of the State of Delaware (the “Company”), and as such is authorized to execute this
Secretary’s Certificate in connection with that certain Second Amended and Restated Sales Agreement
among the Adviser, Calamos Convertible and High Income Fund (the “Fund”) and JonesTrading
Institutional Services LLC, dated ___, 200___(the “Sales Agreement”). The term
“Transaction Agreements” whenever it is used in this letter means the Sales Agreement, the Advisory
Agreement and the Accounting Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings as defined in the Sales Agreement. The undersigned FURTHER
CERTIFIES that:
| 1. | Attached hereto as Exhibit A is a true, correct and complete copy of the Limited Liability Company Agreement, as amended, as in full force and effect as of the date hereof. | ||
| 2. | Attached hereto as Exhibit B is a true, correct and complete copy of the Advisory Agreement between the Company and the Fund, as amended, as in full force and effect on the date hereof. | ||
| 3. | Attached hereto as Exhibit C is a true, correct and complete copy of the Accounting Agreement, as amended, as in full force and effect on the date hereof. | ||
| 4. | The representations and warranties of the Company set forth in the Transaction Agreements are true and correct as of the date hereof. | ||
| 5. | The persons listed below are duly elected, qualified and acting authorized officers of the Company holding the respective offices set forth opposite their names below and the signature of each such person set forth opposite his or her name below is his or her genuine signature. |
| Name | Office | Signature | ||
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
President and Co-Chief Investment Officer | |||
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
Senior Vice President and General Counsel |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has caused this Secretary’s Certificate to be duly
executed as of the date first written above.
| CALAMOS ADVISORS LLC |
||||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Secretary | |||
The undersigned hereby certifies that ▇▇▇▇▇ ▇▇▇▇▇ is the duly appointed Secretary of the
Company and that the signature appearing above is ▇▇▇▇▇ ▇▇▇▇▇’▇ genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of this ___th day of .
| CALAMOS ADVISORS LLC |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Senior Vice President, Director of Operations | |||