EXHIBIT (h)(5)
FORM OF
SUB-PLACEMENT AGENT AGREEMENT
Eaton Vance Distributors, Inc.
Two International Place
Boston, Massachusetts 02110
______________, 2021
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
RE: At-the-Market Offerings by Eaton Vance [ ]
Ladies and Gentlemen:
From time to time Eaton
Vance Distributors, Inc. (the “Distributor”, “we” or “us”) will act as manager
of registered at-the-market offerings by Eaton Vance [ ], a Massachusetts business trust (the “Fund”), of up to [ ] common
shares (the “Shares”) of beneficial interest, par value $0.01 per share, of the Fund (the “Common Shares”).
In the case of such offerings, the Fund has agreed with the Distributor to issue and sell through or to the Distributor, as sales agent
and/or principal, the Shares.
We hereby agree to retain
UBS Securities LLC (the “Agent” or “you”) as a sub-placement agent with respect to the offerings
of the Shares to be issued and sold by the Fund (the “Offerings”), and you agree to act in such capacity, all upon,
and subject to, the terms and conditions set forth below:
SECTION
1. Description of Offerings.
(a) The Shares are to be
sold on a daily basis or otherwise as shall be agreed to by the Fund and the Distributor on any day (each, an “Offering Date”)
that is a trading day for the exchange on which the Fund’s Shares are listed and primarily trade (the “Stock Exchange”)
(other than a day on which the Stock Exchange is scheduled to close prior to its regular weekday closing time). Promptly after the Fund
and the Distributor have determined the maximum amount of the Shares to be sold by the Distributor for any Offering Date, the Distributor
shall advise the Agent of such amount, which shall not in any event exceed the amount available for issuance under the currently effective
Registration Statement (as defined below). Subject to the terms and conditions hereof, the Agent shall use its reasonable best efforts
to sell all of the Shares designated in accordance with the plan of distribution set forth in the Prospectus Supplement (as defined below).
The gross sales price of the Shares sold under this Section 1(a) shall be the market price at which the Agent sells such Shares.
(b) Notwithstanding the foregoing,
the Distributor may instruct the Agent by telephone (confirmed promptly by e-mail or telecopy) not to sell the Shares if such sales cannot
be effected at or above a price agreed to by the Fund and the Distributor with respect to such Shares. In addition, the Distributor may,
upon notice to the Agent by telephone (confirmed promptly by e-mail or telecopy), suspend the offering of the Shares at any time; provided,
however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the
Shares sold hereunder prior to the giving of such notice.
(c) The Agent agrees not
to make any sales of the Shares on behalf of the Distributor pursuant to this Section 1, other than through transactions for which
compliance with Rule 153 under the Securities Act will satisfy the prospectus delivery requirements of Section 5(b)(2) of the Securities
Act.
(d) The compensation to the
Agent, as a sub-placement agent of the Distributor for each sale of the Shares pursuant to this Section 1, shall be the Applicable
Selling Agent Commission with respect to the Shares sold, multiplied by the Gross Sales Proceeds, as further described in the Addendum
to this Sub-Placement Agent Agreement (the “Agreement”). The Agent shall not be responsible for any fees imposed by
any governmental or self-regulatory organization on the Fund or the Distributor in respect of such sales. The compensation to the Distributor,
as manager of registered at-the-market offerings by the Fund, for each sale of the Shares pursuant to this Section 1, before any
fees imposed by any governmental or self-regulatory organization on the Fund or the Distributor in respect of such sales, shall be the
Distributor Retention with respect to the Shares sold, multiplied by the Gross Sales Proceeds, as further described in the Addendum to
this Agreement.
(e) The Agent shall provide
written confirmation to the Distributor following the close of trading on the Stock Exchange on each Offering Date setting forth for each
sale the number of Shares sold, the time of sale, the Gross Sales Price per Share, the compensation payable to the Distributor with respect
to such sales, and the compensation payable by the Distributor to the Agent with respect to such sales.
(f) Settlement for sales
of the Shares pursuant to this Section 1 will occur on the second business day following the date on which such sales are made
(each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on
such date shall be delivered by the Distributor to the Agent against payment of the Gross Proceeds for the sale of such Shares. Settlement
for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The Depository Trust Company in return
for payments in same day funds delivered to the account designated by the Distributor. If the Distributor shall default on its obligation
to deliver the Shares on any Settlement Date, subject to the terms of Section 4 herein, the Distributor shall (A) hold the
Agent harmless against any reasonable loss, claim or damage arising from or as a result of such default by the Distributor and (B) pay
the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing
to deliver proceeds on any Settlement Date for the Shares delivered by the Distributor, the Agent will pay the Distributor interest based
on the effective overnight Federal Funds rate.
(g) In connection with this
Agreement and the Offerings, the Distributor shall provide to the Agent, no more than once per calendar quarter, (i) a certificate signed
by the Chief Executive Officer, the Chief Legal Officer, the Chief Administrative Officer, the Treasurer, the President, a Director or
a Senior Vice President of the Distributor to the effect that (A) the representations and warranties of the Distributor in this Agreement
are true and correct with the same force and effect as though expressly made at and as of the date thereof and the Distributor has performed
or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to
the date thereof, (B) to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or threatened by the Securities and Exchange Commission (the “Commission”)
and (C) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change or development involving a prospective material adverse change to the business, properties, financial
condition or results of operations of the Fund; (ii) a certificate signed by the Secretary or Assistant Secretary of the Distributor relating
to authorization, capacity and incumbency matters; and (iii) such other certificates and documents related to the Offerings at the Agent’s
reasonable request.
SECTION
2. Representations and Warranties by the Distributor. The Distributor represents, warrants to and agrees with the Agent,
as of the date hereof and as of each Offering Date and Settlement Date, that:
(a) A registration statement
on Form N-2 (File No. 333-[ ]) (the “Registration Statement”)
(i) has been prepared by the Fund in conformity with the requirements of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively called the “Securities Act”) and the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder (collectively called the “1940 Act”); (ii) has been filed with the Commission under the
Securities Act and the 1940 Act; and (iii) heretofore became, and is, effective; the Registration Statement sets forth the terms of the
offering, sale and plan of distribution of the Shares and contains additional information concerning the Fund and its business; no stop
order of the Commission preventing or suspending the use of any Basic Prospectus (as defined below), the Prospectus Supplement (as defined
below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission. Except where the context otherwise
requires, “Registration Statement,” as used herein, means, collectively, the various parts of the registration statement,
as amended at the time of effectiveness for purposes of Section 11 of the Securities Act (the “Effective Time”), as
such section applies to the Distributor, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated
by reference therein, and (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant
to Rule 424 under the Securities Act, to the extent such information is deemed to be part of the registration statement at the Effective
Time. “Basic Prospectus,” as used herein, means the final prospectus filed as part of the Registration Statement, including
the related statement of additional information, together with any amendments or supplements thereto as of the date of the Agreement.
Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement,
including the related statement of additional information, relating to the Shares, filed by the Fund with the Commission pursuant to Rule
424
under the Securities Act on or before the second
business day after the date hereof (or such earlier time as may be required under the Securities Act), in the form furnished by the Fund
to the Distributor in connection with the offering of the Shares. Except where the context otherwise requires, “Prospectus,”
as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement.
Any reference herein to the registration statement, the Registration Statement, any Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference,
therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents.
(b) The Fund is duly registered
under the 1940 Act as a closed-end management investment company. A notification of registration of the Fund as an investment company
under the 1940 Act on Form N-8A (the “1940 Act Notification”) has been prepared by the Fund in conformity with the
1940 Act and has been filed with the Commission and, at the time of filing thereof and at the time of filing any amendment or supplement
thereto, conformed in all material respects with all applicable provisions of the 1940 Act. The Fund has not received any notice from
the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement (or any
amendment or supplement to either of them). No person is serving or acting as an officer, trustee or investment adviser of the Fund except
in accordance with the provisions of the 1940 Act and the Investment Advisers Act of 1940, as amended and the rules and regulations thereunder.
(c) The Registration Statement,
the 1940 Act Notification and the Prospectus as from time to time amended or supplemented each complied when it became effective or was
filed, complies as of the date hereof and, as amended or supplemented, will comply, at the time of purchase, each additional time of
purchase, if any, and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any
sale of Shares, in all material respects, with the requirements of the Securities Act and the 1940 Act; the Registration Statement did
not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the 1940 Act Notification did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier
of the date of the Basic Prospectus and the date such Basic Prospectus was filed with the Commission and ends at the later of the time
of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Securities
Act to be delivered in connection with any sale of Shares did or will the Prospectus, as from time to time amended or supplemented, include
an untrue statement of a material fact or 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; provided, however, that the Distributor does not make any representation
or warranty with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity
with information concerning the Agent and furnished in writing by the Agent or on the Agent’s behalf to the Distributor or the
Fund expressly for use in the Registration Statement or the Prospectus. The Agent confirms that the seventh paragraph under the heading
“Plan of Distribution” in the Prospectus Supplement was the only information furnished in writing to the Distributor and
the Fund by or on behalf of the Agent expressly for use in the Prospectus.
(d) The financial statements
incorporated by reference in the Registration Statement or the Prospectus, together with the related notes and schedules, present fairly
the financial position of the Fund as of the dates indicated and the results of operations, cash flows and changes in shareholders’
equity of the Fund for the periods specified and have been prepared in compliance in all material respects with the requirements of the
Securities Act, the 1940 Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in conformity
in all material respects with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved;
the other financial and statistical data contained or incorporated by reference in the Registration Statement or the Prospectus are accurately
and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Fund; there are no
financial statements that are required to be included or incorporated by reference in the Registration Statement, any Basic Prospectus
or the Prospectus that are not included or incorporated by reference as required; the Fund does not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement (excluding the exhibits
thereto); and all disclosures contained or incorporated by reference in the Registration Statement or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with
Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(e) As of the date of this
Agreement, the Fund has an authorized and outstanding capitalization as set forth in the sections of the Registration Statement, the Basic
Prospectus and the Prospectus entitled “The Trust” and “Description of capital structure,” and, with respect to
any issuance and sale under this Agreement, the Fund shall have as of the date of the most recent amendment or supplement to the Registration
Statement or Prospectus, an authorized and outstanding capitalization as set forth in the sections of the Registration Statement and the
Prospectus entitled “The Trust” and “Description of capital structure”; all of the issued and outstanding shares
of capital stock, including the Common Shares, of the Fund have been duly authorized and validly issued and are fully paid and non-assessable
(except as described below and in the Registration Statement), have been issued in material compliance with all applicable securities
laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right; the Shares will
be duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the Stock Exchange.
(f) The Fund has been duly
formed, is validly existing and is in good standing as a voluntary association with transferable shares of beneficial interest commonly
referred to as a “Massachusetts business trust” under the laws of The Commonwealth of Massachusetts, with full power and
authority to own, lease and operate and conduct its business as described in the Registration Statement, the Basic Prospectuses and the
Prospectus and to issue, sell and deliver the Shares as contemplated herein. The Fund is duly qualified to do business as a foreign entity
and is in good standing in each jurisdiction where the conduct of its business requires such qualification, except where the failure
to be so qualified and in good standing would not, individually or in the aggregate, (i) have a material adverse effect on the business,
properties, financial condition or results of operations of the Fund , (ii) prevent or materially interfere with consummation of the
transactions contemplated hereby or (iii) result in the delisting of Common Shares from the Stock Exchange (the occurrence of any such
effect or any such prevention or interference or any such result described in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “Material Adverse Effect”).
(g) The Shares have been
duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable (except as described below and in the Registration Statement) and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights; the Shares, when issued and delivered against payment therefor as provided
herein, will be free of any restriction upon the voting or transfer thereof pursuant to the Fund’s Declaration of Trust or bylaws
or any agreement or other instrument to which the Fund is a party. The capital stock of the Fund, including the Shares, conforms in all
material respects to each description thereof, if any, contained or incorporated by reference in the Registration Statement, any Basic
Prospectus or the Prospectus; and the certificates for the Shares, if any, are in due and proper form. The Fund is in material compliance
with the rules of the Stock Exchange, including, without limitation, the requirements for continued listing of the Common Shares on the
Stock Exchange and the Fund has not received any notice from the Stock Exchange regarding the delisting of the Common Shares from the
Stock Exchange.
(h) The Distributor has full
corporate power and authority to enter into this Agreement and the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Distributor. This Agreement constitutes a valid and binding agreement of the Distributor and is enforceable
against the Distributor in accordance with its terms, except as the enforceability hereof and thereof may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors’ rights generally and moratorium laws in effect from time to time
and by equitable principles restricting the availability of equitable remedies.
(i) No approval, authorization,
consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation,
the Stock Exchange), or approval of the shareholders of the Fund, is required in connection with the issuance and sale of the Shares or
the consummation by the Fund of the transactions contemplated hereby, other than (i) the registration of the Shares under the Securities
Act and the 1940 Act, which has been effected, (ii) the listing of the Shares with the Stock Exchange, upon official notice of issuance,
(iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered
by the Distributor or (iv) any necessary qualification under the Conduct Rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
SECTION
3. Additional Covenants.
(a) The Agent hereby confirms
that it is actually engaged in the investment banking and securities business and is a member in good standing with FINRA and hereby agrees
that it will undertake to comply with all applicable FINRA rules (as amended from time to time, including without limitation, any successor
provision) in connection with acting as sub-placement agent for the sale of the Shares. The Agent further agrees that in acting as sub-placement
agent for the sale of the Shares, it will comply with all applicable laws, rules and regulations, including the applicable provisions
of the Securities Act and the Exchange Act, the applicable rules and regulations of the Commission thereunder, and the applicable rules
and regulations of any state or any securities exchange or self-regulatory organization having jurisdiction over the relevant Offering.
(b) The Agent hereby agrees
that in acting as sub-placement agent for the sale of the Shares, it will not use, authorize use of, refer to, or participate in the planning
for use of any written communication (as defined in Rule 405 under the Securities Act) concerning any Offering, other than the Prospectus.
The Agent further agrees that in acting as sub-placement agent for the sale of the Shares, it is not authorized by the Distributor or
the Fund or any other seller of the Shares offered pursuant to the Prospectus to give any information or to make any representation not
contained in the Prospectus in connection with the sale of such Shares.
(c) The Distributor shall
not be under any obligation to the Agent except for obligations assumed hereunder or in writing by the Distributor in connection with
any Offering. Nothing contained herein or in any communication in writing from us shall constitute the Distributor and the Agent an association
or partners with one another. If such parties should be deemed to constitute a partnership for Federal income tax purposes, then the Agent
elects to be excluded from the application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and agrees not
to take any position inconsistent with that election. The Agent authorizes the Distributor, in its discretion, to execute and file on
its behalf such evidence of that election as may be required by the Internal Revenue Service. In connection with any Offering, each party
shall be liable for its proportionate amount of any tax, claim, demand or liability that may be asserted against it alone, based upon
the claim that either of them constitutes an association, an unincorporated business or other entity, including, in each case, its proportionate
amount of any expense incurred in defending against any such tax, claim, demand or liability.
(d) The parties acknowledge
and agree that all share related numbers contained in this Agreement shall be adjusted to take into account any stock split effected with
respect to the Shares.
(e) The Agent shall at all
times comply with the offering requirements as set forth under the heading “Plan of Distribution” in the Prospectus.
(f) The Fund shall use its
best efforts to list, subject to official notice of issuance, the Shares on the Stock Exchange and to maintain such listing.
SECTION
4. Indemnification and Contribution.
(a) The Distributor agrees
to indemnify, defend and hold harmless the Agent, its partners, directors and officers, and any person who controls the Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any reasonable loss, damage, expense, liability or claim (including the reasonable cost of investigation) which
the Agent or any such person may incur under the Securities Act, the 1940 Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon (i) any material breach of any representation, warranty,
covenant or agreement of the Distributor contained in this Agreement, (ii) any material violation by the Distributor of any law, rule
or regulation (including any rule of any self-regulatory organization) applicable to the Offerings, or (iii) any untrue statement of a
material fact appearing in the Registration Statement or Prospectus or omission to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, except to the
extent such statements were provided in writing by the Agent for inclusion in the Registration Statement or Prospectus.
(b) The Agent agrees to indemnify,
defend and hold harmless the Distributor, the Fund, their partners, trustees, directors and officers, and any person who controls the
Distributor or the Fund within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost
of investigation) which the Distributor or any such person may incur under the Securities Act, the 1940 Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any material breach of
any representation, warranty, covenant or agreement of the Agent contained in this Agreement or (ii) any material violation by the Agent
of any law, rule or regulation (including any rule of any self-regulatory organization), or (iii) any untrue statement or omission made
in the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished by the Agent.
(c) An indemnified person
under Section 4 of this Agreement (the “Indemnified Party”) shall give written notice to the other party (the
“Indemnifying Party”) of any loss, damage, expense, liability or claim in respect of which the Indemnifying Party has
a duty to indemnify such Indemnified Party under Section 4(a) or (b) of this Agreement (a “Claim”), specifying
in reasonable detail the nature of the loss, damage, expense, liability or claim for which indemnification is sought, except that any
delay or failure so to notify such other party shall only relieve such other party of its obligations hereunder to the extent, if at all,
that you are actually prejudiced by reason of such delay or failure.
(d) If a Claim results from
any action, suit or proceeding brought or asserted against an Indemnified Party, the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses. The Indemnified
Party shall have the right to employ separate counsel in such action, suit or proceeding and participate in such defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party has agreed in
writing to pay such fees and expenses, (ii) the Indemnifying Party has failed within a reasonable time to assume the defense and employ
counsel or (iii) the named parties to any
such action, suit or proceeding (including
any impleaded parties) include both such Indemnified Party and Indemnifying Party and such Indemnified Party shall have been advised by
its counsel that representation of such Indemnified Party and Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential
differing interests between the Indemnifying Party and the Indemnified Party (in which case the Indemnifying Party shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party). It is understood, however, that the
Indemnifying Party shall, in connection with any one action, suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties
not having actual or potential differing interests with the Indemnifying Party or among themselves, which firm shall be designated in
writing by an authorized representative of such parties and that all such fees and expenses shall be reimbursed promptly as they are incurred.
The Indemnifying Party shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent,
but if settled with such written consent or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the
Indemnifying Party agrees to indemnify and hold harmless any Indemnified Party from and against any loss, liability, damage or expense
by reason by such settlement or judgment.
(e) With respect to any Claim
not within Paragraph (d) of Section 4 hereof, the Indemnifying Party shall have 20 days from receipt of notice from the
Indemnified Party of such Claim within which to respond thereto. If the Indemnifying Party does not respond within such twenty-day period,
it shall be deemed to have accepted responsibility to make payment and shall have no further right to contest the validity of such Claim.
If the Indemnifying Party notifies the Indemnified Party within such twenty-day period that it rejects such Claim in whole or in part,
the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party under applicable law.
(f) If the indemnification
provided for in this Section 4 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless in
respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable Indemnifying Party shall contribute
to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities or claims in such proportion
as is appropriate to reflect (i) the relative benefits received by the Indemnified Party and its Affiliates (treated jointly as one person
for this purpose), on the one hand, and the Indemnifying Party and its Affiliates, on the other hand, from the offering of the Shares;
or (ii) if, but only if, the allocation provided for in 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) but also the relative fault of the Indemnified Party and its Affiliates
(treated jointly as one person for this purpose), on the one hand, and of the Indemnifying Party and its Affiliates, on the other, in
connection with any statements or omissions or other matters which resulted in such losses, damages, expenses, liabilities or claims,
as well as any other relevant equitable considerations. The relative benefits received by the Indemnified Party and its Affiliates (treated
jointly as one person for this purpose), on the one hand, and the Indemnifying Party and its Affiliates, on the other, shall be deemed
to be in the same respective proportions as the total proceeds from the Offering received by each such party
and its Affiliates bear to the aggregate public
offering price of the Shares. The relative fault of the parties and their Affiliates shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information
supplied by such party or its Affiliate, on one hand, or by the other party or its Affiliate on the other hand and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend
or defending any Proceeding.
(g) The parties agree that
it would not be just and equitable if contribution pursuant to this Section 4 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable considerations referred to in subsection (f) above. 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.
(h) The indemnity and contribution
agreements contained in this Section 4 and the covenants, warranties and representations of the parties contained in this Agreement
shall remain in full force and effect regardless of any investigation made by or on behalf of the Agent, its partners, directors or officers
or any person (including each partner, officer or director of such person) who controls the Agent within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Distributor, its directors or officers or any person who
controls the Distributor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares.
SECTION
5. Representations and Agreements to Survive Delivery. The representations, warranties, covenants and agreements of the
parties contained in this Agreement, including, without limitation, the indemnity agreement contained in Section 4 hereof, shall
remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any party or any person controlling
any party, or their directors or officers, (ii) acceptance of any Shares and payment therefor and (iii) any termination of this Agreement.
SECTION
6. Termination.
(a) This Agreement shall
continue in full force and effect until terminated by either party by five days' written notice to the other; provided, that if
this Agreement has become effective with respect to any Offering pursuant to this Agreement, this Agreement may not be terminated by either
party with respect to such Offering.
(b) This Agreement shall
remain in full force and effect unless terminated pursuant to Section 6(a) above or otherwise by mutual agreement of the parties;
provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section 4 and Section
5 shall remain in full force and effect.
(c) Any termination of this
Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective
until the close of business on the date of receipt of such notice by the Distributor or the Agent, as the case may be. If such termination
shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with the provisions of Section
1 of this Agreement.
SECTION
7. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements under this Agreement shall
be in writing and delivered by hand, overnight courier, mail or facsimile and, if to the Distributor, it shall be sufficient in all respects
if delivered or sent to:
Eaton Vance Distributors, Inc.
Two International Place
Boston, Massachusetts 02110
Attn:
and if to the Agent, it shall be sufficient in
all respects if delivered or sent to:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attn:
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.
SECTION
8. Parties in Interest. The Agreement herein set forth has been and is made solely for the benefit of the Distributor, the
Fund and the Agent and to the extent provided in Section 4 of this Agreement, the controlling persons, trustees, directors and
officers referred to in such section, and their respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser, from the Distributor) shall acquire
or have any right under or by virtue of this Agreement.
SECTION
9. No Fiduciary Relationship. The Distributor hereby acknowledges that the Agent is acting solely as sub-placement agent
in connection with the sale of the Shares and that the Agent is acting pursuant to a contractual relationship created solely by this Agreement
entered into on an arm’s length basis, and in no event do the parties intend that the Agent act or be responsible as a fiduciary
to the Distributor or the Fund, their respective management, shareholders or creditors, or any other person in connection with any activity
that the Agent may undertake or have undertaken in furtherance of the sale of the Shares, either before or after the date hereof.
SECTION
10. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof.
SECTION 11. Counterparts; Heading.
This Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among
the parties. The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
SECTION
12. Law; Construction. This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out
of or in any way relating to this Agreement (“Claim”), directly or indirectly, shall be governed by, and construed
in accordance with, the internal laws of the State of New York.
SECTION
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the
Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and each of the Distributor
and the Agent consents to the jurisdiction of such courts and personal service with respect thereto. Each of the Distributor and the Agent
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against the Distributor or any indemnified party. Each of the Distributor and the Agent (on its
behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) waives all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. Each of the Distributor and the Agent agrees that a final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the Distributor and the Agent and may be enforced in any other courts to the jurisdiction
of which the Distributor or the Agent is or may be subject, by suit upon such judgment.
SECTION
14. Successors and Assigns. This Agreement shall be binding upon the Distributor and the Agent and their successors and
assigns and any successor or assign of any substantial portion of the Distributor’s and the Agent’s respective businesses
and/or assets.
If the foregoing correctly
sets forth the understanding between the Distributor and the Agent, please so indicate in the space provided below for that purpose, whereupon
this Agreement and your acceptance shall constitute a binding agreement between the Distributor and the Agent. Alternatively, the execution
of this Agreement by the Distributor and the acceptance by or on behalf of the Agent may be evidenced by an exchange of telegraphic or
other written communications.
| Very truly yours, |
| |
| EATON VANCE DISTRIBUTORS, INC. |
| |
| |
| By: |
|
| |
Name: |
| |
Title: |
| |
|
ACCEPTED as of the date
first above written
| UBS SECURITIES LLC |
| (as sub-placement agent) |
| |
|
| By: |
|
| |
Name: |
| |
Title: |
| |
|
| By: |
|
| |
Name: |
| |
Title: |
ADDENDUM
TO
SUB-PLACEMENT AGENT AGREEMENT
BETWEEN
EATON VANCE DISTRIBUTORS, INC.
AND
UBS SECURITIES LLC
Compensation payable to the Agent
for acting as a sub-placement agent on behalf of the Distributor with respect to a specified sale of Shares pursuant to this Agreement
shall be determined by multiplying the Gross Sales Proceeds by the Applicable Selling Agent Commission as set forth in the table below:
|
Gross Sales Commission |
Distributor Retention |
Applicable Selling Agent Commission |
| 1.00% |
0.20% |
0.80% |
Where:
“Gross Sales Proceeds”
with respect to each sale of Shares shall be the Gross Sales Price multiplied by the number of Shares sold;
“Gross Sales Price”
with respect to each sale of Shares sold pursuant to this Agreement shall be the gross sales price per share of such Shares.
