GUGGENHEIM STRATEGIC OPPORTUNITIES FUND COMMON SHARES (PAR VALUE $0.01 PER SHARE) FIRST AMENDMENT TO CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT February 1, 2021
COMMON SHARES (PAR VALUE $0.01 PER SHARE)
FIRST AMENDMENT
TO
CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT
February 1, 2021
THIS FIRST AMENDMENT (this “Amendment”) to the Sales Agreement (defined below) is entered into on and as of February
1, 2021, by and among Guggenheim Strategic Opportunities Fund, a statutory trust organized under the laws of the State of Delaware (the “Fund”), Guggenheim Funds Investment Advisors, LLC,
a Delaware limited liability company (the “Adviser”) and Cantor Xxxxxxxxxx & Co. (“CF&Co”, and together with the Fund
and Adviser, the “Parties”). Capitalized terms used and not defined in this Amendment have the meanings ascribed thereto in the Sales Agreement.
WHEREAS, the Parties entered into that certain Controlled Equity OfferingSM Sales Agreement, dated July 1, 2019 (the “Sales Agreement”), with respect to the issuance and sale of up to 11,250,000 shares of the Fund’s common shares of
beneficial interest, par value $0.01 per share, in at-the-market public offerings through the Agent; and
WHEREAS, the Parties desire to amend the Sales Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. The first sentence of Section 1 of the Sales Agreement is hereby amended and
replaced in its entirety with the following:
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 sell through CF&Co, acting as
agent and/or principal, the Fund’s common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), having an aggregate initial offering price of up to $159,724,117 (the “Placement Shares”), as the Fund and CF&Co shall mutually agree from time to time.
2. The first sentence of Section 7(n) of the Sales Agreement is hereby amended by
replacing the reference to “Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP” with “Dechert LLP”.
3. Section 12 of the Sales Agreement is hereby amended and replaced in its entirety
with the following:
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, unless otherwise
specified, and if sent to CF&Co, shall be delivered to:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Managing Director
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Managing Director
Facsimile: (000) 000-0000
and
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Hunton Xxxxxxx Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxxxxx and Xxxx Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxxxxx and Xxxx Xxxxxx
and if sent to the Fund, shall be delivered to:
Guggenheim Strategic Opportunities Fund
c/o Guggenheim Funds Investment Advisors, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxx X. Xxx, Chief Legal Officer
c/o Guggenheim Funds Investment Advisors, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxx X. Xxx, Chief Legal Officer
with a copy (which shall not constitute notice) to:
Dechert LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Dechert LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
and if sent to the Adviser, shall be delivered to:
Guggenheim Funds Investment Advisors, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxx X. Xxx, Senior Managing Director.
Guggenheim Funds Investment Advisors, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, 00000
Attention: Xxx X. Xxx, Senior Managing Director.
4. The second sentence of Section 17 of the Sales Agreement is hereby amended and
restated in its entirety with the following:
THE FUND HAS APPOINTED DECHERT LLP, WASHINGTON, DC, AS ITS AUTHORIZED AGENT (THE “AUTHORIZED AGENT”) UPON
WHOM PROCESS MAY BE SERVED IN ANY SUCH ACTION ARISING OUT OF OR BASED ON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY WHICH MAY BE INSTITUTED IN
ANY NEW YORK COURT BY CF&CO OR BY ANY PERSON WHO CONTROLS CF&CO, EXPRESSLY CONSENTS TO THE JURISDICTION OF ANY SUCH COURT IN RESPECT OF ANY SUCH ACTION, AND WAIVES ANY OTHER REQUIREMENTS OF OR OBJECTIONS TO PERSONAL JURISDICTION WITH
RESPECT THERETO.
5. Each of the Fund and the Adviser represent to CF&Co that it has duly
authorized, executed and delivered this Amendment.
6. Except as modified and amended in this Amendment, the Sales Agreement shall
remain in full force and effect.
7. This Amendment shall be governed by and construed in accordance with the law
governing the Sales Agreement.
8. This Amendment may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed as of the date first above written.
Very truly yours,
By: _______________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
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GUGGENHEIM FUNDS INVESTMENT ADVISORS, LLC
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By: _______________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
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ACCEPTED, as of the date first-above written:
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CANTOR XXXXXXXXXX & CO.
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By: _______________________________
Name: Xxxxxx Xxxxxxx
Title: Managing Director
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