Execution Copy
ENERGY INCOME AND GROWTH FUND
UP TO 1,000,000 COMMON SHARES OF BENEFICIAL INTEREST
CAPITAL ON DEMAND(TM)
SALES AGREEMENT
May 19, 2009
JONESTRADING INSTITUTIONAL SERVICES LLC
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Energy Income and Growth Fund, a Massachusetts business trust (the
"FUND"), First Trust Advisors L.P., an Illinois limited partnership (the
"ADVISER") and Energy Income Partners LLC, a Delaware limited liability company
(the "SUB-ADVISER"), confirm their agreement (this "AGREEMENT") with
JonesTrading Institutional Services LLC ("XXXXX"), 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 Xxxxx, acting as agent and/or principal,
up to one million (1,000,000) of the Fund's common shares of beneficial
interest, $0.01 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 Xxxxx
shall have no obligation in connection with such compliance. The issuance and
sale of Shares through Xxxxx 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 an investment management agreement with the
Adviser dated June 24, 2004 (the "ADVISORY AGREEMENT"), a Custodian Services
Agreement with PFPC Trust Company (the "CUSTODIAN") dated May 25, 2004 (the
"CUSTODIAN Contract"), a Transfer Agency Agreement with PFPC Inc. dated May 25,
2004 (the "TRANSFER AGENCY AGREEMENT") and an Administration and Accounting
Services Agreement with PFPC Inc. dated May 25, 2004 (the "ADMINISTRATION
AGREEMENT"). Collectively, the Advisory Agreement, the Custodian Contract, the
Transfer Agency Agreement and the Administration Agreement are herein referred
to as the "FUND AGREEMENTS." The Adviser has entered into the Advisory Agreement
and a Sub-Advisory Agreement with the Sub-Adviser dated January 8, 2008 (the
"SUB-ADVISORY AGREEMENT") (collectively, the "ADVISER AGREEMENTS"). The
Sub-Adviser has entered into the Sub-Advisory Agreement and this Agreement. In
addition, the Fund has adopted a dividend reinvestment plan (the "DIVIDEND
REINVESTMENT PLAN") pursuant to which the holders of Shares shall have their
dividends automatically reinvested in additional Shares unless they elect to
receive such dividends in cash.
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.
333-154254 and 811-21549) (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 Xxxxx, for use by Xxxxx, 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 Interactive
Data Electronic Application database. For purposes of this Agreement, all
references to the Registration Statement, unless otherwise noted and except as
the context otherwise requires, shall be deemed to include any and all
amendments thereto.
2. Placements. Each time that the Fund wishes to issue and sell Shares hereunder
(each, a "PLACEMENT"), it will notify Xxxxx 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, any minimum price
below which sales may not be made and the discount, commission or other
compensation to be paid by the Fund to Xxxxx,(excluding the Reimbursable Amounts
(as defined in Section 7(e) herein) (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
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individuals from the Fund listed on such schedule), and shall be addressed to
each of the individuals from Xxxxx 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 Xxxxx unless and until (i) in accordance with the notice requirement
set forth in Section 4, Xxxxx 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 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 Xxxxx in connection with the sale
of the Placement Shares shall be calculated in accordance with the terms set
forth in Schedule 2, unless superceded by the terms and conditions as set forth
in the applicable Placement Notice. It is expressly acknowledged and agreed that
neither the Fund nor Xxxxx will have any obligation whatsoever with respect to a
Placement or any Placement Shares unless and until the Fund delivers a Placement
Notice to Xxxxx and Xxxxx 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 Xxxxx. 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, Xxxxx, 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. Xxxxx 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 Xxxxx (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 Xxxxx intends to sell the Placement Shares in privately
negotiated transactions and/or any other method permitted by law, including
sales made directly on the NYSE Amex (formerly, the American 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. As the Fund's agent with respect to any such sale,
Xxxxx covenants that it will comply with all prospectus delivery requirements
imposed under applicable federal and state securities laws. The Fund, the
Adviser and Sub-Adviser each acknowledge and agree that (i) there can be no
assurance that Xxxxx will be successful in selling Placement Shares, and (ii)
Xxxxx will not incur any liability or obligation to the Fund, the Adviser, the
Sub-Adviser or any other person or entity if it does not sell Placement Shares
for any reason other than a failure by Xxxxx 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 Xxxxx may, upon notice to the other party in
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writing (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 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) Xxxxx'x commission, discount or other
compensation for such sales payable by the Fund pursuant to Section 2 hereof (or
as otherwise agreed to in writing as set forth in the Placement Notice), (ii)
Reimbursable Amounts, due and payable by the Fund to Xxxxx hereunder pursuant to
Section 7(e) hereof, 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 Xxxxx'x 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, Xxxxx
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 Xxxxx
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 Xxxxx any commission, discount, or other
compensation to which it would otherwise have been entitled absent such default.
6. Representations and Warranties of the Fund, the Adviser and the Sub-Adviser.
(a) Representations and Warranties by the Fund, the Adviser and the Sub-Adviser.
The Fund, the Adviser and (with respect to paragraphs (ii) and (xx) below only)
the Sub-Adviser, jointly and severally, represent and warrant to and agree with
Xxxxx as of the date hereof and as of each Representation Date (as defined in
Section 7(j) below) as follows:
(i) The Registration Statement has been declared effective by the
Commission under the Securities Act. Each Prospectus included as part
of the Registration Statement as originally filed or as part of any
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amendment or supplement thereto or filed pursuant to Rule 497 of the
Securities Act complied when so filed in all material respects with the
provisions of the Securities Act and the Investment Company Act. The
Commission has not issued any order preventing or suspending the use of
the Prospectus or the effectiveness of the Registration Statement and
no proceedings for such purpose have been instituted or, to the
knowledge of the Fund, are contemplated by the Commission.
(ii) (A) The Registration Statement in the form in which it
became effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and as of the
date hereof, as of the time of each sale of Placement Shares pursuant
to this Agreement (the "APPLICABLE TIME") and as of each Settlement
Date, and (B) the Prospectus and any amendment or supplement thereto
when filed with the Commission under Rule 497 of the Securities Act and
any amendment or supplement thereto when filed with the Commission and
as of the date hereof, as of each Applicable Time and as of each
Settlement Date, complied or will comply in all material respects with
the provisions of the Securities Act and the Investment Company Act,
and each of the Registration Statement and the Prospectus did not or
will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading; except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement and
the Prospectus made in reliance upon and in conformity with information
relating to Xxxxx furnished to the Fund in writing by or on behalf of
Xxxxx expressly for use therein.
(iii) All the outstanding shares of capital stock of the Fund
have been duly authorized and validly issued, are fully paid and
(except as described in the Prospectus under "Certain Provisions in the
Declaration of Trust") nonassessable and are free of any preemptive or
similar rights and have been offered and sold by the Fund in compliance
with all applicable federal and state securities laws. No shares of
capital stock, other than common shares of beneficial interest of the
Fund, are issued or outstanding and the capitalization of the Fund
conforms in all material respects to the description thereof in the
Registration Statement and the Prospectus. The Placement Shares have
been duly authorized for issuance and sale pursuant to this Agreement
and, when issued, delivered against payment therefore in accordance
with this Agreement, will be validly issued and fully paid and
nonassessable obligations of the Fund; and the Placement Shares will
conform in all material respects to the description thereof in the
Registration Statement and the Prospectus.
(iv) The Fund has been duly formed and is validly existing in
good standing as a business trust under the laws of The Commonwealth of
Massachusetts, 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 and to enter into and perform
its obligations under this Agreement and the Fund Agreements. The Fund
is duly registered and qualified to conduct business and is in good
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standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify,
either alone or in the aggregate, does not have or would not reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), general affairs, business, properties,
business prospects, net assets or results of operations of the Fund,
whether or not occurring in the ordinary course of business (a "FUND
MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending
or, to the knowledge of the Fund, threatened against the Fund or to
which the Fund or any of its properties is subject, that are required
to be described in the Registration Statement or the Prospectus but are
not described as required or that could reasonably be expected to
result in a Fund Material Adverse Effect, or that may have a material,
adverse effect on the ability of the Fund to perform its obligations
under this Agreement or any of the Fund Agreements. All descriptions in
the Registration Statement and the Prospectus of any Fund documents are
accurate in all material respects. There are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement or 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 Investment
Company Act.
(vi) The Fund is not in violation of its Declaration of Trust
("DECLARATION OF TRUST"), bylaws or other organizational documents or
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 national securities exchange, any arbitrator, any court
or any other governmental, regulatory, self-regulatory or
administrative agency or any other agency or any body or official
having jurisdiction over the Fund or in breach or default in the
performance of any of the Fund Agreements or any other obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in 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, except for such violation or such breach
or default that, either alone or in the aggregate, does not have or
would not reasonably be expected to have a Fund Material Adverse
Effect.
(vii) Neither the issuance and sale of the Placement Shares,
the execution, delivery or performance of this Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or order of or registration or filing with the
Commission, FINRA, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Fund (except such as have been already
obtained under the Securities Act, the Investment Company Act, the
rules and regulations of FINRA and the NYSE Amex or compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement) or conflicts or
will conflict with or constitutes or will constitute a breach of the
Declaration of Trust, bylaws, or other organizational documents of the
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Fund or (B) (1) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under any of the Fund Agreements or
any other 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
(2) 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 (collectively, a "LIEN") any property
or assets of the Fund pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Fund is subject, except for
such conflict, breach, default, violation or lien that, either alone or
in the aggregate, does not have or would not reasonably be expected to
have a Fund Material Adverse Effect or a material adverse effect on the
ability of the Fund to perform its obligations under this Agreement or
any of the Fund Agreements. The Fund is not subject to any order of any
court or of any arbitrator, governmental authority or administrative
agency.
(viii) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Fund or business prospects (other than as a result of
a change in the financial markets generally) of the Fund, whether or
not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Fund other than those in the ordinary
course of its business as described in the Prospectus and (C) there has
been no dividend or distribution of any kind declared, paid or made by
the Fund on any class of its common stock, except for regular dividends
consistent with past practice.
(ix) The accountants, Deloitte & Touche LLP, who have audited
the financial statements included in, and whose report appears in, the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), are an independent public accounting
firm as required by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with
related schedules and notes, included or incorporated by reference in
the Registration Statement or the Prospectus present fairly the
financial position of the Fund on the basis stated in the Registration
Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except
as disclosed therein and comply with all applicable accounting
requirements under the Securities Act and the Investment Company Act;
and the other financial and statistical information and data included
in the Registration Statement or the Prospectus are accurately derived
from such financial statements and the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under
Rule 497 under the Securities Act, has taken all required action under
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the Securities Act and the Investment Company Act to make the public
offering and consummate the sale of the Placement Shares as
contemplated by this Agreement.
(xii) 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 each of the Fund Agreements have been duly executed and delivered
by the Fund and each constitutes the valid and legally binding
agreement of the Fund, enforceable against the Fund in accordance with
its terms, except as rights to indemnity and contribution hereunder 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 and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(xiii) Except as disclosed in or contemplated by the
Registration Statement or the Prospectus, subsequent to the respective
dates as of which such information is given in the Registration
Statement and the Prospectus, the Fund has not incurred any material
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, and there has not
been any change in the capital stock (other than in connection with the
transactions contemplated hereunder or pursuant to the Fund's dividend
reinvestment plan) or any change or any development involving or which
should reasonably be expected to involve a Fund Material Adverse Effect
or its capitalization, or the incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to
occur of (A) the applicable Settlement Date and (B) completion of the
distribution of the Placement Shares contemplated by the applicable
Placement Notice, 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"
(as defined in Section 6(xx) below) or other materials permitted by the
Securities Act or the Investment Company Act.
(xv) 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 rights of the Fund under any such permit, subject in
each case to such qualification as may be set forth in the Prospectus
(and any amendment or supplement thereto); and, except as described in
the Prospectus (and any amendment or supplement thereto), none of such
permits contains any restriction that is materially burdensome to the
Fund.
(xvi) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with the Fund's Board of
Trustees' general or specific authorization and with the investment
policies and restrictions of the Fund and the applicable requirements
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of the Securities Act, the Investment Company Act and the Internal
Revenue Code of 1986, as amended, (the "CODE"); (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate
net asset value and fee accruals, to maintain accountability for assets
and to maintain compliance with the books and records requirements
under the Investment Company Act; (C) access to assets is permitted
only in accordance with the Board of Trustees' general or specific
authorization; and (D) the recorded amount of assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Fund maintains "disclosure
controls and procedures" (as such term is defined in Rule 30a-3 under
the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service marks or
trade names which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus,
the Fund has not taken and will not take, directly or indirectly, any
action designed to or which could cause or result in or which will
constitute stabilization or manipulation of the price of the Placement
Shares, or of any securities issued by the Fund, to facilitate the sale
or resale of the Placement Shares in violation of federal securities
laws and no such action has been, or will be, taken by any affiliates
of the Fund.
(xix) The Fund is duly registered under the Investment Company
Act as a closed-end, non-diversified management investment company and
the notification of registration of the Fund as an investment company
under the Investment Company Act on Form N-8A has been duly filed with
the Commission, is effective, and, at the time of filing thereof and at
all times through the date hereof conformed in all material respects
with all applicable provisions of the Investment Company Act; no order
of suspension or revocation of such registration under the Investment
Company Act has been issued or proceedings therefor initiated or
threatened by the Commission. The provisions of the Declaration of
Trust and the investment policies and restrictions described in each of
the Registration Statement and the Prospectus, comply in all material
respects with the requirements of the Investment Company Act.
(xx) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), if any, 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. 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.
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(xxi) This 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 the Advisers Act.
(xxii) No holder of any security of the Fund has any right to
require registration of any Shares, capital stock or any other security
of the Fund because of the filing of the registration statement or
consummation of the transactions contemplated by this Agreement.
(xxiii) Except as disclosed in the Registration Statement and the
Prospectus, no trustee of the Fund is an "interested person" (as
defined in the Investment Company Act) of the Fund or an "affiliated
person" (as defined in the Investment Company Act) of Xxxxx.
(xxiv) The Placement Shares are duly listed and admitted and
authorized for trading, subject to official notice of issuance, on the
NYSE Amex.
(xxv) All of the information provided to Xxxxx or to counsel
for Xxxxx 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 in all
material respects.
(xxvi) 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
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "SARBANES OXLEY ACT"), including Sections 302
and 906 related to certifications.
(xxvii) 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.
(xxviii) 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.
(xxix) The Fund carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its
business and value of its properties.
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(b) Representations and Warranties with Respect to the Adviser. The Adviser
represents and warrants to and agrees with Xxxxx as of the date hereof and as of
each Representation Date (as defined in Section 7(j) below) as follows:
(i) The Adviser is a limited partnership duly organized and
validly existing in good standing under the laws of the State of
Illinois, with full power and authority to own, lease and operate its
properties and to conduct its business as described in each of the
Registration Statement and the Prospectus and is duly registered and
qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or conduct of
its business requires such registration or qualification, except where
the failure so to register or to qualify, either alone or in the
aggregate, does not have or would not reasonably be expected to have
(A) a material adverse effect on the condition (financial or other),
general affairs, business, properties, business prospects, net assets
or results of operations, whether or not occurring in the ordinary
course of business, of the Adviser (an "ADVISER MATERIAL ADVERSE
EFFECT") or (B) a Fund Material Adverse Effect.
(ii) The Adviser is duly registered with the Commission 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 for the Fund as contemplated by the Registration
Statement or the Prospectus. There does not exist any proceeding which
could have an Adviser Material Adverse Effect with respect to the
registration of the Adviser with the Commission.
(iii) There are no legal or governmental proceedings pending
or, to the knowledge of the Adviser, threatened against the Adviser
that are required to be described in the Registration Statement or the
Prospectus but are not described as required or that could reasonably
be expected to result in any Adviser Material Adverse Effect or that
may have a material, adverse effect on the ability of the Adviser to
perform its obligations under this Agreement or any of the Adviser
Agreements.
(iv) Neither the execution, delivery or performance of this
Agreement or any of the Adviser Agreements by the Adviser, nor the
consummation by the Adviser of the transactions contemplated hereby or
thereby (A) requires the Adviser to obtain any consent, approval,
authorization or other order of, or registration or filing with, the
Commission, FINRA, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Adviser, or conflicts or will conflict
with or constitutes or will constitute a breach of or a default under,
the partnership agreement or bylaws or other organizational documents
of the Adviser or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any of the Adviser
Agreements or any other agreement, indenture, lease or other instrument
to which the Adviser is a party or by which the Adviser or any of its
properties may be bound, or violates or will violate any statute, law,
regulation 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
11
instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Adviser is subject, except
in any case under clause (B) for such conflict, breach, default,
violation or lien that, either alone or in the aggregate, does not have
or would not reasonably be expected to have an Adviser Material Adverse
Effect or a material adverse effect on the ability of the Adviser to
perform its obligations under this Agreement or any of the Adviser
Agreements. The Adviser is not subject to any order of any court or of
any arbitrator, regulatory body, administrative agency or other
governmental body, agency or official.
(v) The Adviser has full power and authority to enter into
this Agreement and each of the Adviser Agreements; the execution and
delivery of, and the performance by the Adviser of its obligations
under, this Agreement and each of the Adviser Agreements have been duly
and validly authorized by the Adviser; and this Agreement and each of
the Adviser Agreements 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 hereunder 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, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles whether enforcement is considered in a proceeding
in equity or at law.
(vi) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus or under this Agreement and
each of the Adviser Agreements.
(vii) The description of the Adviser in the Registration
Statement or the Prospectus complied as of any effective date of the
Registration Statement and as of the date of the Prospectus, as
applicable, and complies and will comply, as of the date hereof, each
Applicable Time and each Settlement Date, 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 required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading.
(viii) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated
therein, there has not occurred any event which would reasonably be
expected to have a material adverse effect on the ability of the
Adviser to perform its obligations under this Agreement and each of the
Adviser Agreements.
(ix) The Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus; and the Adviser has fulfilled and performed all its
material obligations with respect to such permits and no event has
12
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of
the rights of the Adviser under any such permit.
(x) None of this Agreement nor any of the Adviser Agreements
violate any applicable provisions of the Investment Company Act and
Advisers Act.
(xi) Except as stated in this Agreement, the Registration
Statement or the Prospectus, the Adviser has not taken and will not
take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Placement Shares or
any securities issued by the Fund to facilitate the sale or resale of
the Placement Shares in violation of federal securities laws and the
Adviser is not aware of any such action taken or to be taken by any
affiliates of the Adviser
(xii) 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.
(c) Representations and Warranties with Respect to the Sub-Adviser. The
Sub-Adviser represents and warrants to and agrees with Xxxxx as of the date
hereof and as of each Representation Date (as defined in Section 7(j) below) as
follows:
(i) The Sub-Adviser is a limited liability company duly
organized and validly existing in good standing under the laws of the
State of Delaware, with full limited liability company power and
authority to own, lease and operate its properties and to conduct its
business as described in each of the Registration Statement and the
Prospectus and is duly registered and qualified to conduct business and
is in good standing in each jurisdiction or place where the nature of
its properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify,
either alone or in the aggregate, does not have or would not reasonably
be expected to have (A) a material adverse effect on the condition
(financial or other), general affairs, business, properties, business
prospects, net assets or results of operations of the Sub-Adviser (a
"SUB-ADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse
Effect.
(ii) The Sub-Adviser is duly registered with the Commission 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
Sub-Advisory Agreement for the Fund as contemplated by the Registration
Statement or the Prospectus. There does not exist any proceeding which
could have a Sub-Adviser Material Adverse Effect with respect to the
registration of the Sub-Adviser with the Commission.
(iii) There are no legal or governmental proceedings pending
or, to the knowledge of the Sub-Adviser, threatened against the
Sub-Adviser that are required to be described in the Registration
Statement or the Prospectus but are not described as required or that
could result in a Sub-Adviser Material Adverse Effect or that may have
13
a material, adverse effect on the ability of the Sub-Adviser to perform
its obligations under this Agreement or the Sub-Advisory Agreement.
(iv) Neither the execution, delivery or performance of this
Agreement or the Sub-Advisory Agreement by the Sub-Adviser, nor the
consummation by the Sub-Adviser of the transactions contemplated hereby
or thereby (A) requires the Sub-Adviser to obtain any consent,
approval, authorization or other order of, or registration or filing
with, the Commission, FINRA, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory
body, administrative agency or other governmental body, agency or
official having jurisdiction over the Sub-Adviser, or conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, the limited liability company agreement or bylaws or
other organizational documents of the Sub-Adviser or (B) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the Sub-Advisory Agreement or any other agreement,
indenture, lease or other instrument to which the Sub-Adviser is a
party or by which the Sub-Adviser or any of its properties may be
bound, or violates or will violate any statute, law, regulation or
judgment, injunction, order or decree applicable to the Sub-Adviser or
any of its properties or will result in the creation or imposition of
any lien upon any property or assets of the Sub-Adviser pursuant to the
terms of any agreement or instrument to which it is a party or by which
it may be bound or to which any of the property or assets of the
Sub-Adviser is subject, except in any case under clause (B) for such
conflict, breach, default, violation or lien that, either alone or in
the aggregate, does not have or would not reasonably be expected to
have a Sub-Adviser Material Adverse Effect or a material adverse effect
on the ability of the Sub-Adviser to perform its obligations under this
Agreement or the Sub-Advisory Agreement. The Sub-Adviser is not subject
to any order of any court or of any arbitrator, regulatory body,
administrative agency or other governmental body, agency or official.
(v) The Sub-Adviser has full power and authority to enter
into this Agreement and the Sub-Advisory Agreement; the execution and
delivery of, and the performance by the Sub-Adviser of its obligations
under, this Agreement and the Sub-Advisory Agreement have been duly and
validly authorized by the Sub-Adviser; and this Agreement and the
Sub-Advisory Agreement have been duly executed and delivered by the
Sub-Adviser and constitute the valid and legally binding agreements of
the Sub-Adviser, enforceable against the Sub-Adviser in accordance with
their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Sub-Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles whether enforcement is considered in a proceeding
in equity or at law.
(vi) The Sub-Adviser has the financial resources necessary for
the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus or under this Agreement and
the Sub-Advisory Agreement.
14
(vii) The description of the Sub-Adviser in the Registration
Statement or the Prospectus complied as of any effective date of the
Registration Statement and as of the date of the Prospectus, as
applicable, and complies and will comply, as of the date hereof, each
Applicable Time and each Settlement Date, in all material respects with
the provisions of the Securities Act, Investment Company Act and the
Advisers Act did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading.
(viii) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated
therein, there has not occurred any event which would reasonably be
expected to have a material adverse effect on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement.
(ix) The Sub-Adviser has such permits as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; and the Sub-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 impairment of
the rights of the Sub-Adviser under any such permit.
(x) None of this Agreement nor the Sub-Advisory Agreement
violates any applicable provisions of the Investment Company Act and
the Advisers Act.
(xi) Except as stated in this Agreement, the Registration
Statement or the Prospectus (or in any amendment or supplement to any
of the foregoing), the Sub-Adviser has not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Placement Shares or
of any securities issued by the Fund to facilitate the sale or resale
of the Placement Shares in violation of federal securities laws and the
Sub-Adviser is not aware of any such action taken or to be taken by any
affiliates of the Sub-Adviser.
(xii) The Sub-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.
(d) 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 Xxxxx
pursuant to Section 12 of this Agreement and delivered to the representatives or
to counsel for Xxxxx shall be deemed a representation and warranty by the Fund
or the Adviser, as the case may be, to Xxxxx as to the matters covered thereby.
15
7. Covenants of the Fund, the Adviser and the Sub-Adviser. The Fund, the Adviser
and (with respect to subsection (e), (h), (j), (l(ii)), (n), (t) and (v) below
only, and only as they relate to the Sub-Adviser) the Sub-Adviser, jointly and
severally, covenant and agree with Xxxxx that:
(a) The Fund will promptly advise Xxxxx (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 Xxxxx 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 Xxxxx 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
Xxxxx 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 Xxxxx 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 Amex 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 Xxxxx 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.
16
(c) During any period in which the Prospectus relating to the Placement Shares
is required to be delivered by Xxxxx 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 Amex and to qualify, if
necessary, the Placement Shares for sale under the securities laws of such
United States jurisdictions as Xxxxx reasonably designates and to continue 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) As soon as practicable, but in no event later than the last day of the 18th
full calendar month following the calendar quarter in which the effective date
of the Registration Statement falls, the Fund will make generally available to
its security holders an earnings statement, which need not be audited, which
earnings statement shall satisfy the provisions of Section 11(a) and Rule 158 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 reasonable fees and expenses of the Fund's counsel, Xxxxx'
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 or Xxxxx 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, including, if requested by Xxxxx, the preparation
by counsel for Xxxxx and printing of a "Blue Sky Survey" or other memorandum,
and any supplements thereto, advising Xxxxx of such qualifications,
registrations and exemptions, (vii) the fees and expenses associated with
listing the Placement Shares on the NYSE Amex, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to Xxxxx in connection
with, 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. Except as provided in Sections 7(e)(iv), (vi) and
(viii) above with respect to Xxxxx (collectively, the "REIMBURSABLE AMOUNTS"),
the aggregate amount of any discount, commission or other compensation to be
paid by the Fund to Xxxxx in connection with Xxxxx' performance of its
obligations under this Agreement shall be as set forth on Schedule 2 attached
hereto (or as otherwise agreed to in writing as set forth in the Placement
Notice). The Fund shall pay to Xxxxx the Reimbursable Amounts in addition to
such discount, commissions and other compensation payable to Xxxxx as
contemplated by Schedule 2 (or as otherwise agreed to in writing as set forth in
the Placement Notice). Each of the Adviser and Sub-Adviser, severally, agree to
pay all costs, fees and expenses of its respective counsel.
17
(f) The Fund will use the Net Proceeds as described in the Prospectus.
(g) The Fund will, at any time during the term of this Agreement, as
supplemented from time to time, advise Xxxxx 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 Xxxxx pursuant to this Agreement.
(h) The Fund will cooperate with any due diligence review conducted by Xxxxx or
its agents, including, without limitation, providing information and making
available documents and senior corporate officers, as Xxxxx 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(h) will include during
the term of this Agreement (x) a bring-down diligence conference among Xxxxx and
certain officers of the Fund's operations or legal departments upon the issuance
by the Fund of a Placement Notice and (y) a quarterly diligence conference to
occur within three business days 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, the Adviser
and the Sub-Adviser will make their senior corporate officers, including
portfolio managers, available to address certain diligence inquiries of Xxxxx
and will provide such additional information and documents as Xxxxx may
reasonably request.; provided, however that, notwithstanding anything to the
contrary in this Section 7(h), 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.
(i) 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 Xxxxx, the Net
Proceeds to the Fund and the compensation payable by the Fund to Xxxxx 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.
(j) 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, sticker, or supplement (other than a
Prospectus Supplement filed in accordance with Section 7(i) of this Agreement),
or (iii) files a Report (to the extent not already covered by subsection (i) or
(ii) of this Section 7(j)), each of the Fund, the Adviser and Sub-Adviser shall
furnish Xxxxx with a certificate, in the form attached hereto as Exhibit 7(j).
(Each date contemplated in subsections (i), (ii) and (iii) of this Section 7(j)
is referred to herein as the "REPRESENTATION DATE"). With respect to
post-effective amendments to the Registration Statement contemplated by this
Section 7(j), the Representation Date shall be the date the Commission declares
such amendment effective and all Representation Date deliveries relating thereto
18
which are required by Section 7 shall be delivered on or as promptly as
practicable following the date of effectiveness of such amendment.
(k) Except as otherwise provided in the last sentence of this Section 7(k), on
the date hereof and thereafter as of each Representation Date, the Fund shall
cause to be furnished to Xxxxx with a written opinion of Xxxxxxx and Xxxxxx LLP
(the "FUND COUNSEL"), dated the Representation Date, in substantially the form
attached hereto as Exhibit 7(k)(1), 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 Xxxxx with
a letter to the effect that Xxxxx may rely on a prior opinion delivered under
this Section 7(k) 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 Massachusetts law, Fund Counsel will be
permitted to rely on the opinion of Xxxxxxx XxXxxxxxx LLP. In the event that a
Representation Date is triggered by the filing of a Report, only the opinion
identified in Exhibit 7(k)(2) shall be required.
(l) (i) Except as otherwise provided in the last sentence of this Section 7(i),
on the date hereof and thereafter as of each Representation Date, the Adviser
shall cause to be furnished to Xxxxx with a written opinion of Xxxxxxx and
Xxxxxx LLP (the "ADVISER COUNSEL"), dated the Representation Date, in
substantially the form attached hereto as Exhibit 7(l)(i), 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 Xxxxx with a letter to the effect that Xxxxx may rely on a
prior opinion delivered under this Section 7(l)(i) 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(l)(i) shall be required.
(ii) Except as otherwise provided in the last
sentence of Section 7(l)(ii), on the date hereof and
thereafter as of each Representation Date, the Sub-Adviser shall cause to be
furnished to Xxxxx with a written opinion of Dechert LLP (the "SUB-ADVISER
COUNSEL"), dated the Representation Date, in substantially the form attached
hereto as Exhibit 7(l)(ii), 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 Xxxxx with
a letter to the effect that Xxxxx may rely on a prior opinion delivered under
this Section 7(l)(ii) 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 in this Section
7(1)(ii) shall be required.
(m) On the date hereof and each date on which a Report is filed, or during
any period in which the Prospectus relating to the Placement Shares is
required to be delivered by Xxxxx, each time that the Registration
Statement is amended or the Prospectus supplemented to include
19
additional financial statements, the Fund shall cause its independent
accountants to furnish Xxxxx letters (the "COMFORT LETTERS"), dated the
date of each such date, in form and substance satisfactory to Xxxxx,
(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").
(n) On the date hereof and thereafter as of each Representation Date, each
of the Fund, the Adviser and the Sub-Adviser shall furnish Xxxxx with a
certificate of its respective Secretary, in form and substance
reasonably satisfactory to Xxxxx.
(o) Each Placement Notice issued by the Fund to Xxxxx 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.
(p) The Fund (including its agents and representatives, other than Xxxxx 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.
(q) 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.
(r) Without the written consent of Xxxxx, 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 Xxxxx 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; 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.
20
(s) The Fund will furnish to Xxxxx 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 Xxxxx may from time
to time reasonably request.
(t) Each of the Fund, the Adviser and Sub-Adviser acknowledges and agrees
that Xxxxx has informed the Fund that Xxxxx 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 Xxxxx
and (ii) no such purchases or sales shall take place while a Placement
Notice is in effect (except to the extent Xxxxx may engage in sales of
Placement Shares (A) purchased or deemed purchased from the Fund as a
"riskless principal" or in a similar capacity or (B) with respect to
errors that cause Xxxxx to take an unplanned principal positions, in
each case to the extent such sales are permitted under the Securities
Act, the Securities Exchange Act of 1934, as amended, and the
Investment Company Act).
(u) 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 Xxxxx; PROVIDED, HOWEVER, the Fund may
issue and sell Shares pursuant to the Dividend Reinvestment Plan (it
being understood that the Sub-Adviser shall have no obligation or
liability under this paragraph with respect to acts or omissions of the
Fund and the Adviser, and their respective officers, trustees or
directors).
(v) During the term of this Agreement, the Fund, the Adviser and
Sub-Adviser will furnish to Xxxxx such information as reasonably
requested by Xxxxx regarding the Fund, the Adviser or Sub-Adviser.
8. Conditions to Xxxxx'x Obligations. The obligations of Xxxxx 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, and to the
continuing satisfaction (or waiver by Xxxxx in its sole discretion) of
the following additional conditions:
(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 Xxxxx 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
21
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) Xxxxx 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 Xxxxx that in Xxxxx'
opinion is material, or omits to state a fact regarding Xxxxx that in
Xxxxx' 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, Adviser Material Adverse Effect or Sub-Adviser Material Adverse
Effect, or any development that may reasonably be expected to cause a
Fund Material Adverse Effect, Adviser Material Adverse Effect or
Sub-Adviser Material Adverse Effect, or a downgrading in or withdrawal
of the rating assigned to any of the Fund's debt or preferred
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 debt or preferred securities, the effect of which,
in the case of any such action by a rating organization described
above, in the sole judgment of Xxxxx (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.
(e) Xxxxx shall have received the opinion of Fund Counsel required to be
delivered pursuant Section 7(k) on or before the date on which such
delivery of such opinion is required pursuant to Section 7(k).
22
(f) Xxxxx shall have received the opinions of Adviser Counsel and
Sub-Adviser 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).
(g) Xxxxx shall have received the Comfort Letter required to be delivered
pursuant Section 7(m) on or before the date on which such delivery of
such letter is required pursuant to Section 7(m).
(h) Xxxxx shall have received the certificates required to be delivered
pursuant to Section 7(j) and Section 7(n) on or before the date on
which delivery of such certificate is required pursuant to Section 7(j)
and Section 7(n), respectively.
(i) Trading in the Shares shall not have been suspended on the NYSE Amex.
(j) On each date on which the Fund is required to deliver a certificate
pursuant to Section 7(j), the Fund shall have furnished to Xxxxx such
appropriate further information, certificates and documents as Xxxxx
may reasonably request. All such opinions, certificates, letters and
other documents will be in compliance with the provisions hereof. The
Fund will furnish Xxxxx with such conformed copies of such opinions,
certificates, letters and other documents as Xxxxx 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
Amex, subject only to notice of issuance.
(m) There shall not have occurred any event that would permit Xxxxx 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, the Adviser and Sub-Adviser. The Fund, the
Adviser and Sub-Adviser, jointly and severally, agree to indemnify and
hold harmless Xxxxx, its directors, members, officers and each person,
if any, who controls Xxxxx 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 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
23
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 Xxxxx), 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,
the Adviser or Sub-Adviser by Xxxxx 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 Xxxxx. Xxxxx agrees to indemnify and hold harmless
each of the Fund, the Adviser and the Sub-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,
the Adviser or Sub-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 Xxxxx 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, the Adviser or the Sub-Adviser by
Xxxxx 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, the Adviser and Sub-Adviser acknowledge
that Xxxxx has not furnished any information to the Fund for inclusion
in the Prospectus.
(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
24
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 Xxxxx, its
directors, members, officers, and each person, if any, who controls
Xxxxx within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall be selected by Xxxxx; 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; counsel to the Adviser
and each person, if any, who controls the Adviser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall be selected by the Adviser and counsel to the Sub-Advisor and
each person, if any, who controls the Sub-Advisor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall be selected by the Sub-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 Xxxxx and
each person, if any, who controls Xxxxx 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, the fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for the Sub-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.
25
(e) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 9 hereof shall not affect any agreements
among the Fund, the Adviser and Sub-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, the Adviser and Sub-Adviser on the one
hand and Xxxxx 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, the Adviser
and Sub-Adviser on the one hand and of Xxxxx 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, the Adviser and Sub-Adviser
on the one hand and Xxxxx 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, the Adviser and the
Sub-Adviser and the total discounts and commissions received by Xxxxx
as calculated in accordance with the terms set forth in Schedule 2,
bear to the aggregate gross proceeds from the sale of Placement Shares
pursuant to this Agreement.
(3) The relative fault of the Fund, the Adviser and Sub-Adviser on the one
hand and Xxxxx 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, by
the Sub-Adviser or by Xxxxx and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(4) The Fund, the Adviser, the Sub-Adviser and Xxxxx agree that it would
not be just and equitable if contribution pursuant to this Section 9(f)
were determined by pro rata allocation 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.
26
(5) Notwithstanding the provisions of this Section 9(f), Xxxxx 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 Xxxxx
exceeds the amount of any damages that Xxxxx 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
Xxxxx within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as
Xxxxx, and each person who controls the Fund, any Adviser or
Sub-Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each officer of the Fund, the Adviser
and the Sub-Adviser and each trustee, director or member of the Fund,
the Adviser and the Sub-Adviser shall have the same rights to
contribution as the Fund, the Adviser and the Sub-Adviser.
(g) The indemnity and contribution agreements contained in this Section 9
and the representation and warranties of the Fund, the Adviser and the
Sub-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 Xxxxx, its partners, officers or employees, or any person
controlling Xxxxx, 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 any Adviser or Sub-Adviser, its directors and officers or
any person who controls the Fund, and/or any Adviser or Sub-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 Xxxxx or to the Fund or any Adviser or Sub-Adviser, its
respective directors or officers, or any person controlling the Fund,
or any Adviser or Sub-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 Xxxxx, any
controlling persons, or the Fund and/or any Adviser or Sub-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) Xxxxx 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 Xxxxx, may materially impair the investment
quality of the Placement Shares, (ii) the Fund, the Adviser or
Sub-Adviser shall have failed, refused or been unable to perform any
agreement on its part to be performed hereunder; provided, however, in
27
the case of any failure of the Fund, the Adviser or Sub-Adviser to
deliver (or cause another person to deliver) any certification,
opinion, or letter required under Sections 7(j), 7(k), 7(l) or 7(m)
Xxxxx'x 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, Xxxxx 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 Xxxxx'x obligations
hereunder is not fulfilled, or (iv) any suspension or limitation of
trading in the Placement Shares or in securities generally on the NYSE
Amex 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 Xxxxx elects to terminate this Agreement as provided in
this Section 11, Xxxxx 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) Xxxxx 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 Xxxxx 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.
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 Xxxxx, shall be delivered
to Xxxxx at JonesTrading Institutional Services LLC, 00000 Xxxxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000, fax no.
(000) 000-0000, Attention: General Counsel, and Xxxxxxxx Xxxxxxx LLP,
0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, fax no. (000) 000-0000,
28
Attention: Xxxxx X. Xxxxxx; if sent to the Fund or, the Adviser, shall
be delivered to First Trust Advisors L.P., Attention: General Counsel,
fax no.: (000) 000-0000), with a copy to Xxxxxxx and Xxxxxx LLP,
Attention: Xxxx X. Xxxx, telephone (000) 000-0000 fax: (000) 000-0000,
or if sent to the Sub-Adviser, shall be delivered to Energy Income
Partners LLC, Attention: Xxx Xxxxxxx, fax: (000) 000-0000. 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 Amex 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 Xxxxx, the Fund, the Adviser and the Sub-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 Xxxxx, 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 Xxxxx, the Fund,
the Adviser and the Sub-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 Xxxxx 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. 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.
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. 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
29
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 Xxxxx 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. The Fund, the Adviser and
Sub-Adviser acknowledge that in connection with the offering of the
Placement Shares: (a) Xxxxx has acted at arms length and owes no
fiduciary duties to, the Fund, the Adviser and Sub-Adviser or any other
person; (b) Xxxxx owes the Fund, the Adviser and Sub-Adviser only those
duties and obligations set forth in this Agreement and prior written
agreements (to the extent not superseded by this Agreement), if any,
and (iii) Xxxxx may have interests that differ from those of the Funds,
the Adviser and Sub-Adviser. The Fund, the Adviser and Sub-Adviser
waive to the full extent permitted by applicable law any claims any of
them may have against Xxxxx arising from an alleged breach of fiduciary
duty in connection with the offering of the Placement Shares as
contemplated by this Agreement
20. Limitation of Liability. The Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts. This Agreement is
executed on behalf of the Fund by the Fund's officers as officers and
not individually and the obligations imposed upon the Fund by this
Agreement are not binding upon any of the Fund's shareholders
individually but are binding only upon the assets and property of the
Fund.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
30
If the foregoing correctly sets forth the understanding between the
Fund, the Adviser and Xxxxx, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
the Fund, the Adviser, the Sub-Adviser and Xxxxx.
Very truly yours,
ENERGY INCOME AND GROWTH FUND
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: President
FIRST TRUST ADVISORS L.P.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: President
ENERGY INCOME PARTNERS LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: President & CEO
ACCEPTED AS OF THE DATE
FIRST-ABOVE WRITTEN:
JONESTRADING INSTITUTIONAL SERVICES LLC
By: /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: CFO
31
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: [ ]
Cc: [ ]
To: [ ]
Subject: Capital On Demand - Placement Notice
Date:
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Capital On
Demand(TM) Sales Agreement between Energy Income and Growth Fund (the "FUND"),
First Trust Advisors L.P., Energy Income Partners LLC and JonesTrading
Institutional Services LLC ("XXXXX") dated __________ ___, 2009, I hereby
request on behalf of the Fund that Xxxxx 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.]
Discount/Commission: ______________________
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 XXXXX, AND/OR THE
CAPACITY IN WHICH XXXXX 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 Xxxxx shall be between 100 and
250 basis points of the gross proceeds with respect to sales actually effected
by Xxxxx, with the exact amount of such discount, commission or other
compensation to be mutually agreed upon by the parties from time to time, as set
forth in the Placement Notice.
S-2
SCHEDULE 3
JONESTRADING INSTITUTIONAL SERVICES LLC
Xxxxxx "Moe" Xxxxx
Managing Director
JonesTrading Institutional Services LLC
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
xxxx@xxxxxxxxxxxx.xxx
Xxxx X. Xxxx
Chief Financial Officer
JonesTrading Institutional Services LLC
00000 Xxxxxxx Xxxxxx Xxxx Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
(000) 000-0000
xxxxx@xxxxxxxxxxxx.xxx
Xxxxxx X. Xxxxxxxxxxx
Chief Operating Officer & General Counsel
JonesTrading Institutional Services LLC
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
xxxxx@xxxxxxxxxxxx.xxx
ENERGY INCOME AND GROWTH FUND
Xxxx X. Xxxxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxxxx@xxxxxxxxxxxx.xxx
Xxxxx X. Xxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxx@xxxxxxxxxx.xxx
Xxxxxxxxxxx X. Xxxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxxx@xxxxxxxxxx.xxx
W. Xxxxx Xxxxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxxxx@xxxxxxxxxxxx.xxx
Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxxxxxx@xxxxxxxxxx.xxx
Xxxxxx X. Xxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxx@xxxxxxxxxx.xxx
S-3
Xxxxxx X. Xxxxx
000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
xxxxxx@xxxxxxxxxxxx.xxx
S-4
EXHIBIT 7(J)
FUND OFFICER CERTIFICATE
The undersigned, the duly qualified and elected _______________________
of Energy Income and Growth Fund (the "FUND"), does hereby certify in such
capacity and on behalf of the Fund, pursuant to Section 7(j) of the Sales
Agreement dated __________ ___, 2009 (the "SALES AGREEMENT") between the Fund,
First Trust Advisers L.P., Energy Income Partners 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(J) (CONT'D)
ADVISER OFFICER CERTIFICATE
The undersigned, the duly qualified and elected _______________________
of First Trust Advisers L.P. (the "ADVISER"), an Illinois limited partnership,
does hereby certify in such capacity and on behalf of the Adviser, pursuant to
Section 7(j) of the Sales Agreement dated __________ ___, 2009 (the "SALES
AGREEMENT") between the Adviser, Energy Income and Growth Fund, Energy Income
Partners LLP 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(J) (CONT'D)
SUB-ADVISER OFFICER CERTIFICATE
The undersigned, the duly qualified and elected _______________________
of Energy Income Partners LLC (the "Sub-Adviser"), a Delaware limited liability
company, does hereby certify in such capacity and on behalf of the Sub-Adviser,
pursuant to Section 7(j) of the Sales Agreement dated __________ ___, 2009 (the
"SALES AGREEMENT") between the Sub-Adviser, First Trust Advisors L.P., Energy
Income and Growth 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 Sub-Adviser in Section 6(c) 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 Sub-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)(1)
FORM OF OPINION OF FUND COUNSEL
i. The Registration Statement and all post-effective amendments
thereto, if any, are effective under the Act and no stop order with respect
thereto has been issued and no proceeding for that purpose has been instituted
or, to the best of our knowledge, is threatened by the Commission. Any filing of
the Prospectus or any supplements thereto required under Rule 497 under the Act
prior to the date hereof have been made in the manner and within the time
required by such rule.
ii. The Fund is duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or leasing of property or
its conducting of business as described in the Registration Statement and
Prospectus (and any amendment or supplement thereto) requires such
qualification; and the Fund owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to carry on its business as described in the
Prospectus, except where the failure to obtain such licenses, permits, consents,
orders, approvals and other authorizations, either alone or in the aggregate,
would not have a Fund Material Adverse Effect. The Fund has no subsidiaries.
iii. The Shares conform in all material respects to the description of
them in the Prospectus under the caption "Description of Shares - Common Shares"
in the Prospectus. All of the outstanding Shares have been duly authorized and
are validly issued, fully paid and (except as described in the Prospectus under
the caption "Certain Provisions in the Declaration of Trust") nonassessable. The
Placement Shares have been duly authorized for issuance and sale pursuant to
this Agreement and when issued and delivered against payment therefore in
accordance with the Agreement will have been validly issued and will be fully
paid and nonassessable (except as described in the Prospectus under the caption
"Certain Provisions in the Declaration of Trust"). No person is entitled to any
preemptive or other similar rights with respect to the Placement Shares under
the Declaration of Trust or Bylaws of the Fund or Massachusetts law or, to
counsel's knowledge, otherwise.
iv. The Fund is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management investment
company and all action under the Act and the Investment Company Act, as the case
may be, necessary to make the public offering and consummate the sale of the
Placement Shares as provided in the Agreement has or will have been taken by the
Fund. To such counsel's knowledge, the Fund has not received any notice from the
Commission pursuant to Section 8(e) of the Investment Company Act with respect
to the registration of the Fund with the Commission under the Investment Company
Act.
v. The Fund has full power and authority to enter into this Agreement
and each of the Fund Agreements and to perform all of the terms and provisions
thereof to be carried out by it and (A) each Fund Agreement and the Agreement
has been duly and validly authorized, executed and delivered by the Fund, (B)
each Fund Agreement and the Agreement complies in all material respects with all
applicable provisions of the Act, the Investment Company Act and the Advisers
Act, as the case may be, and (C) assuming due authorization, execution and
delivery by the other parties thereto, each Fund Agreement constitutes the
legal, valid and binding obligation of the Fund enforceable against the Fund in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law).
vi. None of (A) the execution and delivery by the Fund of the Agreement
or the Fund Agreements, (B) the issue, sale and delivery by the Fund of the
Placement Shares as contemplated by the Agreement and (C) the performance by the
Fund of its obligations under the Agreement and the Fund Agreements or
consummation by the Fund of the other transactions contemplated by the Agreement
or the Fund Agreements result in (i) the creation or imposition of any lien,
charge or encumbrance upon the assets of the Fund pursuant to any agreement or
instrument to which the Fund is a party or by which the Fund is bound that is
described in the Registration Statement or the Prospectus or filed as an exhibit
to the Registration Statement, or (ii) conflicts with or will conflict with, or
results or will result in a breach or violation of (a) the Declaration of Trust
or the By-laws of the Fund or (b) any agreement or instrument to which the Fund
is a party or by which the Fund is bound that is described in the Registration
Statement or the Prospectus or filed as an exhibit to the Registration Statement
or (c) any federal or State of Illinois statute, law or regulation (except we
express no opinion as to applicable state securities and blue sky laws, and
except that the indemnification provisions in the Agreement and the Fund
Agreements, insofar as they relate to indemnification for liabilities arising
under the Act, may be against public policy as expressed in the Act and
therefore unenforceable) or (d) order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, specifically naming the Fund and known to us (provided that
we express no opinion with respect to any financial test or cross-default
provision in any such agreement).
vii. No consent, approval, authorization or order of any court (to our
knowledge) or governmental agency or body or securities exchange or association
is required by the Fund for the consummation by the Fund of the transactions to
be performed by the Fund or the performance by the Fund of all the terms and
provisions to be performed by or on behalf of it in each case as contemplated in
the Agreement and the Fund Agreements, except such as (A) have been obtained
under the Act and the Investment Company Act and (B) may be required under state
securities or "blue sky" or the NYSE Amex in connection with the issuance and
sale of the Placement Shares pursuant to the Agreement.
viii. To our knowledge, there are no contracts or other documents which
are required to be described in the Registration Statement and the Prospectus or
filed as exhibits to the Registration Statement by the Act or the Investment
Company Act which have not been described in the Registration Statement and the
Prospectus or filed as exhibits to the Registration Statement;
ix. The sections in the Prospectus entitled "Certain Provisions in the
Declaration of Trust and By-laws" and "Certain Federal Income Tax Matters" and
the section in the Statement of Additional Information entitled "Certain Federal
Income Tax Matters" is a fair and accurate summary of the principal United
States federal income tax rules currently in effect applicable to the Fund and
to the purchase, ownership and disposition of the Placement Shares, subject to
the qualifications therein.
x. To our knowledge, there is no legal or governmental proceeding
pending against the Fund that is either (i) required to be described in the
Registration Statement or Prospectus that is not already described or (ii)
asserts the invalidity of any of the Fund Agreements.
xi. The Registration Statement, the Prospectus and each amendment or
supplement to the Registration Statement and/or the Prospectus, as of their
respective effective or issue dates (other than the financial statements, the
notes thereto, and supporting schedules included therein or omitted therefrom,
as to which we express no view) and the Fund Agreements complied or comply in
all material respects to the requirements of the 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 registered
public accountants for the Fund, and representatives of Xxxxx and their counsel,
at which the contents of the Registration Statement and Prospectus and related
matters were discussed. We have not independently verified and are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the information included in the Registration Statement and the
Prospectus. Based soley on the participation and discussion described above,
however, nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements and schedules and
other financial or accounting data included therein, as to which we need make no
statement) at the time such Registration Statement 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; or that the Prospectus (except for financial statements and
schedules and other financial or accounting data included therein, as to which
we need make no statement), at the time filed pursuant to Rule 497 and on the
date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT 7(K)(2)
MATTERS TO BE COVERED BY
FUND COUNSEL OPINION UPON SEMI-ANNUAL REPORT FILING
We have participated in conferences with officers and other
representatives of the Fund, representatives of the independent registered
public accountants for the Fund, and representatives of Xxxxx and their counsel,
at which the contents of the Registration Statement and Prospectus and related
matters were discussed. We have not independently verified and are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the information included in the Registration Statement and the
Prospectus. Based solely on the participation and discussion described above,
however, nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements and schedules and
other financial or accounting data included therein, as to which we need make no
statement) at the time such Registration Statement 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; or that the Prospectus (except for financial statements and
schedules and other financial or accounting data included therein, as to which
we need make no statement), at the time filed pursuant to Rule 497 and on the
date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT 7(L)(I)
FORM OF OPINION OF ADVISER COUNSEL
i. The Adviser has been duly formed and is validly existing as a
limited partnership under the laws of the State of Illinois with full power and
authority to own or lease all of the assets owned or leased by it and to conduct
its business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under the Agreement, the Advisory
Agreement and the Sub-Advisory Agreement (collectively, the "Adviser
Agreements).
ii. 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 as investment adviser for the Fund as contemplated by the Advisory
Agreement, the Registration Statement and the Prospectus. To such counsel's
knowledge, there does not exist any pending or threatened proceeding which could
reasonably be expected to adversely affect the registration of the Adviser with
the Commission.
iii. The Adviser has full power and authority to enter into each of the
Adviser Agreements and to carry out all the terms and provisions thereof to be
carried out by it, and each of the Adviser Agreements has been duly and validly
authorized, executed and delivered by the Adviser; each Adviser Agreement
complies in all material respects with all provisions of the Securities Act,
Investment Company Act and the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each of the Advisory
Agreement and the Sub-Advisory Agreement constitutes a legal, valid and binding
obligation of the Adviser, enforceable against the Adviser in accordance with
its terms, subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law).
iv. Neither (A) the execution and delivery by the Adviser of any
Adviser Agreement nor (B) the consummation by the Adviser of the transactions
contemplated by, or the performance of its obligations under any Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the organizational documents of the Adviser or any agreement or instrument
known to us to which the Adviser is a party or by which the Adviser is bound, or
any federal or Illinois law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to us,
except in each case for such conflicts or breaches which would not reasonably be
expected, either alone or in the aggregate, to have a material adverse effect on
the Adviser's ability to perform its obligations under the Adviser Agreements,
provided, that we express no opinion with respect to any financial test or
cross-default provision in any such Adviser Agreement.
v. No consent, approval, authorization or order of any court (to our
knowledge), of any governmental agency or body or securities exchange or
association, whether foreign or domestic, is required for the consummation by
the Adviser of the transactions contemplated in, or the performance by the
Adviser of its obligations under, any Adviser Agreement, except (i) such as have
been obtained under the federal securities laws and (ii) may be required by the
NYSE-Amex or under state securities or "blue sky" laws, in connection with the
issuance and sale of the Placement Shares pursuant to the Agreement.
vi. To our knowledge, there is no legal or governmental proceeding
pending against the Adviser that is either (i) required to be described in the
Registration Statement or Prospectus that is not already described, (ii) which
would, under Section 9 of the Investment Company Act, make the Adviser
ineligible to act as the Fund's investment adviser or (iii) asserts the
invalidity of any of the Advisor Agreements.
vii. There are no contracts or other documents which are required to be
described in the Registration Statement and the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or the Investment Company
Act which relate to the Adviser and have not been described in the Registration
Statement and the Prospectus or filed as exhibits to the Registration Statement.
viii. 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.
In addition, we have participated in conferences with officers and
other representatives of the Adviser, representatives of the independent
registered public accountants for the Fund, and representatives of Xxxxx and
their counsel, at which the contents of the Registration Statement and
Prospectus and related matters were discussed. We have not independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the information included in the
Registration Statement and the Prospectus. Based solely on the participation and
discussions described above, however, nothing has come to our attention that
would lead us to believe that solely with respect to the description of the
Adviser, the Registration Statement (except for financial statements and
schedules and other financial or accounting data included therein, as to which
we need make no statement) at the time such Registration Statement 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; or that the Prospectus (except for financial
statements and schedules and other financial or accounting data included
therein, as to which we need make no statement), at the time filed pursuant to
Rule 497 and on the date hereof, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
EXHIBIT 7(L)(II)
FORM OF OPINION OF SUB-ADVISER COUNSEL
i. The Sub-Adviser has been duly formed and is validly existing as a
limited liability company under the laws of the State of Delaware with full
power and authority to conduct its business as described in the Registration
Statement and Prospectus and to enter into and perform its obligations under the
Agreement and the Sub-Advisory Agreement (collectively, "Sub-Adviser
Agreements").
ii. The Sub-Adviser is duly registered as an investment adviser under
the Advisers Act and, to our knowledge, is not prohibited by the Advisers Act or
the Investment Company Act from acting as investment adviser for the Fund as
contemplated by the Sub-Advisory Agreement, the Registration Statement and the
Prospectus. To such counsel's knowledge, there does not exist any pending or
threatened proceeding, which could reasonably be expected to adversely affect
the registration of the Sub-Adviser with the Commission.
iii. The Sub-Adviser has full power and authority to enter into the
Sub-Adviser Agreements and to carry out the terms and provisions thereof to be
carried out by it, and each of the Sub-Adviser Agreements has been duly and
validly authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with the Securities Act, the
Investment Company Act and the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each of the Sub-Adviser
Agreements constitutes a legal, valid and binding obligation of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with its terms, (1) subject,
as to enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (2) except as rights to indemnity thereunder may be limited by federal
or state securities laws.
iv. Neither (A) the execution and delivery by the Sub-Adviser of any
Sub-Adviser Agreement nor (B) the consummation by the Sub-Adviser of the
transactions contemplated by, or the performance of its obligations under, any
Sub-Adviser Agreement conflicts or will conflict with, or results or will result
in a breach of, the organizational documents of the Sub-Adviser or any agreement
or instrument known to us to which the Sub-Adviser is a party or by which the
Sub-Adviser is bound, or any federal or Delaware law, rule or regulation, or
order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, specifically naming the
Sub-Adviser and known to us, except in each case for such conflicts or breaches
which would not reasonably be expected, either alone or in the aggregate, have a
material adverse effect on the Sub-Adviser's ability to perform its obligations
under the Sub-Adviser Agreements; provided that we express no opinion with
respect to any financial test or cross-default provision in any such agreement
or instrument.
v. No consent, approval, authorization or order of any court (to our
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation by the Sub-Adviser
of the transactions contemplated in, or the performance by the Sub-Adviser of
its obligations under, any Sub-Adviser Agreement, except (i) such as have been
obtained under the federal securities laws and (ii) may be required by state
securities or "blue sky" laws, in connection with the issuance and sale of the
Placement Shares pursuant to the Agreement.
vi. To our knowledge, there is no legal or governmental proceeding
pending or threatened against the Sub-Adviser that is either (i) required to be
described in the Registration Statement or Prospectus that is not already
described, (ii) which would, under Section 9 of the Investment Company Act, make
the Sub-Adviser ineligible to act as the Fund's investment adviser or (iii)
asserts the invalidity of any of the Sub-Adviser Agreements.
vii. There are no contracts or other documents that are required to be
described in the Registration Statement and the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or the Investment Company
Act that relate to the Sub-Adviser and have not been described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement.
viii. The description in the Prospectus of the Sub-Adviser and its
business complies in all material respects with all applicable requirements of
the Securities Act and the Investment Company Act.
In addition, we have participated in discussions with representatives
of the Sub-Adviser where the contents of the Registration Statement and
Prospectus, so far as they relate to the Sub-Adviser, were discussed and we have
reviewed certain records and documents of the Sub-Adviser. We have not
independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the information
and statements included in the Registration Statement and the Prospectus. Based
solely on the discussions described above, however, nothing has come to our
attention that would lead us to believe that solely with respect to the
description of the Sub-Adviser, the Registration Statement (except for financial
statements and schedules and other financial or accounting data included
therein, as to which we need make no statement) at the time such Registration
Statement 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; or that the Prospectus (except for
financial statements and schedules and other financial or accounting data
included therein, as to which we need make no statement), at the time filed
pursuant to Rule 497 and on the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
