AMENDMENT NO. 1 TO SUB-PLACEMENT AGENT AGREEMENT
ALPS DISTRIBUTORS, INC.
AMENDMENT NO. 1 TO
August 12, 2020
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Ladies and Gentlemen:
Reference is made to the Sub-Placement Agent Agreement, dated November 14, 2019 (the “Equity Distribution Agreement”), by and between UBS Securities LLC, as sub-placement agent (the “Agent”), and ALPS Distributors, Inc. (the “Distributor”), regarding the offer and sell up to 5,500,000 shares of beneficial interest, no par value, of Xxxxxx Utility Income Fund, a Delaware statutory trust, from time to time, through the Sub-Placement Agent, in transactions that are deemed to be “at the market” as defined in Rule 415 under the Securities Act of 1933, as amended.
A. Amendments to Sub-Placement Agent Agreement. The Sub-Placement Agent Agreement is amended as follows, effective as of the date hereof:
1. Section 2(a) of the Sub-Placement Agent Agreement is hereby deleted and replaced in its entirety with the following:
“Based upon representations made by the Fund to the Distributor, an “automatic shelf registration statement” as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the "Securities Act"), on Form N-2 (File No. 333-245058 and 811-21432) (the "Registration Statement") (i) has been prepared by the Fund in conformity with the requirements 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 "1940 Act") in all material respects; and (ii) has been filed with the U.S. Securities and Exchange Commission (the "Commission") under the Securities Act and the 1940 Act; the Registration Statement sets forth the terms of the offering, sale and plan of distribution of the Shares and contains additional information concerning the Fund and its business; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Fund; the Registration Statement, including any amendments thereto, became effective upon filing; no stop order of the Commission preventing or suspending the use of the Basic Prospectus (as defined herein), the Prospectus Supplement (as defined herein) or the Prospectus (as defined herein), or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Fund's knowledge, have been threatened by the Commission. Except where the context otherwise requires, "Registration Statement," as used herein, means, collectively, the various parts of the registration statement, as amended at the time of effectiveness for purposes of Section 11 of the Securities Act (the "Effective Time"), as such section applies to the Distributor, as well as any new registration statement, post-effective amendment or new shelf registration statement relating to the Shares, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Securities Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Distributor, and (3) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act. "Basic Prospectus," as used herein, means the final prospectus filed as part of the Registration Statement, including the related statement of additional information, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, "Prospectus Supplement," as used herein, means the final prospectus supplement, including the related statement of additional information, relating to the Shares, filed by the Fund with the Commission pursuant to Rule 424(b) under the Securities Act, in the form furnished by the Fund to the Distributor in connection with the offering of the Shares. Except where the context otherwise requires, "Prospectus," as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein.”
2. The following is hereby added as a new Section 2(j) of the Sub-Placement Agent Agreement:
“Based upon representations made by the Fund to the Distributor, prior to the execution of this Agreement, the Fund has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” or “free writing prospectus” (in each case within the meaning of the Securities Act) or used any “prospectus” or “free writing prospectus” (in each case within the meaning of the Securities Act) in connection with the offer or sale of the Shares, and from and after the execution of this Agreement, the Fund will not, directly or indirectly, offer or sell any Shares by means of any “prospectus” or “free writing prospectus” (in each case within the meaning of the Securities Act) or use any “prospectus” or “free writing prospectus” (in each case within the meaning of the Securities Act) in connection with the offer or sale of the Shares, other than the Prospectus, as amended or supplemented from time to time in accordance with the provisions of this Agreement; and the Fund is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.”
B. No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Sub- Placement Agent Agreement shall continue in full force and effect.
C. Counterparts. This Amendment may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties.
D. Governing Law. This Amendment and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Amendment, directly or indirectly, shall be governed by, and construed in accordance with, the internal laws of the State of New York.
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If the foregoing correctly sets forth the understanding between us, please so indicate in the space provided below for that purpose.
| Very truly yours, | |||
| ALPS DISTRIBUTORS, INC. | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | ||
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Name: Xxxxxxx X. Xxxxxxx Title: Director, President & Chief Operating Officer |
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| ACCEPTED as of the date first above written: | |||
| UBS SECURITIES LLC | |||
| By: | /s/ Xxxxxx Xxxxxxxx | ||
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Name: Xxxxxx Xxxxxxxx Title: Managing Director |
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| By: | /s/ Xxxxxxx XxXxxxx | ||
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Name: Xxxxxxx XxXxxxx Title: Associate Director |
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[Signature Page to Amendment No. 1 to Sub-Placement Agent Agreement]
