CALAMOS CONVERTIBLE AND HIGH INCOME FUND UP TO 6,232,167 COMMON SHARES OF BENEFICIAL INTEREST CAPITAL ON DEMAND™ SALES AGREEMENT

CALAMOS CONVERTIBLE AND HIGH INCOME FUND

UP TO 6,232,167 COMMON SHARES OF BENEFICIAL INTEREST

CAPITAL ON DEMAND™

SALES AGREEMENT

April 15, 2016

JONESTRADING INSTITUTIONAL SERVICES LLC

000 Xxxxx Xxxxxx, 0^xx Xxxxx

Xxx Xxxx, XX 00000

Ladies and Gentlemen:

CALAMOS CONVERTIBLE AND HIGH INCOME FUND, a Delaware statutory trust (the “Fund”), CALAMOS ADVISORS LLC, a Delaware limited liability company (the “Adviser”) and JonesTrading Institutional Services LLC (“Xxxxx”) previously entered into a sales agreement dated September 30, 2011, as amended, (the “Prior Agreement”). The parties hereby terminate the Prior Agreement and confirm their agreement in the form of this Sales Agreement (this “Agreement”) as follows:

1. Issuance and Sale of Shares. The Fund agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through Xxxxx, acting as agent and/or principal, up to six million two hundred thirty two thousand one hundred sixty seven (6,232,167) of the Fund’s common shares of beneficial interest, no par value per share (the “Shares”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number of Shares issued and sold under this Agreement shall be the sole responsibility of the Fund, and 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 (i) an Investment Management Agreement with the Adviser dated as of May 1, 2003, (ii) a Master Custodian Agreement with State Street Bank and Trust Company dated as of September 11, 2009, (iii) a Stock Transfer Agency Agreement with The Bank of New York dated as of June 15, 2007, (iv) an Amended and Restated Financial Accounting Services Agreement with the Adviser dated as of December 13, 2004, and (v) a Master Services Agreement with State Street Bank and Trust Company dated as of March 15, 2004, as effective with respect to the Fund as of October 21, 2004 and such agreements are

herein referred to as the “Advisory Agreement,” the “Custodian Agreement”, the “Transfer Agency Agreement,” the “Accounting Agreement” and the “Administration Agreement,” respectively. Collectively, the Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Accounting Agreement and the Administration Agreement are herein referred to as the “Fund Agreements. In addition, the Fund has adopted a dividend reinvestment plan pursuant to which holders of Shares shall have their dividends automatically reinvested in additional common shares of beneficial interest unless they elect to receive such dividends in cash, and such plan is herein referred to as the “Dividend Reinvestment Plan.”

The Fund has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Securities Act”) and the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Investment Company Act”), with the Commission a registration statement on Form N-2 (File Nos. 333-205640 and 811-21319) (the “Original Registration Statement”), including a base prospectus (“Basic Prospectus”), with respect to the Shares. The Fund shall prepare one or more supplements relating to the Shares (collectively, the “Prospectus Supplement”) to the Basic Prospectus, to be filed with the Commission pursuant to Rule 497 under the Securities Act. The Fund shall furnish to 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 most recently filed with the Commission pursuant to Rule 497 under the Securities Act is herein called the “Registration Statement.” The Basic Prospectus, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Fund with the Commission pursuant to Rule 497 under the Securities Act, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, the Prospectus, or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System (“XXXXX”).

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 and 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 (a “Placement Notice”), a form of which, containing such minimum sales parameters necessary, is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Fund set forth on Schedule 3 (with a copy to each of the other individuals from the Fund listed on such schedule), and shall be addressed to each of the individuals from 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 or Xxxxx suspends or terminates the sale of Placement Shares related to such 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 12. 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 superseded 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 The NASDAQ Global Select Market (“NASDAQ”), 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 under the Securities Act, in each case at or above the net asset value of the Fund’s common shares as determined by the Fund as of the close of regular trading on the NASDAQ on the Trading Day immediately preceding the Trading Day on which Xxxxx has made sales of Placement Shares hereunder, exclusive of any distributing commission or discount, in accordance with Section 23(b) of the Investment Company Act. To the extent that Xxxxx acts 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. Xxxxx will not use any advertising, sales literature or other promotional material (including “prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts”), whether in printed or electronic form, in connection with the offering and sale of the Placement Shares (collectively, “sales material”) that has not been authorized in writing or prepared by the Fund or the Adviser in connection with the offering and sale of the Placement Shares. To the extent that Xxxxx uses any sales material that has been authorized in writing or prepared by the Fund or the Adviser in connection with the offering and sale of Placement Shares and such sales material is required to be filed with the Financial Industry Regulatory Authority (“FINRA”) under FINRA’s conduct rules, Xxxxx or its counsel will file such sales material with FINRA within the time

periods required by FINRA’s conduct rules. Xxxxx covenants that any statements that it or its directors, officers, employees, agents or affiliates make in connection with the offering and sale of the Placement Shares will be consistent with the disclosure in the Registration Statement and Prospectus. The Fund and the 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 or the 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 the principal exchange or market on which the Shares are listed or quoted (which, as of the date of this Agreement, is the Exchange) is open for trading.

4. Suspension of Sales. The Fund or Xxxxx may, upon notice to the other party in writing within two business days following the delivery or receipt, as applicable, of the Placement Notice (including by e-mail correspondence to all of the individuals of the other party set forth on Schedule 3 or by telephone (confirmed immediately by verifiable facsimile transmission or e-mail correspondence to all of the individuals of the other party set forth on Schedule 3)), suspend or refuse to undertake any sale of Placement Shares; provided, however, that such suspension or refusal shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties hereto agrees that no such notice shall be effective against the other unless and until 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 (3^rd) Business Day (or such earlier day as is agreed to by the parties) 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 and (ii) any transaction fees properly 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 10(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. Representation and Warranty of Xxxxx. Xxxxx represents and warrants to the Fund and the Adviser that it has full corporate power and authority to enter into this Agreement, the execution and delivery of, and the performance by Xxxxx of its obligations under this Agreement have been duly and validly authorized by Xxxxx and this Agreement has been duly executed and delivered by Xxxxx and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and legally binding agreement of Xxxxx, enforceable against Xxxxx 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 Xxxxx’ obligations hereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law).

7. Representations and Warranties of the Fund and Adviser.

(a) Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, jointly and severally, represent and warrant to Xxxxx as of the date hereof, as of each Representation Date (as defined in Section 8(j) below) and as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”), and agree with Xxxxx, as follows:

(1) Compliance with Registration Requirements. The Registration Statement has been declared effective by the Commission under the Securities Act. No order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Fund, are contemplated by the Commission.

The Prospectus when filed complied in all material respects with the Securities Act and Investment Company Act. On each Representation Date and as of each Applicable Time, (1) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, complied or will comply in all material respects with the applicable requirements of the Securities Act and Investment Company Act, (2) the Registration Statement, as amended as of any such time, did not, does not and will not contain any untrue statement of a material fact and did not, does not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (3) the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact, and did not and will not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence do not apply to, and neither the Fund nor the Adviser makes any representations or warranties as to, statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus, or

any amendments or supplements thereto, made in reliance upon and in conformity with information relating to Xxxxx furnished to the Fund or the Adviser by or on behalf of Xxxxx for use therein.

The Fund’s registration statement on Form 8-A under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”) is effective.

(2) Independent Accountants. Deloitte & Touche LLP, who audited the financial statements and financial highlights included in the Registration Statement and the Prospectus, are independent registered public accountants as required by the Securities Act and the Investment Company Act.

(3) Financial Statements. The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the Securities Act and the Investment Company Act. The supporting schedules, if any, included in the Registration Statement present fairly, in accordance with GAAP, the information required to be stated therein, and the other financial and statistical information and data included in the Registration Statement, the Prospectus Supplement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.

(4) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Prospectus except as otherwise stated therein, or in any amendment thereto, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings or business affairs (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 (any such change is called a “Fund Material Adverse Effect”) and (B) there have been no transactions entered into by the Fund which are material with respect to the Fund other than those in the ordinary course of its business as described in the Prospectus.

(5) Good Standing of the Fund. The Fund has been duly formed and is validly existing in good standing as a statutory trust under the laws of the State of Delaware and has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the Fund Agreements; and the Fund is duly qualified to transact business and is in good standing under the laws of each jurisdiction which requires qualification, except for any such jurisdiction where failure to be in good standing would not have a Fund Material Adverse Effect.

(6) No Subsidiaries. The Fund has no subsidiaries.

(7) Investment Company Status. The Fund is duly registered under the Investment Company Act as a closed-end, diversified management investment company under the Investment Company Act, and the Investment Company Act Notification has been duly filed with the Commission. The Fund has not received any notice from the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the Investment Company Act Notification or the Registration Statement. “Investment Company Act Notification” means a notification of registration of the Fund as an investment company under the Investment Company Act on Form N-8A, as the Investment Company Act Notification may be amended from time to time.

(8) Officers and Trustees. No person is serving or acting as an officer, trustee or investment adviser of the Fund except in accordance with the provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (the “Advisers Act”). Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of Xxxxx. For purposes of this Section 7(a)(8), the Fund and the Adviser shall be entitled to rely on representations from such officers and trustees.

(9) Capitalization. The Fund’s authorized, issued and outstanding common shares of beneficial interest are as set forth in the Prospectus. All of the Fund’s issued and outstanding common shares of beneficial interest have been duly authorized and validly issued and are fully paid and, except as set forth in the Prospectus under the heading “Description of Securities—Common Shares,” non-assessable and have been offered and sold or exchanged by the Fund in compliance with all applicable laws (including, without limitation, federal and state securities laws); none of the Fund’s outstanding common shares of beneficial interest were issued in violation of any preemptive or other similar rights of any security holder of the Fund. No preferred shares of the Fund are currently outstanding. The Placement Shares have been duly authorized and, when issued and delivered against payment therefore in accordance with this Agreement, will be validly issued, fully paid and, except as set forth in the Prospectus under the heading “Description of Securities—Common Shares,” non-assessable and free of any preemptive or other similar rights.

(10) Power and Authority. The Fund has full power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund; and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws relating to or affecting creditors’ rights generally and by general equitable principles.

(11) Agreements’ Compliance with Law. This Agreement and each of the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act.

(12) Absence of Defaults and Conflicts. The Fund is not (i) in violation of the Fund’s Amended and Restated Agreement and Declaration of Trust and any amendments thereto (the “Declaration of Trust”) or the Fund’s By-laws, (ii) in breach or default in the performance of the terms of any indenture, contract, lease, mortgage, declaration of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any decree of the Commission, the Financial Industry Regulatory Authority (“FINRA”), any state securities commission, any foreign securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self regulatory or administrative agency or any official having jurisdiction over the Fund, except in the case of (ii) and (iii) for such breaches, defaults or violations which would not have a Fund Material Adverse Effect.

(13) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Fund, threatened, against or affecting the Fund which is required to be disclosed in the Prospectus (other than as disclosed therein), or that could reasonably be expected to result in a Fund Material Adverse Effect, or that could reasonably be expected to materially and adversely affect the properties or assets of the Fund or the consummation of the transactions contemplated in this Agreement or the performance by the Fund of its obligations under this Agreement or the Fund Agreements; the aggregate of all pending legal or governmental proceedings to which the Fund is a party or of which any of its property or assets is the subject which are not described in the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Securities Act or the Investment Company Act, including ordinary routine litigation incidental to the business, that could not reasonably be expected to result in a Fund Material Adverse Effect.

(14) Accuracy of Descriptions and Exhibits. The statements set forth under the headings “Closed-End Fund Structure,” “Certain Provisions of the Agreement and Declaration of Trust and By-laws, Including Antitakeover Provisions” and “Certain Federal Income Tax Matters” in the Prospectus and “Certain Federal Income Tax Matters” in the Statement of Additional Information, insofar as such statements purport to summarize certain provisions of the Investment Company Act, the Delaware Statutory Trust Act, the Fund’s Declaration of Trust, U.S. federal income tax law and regulations or legal conclusions with respect thereto, fairly and accurately summarize such provisions in all material respects; all descriptions in the Registration Statement and the Prospectus of any Fund documents are accurate in all material respects; and there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Securities Act or the Investment Company Act which have not been so described and filed as required.

(15) Absence of Further Requirements. (A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, and (B) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Fund of its obligations under this Agreement or the Fund Agreements, for the offering, issuance, sale or delivery of the Placement Shares hereunder, or for the consummation of any of the other transactions contemplated by this Agreement or the Fund Agreements, in each case on the terms contemplated by the Registration Statement and the Prospectus, except such as have been already obtained and under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and NASDAQ and such as may be required under state securities laws.

(16) Non-Contravention. Neither the execution, delivery or performance of this Agreement and the Fund Agreements nor the consummation by the Fund of the transactions herein or therein contemplated (i) constitutes or will constitute a breach of the Declaration of Trust or By-laws of the Fund, (ii) constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which the Fund is a party or by which the Fund may be bound or to which any of the property or assets of the Fund is subject.

(17) Possession of Licenses and Permits. The Fund has such licenses, permits, and authorizations of governmental or regulatory authorities (“permits”) as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Fund has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus; and, except as described in the Prospectus, none of such permits contains any restriction that is materially burdensome to the Fund.

(18) Distribution of Offering Material. The Fund has not distributed and, prior to the later to occur of (i) an applicable Settlement Date and (ii) completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus, sales material or other materials permitted by the Securities Act or the Investment Company Act.

(19) Absence of Registration Rights. There are no persons with registration rights or other similar rights to have any securities (debt or equity) (A) registered pursuant to the Registration Statement or included in the offering contemplated by this

Agreement or (B) otherwise registered by the Fund under the Securities Act or the Investment Company Act. There are no persons with tag-along rights or other similar rights to have any securities (debt or equity) included in the offering contemplated by this Agreement or sold in connection with the sale of Placement Shares by the Fund pursuant to this Agreement.

(20) NASDAQ. The Placement Shares are duly listed and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on NASDAQ.

(21) FINRA Matters. 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 was true, complete and correct as of the time it was provided.

(22) Tax Returns. The Fund has filed all tax returns that are required to be filed and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith by appropriate actions and except for such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the aggregate, have a Fund Material Adverse Effect.

(23) Subchapter M. The Fund intends to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”) to qualify as a regulated investment company under the Code and intends to direct the investment of the Net Proceeds in such a manner as to comply with the requirements of Subchapter M of the Code.

(24) Insurance. The Fund’s trustees and officers errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 of the Investment Company Act are in full force and effect; the Fund is in compliance with the terms of such policy and fidelity bond in all material respects; and there are no claims by the Fund under any such policy or fidelity bond as to which any insurance company is denying liability; and there are no claims by the Fund under any such policy or fidelity bond as to which any insurance company is defending under a reservation of rights clause; the Fund has not been refused any insurance coverage sought or applied for; and the Fund has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.

(25) Accounting Controls and Disclosure Controls. The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability to

calculate net asset value and to maintain material compliance with the books and records requirements under the Investment Company Act; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act); such disclosure controls and procedures are currently in effect.

(26) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Fund or any of the Fund’s trustees or officers, in their capacities as such, to comply in any material respect with any provision of the 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.

(27) Fund Compliance with Policies and Procedures. The Fund has adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1 under the Investment Company Act) by the Fund, including policies and procedures that provide oversight of compliance for each investment adviser, administrator and transfer agent of the Fund.

(28) Absence of Manipulation. The Fund has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Placement Shares and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund, other than such actions as taken by Xxxxx pursuant to this Agreement.

(29) Statistical, Demographic or Market-Related Data. Any statistical, demographic or market-related data included in the Registration Statement or the Prospectus is based on or derived from sources that the Fund believes to be reliable and accurate and all such data included in the Registration Statement or the Prospectus accurately reflects the materials upon which it is based or from which it was derived.

(30) Advertisements. All advertising, sales literature or other promotional material (including “prospectus wrappers”, “broker kits”, “road show slides” and “road show scripts”), whether in printed or electronic form, authorized in writing by or prepared by or at the direction of the Fund or the Adviser for use in connection with the offering and sale of the Placement Shares (collectively, “sales material”) complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of FINRA and if required to be filed with FINRA under FINRA’s conduct rules were provided to Xxxxxxxx Xxxxxxx LLP, counsel for Xxxxx, for filing. No sales material contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) Representations and Warranties by the Adviser. The Adviser represents and warrants to Xxxxx as of the date hereof, as of each Representation Date (as defined in Section 8(j) below) and as of each Applicable Time, and agree with Xxxxx, as follows:

(1) Investment Manager Status. The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement or the Accounting Agreement as contemplated by the Prospectus.

(2) Capitalization. The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement and the Advisory Agreement, and the Accounting Agreement.

(3) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Prospectus, except as otherwise stated therein, or in any amendment or supplement thereto, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the Adviser, whether or not arising in the ordinary course of business (any such change is called an “Adviser Material Adverse Effect”) and (B) there have been no transactions entered into by the Adviser in connection with the Fund which are material with respect to the Adviser other than those in the ordinary course of its business as described in the Prospectus.

(4) Good Standing. The Adviser has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware and has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the Fund Agreements to which it is a party; and the Adviser is duly qualified to transact business and is in good standing under the laws of each jurisdiction which requires qualification, except for any such jurisdiction where failure to be in good standing would not have an Adviser Material Adverse Effect.

(5) Power and Authority. The Adviser has full power and authority to enter into this Agreement, the Advisory Agreement and the Accounting Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under this Agreement, the Advisory Agreement and the Accounting Agreement have been duly and validly authorized by the Adviser; and this Agreement, the Advisory Agreement and the Accounting Agreement have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws relating to or affecting creditors’ rights generally and by general equitable principles.

(6) Description of the Adviser. The description of the Adviser and its business and the statements attributable to the Adviser in the Prospectus complied and comply in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(7) Non-Contravention. Neither the execution, delivery or performance of this Agreement, the Advisory Agreement or the Accounting Agreement nor the consummation by the Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the organizational documents of the Adviser, including without limitation, its articles of organization, certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.

(8) Agreements’ Compliance with Laws. This Agreement, the Advisory Agreement and the Accounting Agreement comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act.

(9) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened, against or affecting the Adviser which is required to be disclosed in the Prospectus (other than as disclosed therein), or that could reasonably be expected to result in an Adviser Material Adverse Effect or to materially and adversely affect the properties or assets thereof (in each case, other than as disclosed in the Prospectus), or that could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Adviser of its obligations under this Agreement, the Advisory Agreement or the Accounting Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser is a party or of which any of its property or assets is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in an Adviser Material Adverse Effect.

(10) Absence of Further Requirements. (A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, and (B) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for

the performance by the Adviser of its obligations under this Agreement, the Advisory Agreement or the Accounting Agreement, except such as have been already obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and NASDAQ and such as may be required under state securities laws.

(11) Possession of Permits. The Adviser 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 Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.

(12) Adviser Compliance with Policies and Procedures. The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.

(13) Absence of Manipulation. The Adviser has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Placement Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser, other than such actions as taken by Xxxxx pursuant to this Agreement.

(c) Certificates. Any certificate signed by any authorized officer of the Fund or the Adviser identified on Schedule 3 attached hereto, as such Schedule may be updated from time to time pursuant to notice properly delivered to Xxxxx pursuant to Section 13 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.

8. Covenants of the Fund and the Adviser. The Fund and the Adviser, jointly and severally, covenant and agree with Xxxxx that:

(a) To the extent permitted by applicable law and the terms of any relevant request by the Commission, as applicable, 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 (either directly or through its legal counsel) with a copy for its review prior to filing. 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 and in all material respects 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 NASDAQ 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, so far as such compliance and filings are necessary to permit the continuance of sales of the Placement Shares during such period in accordance with the provisions hereof and the Prospectus. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would, to the knowledge of the Fund and the Adviser, 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, to the knowledge of the Fund and the Adviser, 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.

(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 reasonable efforts to cause the Placement Shares to be listed on NASDAQ 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 in accordance with this Agreement; 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 8(c) deemed by the Fund to be unduly burdensome.

(d) The Fund will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Fund’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies the provisions of Section 11(a) of the Securities Act.

(e) The Fund agrees to pay all costs, fees and expenses incurred in connection with performance of its obligations hereunder and in connection with the transactions contemplated under this Agreement, including, without limitation, (i) all expenses incident to the issuance and delivery of the Placement Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Placement Shares, (iv) all fees and expenses of the Fund’s counsel and the Fund’s independent public or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts) and the Prospectus, and all amendments and supplements thereto and this Agreement, (vi) all filing fees, distribution fees, attorneys’ fees and expenses incurred by the Fund in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Placement Shares for offer and sale under the state securities or blue sky laws, (vii) the fees and expenses associated with listing the Placement Shares on NASDAQ, (viii) the filing fees incident to the review by FINRA of the terms of the sale of the Placement Shares, and (ix) all other fees, costs and expenses incident to the performance by the Fund of its obligations hereunder. Notwithstanding anything to the contrary in this Agreement, the Fund shall reimburse Xxxxx for an amount equal to no more than one-half of all fees and expenses of Xxxxx’ counsel reasonably incurred in connection with Xxxxx’ obligations under this Agreement, including without limitation the negotiation of this Agreement (the “Reimbursable Amount”). The Fund shall pay to Xxxxx the Reimbursable Amount in addition to such discount, commission and other compensation payable to Xxxxx as contemplated by Schedule 2. The aggregate amount of any discount, commission, expense reimbursement 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. The Adviser agrees to pay all costs, fees and expenses of its counsel.

(f) The Fund will use the Net Proceeds as described in the Prospectus

(g) 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 reasonable 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 8(h) will include during the term of this Agreement (i) 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 (ii) a diligence conference to occur as promptly as practicable following the Fund’s filing of each of its annual and semi-annual reports on Form N-CSR and N-CSRS, respectively (the “Reports”) whereby the Fund will make its

senior corporate officers, including portfolio managers, reasonably available to address certain diligence inquiries of Xxxxx and will provide such additional information and documents as Xxxxx may reasonably request. The requirement to conduct a due diligence session under this Section 8(h) shall be waived if at the time such due diligence session is required pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring Representation Date (as defined below), the Fund shall participate in the due diligence session contemplated by this Section 8(h) at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares.

(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 a Prospectus relating to the Placement Shares, (ii) amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective amendment or supplement (other than a Prospectus Supplement filed in accordance with Section 8(i) of this Agreement or a post-effective amendment solely to file this Agreement as an exhibit to the Registration Statement) or (iii) files a Report (to the extent not already covered by subsection (i) or (ii) of this Section 8(j)), each of the Fund and the Adviser shall furnish Xxxxx with a certificate, in the form attached hereto as Exhibit 8(j)(1). (Each date contemplated in subsections (i), (ii) and (iii) of this Section 8(j) is referred to herein as the “Representation Date”). With respect to post-effective amendments to the Registration Statement contemplated by this Section 8(j), if the Fund is not otherwise permitted (including by no-action relief granted by the staff of the Commission) to rely on Rule 486(b) regarding the effective date of a post-effective amendment, the Representation Date shall be the date the Commission declares such amendment effective and all Representation Date deliveries relating thereto which are required by Section 8 shall be delivered on or as promptly as practicable following the date of effectiveness of such amendment. If the Fund is permitted (including by no-action relief granted by the staff of the Commission) to rely on Rule 486(b) in connection with the filing of a post-effective amendment, then the Representation Date shall be the date such post-effective amendment is filed with the Commission. The requirement to provide Officer’s Certificates under this Section 8(j) shall be waived if at the time of the required delivery of such certificate pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring Representation Date, the Fund shall provide Xxxxx with such Officer’s Certificates at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares, dated the date of the Placement Notice or the resumption of the sale of the Placement Shares, as applicable.

(k) Except as otherwise provided in the last sentence of this Section 8(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 Ropes & Xxxx LLP (the “Fund Counsel”), dated the Representation Date, in substantially the form attached hereto as Exhibit 8(k)(1) (for the filing of the initial Prospectus relating to the Placement Shares), and Exhibit 8(k)(2) (for subsequent dates), but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented, or in such other form or forms as are acceptable to Xxxxxxxx Xxxxxxx, LLP, counsel for Xxxxx; 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 8(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 Delaware law, Fund Counsel will be permitted to rely on the opinion of Morris, Nichols, Arsht & Xxxxxxx LLP. In the event that a Representation Date is triggered by the filing of the Fund’s semi-annual report, only the opinion identified in Exhibit 8(k)(2) shall be required. The requirement to provide the opinion of Fund Counsel contemplated by this Section 8(k) shall be waived if at the time of the required delivery of such opinion pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring Representation Date, the Fund shall provide Xxxxx with such opinion of Fund Counsel at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares, dated the date of the Placement Notice or the resumption of the sale of the Placement Shares, as applicable.

(l) Except as otherwise provided in the last sentence of this Section 8(l), 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 Xxxxxx Price P.C. (the “Adviser Counsel”), dated the Representation Date, in substantially the form attached hereto as Exhibit 8(l) (for the filing of the initial Prospectus relating to the Placement Shares), but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented, or in such other form or forms as are acceptable to Xxxxxxxx Xxxxxxx, LLP, counsel for Xxxxx; 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 8(l) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). 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 8(l) shall be required. The requirement to provide the opinion of Adviser Counsel contemplated by this Section 8(l) shall be waived if at the time of the required delivery of such opinion pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring Representation Date, the Fund shall provide Xxxxx with such opinion of Adviser Counsel at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares, dated the date of the Placement Notice or the resumption of the sale of the Placement Shares, as applicable.

(m) On the date hereof and thereafter as of each Representation Date, or any period in which the Prospectus relating to the Placement Shares is required to be delivered by Xxxxx, each time that the Registration Statement is amended or the Prospectus supplemented to include additional audited amended financial information the Fund shall cause its independent accountants to furnish Xxxxx letters (the “Comfort Letters”), dated the date of each Representation Date, in form and substance reasonably 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. Notwithstanding the foregoing, in the event that the Representation Date requiring a Comfort Letter is triggered by the Fund’s filing of a Fund semi-annual report, the Fund shall deliver to Xxxxx on the date of the applicable semi-annual report a certificate of the Fund’s chief financial officer substantially in the form attached hereto as Exhibit 8(m) (the “CFO Certificate”) in lieu of a Comfort Letter. The requirement to provide a Comfort Letter, or CFO Certificate, as applicable under this Section 8(m) shall be waived if at the time of the required delivery of the Comfort Letter or CFO Certificate pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring applicable Representation Date, the Fund shall provide Xxxxx with a Comfort Letter or CFO Certificate, as applicable, at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares, dated the date of the Placement Notice or the resumption of the sale of the Placement Shares, as applicable.

(n) On the date hereof and thereafter as of each Representation Date, each of the Fund and the Adviser shall furnish Xxxxx with a certificate of its respective Secretary, in substantially the form attached hereto as Exhibit 8(n), or in such other form or forms as are acceptable to Xxxxxxxx Xxxxxxx, LLP, counsel for Xxxxx. The requirement to provide Secretary’s Certificates under this Section 8(n) shall be waived if at the time of the required delivery of such Secretary’s Certificates pursuant to this Agreement there is no Placement Notice outstanding or the Fund has suspended the sale of, or otherwise does not intend to sell, Placement Shares. Notwithstanding the foregoing, if the Fund subsequently decides to issue a Placement Notice or otherwise resume the sale of Placement Shares prior to the next occurring Representation Date, the Fund shall provide Xxxxx with such Secretary’s Certificates at or prior to the issuance of such Placement Notice or the resumption of the sale of Placement Shares, dated the date of the Placement Notice or the resumption of the sale of the Placement Shares, as applicable.

(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 Securities 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 or, upon Xxxxx’ prior approval, such approval not to be unreasonably withheld or delayed, other sales material permitted by the Securities Act or Investment Company Act.

(q) The Fund will comply in all material respects 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 (5^th) Trading Day immediately prior to the date on which any Placement Notice is delivered to Xxxxx hereunder and ending on the fifth (5^th) 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.

(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 and the 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 (i) purchased or deemed purchased from the Fund as a “riskless principal” or in a similar capacity or

(ii) with respect to errors that cause Xxxxx to take an unplanned principal position, in each case only to the extent such sales are permitted under the Securities Act, the Exchange Act 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 of the Fund’s common stock pursuant to the Dividend Reinvestment Plan.

9. Conditions to Xxxxx’ 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 offered 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 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 is required.

(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 or Adviser Material Adverse Effect, or any development that may reasonably be expected to cause a Fund Material Adverse Effect or Adviser Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Fund’s securities by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Fund’s securities, the effect of which, in the case of any such action by a rating organization described above, in the sole judgment of 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 8(k) on or before the date on which such delivery of such opinion is required pursuant to Section 8(k).

(f) Xxxxx shall have received the opinion of Adviser Counsel required to be delivered pursuant Section 8(l) on or before the date on which such delivery of such opinion is required pursuant to Section 8(l).

(g) Xxxxx shall have received the Comfort Letter or CFO Certificate, as applicable, required to be delivered pursuant Section 8(m) on or before the date on which such delivery of such letter or certificate is required pursuant to Section 8(m).

(h) Xxxxx shall have received the certificates required to be delivered pursuant to Section 8(j) and Section 8(n) on or before the date on which delivery of such certificate is required pursuant to Section 8(j) and Section 8(n), respectively.

(i) Trading in shares of the Fund’s common stock shall not have been suspended on the Exchange.

(j) On each date on which the Fund is required to deliver a certificate pursuant to Section 8(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 of the Fund 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 NASDAQ, 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 12(a).

(n) Prior to the date hereof, FINRA shall have confirmed that it has no unresolved objection with respect to the arrangements set forth herein.

10. Indemnification and Contribution.

(a) Indemnification by the Fund and the Adviser. The Fund and the Adviser, jointly and severally, agree to indemnify and hold harmless 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 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 10(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 the Registration Statement (or any amendment thereto), any sales material, or any Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Fund or the Adviser by 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 and the Adviser, each of their directors, trustees, members, each of their officers who signed the Registration Statement, each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Fund or the Adviser within the meaning of Rule 405 under the Securities Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 10, 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 or the 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 and the 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 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, 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, and each affiliate of the Fund or the Adviser within the meaning of Rule 405 under the Securities Act shall be selected by the Fund; and counsel to the Adviser, its directors, trustees, members, each of its officers who signed the Registration Statement, 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, and each affiliate of the Adviser within the meaning of Rule 405 under the Securities Act shall be selected by such Adviser. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for 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, 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 its directors, trustees, members, each of its officers who signed the Registration Statement, 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, and each affiliate of the Fund within the meaning of Rule 405 under the Securities Act, the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Adviser, its directors, trustees, members, each of its officers who signed the Registration Statement, each person who controls the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Adviser within the meaning of Rule 405 under the Securities Act, 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 10 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 10(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.

(e) Other Agreements with Respect to Indemnification and Contribution. The provisions of this Section 10 hereof shall not affect any agreements among the Fund and the Adviser with respect to indemnification of each other or contribution between themselves.

(f) Contribution.

(1) If the indemnification provided for in this Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Adviser on the one hand and 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 and the 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 and the 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 and the 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 the Placement Shares pursuant to this Agreement.

(3) The relative fault of the Fund and the 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 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 and Xxxxx agree that it would not be just and equitable if contribution pursuant to this Section 10(f) were determined by pro rata allocation (even if Xxxxx were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(f). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 10(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.

(5) Notwithstanding the provisions of this Section 10(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 10(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 contributions as Xxxxx, and each person who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Fund and the Adviser and each trustee, director or member of the Fund and the Adviser shall have the same rights to contribution as the Fund and the Adviser.

(g) The indemnity and contribution agreements contained in this Section 10 and the representation and warranties of the Fund and Adviser set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of 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, and or by or on behalf of the Fund and/or the Adviser, each of their directors, trustees, members, each of their officers who signed the Registration Statement, each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Fund or the Adviser within the meaning of Rule 405 under the Securities 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 the Adviser, its respective directors, trustees, members, each of their officers who signed the Registration Statement, each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Fund or the Adviser within the meaning of Rule 405 under the Securities Act, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 10.

11. Representations and Agreements to Survive Delivery. All representations and warranties of Xxxxx, 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 the Adviser (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.

12. 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 or the Adviser shall have failed, refused or been unable to perform in all material respects any agreement on its part to be performed hereunder; provided, however, in the case of any failure of the Fund or the Adviser to deliver (or cause another person to deliver) any certification, opinion, or letter required under Sections 8(k), 8(l), 8(m), or 8(n) 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 (6^th) 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 NASDAQ shall have occurred. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8(e), Section 10, Section 11, Section 16,

Section 18 and Section 20 hereof shall remain in full force and effect notwithstanding such termination. If Xxxxx elects to terminate this Agreement as provided in this Section 12, 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 8(e), Section 10, Section 11, Section 16, Section 18 and Section 20 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 8(e), Section 10, Section 11, Section 16, Section 18 and Section 20 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 12(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 8(e), Section 10, Section 11, Section 16, Section 18 and Section 20 shall remain in full force and effect.

(e) Except as otherwise provided in Sections 12(b) and 12(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.

(f) Upon termination of this Agreement in accordance with Sections 12(a), 11(b) or 11(c), Xxxxx shall not be entitled to reimbursement for its out of pocket expenses except to the extent otherwise agreed by the parties.

13. 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, Attention: Xxxxxxx X. Xxxxxxx; or if sent to the Fund or the Adviser, shall be delivered to Calamos Advisors LLC, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, fax no.: (000) 000-0000, with a copy to Ropes & Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, telephone (000) 000-0000 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 NASDAQ and commercial banks in the City of New York are open for business.

14. Successors. This Agreement shall inure to the benefit of and be binding upon Xxxxx, the Fund and the Adviser and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than Xxxxx, the Fund and the Adviser and their respective successors and the controlling persons and directors, officers, members and trustees referred to in Section 10 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 and the Adviser and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Placement Shares from Xxxxx shall be deemed to be a successor by reason merely of such purchase.

15. 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.

16. Governing Law Provisions.

(a) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the state of New York applicable to agreements made and to be performed in such state.

(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal or state courts of the United States of America located in the Southern District of New York and borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.

17. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof, including the Prior Agreement which is hereby terminated. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings, titled and captions herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.

18. 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.

19. 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.

20. Absence of Fiduciary Relationship. The Fund and the Adviser acknowledge that in connection with the offering of the Placement Shares: Xxxxx has acted at arm’s length and owes no fiduciary duties to the Fund, the Adviser or any other person; (b) Xxxxx owes the Fund and the 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 Fund and the Adviser. The Fund and the 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.

21. Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Certificate of Trust of the Fund is on file with the Secretary of State of the State of Delaware, and notice hereby is given that this Agreement is executed on behalf of the Fund by an officer or Trustee of the Fund in his or her capacity as an officer or Trustee of the Fund and not individually and that the obligations under or arising out of this Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the Fund.

[Remainder of Page Intentionally Blank]

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 and Xxxxx.


Very truly yours,

CALAMOS CONVERTIBLE AND HIGH INCOME FUND

By:		/s/ Xxxxxx X. Xxxxx
Name:		Xxxxxx X. Xxxxx
Title:		Vice President and Chief Financial Officer

CALAMOS ADVISORS LLC

By:		/s/ J. Xxxxxxxxxxx Xxxxxxx
Name:		J. Xxxxxxxxxxx Xxxxxxx
Title:		SVP, General Counsel and Secretary

ACCEPTED as of the date first-above written:

JONESTRADING INSTITUTIONAL SERVICES LLC

By:		/s/ Xxxxx XxXxxx
Name:		Xxxxx XxXxxx
Title:		Chief Financial Officer

SCHEDULE 1

FORM OF PLACEMENT NOTICE


From:		[ ]
Cc:		[ ]
To:		[ ]
Date:		[ ]
Subject:		Capital On Demand - Placement Notice

Gentlemen:

Pursuant to the terms and subject to the conditions contained in the Capital On Demand™ Sales Agreement among Calamos Convertible and High Income Fund (the “Fund”), Calamos Advisors LLC (the “Adviser”) and JonesTrading Institutional Services LLC (“Xxxxx”) dated April 15, 2016 (the “Agreement”), I hereby request on behalf of the Fund that Xxxxx sell up to 6,232,167 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 Amount), to be paid by the Fund to Xxxxx shall range 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 specified in the Placement Notice.

S-2

SCHEDULE 3

JONESTRADING INSTITUTIONAL SERVICES LLC

Xxxxxx “Moe” Xxxxx

Managing Director

JonesTrading Institutional Services LLC

000 Xxxxx Xxxxxx, 0^xx Xxxxx

Xxx Xxxx, XX 00000

(000) 000-0000

xxxx@xxxxxxxxxxxx.xxx

Xxxxxx X. Xxxxxxxxxxx

Chief Operating Officer & General Counsel

JonesTrading Institutional Services LLC

000 Xxxxxxxx Xxxxxx, 00^xx Xxxxx

Xxxxxx, XX 00000

(000) 000-0000

xxxxx@xxxxxxxxxxxx.xxx

Xxxxx XxXxxx

Chief Financial Officer

JonesTrading Institutional Services LLC

00000 Xxxxxxx Xxxxxx Xxxx Xxxxx 000

Xxxxxxxx Xxxxxxx, XX 00000

(000) 000-0000

xxxxxx@xxxxxxxxxxxx.xxx

CALAMOS CONVERTIBLE OPPORTUNITIES AND HIGH INCOME FUND

Xxxxx Xxxxxx

Senior Vice President and Head Trader

Calamos Advisors LLC

0000 Xxxxxxx Xxxxx

Xxxxxxxxxx, XX 00000

(000) 000-0000

xxxxxxx@xxxxxxx.xxx

J. Xxxxxxxxxxx Xxxxxxx

Calamos Investments

0000 Xxxxxxx Xxxxx

Xxxxxxxxxx, XX 00000

(000) 000-0000

xxxxxxxx@xxxxxxx.xxx

S-3

Exhibit 8(j)(1)

FUND OFFICER CERTIFICATE

The undersigned, the duly qualified and elected of CALAMOS CONVERTIBLE AND HIGH INCOME FUND (“Fund”), a Delaware statutory trust, does hereby certify in such capacity and on behalf of the Fund, pursuant to Section 8(j) of the Sales Agreement dated April 15, 2016 (the “Sales Agreement”) among the Fund, Calamos Advisors LLC and JonesTrading Institutional Services LLC, that to the best of the knowledge of the undersigned:

(i) Except for non-material exceptions as may be set forth on Annex A hereto, the representations and warranties of the Fund in Section 7(a) of the Sales Agreement (taking into account all materiality qualifiers and other qualifications contained therein) 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 in all material respects with all agreements and satisfied in all material respects 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 8(j)(1) (Cont’d)

ADVISER OFFICER CERTIFICATE

The undersigned, the duly qualified and elected of CALAMOS ADVISORS LLC (“Adviser”), a Delaware limited liability company, does hereby certify in such capacity and on behalf of the Adviser, pursuant to Section 8(j) of the Sales Agreement dated April 15, 2016 (the “Sales Agreement”) among the Adviser, Calamos Convertible and High Income Fund and JonesTrading Institutional Services LLC, that to the best of the knowledge of the undersigned:

(i) Except for non-material exceptions as may be set forth on Annex A hereto, the representations and warranties of the Adviser in Section 7(b) of the Sales Agreement (taking into account all materiality qualifiers and other qualifications contained therein) 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 in all material respects with all agreements and satisfied in all material respects 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 8(k)(1)

FORM OF OPINION OF ROPES & XXXX LLP

[To be provided]

Schedule II

FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & XXXXXXX LLP

1. The Fund has been duly formed and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act (the “Delaware Act”). The Fund has the statutory trust power and authority to own property and conduct its business as described in the Prospectus.

2. Under the Delaware Act and the Amended and Restated Agreement and Declaration of Trust of the Fund dated as of September 13, 2006 (the “Governing Instrument”), the execution and delivery of the Sales Agreement and each of the Fund Agreements by the Fund, and the performance by the Fund of its obligations thereunder, have been duly authorized by all requisite statutory trust action on the part of the Fund.

3. The Placement Shares have been duly authorized for issuance by the Fund and, when issued and delivered against payment therefor in accordance with the terms, conditions, requirements and procedures set forth in the Sales Agreement, will be validly issued and, subject to the qualifications below, fully paid and non-assessable beneficial interests in the Fund. The holders of Placement Shares will be, subject to the terms of the Governing Instrument, entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, however, that we express no opinion with respect to liability of any holder of Placement Shares who is, was or may become a named Trustee of the Fund.

4. Under the Governing Instrument and the Delaware Act, the issuance of the Placement Shares is not subject to preemptive rights.

5. The form of Placement Shares Certificate complies with all applicable requirements of the Delaware Act.

6. No authorization, approval, consent or order of any governmental authority or agency of the State of Delaware or, based solely on the Docket Search, an order of any Delaware Court, is required to be obtained by the Fund solely as a result of the issuance and sale of the Placement Shares, the consummation by the Fund of the transactions contemplated by the Sales Agreement and the Fund Agreements or the performance by the Fund of its obligations thereunder, or the adoption of the Dividend Reinvestment Plan.

7. The execution and delivery by the Fund of the Sales Agreement and the Fund Agreements, the consummation by the Fund of the transactions contemplated by the Sales Agreement and the Fund Agreements, the performance by the Fund of its obligations thereunder, the issuance and sale by the Fund of the Placement Shares and the adoption of the Dividend Reinvestment Plan will not violate (i) [the Certificate of Trust of the Fund as filed in the Office of the Secretary of State of the State of Delaware on April 17, 2002] (the “Certificate”) or the Governing Instrument or (ii) any applicable Delaware law or administrative regulation.

8. Based solely on the Docket Search, there is not in any Delaware Court any action, suit or proceeding pending against the Fund.

Exhibit 8(k)(2)

Matters to be Covered by Subsequent Fund Counsel Opinions

Counsel confirms that (i) the Registration Statement has become effective under the Securities Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted by the Commission and (ii) the Registration Statement, as of its effective date, and the Prospectus, as of its date, complied as to form in all material respects with the requirements of the Securities Act and the Investment Company Act and the rules and regulations of the Commission thereunder. Based on the information and participation described above, no facts that have come to such counsel’s attention have caused it to believe that (i) the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Prospectus, as of its date and on the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such Counsel does not, however, assume any responsibility for the accuracy, completeness or fairness of the statements made or the information contained in the Registration Statement or the Prospectus, except for those statements in the Prospectus under the captions “Description of Securities,” “Certain Provisions of the Agreement and Declaration of Trust and By-Laws, Including Antitakeover Provisions,” and “Certain Federal Income Tax Matters,” insofar as they represent descriptions or conclusions of United States federal law or descriptions of securities or summaries of documents referred to therein, which fairly summarize in all material respects such descriptions, conclusions or documents.

This letter does not express any view on the financial statements, notes, schedules or other financial or accounting data included in the Registration Statement or the Prospectus.

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.

Exhibit 8(l)

FORM OF OPINION OF ADVISER COUNSEL

1. The Adviser is a limited liability company duly formed under the laws of the State of Delaware and is in good standing and has a legal existence so far as the records of the office of the Secretary of State of the State of Delaware show, and the Advisor is in good standing as a foreign limited liability company admitted to transact business in the State of Illinois. The Adviser has the limited liability company power to own and lease its properties and to conduct its business as described in the Prospectus and to execute and deliver the Sales Agreement.

2. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and to such counsel’s knowledge is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement as investment adviser to the Fund, as contemplated by the Prospectus. To such counsel’s knowledge, there is no proceeding, inquiry or investigation pending that could reasonably be expected to result in the suspension or revocation of the registration of the Adviser under the Advisers Act, or any censure or limitation of its activities pursuant to Section 203(e) of the Advisers Act.

3. Each of the Sales Agreement, the Advisory Agreement and the Accounting Agreement has been duly authorized, executed and delivered by the Adviser, and each of the Advisory Agreement and the Accounting Agreement constitutes a valid and binding obligation of the Adviser, enforceable against the Adviser in accordance with its respective terms.

4. The Sales Agreement, the Advisory Agreement and the Accounting Agreement comply in all material respects with all applicable provisions of the Advisers Act.

5. The Adviser’s execution and delivery of the Sales Agreement do not, and the Adviser’s performance of its obligations under the Sales Agreement and each Adviser Agreement will not (a) violate any existing provisions of the Adviser’s organizational documents, (b) constitute a violation by the Adviser of any Applicable Law (except with respect to compliance with any disclosure requirement or any prohibition against fraud or misrepresentation or as to whether performance of the indemnification or contribution provisions in the Sales Agreement would be permitted, as to which we express no opinion) or (c) with respect to the Sales Agreement, breach, or result in a default under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under), the contracts of the Adviser set forth on Exhibit A hereto (provided that we express no opinion with respect to any financial test or cross-default provision in any such agreement), except in each case for such breaches, violations or defaults that would not have an Adviser Material Adverse Effect.

“Applicable Law” shall mean the Delaware Limited Liability Company Act, the statutory laws and regulations of the State of Illinois, the Advisers Act, the Securities Act, the Investment Company Act, and such other statutory laws and regulations of the United States of America which, in such counsel’s experience, are normally directly applicable to transactions of the type contemplated by the Transaction Documents, without such counsel having made any special investigation as to the applicability of any specific law.

6. To such counsel’s knowledge, based solely on a review of its litigation docket and a certificate of an officer of the Adviser, there is no action, proceeding or investigation pending or overtly threatened in writing against the Adviser before any United States, Delaware or Illinois court, governmental agency or arbitrator that expressly: (a) asserts the invalidity of the Sales Agreement and/or either Adviser Agreement or (b) seeks to prevent the consummation of the transactions contemplated by the Sales Agreement.

7. Such counsel does not have actual knowledge that any provision in any court or administrative order, writ, judgment or decree of a court or agency of the United States of America, the State of Delaware or the State of Illinois would be breached or otherwise violated by the Adviser’s execution or delivery of the Sales Agreement or its performance of its obligations under the Sales Agreement, the Advisory Agreement and the Accounting Agreement.

8. No Governmental Approval is required by the Adviser to perform its obligations under the Sales Agreement or the Adviser Agreements, except for the registration of the offer and sale of the Placement Shares under the Securities Act (as to which such counsel expresses no opinion) and other Governmental Approvals already obtained or made. “Governmental Approval” shall mean any consent, approval, license or authorization of, or filing, recording or registration with, any governmental authority required by the Applicable Laws.

9. To such counsel’s knowledge, based solely on a review of its litigation docket and a certificate of an officer of the Adviser, there is no pending action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator specifically against the Adviser or its property of a character required to be disclosed in the Registration Statement and which is not so disclosed in the Prospectus.

* * * * *

Exhibit A

Material Contracts

Exhibit 8(m)

, 20

JonesTrading Institutional Services LLC

000 Xxxxx Xxxxxx, 0^xx Xxxxx

Xxx Xxxx, Xxx Xxxx 00000

Ladies and Gentlemen:

This certificate of Calamos Convertible and High Income Fund, a Delaware statutory trust (the “Fund”), is being delivered on behalf of the Fund by [ ], in connection with the Sales Agreement, dated April 15, 2016, among the Fund, Calamos Advisors LLC and JonesTrading Institutional Services LLC (the “Agent”) in relation to the issuance and sale from time to time of shares of up to 6,232,167 of the Fund’s common shares of beneficial interest through the Agent.

I hereby certify that I am the duly elected Chief Financial Officer of the Fund.

I have reviewed the Fund’s unaudited semi-annual financial statements and financial highlights as of and for the semi-annual period ended April 30, 20[ ] attached hereto as Exhibit A and included in the Fund’s semi-annual report on Form N-CSRS (the “Semi-Annual Financial Statements”) and for purposes of this certification, have inquired of other officials of the Fund, as necessary, who have responsibility for certain financial and accounting matters.

Nothing has come to my attention based on my review of the Semi-Annual Financial Statements and my inquiries of other Fund officials as stated above, that causes me to believe that:

(a)

any material modifications should be made to the Semi-Annual Financial Statements for them to be in conformity with accounting principles generally accepted in the United States of America; and

(b)

the Semi-Annual Financial Statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, and the rules and regulations adopted thereunder by the Securities and Exchange Commission.

[Remainder of page intentionally blank]

Signed by me this day of , 20 .

Name:

Title:

Exhibit 8(n)

FUND SECRETARY’S CERTIFICATE

I, , certify that I am the Secretary of Calamos Convertible and High Income Fund, a Delaware statutory trust (the “Fund”), and that, as such, I am authorized to execute this certificate on behalf of the Fund, and in connection with the Sales Agreement dated as of April 15, 2016 (the “Sales Agreement”), among the Fund, Calamos Advisors LLC and JonesTrading Institutional Services LLC (“JonesTrading”), do hereby further certify that (capitalized terms shall have the meanings ascribed to them in the Sales Agreement):

1. Attached as Exhibit A is a true and complete copy of the Certificate of Trust of the Fund as in full force and effect as of the date hereof and has been in full force and effect at all times since [April 17, 2002].

2. Attached as Exhibit B is a true and complete copy of the Amended and Restated Agreement and Declaration of Trust of the Fund as is in full force and effect as of the date hereof and as has been in full force and effect at all times since September 13, 2006. No proceedings for any amendment to such Amended and Restated Agreement and Declaration of Trust have been instituted or are pending.

3. Attached as Exhibit C is a true and complete copy of the By-Laws of the Fund as are in full force and effect as of the date hereof and as have been in full force and effect at all times since September 13, 2006.

4. Attached as Exhibit D is a true copy of certain resolutions duly adopted by the Board of Trustees of the Fund on , 2015, authorizing, among other things, (i) the issuance and sale of up to million shares of the Fund’s common stock, (ii) filing a new shelf registration statement on Form N-2 with the Securities and Exchange Commission, and (iii) the execution and delivery by the Fund of the Sales Agreement. Such resolutions have not been modified or revoked, are in full force and effect and such resolutions are the only resolutions adopted by the Board of Trustees or any committee thereof relating to the matters covered thereby.

5. is and has been at all times since , 200 , the Vice President and Chief Financial Officer of the Fund, and the signature of the above-named officer set forth below immediately opposite his name is his true and correct signature:



Vice President and Chief Financial Officer

6. Attached as Exhibit E is a specimen stock certificate for the Fund’s Common Stock.

[Signature Page Follows]

IN WITNESS WHEREOF, I have executed this Certificate as of the day of , 2016.


CALAMOS CONVERTIBLE AND HIGH INCOME FUND

By:
		Secretary

The undersigned, being the Vice President and Chief Financial Officer of the Fund, does hereby certify that is and has been at all times since , 2011, a duly elected and acting Secretary of the Fund and the above signature of such officer is her true and correct signature.


CALAMOS CONVERTIBLE AND HIGH INCOME FUND

By:
		Vice President and Chief Financial Officer

Exhibit 8(n)

CALAMOS ADVISORS LLC

SECRETARY’S CERTIFICATE

, 2016

The undersigned DOES HEREBY CERTIFY that he is the duly elected, qualified and acting authorized Secretary of Calamos Advisors LLC, a limited liability company organized and existing under the laws of the State of Delaware (the “Adviser”), and as such is authorized to execute this Secretary’s Certificate in connection with that certain Sales Agreement among the Adviser, Calamos Convertible and High Income Fund (the “Fund”) and JonesTrading Institutional Services LLC, dated April 15, 2016. The term “Transaction Agreements” whenever it is used in this letter means the Sales Agreement, the Advisory Agreement and the Accounting Agreement. Capitalized terms used and not otherwise defined herein shall have the respective meanings as defined in the Sales Agreement. The undersigned FURTHER CERTIFIES that:

Attached hereto as Exhibit A is a true, correct and complete copy of the Limited Liability Company Agreement of the Adviser, as amended, as in full force and effect as of the date hereof.

Attached hereto as Exhibit B are true, correct and complete copies of the Written Consents of the Sole Manager of the Adviser authorizing the Sales Agreement and the Advisory Agreement as in full force and effect on the date hereof and which have not been amended in any respect as of the date hereof.

Attached hereto as Exhibit C is a true, correct and complete copy of the Advisory Agreement between the Adviser and the Fund, as amended, as in full force and effect on the date hereof.

Attached hereto as Exhibit D is a true, correct and complete copy of the Accounting Agreement between the Adviser and the Fund, as amended, as in full force and effect on the date hereof.

The representations and warranties of the Adviser set forth in the Transaction Agreements are true and correct as of the date hereof.

The persons listed below are duly elected, qualified and acting authorized officers of the Adviser holding the respective offices set forth opposite their names below and the signature of each such person set forth opposite his or her name below is his or her genuine signature.


Name	Office	Signature

Xxxx X. Xxxxxxx, Xx.	President and Co-Chief Investment Officer

J. Xxxxxxxxxxx Xxxxxxx	Senior Vice President and General Counsel

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the undersigned has caused this Secretary’s Certificate to be duly executed as of the date first written above.


CALAMOS ADVISORS LLC

By:
Name:		J. Xxxxxxxxxxx Xxxxxxx
Title:		Secretary

The undersigned hereby certifies that J. Xxxxxxxxxxx Xxxxxxx is the duly appointed Secretary of the Adviser and that the signature appearing above is J. Xxxxxxxxxxx Xxxxxxx’x genuine signature.

IN WITNESS WHEREOF, I have hereunto set my hand as of this th day of , 2016.


CALAMOS ADVISORS LLC

By:
Name:		Xxxxxx X. Xxxxx
Title:		Senior Vice President, Director of Operations

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CALAMOS CONVERTIBLE AND HIGH INCOME FUND UP TO 6,232,167 COMMON SHARES OF BENEFICIAL INTEREST CAPITAL ON DEMAND™ SALES AGREEMENT

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