0001445546-16-010811.txt : 20160929
0001445546-16-010811.hdr.sgml : 20160929
20160929172124
ACCESSION NUMBER: 0001445546-16-010811
CONFORMED SUBMISSION TYPE: POS EX
PUBLIC DOCUMENT COUNT: 11
FILED AS OF DATE: 20160929
DATE AS OF CHANGE: 20160929
EFFECTIVENESS DATE: 20160929
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: FIRST TRUST NEW OPPORTUNITIES MLP & ENERGY FUND
CENTRAL INDEX KEY: 0001589420
IRS NUMBER: 000000000
STATE OF INCORPORATION: MA
FILING VALUES:
FORM TYPE: POS EX
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-212884
FILM NUMBER: 161910711
BUSINESS ADDRESS:
STREET 1: 10 WESTPORT ROAD
STREET 2: SUITE C101A
CITY: WILTON
STATE: CT
ZIP: 06897
BUSINESS PHONE: 630-765-8000
MAIL ADDRESS:
STREET 1: 120 EAST LIBERTY DRIVE, SUITE 400
CITY: WHEATON
STATE: IL
ZIP: 60187
POS EX
1
fpl_posex.txt
POST-EFFECTIVE AMENDMENT TO ADD EXHIBITS
As filed with the Securities and Exchange Commission on September 29, 2016
================================================================================
1933 Act File No. 333-212884
1940 Act File No. 811-22902
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
(Check appropriate box or boxes)
[X] REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[ ] Pre-Effective Amendment No. __
[X] Post-Effective Amendment No. 1
and
[X] REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
[X] Amendment No. 7
First Trust New Opportunities MLP & Energy Fund
Exact Name of Registrant as Specified in Declaration of Trust
10 Westport Road, Suite C101a, Wilton, Connecticut 06897
Address of Principal Executive Offices (Number, Street, City, State, Zip Code)
(630) 765-8000
Registrant's Telephone Number, including Area Code
W. Scott Jardine, Esq.
First Trust Portfolios L.P.
120 East Liberty Drive, Suite 400
Wheaton, Illinois 60187
Name and Address (Number, Street, City, State, Zip Code) of Agent for Service
Copies of Communications to:
Eric F. Fess, Esq.
Chapman and Cutler LLP
111 West Monroe Street
Chicago, Illinois 60603
Approximate Date of Proposed Public Offering: From time to time after the
effective date of this Registration Statement
---------------
If any of the securities being registered on this form are offered on a
delayed or continuous basis in reliance on Rule 415 under the Securities Act of
1933, other than securities offered in connection with a dividend reinvestment
plan, check the following box. [X]
This Post-Effective Amendment No. 1 will become effective immediately upon
filing pursuant to Rule 462(d) under the Securities Act of 1933.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form
N-2 (File No. 333-212884) of First Trust New Opportunities MLP & Energy Fund
(the "Registration Statement") is being filed pursuant to Rule 462(d) under the
Securities Act of 1933, as amended (the "Securities Act"), solely for the
purpose of filing exhibits to the Registration Statement. Accordingly, this
Post-Effective Amendment No. 1 consists only of a facing page, this explanatory
note and Part C of the Registration Statement on Form N-2 setting forth the
exhibits to the Registration Statement. This Post-Effective Amendment No. 1 does
not modify any other part of the Registration Statement.
PART C - OTHER INFORMATION
Item 25: Financial Statements and Exhibits
1. Financial Statements:
The Registrant's audited financial statements, notes to the financial
statements and the report of independent public accounting firm thereon have
been incorporated into Part B of the Registration Statement by reference to
Registrant's Annual Report for the fiscal year ended October 31, 2015 contained
in its Form N-CSR, as described in the statement of additional information.
2. Exhibits:
a.1 Declaration of Trust dated October 15, 2013. (1)
a.2 Amendment to the Declaration of Trust dated April 25, 2016. **
b. By-Laws of Fund. (2)
c. None.
d. None.
e. Terms and Conditions of the Dividend Reinvestment Plan. (2)
f. None.
g.1 Form of Investment Management Agreement between Registrant and First Trust
Advisors L.P. (2)
g.2 Form of Sub-Advisory Agreement between Registrant, First Trust Advisors
L.P. and Energy Income Partners, LLC. (2)
h.1 Form of Underwriting Agreement.*
h.2 Form of Sales Agreement.**
i. None.
j. Form of Custody Agreement between Registrant and Fund Custodian. (2)
k.1 Form of Service Agreement for Transfer Agent Services between Registrant
and Fund Transfer Agent. (2)
k.2 Form of Administration and Accounting Services Agreement. (2)
k.3 Committed Facility Agreement dated April 7, 2014.**
k.4 Amendment No. 1 to Committed Facility Agreement dated May 12, 2014.**
k.5 Amendment No. 2 to Committed Facility Agreement dated August 28, 2014.**
k.6 Amendment No. 3 to Committed Facility Agreement dated January 21, 2015.**
k.7 Amendment No. 4 to Committed Facility Agreement dated March 18, 2016.**
l.1 Opinion and consent of Chapman and Cutler LLP.**
l.2 Opinion and consent of Morgan, Lewis & Bockius LLP.**
m. None.
n. Consent of Independent Registered Public Accounting Firm.**
o. None.
p. Subscription Agreement between Registrant and First Trust Advisors L.P.
(2)
q. None.
r.1 Code of Ethics of Registrant. (2)
r.2 Code of Ethics of First Trust Portfolios L.P. (2)
r.3 Code of Ethics of First Trust Advisors L.P. (2)
r.4. Code of Ethics of Energy Income Partners, LLC. (2)
s. Powers of Attorney. (3)
----------------------------
(1) Filed on October 18, 2013 as Exhibit a. to Registrant's Registration
Statement on Form N-2 (File No. 333-191808) and incorporated herein by
reference.
(2) Filed on March 26, 2014 in Pre-Effective Amendment No. 3 to Registrant's
Registration Statement on Form N-2 (File No. 333-191808) and incorporated
herein by reference.
(3) Filed on August 4, 2016 as Exhibit s. to Registrant's Registration
Statement on Form N-2 (File No. 333-212884) and incorporated herein by
reference.
* To be filed by amendment.
** Filed herewith.
Item 26: Marketing Arrangements
The information contained under the heading "Plan of Distribution"
contained in Registrant's Prospectus, filed as Part A of Registrant's
Registration Statement on September 20, 2016 is incorporated by reference
herein.
The information contained in the Sales Agreement among the Registrant,
First Trust Advisors L.P., Energy Income Partners, LLC and JonesTrading
Institutional Services LLC for the Registrant's common shares of beneficial
interest, filed as Exhibit h.2 to this Registration Statement, is incorporated
by reference herein.
Item 27: Other Expenses of Issuance and Distribution
---------------------------------------------------------- ------------
Securities and Exchange Commission Fees $ 6,490
---------------------------------------------------------- ------------
Financial Industry Regulatory Authority, Inc. Fees $ 5,000
---------------------------------------------------------- ------------
Printing and Engraving Expenses $ 17,500
---------------------------------------------------------- ------------
Legal Fees $ 70,000
---------------------------------------------------------- ------------
Listing Fees $ 2,500
---------------------------------------------------------- ------------
Accounting Expenses $ 25,000
---------------------------------------------------------- ------------
Blue Sky Filing Fees and Expenses $ --
---------------------------------------------------------- ------------
Miscellaneous Expenses $ --
---------------------------------------------------------- ------------
Total $126,490
---------------------------------------------------------- ------------
Item 28: Persons Controlled by or under Common Control with Registrant
Not applicable.
Item 29: Number of Holders of Securities
At August 31, 2016
---------------------------------------- --------------------------------------
Title of Class Number of Record Holders
---------------------------------------- --------------------------------------
Common Shares, $0.01 par value 13,697
---------------------------------------- --------------------------------------
Item 30: Indemnification
Section 9.5 of the Registrant's Declaration of Trust provides as follows:
Indemnification and Advancement of Expenses. Subject to the exceptions and
limitations contained in this Section 9.5, every person who is, or has been, a
Trustee, officer or employee of the Trust, including persons who serve at the
request of the Trust as directors, trustees, officers, employees or agents of
another organization in which the Trust has an interest as a shareholder,
creditor or otherwise (hereinafter referred to as a "Covered Person"), shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director, officer, employee or agent and against amounts paid or
incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person to the extent
such indemnification is prohibited by applicable federal law.
The rights of indemnification herein provided may be insured against by policies
maintained by the Trust, shall be severable, shall not affect any other rights
to which any Covered Person may now or hereafter be entitled, shall continue as
to a person who has ceased to be such a Covered Person and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Subject to applicable federal law, expenses of preparation and presentation of a
defense to any claim, action, suit or proceeding subject to a claim for
indemnification under this Section 9.5 shall be advanced by the Trust prior to
final disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount if it is ultimately determined that he is not
entitled to indemnification under this Section 9.5.
To the extent that any determination is required to be made as to whether a
Covered Person engaged in conduct for which indemnification is not provided as
described herein, or as to whether there is reason to believe that a Covered
Person ultimately will be found entitled to indemnification, the Person or
Persons making the determination shall afford the Covered Person a rebuttable
presumption that the Covered Person has not engaged in such conduct and that
there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
As used in this Section 9.5, the words "claim," "action," "suit" or "proceeding"
shall apply to all claims, demands, actions, suits, investigations, regulatory
inquiries, proceedings or any other occurrence of a similar nature, whether
actual or threatened and whether civil, criminal, administrative or other,
including appeals, and the words "liability" and "expenses" shall include
without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
Item 31: Business and Other Connections of Investment Advisers
The information in the Statement of Additional Information under the captions
"Management of the Fund - Trustees and Officers" and "Sub-Advisor," and the Form
ADV of Energy Income Partners, LLC (File No. 801-66907) filed with the
Commission are hereby incorporated by reference.
Item 32: Location of Accounts and Records.
First Trust Advisors L.P. maintains the Declaration of Trust, By-Laws, minutes
of trustees and shareholders meetings and contracts of the Registrant, all
advisory material of the investment adviser, all general and subsidiary ledgers,
journals, trial balances, records of all portfolio purchases and sales, and all
other required records.
Item 33: Management Services
Not applicable.
Item 34: Undertakings
1. Registrant undertakes to suspend the offering of its shares until it
amends its prospectus if (1) subsequent to the effective date of its
Registration Statement, the net asset value declines more than 10 percent
from its net asset value as of the effective date of the Registration
Statement, or (2) the net asset value increases to an amount greater than
its net proceeds as stated in the prospectus.
2. Not applicable.
3. Not applicable.
4. The Registrant undertakes (a) to file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement:
(1) to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(2) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(3) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(b) that, for the purpose of determining liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of those securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(c) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering;
(d) that, for the purpose of determining liability under the Securities Act of
1933 to any purchaser, if the Registrant is subject to Rule 430C; each
prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the
Securities Act of 1933, shall be deemed to be part of and included in this
Registration Statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in this
Registration Statement or prospectus that is part of this registration
statement or made in a document incorporated or deemed incorporated by
reference into this registration statement or prospectus that is art of
this registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supercede or modify any
statement that was made in this registration statement or prospectus that
was part of this registration statement or made in any such document
immediately prior to such date of first use;
(e) that for the purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of
securities:
The undersigned Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to the purchaser:
(1) any preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule 497 under
the Securities Act of 1933;
(2) the portion of any advertisement pursuant to Rule 482 under the Securities
Act of 1933 relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on behalf of
the undersigned Registrant; and
(3) any other communication that is an offer in the offering made by the
undersigned Registrant to the purchaser.
5. The Registrant undertakes that:
a. For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant under Rule 497(h) under the
Securities Act of 1933 shall be deemed to be part of the Registration
Statement as of the time it was declared effective; and
b. For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of the securities at that
time shall be deemed to be the initial bona fide offering thereof.
6. The Registrant undertakes to send by first class mail or other means
designed to ensure equally prompt delivery, within two business days of
receipt of a written or oral request, any Statement of Additional
Information.
7. Upon each issuance of securities pursuant to this Registration Statement,
the Registrant undertakes to file a form of prospectus and/or prospectus
supplement pursuant to Rule 497 and a post-effective amendment to the
extent required by the Securities Act of 1933 and the rules and
regulations thereunder, including, but not limited to a post-effective
amendment pursuant to Rule 462(c) or Rule 462(d) under the Securities Act
of 1933.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in this City of Wheaton, and State of Illinois, on the 29th day of
September, 2016.
FIRST TRUST NEW OPPORTUNITIES MLP
AND ENERGY INCOME FUND
By: /s/ James M. Dykas
-------------------------------
James M. Dykas, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
--------------------- --------------------------------- --------------------
Signature Title Date
--------------------- --------------------------------- --------------------
/s/ James M. Dykas President and Chief Executive September 29, 2016
-------------------- Officer
James M. Dykas (Principal Executive Officer)
--------------------- --------------------------------- --------------------
/s/ Donald P. Swade Chief Financial Officer, Chief September 29, 2016
-------------------- Accounting Officers and
Donald P. Swade Treasurer (Principal Financial
and Accounting Officer)
----------------------- ------------------------- ----------------------------
James A. Bowen(1) Chairman of the Board )
and Trustee )
----------------------- ------------------------ )
Richard E. Erickson(1) Trustee ) By: /s/ W. Scott Jardine
----------------------- ------------------------ ) ---------------------
Thomas R. Kadlec(1) Trustee ) W. Scott Jardine
----------------------- ------------------------ ) Attorney-In-Fact
Robert F. Keith(1) Trustee ) September 29, 2016
----------------------- ------------------------ )
Niel B. Nielson(1) Trustee )
----------------------- ------------------------- ----------------------------
---------------
(1) Original powers of attorney authorizing W. Scott Jardine, James M. Dykas,
Eric F. Fess and Kristi A. Maher to execute Registrant's Registration Statement,
and Amendments thereto, for each of the trustees of the Registrant on whose
behalf this Registration Statement is filed, were previously executed and filed
on August 4, 2016 as an Exhibit to the Registrant's Registration Statement on
Form N-2 (File No. 333-212884).
INDEX TO EXHIBITS
a.2 Amendment to the Declaration of Trust dated April 25, 2016.
h.2 Form of Sales Agreement.
k.3 Committed Facility Agreement dated April 7, 2014.
k.4 Amendment No. 1 to Committed Facility Agreement dated May 12, 2014.
k.5 Amendment No. 2 to Committed Facility Agreement dated August 28, 2014.
k.6 Amendment No. 3 to Committed Facility Agreement dated January 21, 2015.
k.7 Amendment No. 4 to Committed Facility Agreement dated March 18, 2016.
l.1 Opinion and consent of Chapman and Cutler LLP.
l.2 Opinion and consent of Morgan, Lewis & Bockius LLP.
n. Consent of Independent Registered Public Accounting Firm.
EX-99.A CHARTER
2
exhibit_a2.txt
AMENDMENT TO THE DECLARATION OF TRUST DATED APRIL 25, 2016
AMENDMENT TO
THE DECLARATION OF TRUST
TO CHANGE THE PRINCIPAL OFFICE OF THE TRUST
FIRST TRUST NEW OPPORTUNITIES MLP & ENERGY FUND (THE "TRUST")
The undersigned, constituting at least a majority of the Trustees of the
Trust, a business trust organized under the laws of The Commonwealth of
Massachusetts, acting pursuant to the Trust's Declaration of Trust, as amended
to the date hereof (the "Declaration"), do hereby amend the Declaration as
follows:
The principal office of the Trust is hereby changed from "187
Danbury Road, Wilton, Connecticut 06897" to "10 Westport Road Suite
C101a Wilton, Connecticut 06897," and all references to the address
of the principal office of the Trust in the Declaration are hereby
accordingly amended.
This amendment to the Declaration shall become effective on April 25,
2016.
IN WITNESS WHEREOF, the undersigned, being at least a majority of the
Trustees of the Trust, have executed this amendment as of April 25, 2016.
/s/ James A. Bowen /s/ Richard E. Erickson
----------------------------- -----------------------------
James A. Bowen, as Trustee Richard E. Erickson, as Trustee
c/o First Trust Advisors L.P. c/o First Trust Advisors L.P.
120 East Liberty Drive 120 East Liberty Drive
Wheaton, Illinois 60187 Wheaton, Illinois 60187
/s/ Thomas R. Kadlec /s/ Niel B. Nielson
----------------------------- -----------------------------
Thomas R. Kadlec, as Trustee Niel B. Nielson, as Trustee
c/o First Trust Advisors L.P. c/o First Trust Advisors L.P.
120 East Liberty Drive 120 East Liberty Drive
Wheaton, Illinois 60187 Wheaton, Illinois 60187
/s/ Robert F. Keith
-----------------------------
Robert F. Keith, as Trustee
c/o First Trust Advisors L.P.
120 East Liberty Drive
Wheaton, Illinois 60187
EX-99.H OTH MAT CONT
3
exhibit_h2.txt
FORM OF SALES AGREEMENT
FIRST TRUST NEW OPPORTUNITIES MLP & ENERGY FUND
UP TO 5,000,000 COMMON SHARES OF BENEFICIAL INTEREST
CAPITAL ON DEMAND(TM)
SALES AGREEMENT
September 29, 2016
JONESTRADING INSTITUTIONAL SERVICES LLC
780 Third Avenue, 3rd Floor
New York, NY 10017
Ladies and Gentlemen:
First Trust New Opportunities MLP & Energy Fund, a Massachusetts business
trust (the "FUND"), First Trust Advisors L.P., an Illinois limited partnership
(the "ADVISER") and Energy Income Partners, LLC, a Delaware limited liability
company (the "SUB-ADVISER") confirm their agreement (this "AGREEMENT") with
JonesTrading Institutional Services LLC ("JONES") 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 Jones, acting as agent and/or principal,
up to five million (5,000,000) of the Fund's common shares of beneficial
interest, $0.01 par value per share (the "SHARES"). Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 1 on the number of Shares issued and sold
under this Agreement shall be the sole responsibility of the Fund, and Jones
shall have no obligation in connection with such compliance. The issuance and
sale of Shares through Jones will be effected pursuant to the Registration
Statement (as defined below) filed by the Fund and declared effective by the
Securities and Exchange Commission (the "COMMISSION").
The Fund has entered into an Investment Management Agreement with the
Adviser dated March 18, 2014 (the "ADVISORY AGREEMENT"), an Investment
Sub-Advisory Agreement with the Adviser and the Sub-Adviser dated March 18, 2014
(the "SUB-ADVISORY AGREEMENT"), a Custody Agreement with The Bank of New York
Mellon (the "CUSTODIAN") dated February 5, 2014, (the "CUSTODIAN AGREEMENT"), a
Services Agreement for Transfer Agent Services with BNY Mellon Investment
Servicing (US) Inc. dated February 5, 2014 (the "TRANSFER AGENCY AGREEMENT") and
the Administration and Accounting Services Agreement with BNY Mellon Investment
Servicing (US) Inc. dated February 5, 2014 (the "ADMINISTRATION AGREEMENT").
Collectively, the Advisory Agreement, the Sub-Advisory Agreement, the Custodian
Agreement, the Transfer Agency Agreement and the Administration Agreement are
herein referred to as the "FUND AGREEMENTS." The Adviser has entered into the
Advisory Agreement, the Sub-Advisory Agreement and this Agreement (collectively,
the "ADVISER AGREEMENTS"). The Sub-Adviser has entered into the Sub-Advisory
Agreement and this Agreement. In addition, the Fund has adopted a dividend
reinvestment plan (the "DIVIDEND REINVESTMENT PLAN") pursuant to which the
holders of Shares shall have their dividends automatically reinvested in
additional Shares unless they elect to receive such dividends in cash.
The Fund has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "SECURITIES ACT") and the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder (collectively, the "INVESTMENT COMPANY
ACT"), with the Commission a registration statement on Form N-2 (File Nos.
333-212884 and 811-22902) (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 Jones, for use by Jones, 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, including the
Fund's Statement of Additional Information, and including any information
contained in a Prospectus Supplement subsequently filed with the Commission
pursuant to Rule 497 under the Securities Act is herein called the "REGISTRATION
STATEMENT." The Basic Prospectus, as it may be supplemented by the Prospectus
Supplement, in the form in which such prospectus and/or Prospectus Supplement
have most recently been filed by the Fund with the Commission pursuant to Rule
497 under the Securities Act, is herein called the "PROSPECTUS."
For purposes of this Agreement, all references to the Registration Statement,
the Prospectus, or to any amendment or supplement thereto shall be deemed to
include any copy filed with the Commission pursuant to its Interactive Data
Electronic Application database. For purposes of this Agreement, all references
to the Registration Statement, unless otherwise noted and except as the context
otherwise requires, shall be deemed to include any and all amendments thereto.
2. Placements. Each time that the Fund wishes to issue and sell Shares
hereunder (each, a "PLACEMENT"), it will notify Jones by e-mail notice (or other
method mutually agreed to in writing by the parties) containing the parameters
in accordance with which it desires the Shares to be sold, which shall, at a
minimum, include the number of Shares to be issued (the "PLACEMENT SHARES"), the
time period during which sales are requested to be made, any limitation on the
number of Placement Shares that may be sold in any one day, any minimum price
below which sales may not be made and the discount, commission or other
compensation to be paid by the Fund to Jones,(excluding the Reimbursable Amounts
(as defined in Section 7(e) herein) (a "PLACEMENT NOTICE"), a form of which,
containing such minimum sales parameters necessary, is attached hereto as
Schedule 1. The Placement Notice shall originate from any of the individuals
from the Fund set forth on Schedule 3 (with a copy to each of the other
individuals from the Fund listed on such schedule), and shall be addressed to
each of the individuals from Jones set forth on Schedule 3, as such Schedule 3
2
may be amended from time to time. The Placement Notice shall be effective upon
receipt by Jones unless and until (i) in accordance with the notice requirement
set forth in Section 4, Jones 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 Jones suspends or terminates the Placement
Notice, (iv) the Fund issues a subsequent Placement Notice with parameters
superseding those on the earlier dated Placement Notice, or (v) the Agreement
has been terminated under the provisions of Section 11. The amount of any
discount, commission or other compensation to be paid by the Fund to Jones in
connection with the sale of the Placement Shares shall be calculated in
accordance with the terms set forth in Schedule 2, unless superceded by the
terms and conditions as set forth in the applicable Placement Notice. It is
expressly acknowledged and agreed that neither the Fund nor Jones will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless
and until the Fund delivers a Placement Notice to Jones and Jones 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 Jones. 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, Jones, 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. Jones 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 Jones (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 Jones intends to sell the Placement Shares in privately
negotiated transactions and/or any other method permitted by law, including
sales made directly on the New York Stock Exchange ("NYSE"), the then-existing
trading market for the Shares or sales made to or through a market maker or
through an electronic communications network, or in any other manner that may be
deemed to be an "at-the-market" offering as defined in Rule 415 of the
Securities Act, in each case, at or above the then-current net asset value of
the Fund's common shares of beneficial interest (exclusive of any distributing
commission or discount payable by the Fund to Jones pursuant to Section 2
hereof) in accordance with Section 23(b) of the Investment Company Act. As the
Fund's agent with respect to any such sale, Jones covenants that it will comply
with all prospectus delivery requirements imposed under applicable federal and
state securities laws. The Fund, the Adviser and Sub-Adviser each acknowledge
and agree that (i) there can be no assurance that Jones will be successful in
selling Placement Shares, and (ii) Jones will not incur any liability or
obligation to the Fund, the Adviser, the Sub-Adviser or any other person or
entity if it does not sell Placement Shares for any reason other than a failure
by Jones to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Placement Shares as required under this
3
Section 3. For the purposes hereof, "TRADING DAY" means any day on which Shares
are purchased and sold on the principal exchange or market on which the Shares
are listed or quoted.
4. Suspension of Sales. The Fund or Jones may, upon notice to the other party
in writing (including by e-mail correspondence to all of the individuals of the
other party set forth on Schedule 3 or by telephone (confirmed immediately by
verifiable facsimile transmission or e-mail correspondence to all of the
individuals of the other party set forth on Schedule 3)), suspend or refuse to
undertake any sale of Placement Shares; provided, however, that such suspension
or refusal shall not affect or impair either party's obligations with respect to
any Placement Shares sold hereunder prior to the receipt of such notice. Each of
the parties hereto agrees that no such notice shall be effective against the
other unless it is made to the individuals named on Schedule 3 hereto in
accordance with this Section 4, as such Schedule may be amended from time to
time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in
the applicable Placement Notice, settlement for sales of Placement Shares will
occur on the third (3rd) Business Day (or such earlier day as is industry
practice for regular-way trading) following the date on which such sales are
made (each, a "SETTLEMENT DATE"). The amount of proceeds to be delivered to the
Fund on a Settlement Date against the receipt of the Placement Shares sold (the
"NET PROCEEDS") will be equal to the aggregate sales price at which such
Placement Shares were sold, after deduction for (i) Jones's commission, discount
or other compensation for such sales payable by the Fund pursuant to Section 2
hereof (or as otherwise agreed to in writing as set forth in the Placement
Notice) and (ii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(b) Delivery of Shares. On or before each Settlement Date, the Fund
will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting Jones's 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, Jones will deliver the related Net Proceeds in same day funds
to an account designated by the Fund prior to the Settlement Date. The Fund
agrees that if the Fund defaults on its obligation to deliver Placement Shares
on a Settlement Date, the Fund and the Adviser each agree that, in addition to
and in no way limiting the rights and obligations set forth in Section 9(a)
hereto, it will (i) hold Jones 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 Jones any
commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.
6. Representations and Warranties of the Fund and the Adviser.
(a) Representations and Warranties by the Fund and the Adviser. The
Fund and the Adviser jointly and severally, represent and warrant to and agree
with Jones as of the date hereof, as of each Representation Date (as defined in
Section 7(j) below) and as of each Applicable Time (as defined in Section
4
6(a)(ii) and such representations and warranties to be true and correct in all
material respects as of each Applicable Time) as follows:
(i) The Fund meets the requirements for the use of Form N-2 under
the Securities Act and the Investment Company Act. The Registration
Statement has been declared effective by the Commission under the
Securities Act. Each Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the Securities Act complied when
so filed in all material respects with the provisions of the Securities
Act and the Investment Company Act. The Commission has not issued any
order preventing or suspending the use of the Prospectus or the
effectiveness of the Registration Statement and no proceedings for such
purpose have been instituted or, to the knowledge of the Fund, are
contemplated by the Commission.
(ii) (A) The Registration Statement in the form in which it became
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and as of the date hereof and as
of the time of each sale of Placement Shares pursuant to this Agreement
(the "APPLICABLE TIME") and as of each Settlement Date, and (B) the
Prospectus and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the Securities Act and any amendment or
supplement thereto when filed with the Commission and as of the date
hereof, as of each Applicable Time and as of each Settlement Date,
complied or will comply in all material respects with the provisions of
the Securities Act and the Investment Company Act, and each of the
Registration Statement and the Prospectus did not or will not at any such
times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; except that this
representation and warranty does not apply to statements in or omissions
from the Registration Statement and the Prospectus made in reliance upon
and in conformity with information relating to Jones furnished to the Fund
in writing by or on behalf of Jones expressly for use therein.
(iii) All the outstanding shares of capital stock of the Fund have
been duly authorized and validly issued, are fully paid and (except as
described in the Prospectus under "Certain Provisions in the Declaration
of Trust and By-Laws") nonassessable and are free of any preemptive or
similar rights and have been offered and sold by the Fund in compliance
with all applicable federal and state securities laws. No shares of
capital stock, other than common shares of beneficial interest of the
Fund, are issued or outstanding and the capitalization of the Fund
conforms in all material respects to the description thereof in the
Registration Statement and the Prospectus. The Placement Shares have been
duly authorized for issuance and sale pursuant to this Agreement and, when
issued, delivered against payment therefore in accordance with this
Agreement, will be validly issued and fully paid and nonassessable
obligations of the Fund; and the Placement Shares will conform in all
material respects to the description thereof in the Registration Statement
and the Prospectus.
5
(iv) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its obligations
under this Agreement and the Fund Agreements. The Fund is duly registered
and qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or to qualify, either alone or in the aggregate,
does not have or would not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), general affairs,
business, properties, business prospects, net assets or results of
operations of the Fund, whether or not occurring in the ordinary course of
business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened against the Fund or to which the
Fund or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not
described as required or that could reasonably be expected to result in a
Fund Material Adverse Effect, or that may have a material, adverse effect
on the ability of the Fund to perform its obligations under this Agreement
or any of the Fund Agreements. All descriptions in the Registration
Statement and the Prospectus of any Fund documents are accurate in all
material respects. There are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
Securities Act or Investment Company Act.
(vi) The Fund is not in violation of its Declaration of Trust
("DECLARATION OF TRUST"), bylaws or other organizational documents or any
law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the Financial
Industry Regulatory Authority ("FINRA"), any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
other agency or any body or official having jurisdiction over the Fund or
in breach or default in the performance of any of the Fund Agreements or
any other obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound, except for such violation
or such breach or default that, either alone or in the aggregate, does not
have or would not reasonably be expected to have a Fund Material Adverse
Effect.
(vii) Neither the issuance and sale of the Placement Shares, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or order of or registration or filing with the
Commission, FINRA, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
6
having jurisdiction over the Fund (except such as have been already
obtained under the Securities Act, the Investment Company Act, the rules
and regulations of FINRA and the NYSE or compliance with the securities or
Blue Sky laws of various jurisdictions which have been or will be effected
in accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust,
bylaws, or other organizational documents of the Fund or (B) (1) conflicts
or will conflict with or constitutes or will constitute a breach of or a
default under any of the Fund Agreements or any other agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or (2) violates or will
violate any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Fund or any of its properties or will
result in the creation or imposition of any lien, charge or encumbrance
upon (collectively, a "LIEN") any property or assets of the Fund pursuant
to the terms of any agreement or instrument to which it is a party or by
which it may be bound or to which any of the property or assets of the
Fund is subject, except for such conflict, breach, default, violation or
lien that, either alone or in the aggregate, does not have or would not
reasonably be expected to have a Fund Material Adverse Effect or a
material adverse effect on the ability of the Fund to perform its
obligations under this Agreement or any of the Fund Agreements. The Fund
is not subject to any order of any court or of any arbitrator,
governmental authority or administrative agency.
(viii) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund, whether or not
arising in the ordinary course of business, (B) there have been no
transactions entered into by the Fund other than those in the ordinary
course of its business as described in the Prospectus and (C) there has
been no dividend or distribution of any kind declared, paid or made by the
Fund on any class of its common stock, except for regular dividends
consistent with past practice.
(ix) The Fund's accountants, Deloitte & Touche LLP, who have audited
the financial statements included in, and whose report appears in, the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), are an independent public accounting firm as required
by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the financial
position of the Fund on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein and
comply with all applicable accounting requirements under the Securities
Act and the Investment Company Act; and the other financial and
statistical information and data included in the Registration Statement or
7
the Prospectus are accurately derived from such financial statements and
the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under Rule
497 under the Securities Act, has taken all required action under the
Securities Act and the Investment Company Act to make the public offering
and consummate the sale of the Placement Shares as contemplated by this
Agreement.
(xii) The execution and delivery of and the performance by the Fund
of its obligations under this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and each of the
Fund Agreements have been duly executed and delivered by the Fund and each
constitutes the valid and legally binding agreement of the Fund,
enforceable against the Fund in accordance with its terms, except as
rights to indemnity and contribution hereunder may be limited by federal
or state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(xiii) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, subsequent to the respective dates as of
which such information is given in the Registration Statement and the
Prospectus, the Fund has not incurred any material liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, and there has not been any change in the
capital stock (other than in connection with the transactions contemplated
hereunder or pursuant to the Fund's dividend reinvestment plan) or any
change or any development involving or which should reasonably be expected
to involve a Fund Material Adverse Effect or its capitalization, or the
incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to occur
of (A) the applicable Settlement Date and (B) completion of the
distribution of the Placement Shares contemplated by the applicable
Placement Notice, will not distribute any offering material in connection
with the offering and sale of the Placement Shares other than the
Registration Statement, the Prospectus, any "sales material" (as defined
in Section 6(a)(xx) below) or other materials permitted by the Securities
Act or the Investment Company Act.
(xv) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("PERMITS") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Prospectus (and any amendment or
supplement thereto); and, except as described in the Prospectus (and any
amendment or supplement thereto), none of such permits contains any
restriction that is materially burdensome to the Fund.
8
(xvi) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with the Fund's Board of Trustees'
general or specific authorization and with the investment policies and
restrictions of the Fund and the applicable requirements of the Securities
Act, the Investment Company Act and the Internal Revenue Code of 1986, as
amended, (the "CODE"); (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value and fee
accruals, to maintain accountability for assets and to maintain compliance
with the books and records requirements under the Investment Company Act;
(C) access to assets is permitted only in accordance with the Board of
Trustees' general or specific authorization; and (D) the recorded amount
of assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Fund
maintains "disclosure controls and procedures" (as such term is defined in
Rule 30a-3 under the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus, the
Fund has not taken and will not take, directly or indirectly, any action
designed to or which could cause or result in or which will constitute
stabilization or manipulation of the price of the Placement Shares, or of
any securities issued by the Fund, to facilitate the sale or resale of the
Placement Shares in violation of federal securities laws and no such
action has been, or will be, taken by any affiliates of the Fund.
(xix) The Fund is duly registered under the Investment Company Act
as a closed-end, non-diversified management investment company and the
notification of registration of the Fund as an investment company under
the Investment Company Act on Form N-8A has been duly filed with the
Commission, is effective, and, at the time of filing thereof and at all
times through the date hereof conformed in all material respects with all
applicable provisions of the Investment Company Act; no order of
suspension or revocation of such registration under the Investment Company
Act has been issued or proceedings therefor initiated or threatened by the
Commission. The provisions of the Declaration of Trust and the investment
policies and restrictions described in each of the Registration Statement
and the Prospectus, comply in all material respects with the requirements
of the Investment Company Act. No person is serving or acting as an
officer or trustee of, or investment adviser to, the Fund except in
accordance with the provisions of the Investment Company Act and the
Advisers Act.
(xx) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), if any, whether in printed or electronic form,
authorized in writing by or prepared by or at the direction of the Fund or
the Adviser for use in connection with the offering and sale of the
Placement Shares (collectively, "SALES MATERIAL") complied and comply in
9
all material respects with the applicable requirements of the Securities
Act and the rules and interpretations of FINRA. No sales material
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(xxi) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the Securities Act,
the Investment Company Act and the Advisers Act.
(xxii) No holder of any security of the Fund has any right to require
registration of any Shares, capital stock or any other security of the
Fund because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(xxiii) Except as disclosed in the Registration Statement and the
Prospectus, no trustee of the Fund is an "interested person" (as defined
in the Investment Company Act) of the Fund or an "affiliated person" (as
defined in the Investment Company Act) of Jones.
(xxiv) The Placement Shares are duly listed and admitted and
authorized for trading, subject to official notice of issuance, on the
NYSE.
(xxv) All of the information provided to Jones or to counsel for
Jones by the Fund, its officers and Trustees in connection with letters,
filings or other supplemental information provided to FINRA pursuant to
FINRA's conduct rules is true, complete and correct in all material
respects.
(xxvi) There is and has been no failure on the part of the Fund or
any of the Fund's trustees or officers, in their capacities as such, to
comply in any material respect with any provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "SARBANES OXLEY ACT"), including Sections 302 and 906
related to certifications.
(xxvii) The Fund has filed all tax returns that are required to be
filed and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such tax, assessment,
fine or penalty that is currently being contested in good faith by
appropriate actions and except for such taxes, assessments, fines or
penalties the nonpayment of which would not, individually or in the
aggregate, have a Fund Material Adverse Effect.
(xxviii) There are no material restrictions, limitations or
regulations with respect to the ability of the Fund to invest its assets
as described in the Prospectus, other than as described therein.
(xxix) 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
10
that provide oversight of compliance for each investment adviser,
administrator and transfer agent of the Fund.
(xxx) The Fund carries, or is covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of its business and
value of its properties.
(xxxi) The operations of the Fund are and have been conducted at all
times in material compliance with applicable financial recordkeeping and
reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the "MONEY LAUNDERING LAWS") and no action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Fund with respect to the Money
Laundering Laws is pending or, to the knowledge of the Fund, threatened.
(xxxii) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is aware of or
has taken any action in connection with the Fund, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt
Practice Act of 1977, as amended and the rules and regulations thereunder
(the "FCPA") including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of
any money, or other property, gift, promise to give, or authorization of
the giving of anything of value to any "foreign official" (as such term is
defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA
and the Fund, and to the knowledge of the Fund, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(xxxiii) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Fund will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(b) Representations and Warranties with Respect to the Adviser. The
Adviser represents and warrants to and agrees with Jones as of the date hereof,
as of each Representation Date (as defined in Section 7(j) below) and as of each
Applicable Time (such representations and warranties to be true and correct in
all material respects as of each Applicable Time) as follows:
(i) The Adviser is a limited partnership duly organized and validly
existing in good standing under the laws of the State of Illinois, with
full power and authority to own, lease and operate its properties and to
conduct its business as described in each of the Registration Statement
and the Prospectus and is duly registered and qualified to conduct
11
business and is in good standing in each jurisdiction or place where the
nature of its properties or conduct of its business requires such
registration or qualification, except where the failure so to register or
to qualify, either alone or in the aggregate, does not have or would not
reasonably be expected to have (A) a material adverse effect on the
condition (financial or other), general affairs, business, properties,
business prospects, net assets or results of operations, whether or not
occurring in the ordinary course of business, of the Adviser (an "ADVISER
MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(ii) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act or the Investment Company Act from acting under the Advisory
Agreement for the Fund as contemplated by the Registration Statement or
the Prospectus. There does not exist any proceeding, whether pending or,
to the knowledge of the Adviser, threatened, which could reasonably be
expected to have an Adviser Material Adverse Effect with respect to the
registration of the Adviser with the Commission.
(iii) There are no legal or governmental proceedings pending or, to
the knowledge of the Adviser, threatened against the Adviser that are
required to be described in the Registration Statement or the Prospectus
but are not described as required or that could reasonably be expected to
result in any Adviser Material Adverse Effect or that may have a material,
adverse effect on the ability of the Adviser to perform its obligations
under this Agreement or any of the Adviser Agreements.
(iv) Neither the execution, delivery or performance of this
Agreement or any of the Adviser Agreements by the Adviser, nor the
consummation by the Adviser of the transactions contemplated hereby or
thereby (A) requires the Adviser to obtain any consent, approval,
authorization or other order of, or registration or filing with, the
Commission, FINRA, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Adviser, or conflicts or will conflict with
or constitutes or will constitute a breach of or a default under, the
partnership agreement or bylaws or other organizational documents of the
Adviser or (B) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the Adviser's organizational
documents, including the Adviser's partnership agreement, any of the
Adviser Agreements or any other agreement, indenture, lease or other
instrument to which the Adviser is a party or by which the Adviser or any
of its properties may be bound, or violates or will violate any statute,
law, regulation or judgment, injunction, order or decree applicable to the
Adviser or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Adviser pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of the
property or assets of the Adviser is subject, except in any case under
clause (B) for such conflict, breach, default, violation or lien that,
either alone or in the aggregate, does not have or would not reasonably be
expected to have an Adviser Material Adverse Effect or a material adverse
effect on the ability of the Adviser to perform its obligations under this
Agreement or any of the Adviser Agreements. The Adviser is not subject to
12
any order of any court or of any arbitrator, regulatory body,
administrative agency or other governmental body, agency or official.
(v) The Adviser has full power and authority to enter into this
Agreement and each of the Adviser Agreements; the execution and delivery
of, and the performance by the Adviser of its obligations under, this
Agreement and each of the Adviser Agreements have been duly and validly
authorized by the Adviser; and this Agreement and each of the Adviser
Agreements have been duly executed and delivered by the Adviser and
constitute the valid and legally binding agreements of the Adviser,
enforceable against the Adviser in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by federal
or state securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles whether
enforcement is considered in a proceeding in equity or at law.
(vi) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus or under this Agreement and each
of the Adviser Agreements.
(vii) The description of the Adviser in the Registration Statement
or the Prospectus complied as of any effective date of the Registration
Statement and as of the date of the Prospectus, as applicable, and
complies and will comply, as of the date hereof, each Applicable Time and
each Settlement Date, in all material respects with the provisions of the
Securities Act, the Investment Company Act and the Advisers Act and did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
(viii) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated
therein, there has not occurred any event which would reasonably be
expected to have a material adverse effect on the ability of the Adviser
to perform its obligations under this Agreement and each of the Adviser
Agreements.
(ix) The Adviser has such consents, authorizations, approvals and
permits as are necessary to own its property and to conduct its business
in the manner described in the Prospectus; and the Adviser has fulfilled
and performed all its material obligations with respect to such consents,
authorizations, approvals and permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the rights of
the Adviser under any such consent, authorization, approval or permit,
except where such revocation, termination or impairment would not
reasonably be expected to have a Adviser Material Adverse Effect.
13
(x) None of this Agreement nor any of the Adviser Agreements
violate any applicable provisions of the Investment Company Act and
Advisers Act.
(xi) Except as stated in this Agreement, the Registration Statement
or the Prospectus, the Adviser has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Placement Shares or any securities issued
by the Fund to facilitate the sale or resale of the Placement Shares in
violation of federal securities laws and the Adviser is not aware of any
such action taken or to be taken by any affiliates of the Adviser
(xii) The Adviser has adopted and implemented written policies and
procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to
prevent violation of the Advisers Act by the Adviser and its supervised
persons.
(c) Representations and Warranties with Respect to the Sub-Adviser.
The Sub-Adviser represents and warrants to and agrees with Jones as of the date
hereof, as of each Representation Date (as defined in Section 7(j) below) and as
of each Applicable Time (such representations and warranties to be true and
correct in all material respects as of each Applicable Time) as follows:
(i) The Sub-Adviser is a limited liability company duly organized
and validly existing in good standing under the laws of the State of
Delaware, with full limited liability company power and authority to own,
lease and operate its properties and to conduct its business as described
in each of the Registration Statement and the Prospectus and is duly
registered and qualified to conduct business and is in good standing in
each jurisdiction or place where the nature of its properties or conduct
of its business requires such registration or qualification, except where
the failure so to register or to qualify, either alone or in the
aggregate, does not have or would not reasonably be expected to have (A) a
material adverse effect on the condition (financial or other), general
affairs, business, properties, business prospects, net assets or results
of operations of the Sub-Adviser (a "SUB-ADVISER MATERIAL ADVERSE EFFECT")
or (B) a Fund Material Adverse Effect.
(ii) The Sub-Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act or the Investment Company Act from acting under the
Sub-Advisory Agreement for the Fund as contemplated by the Registration
Statement or the Prospectus. There does not exist any proceeding, whether
pending or, to the knowledge of the Sub-Adviser, threatened, which could
reasonably be expected to have a Sub-Adviser Material Adverse Effect with
respect to the registration of the Sub-Adviser with the Commission.
(iii) There are no legal or governmental proceedings pending or, to
the knowledge of the Sub-Adviser, threatened against the Sub-Adviser that
are required to be described in the Registration Statement or the
Prospectus but are not described as required or that could reasonably be
expected to result in a Sub-Adviser Material Adverse Effect or that may
have a material, adverse effect on the ability of the Sub-Adviser to
perform its obligations under this Agreement or the Sub-Advisory
Agreement.
14
(iv) Neither the execution, delivery or performance of this
Agreement or the Sub-Advisory Agreement by the Sub-Adviser, nor the
consummation by the Sub-Adviser of the transactions contemplated hereby or
thereby (A) requires the Sub-Adviser to obtain any consent, approval,
authorization or other order of, or registration or filing with, the
Commission, FINRA, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Sub-Adviser, or conflicts or will conflict
with or constitutes or will constitute a breach of or a default under, the
limited liability company agreement or bylaws or other organizational
documents of the Sub-Adviser or (B) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
Sub-Adviser's organizational documents, including the Sub-Adviser's
limited liability agreement, the Sub-Advisory Agreement or any other
agreement, indenture, lease or other instrument to which the Sub-Adviser
is a party or by which the Sub-Adviser or any of its properties may be
bound, or violates or will violate any statute, law, regulation or
judgment, injunction, order or decree applicable to the Sub-Adviser or any
of its properties or will result in the creation or imposition of any lien
upon any property or assets of the Sub-Adviser pursuant to the terms of
any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Sub-Adviser is
subject, except in any case under clause (B) for such conflict, breach,
default, violation or lien that, either alone or in the aggregate, does
not have or would not reasonably be expected to have a Sub-Adviser
Material Adverse Effect or a material adverse effect on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement. The Sub-Adviser is not subject to any order of any
court or of any arbitrator, regulatory body, administrative agency or
other governmental body, agency or official.
(v) The Sub-Adviser has full power and authority to enter into this
Agreement and the Sub-Advisory Agreement; the execution and delivery of,
and the performance by the Sub-Adviser of its obligations under, this
Agreement and the Sub-Advisory Agreement have been duly and validly
authorized by the Sub-Adviser; and, assuming due authorization, execution
and delivery by the other parties thereto, this Agreement and the
Sub-Advisory Agreement have been duly executed and delivered by the
Sub-Adviser and constitute the valid and legally binding agreements of the
Sub-Adviser, enforceable against the Sub-Adviser in accordance with their
terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Sub-Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general equitable
principles whether enforcement is considered in a proceeding in equity or
at law.
(vi) The Sub-Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus or under this Agreement and the
Sub-Advisory Agreement.
(vii) The description of the Sub-Adviser in the Registration
Statement or the Prospectus complied as of any effective date of the
Registration Statement and as of the date of the Prospectus, as
15
applicable, and complies and will comply, as of the date hereof, each
Applicable Time and each Settlement Date, in all material respects with
the provisions of the Securities Act, Investment Company Act and the
Advisers Act did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading.
(viii) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated
therein, there has not occurred any event which would reasonably be
expected to have a material adverse effect on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement.
(ix) The Sub-Adviser has such consents, authorizations, approvals
and permits as are necessary to own its property and to conduct its
business in the manner described in the Prospectus; and the Sub-Adviser
has fulfilled and performed all its material obligations with respect to
such consents, authorizations, approvals and permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of
the rights of the Sub-Adviser under any such consent, authorization,
approval or permit, except where such revocation, termination or
impairment would not reasonably be expected to have a Sub-Adviser Material
Adverse Effect.
(x) Neither this Agreement nor the Sub-Advisory Agreement violates
any applicable provisions of the Investment Company Act and the Advisers
Act.
(xi) Except as stated in this Agreement, the Registration Statement
or the Prospectus (or in any amendment or supplement to any of the
foregoing), the Sub-Adviser has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in or which will constitute stabilization or
manipulation of the price of the Placement Shares or of any securities
issued by the Fund to facilitate the sale or resale of the Placement
Shares in violation of federal securities laws and the Sub-Adviser is not
aware of any such action taken or to be taken by any affiliates of the
Sub-Adviser; provided that any action in connection with the Fund's
Dividend Reinvestment Plan will not be deemed to be within the terms of
this Section.
(xii) The Sub-Adviser has adopted and implemented written policies
and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed
to prevent violation of the Advisers Act by the Adviser and its supervised
persons.
(xiii) (A) The Registration Statement in the form in which it became
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and as of the date hereof, as of
each Applicable Time and as of each Settlement Date, (B) the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the Securities Act and any amendment or supplement
thereto when filed with the Commission and as of the date hereof, as of
16
each Applicable Time and as of each Settlement Date, and (C) any sales
material as of the date hereof, as of each Applicable Time and as of each
Settlement Date, did not or will not at any such times contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus and any sales material, in light of the circumstances
under which they were made) not misleading; provided, however that this
representation and warranty applies only to statements in or omissions
from the Registration Statement, the Prospectus and any sales material
relating solely to the description of the Sub-Adviser or information
supplied by the Sub-Adviser to the Fund and/or the Adviser expressly for
inclusion therein.
(d) Certificates. Any certificate signed by any authorized officer
of the Fund, or the Adviser identified on Schedule 3 attached hereto, as such
Schedule may be updated from time to time pursuant to notice properly delivered
to Jones pursuant to Section 12 of this Agreement and delivered to the
representatives or to counsel for Jones shall be deemed a representation and
warranty by the Fund or the Adviser, as the case may be, to Jones as to the
matters covered thereby.
7. Covenants of the Fund, the Adviser and the Sub-Adviser. The Fund, the
Adviser and (with respect to subsection (e), (h), (j), (l(ii)), (n), (t) and (v)
below only, and only as they relate to the Sub-Adviser) the Sub-Adviser, jointly
and severally, covenant and agree with Jones that:
(a) The Fund will promptly advise Jones (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 Jones
with a copy for its review prior to filing, and will not file any such proposed
amendment or supplement affecting the Placement Shares to which Jones reasonably
objects, in any event until after the end of the period during which a
prospectus is required to be delivered to purchasers of the Placement Shares
under the Securities Act. Subject to the foregoing sentence, the Fund will cause
the Prospectus Supplement to be transmitted to the Commission for filing
pursuant to Rule 497 under the Securities Act. The Fund will use its best
efforts to prevent the issuance of any order suspending the effectiveness of the
Registration Statement affecting the Placement Shares and, if issued, to obtain
as soon as possible the withdrawal thereof. The Fund will timely file the
requisite copies of the Prospectus with the Commission pursuant to Rule 497(c)
or Rule 497(h) under the Securities Act, whichever is applicable or, if
applicable, will timely file the certification permitted by Rule 497(j) under
the Securities Act and will advise Jones of the time and manner of such filing.
17
(b) During any period in which a Prospectus relating to the
Placement Shares is required to be delivered by Jones under the Securities Act
with respect to a pending sale of the Placement Shares, the Fund will comply so
far as it is able with all requirements imposed upon it by the Securities Act
and the Investment Company Act, as from time to time in force, so far as
necessary to permit the continuance of sales of the Placement Shares during such
period in accordance with the provisions hereof and the Prospectus, and will
file with the Commission and the NYSE all documents pursuant to the Securities
Act and the Investment Company Act in the manner and within the time periods
required by the Securities Act and the Investment Company Act. If during such
period any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Fund will promptly notify Jones 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 Jones under the Securities Act
with respect to a pending sale of the Placement Shares, the Fund will use its
best efforts to cause the Placement Shares to be listed on the NYSE and to
qualify, if necessary, the Placement Shares for sale under the securities laws
of such United States jurisdictions as Jones reasonably designates and to
continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Fund shall not be required
in connection therewith to qualify as a foreign corporation or dealer in
securities, file a general consent to service of process in any jurisdiction, or
meet any other requirement in connection with this Section 7(c) deemed by the
Fund to be unduly burdensome.
(d) As soon as practicable, but in no event later than the last day
of the 18th full calendar month following the calendar quarter in which the
effective date of the Registration Statement falls, the Fund will make generally
available to its security holders an earnings statement, which need not be
audited, which earnings statement shall satisfy the provisions of Section 11(a)
and Rule 158 of the Securities Act.
(e) The Fund agrees to pay all costs, fees and expenses incurred in
connection with performance of its obligations hereunder and in connection with
the transactions contemplated under this Agreement, including, without
limitation, (i) all expenses incident to the issuance and delivery of the
Placement Shares (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent of the Shares, (iii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Placement Shares, (iv) all reasonable fees and expenses of the Fund's
counsel and the Fund's independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts) and the Prospectus, and all amendments and supplements
thereto and this Agreement, (vi) all filing fees, distribution fees, attorneys'
fees and expenses incurred by the Fund or Jones 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
18
securities or blue sky laws, including, if requested by Jones, the preparation
by counsel for Jones and printing of a "Blue Sky Survey" or other memorandum,
and any supplements thereto, advising Jones of such qualifications,
registrations and exemptions, (vii) the fees and expenses associated with
listing the Placement Shares on the NYSE, (viii) the filing fees incident to,
and the reasonable fees and disbursements of counsel to Jones in connection
with, the review by FINRA of the terms of the sale of the Placement Shares, (ix)
the reasonable fees and expenses of counsel for Jones (provided such fees and
expenses (a) shall not exceed $25,000 in connection with the preparation and
execution of this Agreement and the preparation and filing of the initial
Prospectus Supplement dated as of the date hereof relating to the Placement
Shares and providing the services described in clauses (vi) and (viii) above and
(b) shall not exceed $10,000 on an annual basis in each annual period following
the date of this Agreement); provided, however, that Jones shall be responsible
for the fees and expenses of its counsel and shall reimburse the Fund for the
payment of such fees and expenses paid by the Fund to counsel for Jones if and
to the extent the Fund sells greater than two million five hundred thousand
(2,500,000) Shares pursuant to this Agreement, and (x) all other fees, costs and
expenses incident to the performance by the Fund of its obligations hereunder.
Except as provided in Section 7(e)(viii) and (ix) above with respect to Jones
(collectively, the "Reimbursable Amounts"), the aggregate amount of any
discount, commission or other compensation to be paid by the Fund to Jones in
connection with Jones' performance of its obligations under this Agreement shall
be as set forth on Schedule 2 attached hereto (or as otherwise agreed to in
writing as set forth in the Placement Notice). The Fund shall pay to Jones the
Reimbursable Amounts in addition to such discount, commissions and other
compensation payable to Jones as contemplated by Schedule 2 (or as otherwise
agreed to in writing as set forth in the Placement Notice). Each of the Adviser
and Sub-Adviser, severally, agree to pay all costs, fees and expenses of its
respective counsel.
(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 Jones 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 Jones pursuant to this Agreement.
(h) The Fund will cooperate with any due diligence review conducted
by Jones or its agents, including, without limitation, providing information and
making available documents and senior corporate officers, as Jones may
reasonably request; provided, however, that the Fund shall be required to make
available documents and senior corporate officers only (i) at the Fund's
principal offices and (ii) during the Fund's ordinary business hours. The
parties acknowledge that the due diligence review contemplated by this Section
7(h) will include during the term of this Agreement (x) a bring-down diligence
conference among Jones and certain officers of the Fund's operations or legal
departments upon the issuance by the Fund of a Placement Notice and (y) a
diligence conference to occur within three business days following the Fund's
filing of each of its annual and semi-annual reports on Form N-CSR and N-CSRS,
respectively (the "REPORTS") whereby the Fund, the Adviser and the Sub-Adviser
will make their senior corporate officers, including portfolio managers,
available to address certain diligence inquiries of Jones and will provide such
additional information and documents as Jones may reasonably request.
19
(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
Jones, the Net Proceeds to the Fund and the compensation payable by the Fund to
Jones with respect to such Placement Shares, and (ii) deliver such number of
copies of each such Prospectus Supplement to each exchange or market on which
such sales were effected as may be required by the rules or regulations of such
exchange or market.
(j) During the term of this Agreement, each time the Fund (i) files
the Prospectus relating to the Placement Shares (ii) amends or supplements the
Registration Statement or the Prospectus relating to the Placement Shares by
means of a post-effective amendment, sticker, or supplement (other than a
Prospectus Supplement filed in accordance with Section 7(i) of this Agreement),
or (iii) files a Report (to the extent not already covered by subsection (i) or
(ii) of this Section 7(j)), each of the Fund, the Adviser and Sub-Adviser shall
furnish Jones with a certificate, in the form attached hereto as Exhibit 7(j).
(Each date contemplated in subsections (i), (ii) and (iii) of this Section 7(j)
is referred to herein as a "REPRESENTATION DATE"). With respect to
post-effective amendments to the Registration Statement contemplated by this
Section 7(j), if the Fund is not otherwise permitted 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 7
shall be delivered on or as promptly as practicable following the date of
effectiveness of such amendment. If the Fund is permitted 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.
(k) Except as otherwise provided in the last sentence of this
Section 7(k), on the date hereof and thereafter as of each Representation Date,
the Fund shall cause to be furnished to Jones with a written opinion of Chapman
and Cutler LLP (the "FUND COUNSEL"), dated the Representation Date, in
substantially the form attached hereto as Exhibit 7(k)(1), but modified, as
necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented; provided, however, that in lieu of such opinion,
counsel may furnish Jones with a letter to the effect that Jones may rely on a
prior opinion delivered under this Section 7(k) to the same extent as if it were
dated the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented at such Representation Date). Insofar as any opinion of
Fund Counsel relates to or is dependent upon matters governed by Massachusetts
law, Fund Counsel will be permitted to rely on the opinion of Morgan, Lewis &
Bockius LLP. In the event that a Representation Date is triggered by the filing
of a Report, only the opinion identified in Exhibit 7(k)(2) shall be required.
(l) (i) Except as otherwise provided in the last sentence of this
Section 7(i), on the date hereof and thereafter as of each Representation Date,
the Adviser shall cause to be furnished to Jones with a written opinion of
Chapman and Cutler LLP (the "ADVISER COUNSEL"), dated the Representation Date,
in substantially the form attached hereto as Exhibit 7(l)(i), but modified, as
necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented; provided, however, that in lieu of such opinion,
20
counsel may furnish Jones with a letter to the effect that Jones may rely on a
prior opinion delivered under this Section 7(l)(i) to the same extent as if it
were dated the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented at such Representation Date). In the event that a
Representation Date is triggered by the filing of the Fund's semi-annual report,
no opinion identified in this Section 7(l)(i) shall be required.
(ii) Except as otherwise provided in the last sentence of
Section 7(l)(ii), on the date hereof and thereafter as of each Representation
Date, the Sub-Adviser shall cause to be furnished to Jones with a written
opinion of Dechert LLP (the "SUB-ADVISER COUNSEL"), dated the Representation
Date, in substantially the form attached hereto as Exhibit 7(l)(ii), but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as then amended or supplemented; provided, however, that in lieu of
such opinion, counsel may furnish Jones with a letter to the effect that Jones
may rely on a prior opinion delivered under this Section 7(l)(ii) to the same
extent as if it were dated the date of such letter (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date). In the
event that a Representation Date is triggered by the filing of the Fund's
semi-annual report, no opinion in this Section 7(1)(ii) shall be required.
(m) On the date hereof and each date on which a Report is filed, or
during any period in which the Prospectus relating to the Placement Shares is
required to be delivered by Jones, each time that the Registration Statement is
amended or the Prospectus supplemented to include additional financial
statements, the Fund shall cause its independent accountants to furnish Jones
letters (the "COMFORT LETTERS"), dated the date of each such date, in form and
substance satisfactory to Jones, (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 a Representation Date is triggered by the filing of the Fund's
semi-annual report and to the extent the Fund's independent accountants have not
been engaged by the Fund to perform a review of the Fund's unaudited semi-annual
financial statements in connection with such filing, then no Comfort Letter
contemplated by this Section 7(m) shall be required; provided, however, that in
such case the Fund shall deliver to Jones on the applicable Representation Date
a certificate of the Fund's chief financial officer substantially in the form
attached hereto as Exhibit 7(m) (the "CFO CERTIFICATE").
(n) On the date hereof and thereafter as of each Representation
Date, each of the Fund, the Adviser and the Sub-Adviser shall furnish Jones with
a certificate of its respective Secretary, in form and substance reasonably
satisfactory to Jones.
21
(o) Each Placement Notice issued by the Fund to Jones 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) Except by means of the Prospectus or as otherwise agreed by the
parties, the Fund (including its agents and representatives, other than Jones in
its capacity as such) will not make, use, prepare, authorize, approve or refer
to any written communication (as defined in Rule 405 under the Act and including
without limitation any sales material), required to be filed with the
Commission, that constitutes an offer to sell or solicitation of an offer to buy
Placement Shares hereunder.
(q) The Fund will comply with all requirements imposed upon it by
the Securities Act, the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, 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 Jones, the Fund will not,
directly or indirectly, offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Shares (other than the Placement Shares
offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Shares, warrants or any rights to purchase or acquire,
Shares during the period beginning on the fifth (5th) Trading Day immediately
prior to the date on which any Placement Notice is delivered to Jones hereunder
and ending on the fifth (5th) Trading Day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to such Placement
Notice; PROVIDED, HOWEVER, that such restrictions will not be required in
connection with the Fund's issuance or sale of Shares pursuant to (i) the
Dividend Reinvestment Plan, and (ii) conversion of securities or the exercise of
warrants, options or other rights in effect or outstanding as of the date of
this Agreement.
(s) The Fund will furnish to Jones 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 Jones may from time to time reasonably request.
(t) Each of the Fund, the Adviser and Sub-Adviser acknowledges and
agrees that Jones has informed the Fund that Jones 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 Jones and (ii) no such purchases or sales shall take place
while a Placement Notice is in effect (except to the extent Jones may engage in
sales of Placement Shares (A) purchased or deemed purchased from the Fund as a
"riskless principal" or in a similar capacity or (B) with respect to errors that
cause Jones to take an unplanned principal positions, in each case to the extent
22
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 Jones;
PROVIDED, HOWEVER, the Fund may issue and sell Shares pursuant to the Dividend
Reinvestment Plan (it being understood that the Sub-Adviser shall have no
obligation or liability under this paragraph with respect to acts or omissions
of the Fund and the Adviser, and their respective officers, trustees or
directors).
(v) During the term of this Agreement, the Fund, the Adviser and
Sub-Adviser will furnish to Jones such information as reasonably requested by
Jones regarding the Fund, the Adviser or Sub-Adviser.
8. Conditions to Jones's Obligations. The obligations of Jones 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 Jones in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall
be available for the sale of (i) all Placement Shares issued pursuant to all
prior Placements and not yet sold by Jones 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
23
of the circumstances under which they were made, not misleading; and (v) the
Fund's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate.
(c) Jones 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 Jones that in Jones' opinion is
material, or omits to state a fact regarding Jones that in Jones' opinion is
material and is required to be stated therein or is necessary to make the
statements therein, in light of the circumstances under which it was made, not
misleading.
(d) Except as contemplated or disclosed in the Prospectus, there
shall not have been any material change, on a consolidated basis, in the
authorized capital stock of the Fund or any Fund Material Adverse Effect,
Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or any
development that may reasonably be expected to cause a Fund Material Adverse
Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect,
or a downgrading in or withdrawal of the rating assigned to any of the Fund's
debt or preferred securities by any rating organization or a public announcement
by any rating organization that it has under surveillance or review its rating
of any of the Fund's debt or preferred securities, the effect of which in the
sole judgment of Jones (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) Jones shall have received the opinion of Fund Counsel required
to be delivered pursuant Section 7(k) on or before the date on which such
delivery of such opinion is required pursuant to Section 7(k).
(f) Jones shall have received the opinions of Adviser Counsel and
Sub-Adviser Counsel required to be delivered pursuant Section 7(l) on or before
the date on which such delivery of such opinion is required pursuant to Section
7(l).
(g) Jones shall have received the Comfort Letter, or to the extent
applicable, the CFO Certificate, required to be delivered pursuant Section 7(m)
on or before the date on which such delivery of such letter or CFO Certificate
is required pursuant to Section 7(m).
(h) Jones shall have received the certificates required to be
delivered pursuant to Section 7(j) and Section 7(n) on or before the date on
which delivery of such certificate is required pursuant to Section 7(j) and
Section 7(n), respectively.
(i) Trading in the Shares shall not have been suspended on the NYSE.
(j) On each date on which the Fund is required to deliver a
certificate pursuant to Section 7(j), the Fund shall have furnished to Jones
such appropriate further information, certificates and documents as Jones may
reasonably request. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof. The Fund will furnish Jones
with such conformed copies of such opinions, certificates, letters and other
documents as Jones shall reasonably request.
24
(k) All filings with the Commission required by Rule 497 under the
Securities Act to have been filed prior to the giving of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for
such filing by Rule 497.
(l) The Placement Shares shall have been approved for listing on the
NYSE, subject only to notice of issuance.
(m) There shall not have occurred any event that would permit Jones
to terminate this Agreement pursuant to Section 11(a).
(n) Prior to the date hereof, FINRA shall have confirmed that it has
no objection with respect to the fairness and reasonableness of the placement
terms and arrangements set forth herein.
9. Indemnification and Contribution.
(a) Indemnification by the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree to indemnify and hold harmless Jones, its
directors, members, officers and each person, if any, who controls Jones 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
9(e) below) any such settlement is effected with the written consent of
the Fund and the Adviser; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Jones), 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
25
reliance upon and in conformity with written information furnished to the Fund,
the Adviser or Sub-Adviser by Jones 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 the Sub-Adviser. The Sub-Adviser agrees to
indemnify and hold harmless Jones, its directors, members, officers and each
person, if any, who controls Jones within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 9, as incurred by Jones, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
relating solely to the description of the Sub-Adviser or information supplied by
the Sub-Adviser for inclusion in the Registration Statement (or any amendment
thereto), any sales material, or any Prospectus (or any amendment or supplement
thereto).
(c) Indemnification by Jones. Jones agrees to indemnify and hold
harmless each of the Fund, the Adviser and the Sub-Adviser, each of their
directors, trustees, members, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Fund, the Adviser or
Sub-Adviser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
9, as incurred, but only with respect to (i) any failure by Jones to comply with
the prospectus delivery requirements applicable to the Placement Shares; and
(ii) untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), any sales
material, or any Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Fund, the
Adviser or the Sub-Adviser by Jones expressly for use in the Registration
Statement (or any amendment thereto), any sales material, or any Prospectus (or
any amendment or supplement thereto). The Fund, the Adviser and Sub-Adviser
acknowledge that Jones has not furnished any information to the Fund for
inclusion in the Prospectus.
(d) 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 Jones, its directors, members, officers, and each person, if
any, who controls Jones within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall be selected by Jones; counsel to the
Fund, its directors, trustees, members, each of its officers who signed the
Registration Statement and each person, if any, who controls the Fund within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall be selected by the Fund; counsel to the Adviser and each person, if any,
who controls the Adviser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall be selected by the Adviser and counsel
to the Sub-Advisor and each person, if any, who controls the Sub-Advisor within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall be selected by the Sub-Adviser. An indemnifying party may participate
26
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
Jones and each person, if any, who controls Jones within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for the Fund, each of their directors, trustees, members,
each of its officers who signed the Registration Statement and each person, if
any, who controls the Fund within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Adviser, the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for the Sub-Adviser, and the fees
and expenses of more than one counsel, in each case in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 9(a)(2) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(f) Other Agreements with Respect to Indemnification and
Contribution. The provisions of this Section 9 hereof shall not affect any
agreements among the Fund, the Adviser and Sub-Adviser with respect to
indemnification of each other or contribution between themselves.
(g) Contribution.
(1) If the indemnification provided for in this Section 9 hereof is
for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages
or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Fund and the Adviser or the Sub-Adviser, as applicable, on
the one hand and Jones on the other hand from the offering of the
27
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 or the Sub-Adviser, as applicable, on the one hand and of
Jones 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 or
the Sub-Adviser, as applicable, on the one hand and Jones 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 or the Sub-Adviser, as applicable, and the total discounts and
commissions received by Jones as calculated in accordance with the terms
set forth in Schedule 2, bear to the aggregate gross proceeds from the
sale of Placement Shares pursuant to this Agreement.
(3) The relative fault of the Fund and the Adviser or the
Sub-Adviser, as applicable, on the one hand and Jones on the other hand
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Fund, by the Adviser, by the Sub-Adviser or by Jones and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(4) The Fund, the Adviser, the Sub-Adviser and Jones agree that it
would not be just and equitable if contribution pursuant to this Section
9(f) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 9(f). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and referred to above in this Section 9(f) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue or
alleged untrue statement or omission or alleged omission.
(5) Notwithstanding the provisions of this Section 9(f), Jones 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 Jones
exceeds the amount of any damages that Jones 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.
28
(7) For purposes of this Section 9(f), each person, if any, who
controls Jones within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution
as Jones, and each person who controls the Fund, any Adviser or
Sub-Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each officer of the Fund, the Adviser and
the Sub-Adviser and each trustee, director or member of the Fund, the
Adviser and the Sub-Adviser shall have the same rights to contribution as
the Fund, the Adviser and the Sub-Adviser.
(h) The indemnity and contribution agreements contained in this
Section 9 and the representation and warranties of the Fund, the Adviser and the
Sub-Adviser set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of Jones,
its partners, officers or employees, or any person controlling Jones, within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and or by or on behalf of the Fund and/or any Adviser or Sub-Adviser, its
directors and officers or any person who controls the Fund, and/or any Adviser
or Sub-Adviser within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, (ii) delivery and acceptance of the Placement Shares and
payment therefor, or (iii) any termination of this Agreement. A successor to
Jones or to the Fund or any Adviser or Sub-Adviser, its respective directors or
officers, or any person controlling the Fund, or any Adviser or Sub-Adviser,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
10. Representations and Agreements to Survive Delivery. All representations
and warranties of the Fund and the Adviser herein or in certificates delivered
pursuant hereto shall survive, as of their respective dates, regardless of (i)
any investigation made by or on behalf of Jones, any controlling persons, or the
Fund and/or any Adviser or Sub-Adviser (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) Jones 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 Jones, may materially impair the investment quality of
the Placement Shares, (ii) the Fund, the Adviser or Sub-Adviser shall have
failed, refused or been unable to perform any agreement on its part to be
performed hereunder; provided, however, in the case of any failure of the Fund,
the Adviser or Sub-Adviser to deliver (or cause another person to deliver) any
certification, opinion, or letter required under Sections 7(j), 7(k), 7(l) or
7(m) Jones's 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, Jones shall have the right to suspend its obligations
hereunder, regardless of whether a Placement Notice is pending, beginning on the
sixth (6th) day after the date of any Representation Date if any certification,
opinion, or letter referenced in the foregoing proviso has not yet been (or
caused to be) delivered; (iii) any other condition of Jones's obligations
hereunder is not fulfilled, or (iv) any suspension or limitation of trading in
the Placement Shares or in securities generally on the NYSE shall have occurred.
29
Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(e), Section 9, Section 10, Section 15,
Section 17 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination. If Jones elects to terminate this Agreement as
provided in this Section 11, Jones shall provide the required notice as
specified herein.
(b) The Fund shall have the right, by giving notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 7(e), Section 9, Section 10, Section 15,
Section 17 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination.
(c) Jones shall have the right, by giving notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time
following the period of twelve (12) months after the date of this Agreement. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 7(e), Section 9, Section 10, Section 15,
Section 17 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination.
(d) This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 11(a), (b) or (c) above or otherwise by mutual
agreement of the parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 7(e), Section 9,
Section 10, Section 15, Section 17 and Section 19 shall remain in full force and
effect.
(e) Except as otherwise provided in Sections 11(b) and 11(c), any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided, however, that such termination shall not be
effective until the close of business on the date of receipt of such notice by
Jones 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) Any Reimbursable Amounts owed to Jones upon a termination in
accordance with this Section 11 shall be payable by the Fund to Jones only to
the extent such Reimbursable Amounts are actually incurred by Jones as
contemplated by FINRA Rule 5110(f)(2)(D).
12. Notices. All notices or other communications required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and if sent to Jones, shall be delivered to Jones at
JonesTrading Institutional Services LLC, 32133 Lindero Canyon Road, Suite 208,
Westlake Village, California 91361, fax no. (781) 416-2899, Attention: General
Counsel, with a copy to Troutman Sanders LLP, 1001 Haxall Point, Richmond,
Virginia 23218, fax no. (804) 698-5196, Attention: Michael T. Damgard; if sent
to the Fund or, the Adviser, shall be delivered to First Trust Advisors L.P.,
Attention: General Counsel, fax no.: (630) 517-7437), with a copy to Chapman and
Cutler LLP, Attention: Eric F. Fess, telephone (312) 845-3781 fax: (312)
701-2361, or if sent to the Sub-Adviser, shall be delivered to Energy Income
Partners, LLC, Attention: Jim Murchie, fax: (203) 286-1602. 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
30
other communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30
p.m., New York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of
this Agreement, "BUSINESS DAY" shall mean any day on which the NYSE and
commercial banks in the City of New York are open for business.
13. Successors. This Agreement shall inure to the benefit of and be binding
upon Jones, the Fund, the Adviser and the Sub-Adviser and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than Jones,
the Fund and the Adviser and their respective successors and the controlling
persons and directors, officers, members and trustees referred to in Section 9
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of Jones, the Fund, the Adviser and the
Sub-Adviser and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Placement
Shares from Jones shall be deemed to be a successor by reason merely of such
purchase.
14. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the state of New York applicable to
agreements made and to be performed in such state.
16. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Section
headings, titled and captions herein are for the convenience of the parties only
and shall not affect the construction or interpretation of this Agreement.
17. Waiver of Jury Trial. The Fund, the Adviser and Jones 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.
31
18. Adjustments for Stock Splits. The parties acknowledge and agree that all
share related numbers contained in this Agreement shall be adjusted to take into
account any stock split, stock dividend or similar event effected with respect
to the Shares.
19. Absence of Fiduciary Relationship. The Fund, the Adviser and Sub-Adviser
acknowledge that in connection with the offering of the Placement Shares: (a)
Jones has acted at arms length and owes no fiduciary duties to, the Fund, the
Adviser and Sub-Adviser or any other person; (b) Jones owes the Fund, the
Adviser and Sub-Adviser only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) Jones may have interests that differ from those of
the Funds, the Adviser and Sub-Adviser. The Fund, the Adviser and Sub-Adviser
waive to the full extent permitted by applicable law any claims any of them may
have against Jones arising from an alleged breach of fiduciary duty in
connection with the offering of the Placement Shares as contemplated by this
Agreement
20. Limitation of Liability. The Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts. This Agreement is executed on
behalf of the Fund by the Fund's officers as officers and not individually and
the obligations imposed upon the Fund by this Agreement are not binding upon any
of the Fund's shareholders individually but are binding only upon the assets and
property of the Fund.
32
If the foregoing correctly sets forth the understanding between the Fund, the
Adviser and Jones, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Fund, the Adviser, the Sub-Adviser and Jones.
Very truly yours,
FIRST TRUST NEW OPPORTUNITIES MLP
& ENERGY FUND
By: __________________________
Name:
Title:
FIRST TRUST ADVISORS L.P.
By: __________________________
Name:
Title:
ENERGY INCOME PARTNERS, LLC
By: __________________________
Name:
Title:
ACCEPTED AS OF THE DATE
FIRST-ABOVE WRITTEN:
JONESTRADING INSTITUTIONAL SERVICES
LLC
By: __________________________
Name: Trent McNair
Title: Chief Financial Officer
33
SCHEDULE 1
FORM OF PLACEMENT NOTICE
------------------------
From: [ ]
Cc: [ ]
To: [ ]
Subject: Capital On Demand - Placement Notice
Date:
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Capital On
Demand(TM) Sales Agreement between First Trust New Opportunities MLP & Energy
Fund (the "FUND"), First Trust Advisors L.P., Energy Income Partners, LLP and
JonesTrading Institutional Services LLC ("JONES") dated September 29, 2016, I
hereby request on behalf of the Fund that Jones sell up to ___________ shares of
the Fund's common shares of beneficial interest, no par value per share, at a
minimum market price of $_______ per share.
The time period during which sales are requested to be made shall be
________________.
[No more than __________ shares may be sold in any one trading day.]
Discount/Commission: ______________________
ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS SPECIFIC DATES THE SHARES MAY
NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY JONES, AND/OR THE
CAPACITY IN WHICH JONES MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR
BOTH).
ANY AND ALL SALES PARAMETERS TO BE SET FORTH IN A PLACEMENT NOTICE MAY BE
CONVEYED TO JONES IN AN EMAIL NOTICE OR OTHER METHOD MUTUALLY AGREED TO IN
WRITING BY THE PARTIES, AS CONTEMPLATED BY SECTION 2 OF THE AGREEMENT.
S-1
EX-99.2K OTH CONTRCT
4
exhibit_k3.txt
COMMITTED FACILITY AGREEMENT DATED APRIL 7, 2014
Execution copy
COMMITTED FACILITY AGREEMENT
BNP PARIBAS PRIME BROKERAGE INTERNATIONAL, LTD. ("PBL") and the counterparty
specified on the signature page ("CUSTOMER"), hereby enter into this Committed
Facility Agreement (this "AGREEMENT"), dated as of April 7, 2014.
Whereas PBL and Customer have entered into an U.S. PB Agreement, dated as of the
date hereof (the "U.S. PB AGREEMENT") (the U.S. PB Agreement and this Agreement,
collectively, the "40 ACT FINANCING AGREEMENTS").
Whereas this Agreement supplements and forms part of the other 40 Act Financing
Agreements and sets out the terms of the commitment of PBL to provide financing
to Customer under the 40 Act Financing Agreements.
Now, therefore, in consideration of the foregoing promises and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS -
(a) Capitalized terms not defined in this Agreement have the respective
meanings assigned to them in the U.S. PB Agreement. The 40 Act
Financing Agreements are included in the term "Contract," as defined
in the U.S. PB Agreement.
(b) "ACCOUNT AGREEMENT" means the Account Agreement attached as Exhibit
A to the U.S. PB Agreement.
(c) "BORROWING" means a draw of cash financing by Customer from PBL
pursuant to Section 2 of this Agreement.
(d) "CLOSING DATE" means the date of this Agreement.
(e) "COLLATERAL REQUIREMENTS" means the collateral requirements set
forth in Section 1 of Appendix A attached hereto.
(f) "DEFAULT ACTION" means exercising any rights of set-off, liquidating
positions or Contracts, terminating or accelerating any loan or
Contract, canceling orders, closing out transactions, deducting
charges from an account (other than normal charges for interest,
clearing fees and ticket charges), selling any or all of the
securities and commodities or other property that may be in
possession or control of the BNPP Entities (either individually or
jointly with others), buying-in any securities, commodities or other
property that Customer's account or accounts may be short, or acting
as attorney-in-fact with respect to Customer, any Customer account
or any property in a Customer account.
(g) "DRAWN AMOUNT" means, on any day, an amount equal to the average of
the Outstanding Debit Financing held by Customer over the
immediately preceding 20 Business Days.
(h) "EXCESS FINANCING AMOUNT" means an amount equal to the Outstanding
Debit Financing minus the Drawn Amount.
(i) "FIXED RATE FINANCING AMOUNT" means an amount of cash financing
provided by PBL to Customer equal to $[0] with a Fixed Rate Period
duration of ten (10) years and an interest rate equal to the 10-Year
Fixed Rate as set forth in Appendix B attached hereto.
(j) "FIXED RATE FINANCING PREPAYMENT DATE" means the date on which a
Fixed Rate Financing Prepayment Event occurs.
(k) "FIXED RATE FINANCING PREPAYMENT EVENT" means, on any day during the
Fixed Rate Period, (A) the date of termination of any 40 Act
Financing Agreement in connection with (i) a Default, (ii) Facility
Termination Event, or (iii) a request from Customer to terminate
this Agreement in accordance with Section 13(e) herein is effective,
and (B) the date of any prepayment of all or any portion of the
Fixed Rate Financing Amount (including, as a result of a request
from PBL to terminate all or any portion of the Fixed Rate Financing
Amount) pursuant to Section 4 below.
(l) "FIXED RATE PERIOD" means the period commencing on the Fixing Date
and expiring on the tenth anniversary of the Fixing Date, as
adjusted, if necessary, in accordance with the Modified Following
Business Day Convention, unless the parties agree in writing to
amend or extend the term of the relevant Fixed Rate Period (the
"FIXED RATE PERIOD END DATE").
(m) "FIXING DATE" means the date agreed upon by PBL and Customer.
(n) "FLOATING RATE FINANCING AMOUNT" means the Initial Floating Rate
Financing Amount as adjusted on the Fixed Rate Period End Date or
Fixed Rate Financing Prepayment Date, as applicable, in accordance
with Section 2(d) below; provided, however, that Customer may, upon
one (1) Business Day's prior written notice to PBL, reduce the
Floating Rate Financing Amount one time each calendar month by an
amount not to exceed 20% of the Initial Floating Rate Financing
Amount.
(o) "FUNDING EVENT" means on any day, (the "RATING DECLINE DATE OF
DETERMINATION") BNP Paribas' long-term credit rating declines by
three or more notches by any of Standard & Poor's Ratings Services,
Moody's Investor Service, Inc. or Fitch Ratings, Ltd. during the
period beginning on and including the date of this Agreement and
ending on and including the Rating Decline Date of Determination.
(p) "INITIAL FLOATING RATE FINANCING AMOUNT" means $155,000,000.
(q) "MODIFIED FOLLOWING BUSINESS DAY CONVENTION" means, with respect to
any date, if such date would otherwise fall on a day that is not a
Business Day, an adjustment will be made so that the relevant date
will be the first following day that is a Business Day unless that
day falls in the next calendar month, in which case the relevant
date will be the first preceding day that is a Business Day.
(r) "NET ASSET VALUE" means, with respect to Customer, the aggregate net
asset value of the common stock issued by Customer calculated in
accordance with U.S. generally accepted accounting principles.
(s) "NET ASSET VALUE FLOOR" means, with respect to Customer, an amount
equal to the greater of (i) 50% of the Net Asset Value of Customer,
calculated as of the Closing Date, and (ii) 50% of the Net Asset
Value of Customer, calculated based on the Customer's Net Asset
Value as of its most recent fiscal year end.
(t) "NOTICE DATE" means the day on which PBL delivers the Facility
Modification Notice. (u) "OUTSTANDING DEBIT FINANCING" means the sum
of the Fixed Rate Financing Amount and the Outstanding Debit
Floating Rate Financing.
(v) "OUTSTANDING DEBIT FLOATING RATE FINANCING" means the aggregate net
cash balance (excluding current short sale proceeds) held under the
40 Act Financing Agreements minus the sum of all Fixed Rate
Financing Amounts in effect, if such net cash balance is a debit, or
2
zero if such aggregate net cash balance is a credit. For the
purposes of calculating such aggregate net cash balance, if Customer
holds credit or debit cash balances in non-USD currencies, PBL will
convert each of these balances into USD at prevailing market rates
to determine Customer's aggregate net cash balance.
(w) "TOTAL FACILITY SIZE" means $155,000,000.
2. BORROWINGS -
Subject to Section 7:
(a) On the Closing Date, PBL shall (i) lend funds to Customer equal to
the Fixed Rate Financing Amount and (ii) make funds available up to
the Floating Rate Financing Amount. Such cash financing shall be
made available in immediately available funds.
(b) Subsequent Borrowings on Floating Rate Financing Amount. In respect
of cash financing available to the Customer in connection with the
Floating Rate Financing Amount, any Borrowing (not to exceed the
Floating Rate Financing Amount) following the Closing Date shall be
made on written notice (the "BORROW REQUEST"), given by Customer to
PBL not later than 10:00 A.M. (New York City time) on the Business
Day immediately preceding the date of the proposed Borrowing (which
must be a Business Day) by Customer. Subject to Section 7, PBL
shall, before 10:00 A.M. (New York City time) on the date of such
Borrowing, make available to Customer the amount of such Borrowing
(provided that the Outstanding Debit Floating Rate Financing, taking
into account the amount specified in the Borrow Request, does not
exceed the Floating Rate Financing Amount) payable to the account
designated by the Customer in such Borrow Request.
(c) No Subsequent Borrowings on Fixed Rate Financing. On any day
following the Closing Date, PBL shall not provide fixed rate
financing to Customer on any amounts in excess of the Fixed Rate
Financing Amount unless otherwise agreed by PBL in writing.
(d) Conversion of Fixed Rate Financing Amounts to Floating Rate
Financing Amounts.
i. On the relevant Fixed Rate Period End Date, the Fixed Rate
Financing Amount, shall be reduced to zero and the Floating
Rate Financing Amount shall be correspondingly increased by
the same amount. Such increase to the Floating Rate Financing
Amount on such Fixed Rate Period End Date shall be deemed to
be a separate Borrowing for the purposes of determining
interest payments pursuant to Section 5 below.
ii. At any time following the Closing Date, the Customer may elect
to reduce all or any portion of the Fixed Rate Financing
Amount and correspondingly increase the Floating Rate
Financing Amount by the same amount. To the extent that such
an action constitutes a Fixed Rate Financing Prepayment Event
pursuant to Section 4 below, a Breakage Fee shall be payable
by one party to the other in accordance with Section 8(c).
Notwithstanding the foregoing or anything to the contrary herein, if
there occurs on any day a Funding Event, an amount equal to the
Excess Financing Amount as of the Notice Date, if any, which, for
the avoidance of doubt, would otherwise have been subject to the
commitment described in the Agreement shall be due and payable
immediately upon demand by PBL on any day on or after the 29th
calendar day following the Notice Date; provided that, if such 29th
calendar day is not a Business Day, then such Excess Financing
3
Amount shall be due and payable immediately upon demand by PBL on
any day on or after the Business Day immediately preceding such 29th
calendar day.
3. REPAYMENT -
(a) Upon the occurrence of a Facility Termination Event, an event
described in Section 15(a) hereof, or the date specified in the
Facility Modification Notice as described in Section 6, all
Borrowings (including all accrued and unpaid interest thereon and
all other amounts owing or payable hereunder) may be recalled by PBL
in accordance with Section 1 of the U.S. PB Agreement.
(b) Upon the occurrence of a Default, the BNPP Entities shall have the
right to take any action described in Section 13(b) hereof.
4. PREPAYMENTS -
Customer may upon prior written notice to PBL stating the proposed date
and aggregate principal amount of the prepayment, prepay all or any
portion of the outstanding principal amount of the Outstanding Debit
Floating Rate Financing and/or Fixed Rate Financing Amount, together with
any unpaid accrued interest to the date of such prepayment on the
principal amount prepaid as follows: if such notice is sent to PBL (a) on
or before 10:00 a.m. New York time on any Business Day, then Customer may
prepay the relevant amount on such Business Day, and (b) after 10:00 a.m.
New York time on any Business Day, then Customer may prepay such amount on
the next Business Day; provided that Customer shall continue to be
obligated to pay the commitment fee as set forth in Appendix B in respect
of any undrawn Floating Rate Financing Amount. PBL may, upon 180 days'
prior written notice to Customer, early terminate all or any portion of
the Fixed Rated Financing Amount, in which case Customer shall be required
to prepay the Fixed Rate Financing Amount (or portion thereof) in
accordance with the preceding sentence on the effective termination date.
For the avoidance of doubt, the prepayment or early termination of all or
any portion of the Fixed Rate Financing Amount shall be a Fixed Rate
Financing Prepayment Event, and a fee may apply to Customer or PBL
pursuant to Section 8(c) below, but such prepayment shall not result in a
termination of this Agreement or any commitment set forth herein in
relation to any of Customer's remaining Borrowings.
At the request of Customer, PBL will use its commercially reasonable
efforts to assign and novate the Interest Rate Hedging Transaction (as
defined in Appendix B) to a third party designated by Customer, together
with the principal amount. Any costs (including the principal amount of
the associated loans) will be settled between PBL and the third party
assignee.
5. INTEREST -
Customer shall pay interest on the outstanding principal amount of each
Borrowing from the date of such Borrowing until such principal amount has
been paid in full, at the relevant rate specified in Appendix B attached
hereto. Such interest shall be payable monthly, and if not paid when due,
any unpaid interest shall be capitalized on the principal balance;
provided that, notwithstanding such capitalization, the failure by
Customer to pay such interest when due, shall be a failure of Customer to
comply with an obligation under this Agreement.
6. SCOPE OF COMMITTED FACILITY -
PBL may not take any of the following actions except upon at least 180
calendar days' prior notice (the "FACILITY MODIFICATION NOTICE"):
(a) modify the Collateral Requirements other than in accordance with the
terms of Appendix A;
4
(b) recall or cause repayment of any cash loan under the 40 Act
Financing Agreements;
(c) modify the Customer Debit Rate, the Liquidity Premium, or the
Commitment Fee, in each case as set forth in Appendix B attached
hereto;
(d) modify the fees, charges or expenses other than those described in
clause (b) above, as set forth in Appendix B attached hereto (the
"FEES"), provided that PBL may modify any Fees immediately if (i)
the amount of such Fees charged to PBL, as the case may be, have
been increased by the provider of the relevant services or (ii)
consistent with increases generally to customers; or
(e) terminate any of the 40 Act Financing Agreements.
7. CONDITIONS FOR COMMITTED FACILITY -
The commitment as set forth in Section 6 only applies so long as -
(a) Customer satisfies the Collateral Requirements; and
(b) no Default or Facility Termination Event has occurred.
8. ARRANGEMENT, BREAKAGE AND COMMITMENT FEES -
(a) Customer shall pay when due an arrangement fee as set forth in
Appendix B;
(b) Customer shall pay when due a commitment fee as set forth in
Appendix B;
(c) Upon the occurrence of a Fixed Rate Financing Prepayment Event, one
party shall pay to the other when due a Breakage Fee as set forth in
Appendix B, provided, however, that such Breakage Fee shall not
apply to the extent the relevant Fixed Rate Financing Amount and
Interest Rate Hedging Transaction (as defined in Appendix B) has
been assigned and novated in accordance with Section 4 above; and
(d) In the event that this Agreement is terminated by Customer pursuant
to Section 13(e) hereto, Customer shall pay a Facility Breakage Fee
as set forth in Appendix B; provided that such Facility Breakage Fee
shall not apply if Customer has terminated the Agreement following
PBL's assignment to an unaffiliated entity pursuant to Section 16(c)
of the U.S. PB Agreement.
9. SUBSTITUTION -
(a) After PBL sends a Facility Modification Notice, Customer may not
substitute any collateral, provided that PBL may permit
substitutions (the terms of which shall be determined by PBL in its
sole discretion) upon request, which permission shall not be
unreasonably withheld.
(b) Prior to PBL sending a Facility Modification Notice, Customer may
substitute collateral.
10. COLLATERAL DELIVERY -
If notice of a Collateral Requirement is sent to Customer orally or via
facsimile or electronic mail or such other delivery method as the parties
agree (in each case, with delivery deemed when sent): (i) on or before
10:00 a.m. New York time on any Business Day, then Customer shall deliver
all required Collateral no later than the close of business on such
Business Day, and (ii) after 10:00 a.m. New York time on any Business Day,
then Customer shall deliver all required Collateral no later than the
close of business on the immediately succeeding Business Day.
5
11. REPRESENTATIONS AND WARRANTIES -
Customer hereby makes all the representations and warranties set forth in
Section 4 of the Account Agreement, which are deemed to refer to this
Agreement, and such representations and warranties shall survive each
transaction and the termination of the 40 Act Financing Agreements.
12. FINANCIAL INFORMATION -
Customer shall provide PBL with copies of -
(a) the most recent annual report of Customer containing financial
statements certified by independent certified public accountants and
prepared in accordance with generally accepted accounting principles
in the United States, as soon as available and in any event within
120 calendar days after the end of each fiscal year of Customer;
(b) the most recent quarterly portfolio report of Customer, including
net asset value of Customer, as soon as available and in any event
within 90 calendar days after the end of each calendar quarter;
(c) a monthly statement of the leverage and asset coverage ratios of
Customer as soon as available and in any event within 15 calendar
days after the end of each calendar month; and
(d) the estimated net asset value statement of Customer as of any
Business Day, upon request thereof by PBL.
Information with respect to the Customer required to be delivered pursuant
to Section 12 shall be deemed to have been delivered or furnished if such
information, or one or more annual or semi-annual annual reports
containing such information, shall be available on the web page for the
Customer appearing on the website of the SEC at http://www.sec.gov or on
ftportfolios.com.
13. TERMINATION -
(a) Upon the occurrence of a Facility Termination Event (as defined in
clause (d) below), this Agreement automatically terminates;
provided, however, that if there occurs a Facility Termination Event
under Section 13(d)iii, this Agreement shall not automatically
terminate, but instead the commitment referred to in Section 6 shall
be reduced from 180 calendar days to 30 calendar days,
notwithstanding any other provision herein.
(b) Upon the occurrence of a Default, the BNPP Entities may terminate
any of the 40 Act Financing Agreements and take Default Action.
(c) Each of the following events constitutes a "DEFAULT":
i. Customer fails to meet the Collateral Requirements within one
Business Day after the time periods set forth in Section 10;
ii. Customer fails to deliver the financial information (1) within
five (5) Business Days after the time periods set out in
Sections 12(a), (b) and (c), and (2) within one (1) Business
Day after the time period set out in Section 12(d), provided
that such cure periods shall apply only in respect of Section
12;
iii. the Net Asset Value of Customer declines below the Net Asset
Value Floor (unless such decline is also a Facility
Termination Event under Section 13(d)iii, in which case such
Section 13(d)iii shall apply); any 40 Act Financing Agreements
6
(including under Section 11 herein) proves false or misleading
when made or deemed made;
v. Customer fails to comply with or perform any agreement or
obligation under this Agreement or the other 40 Act Financing
Agreements (other than those covered by Section 13(c)(i) or
(ii)), provided, however, that other than a failure by
Customer to make a payment due to a BNPP Entity or a Default
as set forth in Sections 13(c)(i), or 13(c)(ii), such event or
occurrence shall not be deemed a Default and Default Action
may not be taken unless Customer has failed to remedy such
event or occurrence within five (5) Business Days; or
vi. the filing by or against Customer of a petition or other
proceeding in bankruptcy, insolvency or for the appointment of
a receiver or upon the levy or attachment against any property
or accounts of Customer.
(d) Each of the following events constitutes a "FACILITY TERMINATION
EVENT":
i. there occurs any change in PBL's interpretation of any
Applicable Law or the adoption of or any changes in the same
(including, for the avoidance of doubt, any new or amended
rules, requests, guidelines, and directives promulgated in
connection with current Applicable Law, including the
Dodd-Frank Wall Street Reform and Consumer Protection Act)
that, in the reasonable opinion of counsel to PBL, has the
effect with regard to PBL of impeding or prohibiting the
arrangements under the 40 Act Financing Agreements (including,
but not limited to, imposing or adversely modifying or
affecting the amount of regulatory capital to be maintained by
PBL); provided, however, that it shall not be a Facility
Termination Event if there occurs a change in, or change in
PBL's interpretation of, any Applicable Law that results in a
cost increase to PBL (as determined in its sole discretion),
rather than a prohibition (as determined in PBL's sole
discretion), and such cost increase is accepted by Customer
(for the avoidance of doubt, such cost increase may be
implemented by adjusting the fees and rates in Appendix B or
in any other manner, as determined by PBL in its sole
reasonable discretion);
ii. the occurrence of a repudiation, misrepresentation, material
breach or the occurrence of a default, termination event or
similar condition (howsoever characterized, which, for the
avoidance of doubt, includes the occurrence of an Additional
Termination Event under an ISDA Master Agreement between
Customer and a BNPP Entity, if applicable) by Customer under
any contract with (A) a BNPP Entity or affiliate of a BNPP
Entity or (B) a third party entity, where the aggregate
principal amount of any such contract (which, for the
avoidance of doubt, includes any obligations with respect to
borrowed money or other assets in connection with such
contract) is not less than $10,000,000;
iii. the Net Asset Value of Customer as of the close of business on
the last Business Day of any calendar month declines by fifty
percent (50%) or more from the Net Asset Value of Customer as
of the close of business on the last Business Day of the
calendar month twelve months prior (for purposes of this
Section, any decline in Net Asset Value shall not take into
account any positive or negative change caused by capital
transfers, such as redemptions, withdrawals, subscriptions,
contributions, dividends or investments, howsoever
characterized, and all amounts set forth in redemption notices
received by or on behalf of Customer (notwithstanding the date
the actual redemption shall occur));
iv. the investment management agreement between Customer and its
investment advisor ("ADVISOR") is terminated or the Advisor
otherwise ceases to act as investment advisor of Customer;
provided, however, such termination or cessation advisor
7
appointed immediately who is acceptable to PBL in its sole
discretion;
v. the asset coverage for all borrowings constituting 'senior
securities' (as defined for purposes of Section 18 of the
Investment Company Act of 1940 ("1940 ACT")) of Customer falls
below the 300% minimum required by Section 18(f)(1) of the
1940 Act or such other minimum percentage as may be approved
by U.S. governmental authorities from time to time under
applicable U.S. securities law (provided that, for purposes of
this provision, such minimum percentage cannot be lower than
200%); or
vi. Customer fails to make any filing necessary to comply with the
rules of any exchange in which its shares are listed.
(e) Customer or PBL may terminate this Agreement upon 180 days' prior
written notice; provided that Customer may terminate this Agreement
upon five (5) Business Days' written notice to PBL designating a
date, not earlier than five Business Days following the giving of
such written notice (the "FACILITY BREAKAGE PAYMENT DATE"), on which
such termination shall occur, subject to a Facility Breakage Fee as
set forth in Appendix B.
14. NOTICES -
Notices under this Agreement shall be provided pursuant to Section 11(a)
of the Account Agreement.
15. COMPLIANCE WITH APPLICABLE LAW -
(a) Notwithstanding any of the foregoing, to the extent required by
Applicable Law -
i. the BNPP Entities may terminate any 40 Act Financing Agreement
and any Contract;
ii. PBL may recall any outstanding loan under the 40 Act Financing
Agreements;
iii. PBL may modify the Collateral Requirements; and iv. The BNPP
Entities may take Default Action.
(b) This Agreement will not limit the ability of PBL to change the
product provided under this Agreement and the 40 Act Financing
Agreements as necessary to comply with Applicable Law.
(c) The BNPP Entities may exercise any remedies permitted under the
Contracts if Customer fails to comply with Applicable Law.
16. MISCELLANEOUS -
(a) In the event of a conflict between any provision of this Agreement
and the other 40 Act Financing Agreements, this Agreement prevails.
(b) This Agreement is governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict
of laws doctrine.
(c) Section 16(c) of the Account Agreement is hereby incorporated by
reference in its entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provision had been set forth
in full herein.
(d) This Agreement may be executed in counterparts, each of which will
be deemed an original instrument and all of which together will
constitute one and the same agreement.
8
(e) This Agreement and the other 40 Act Financing Agreements shall not
be publicly distributed via syndication (for the avoidance of doubt,
nothing in this Subsection shall affect the rephypothecation rights
in the 40 Act Financing Agreements).
(f) The Customer's Declaration of Trust is on file with the Secretary to
the Commonwealth of Massachusetts. This Agreement is executed on
behalf of the Customer by the Customer's officers as officers and
not individually, and the obligations imposed upon the Customer by
this Agreement are not binding upon any of the Customer's trustees,
officers or shareholders individually, but are binding only upon the
assets and property of the Customer.
(g) Notwithstanding anything in the U.S. PB Agreement to the contrary,
all Collateral will be held by the Customer's custodian pursuant to
a Special Custody and Pledge Agreement among the Customer, PBL and
The Bank of New York Mellon (or any successor custodian).
(The remainder of this page is blank.)
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the date specified on the first page of this Agreement.
FIRST TRUST NEW OPPORTUNITIES MLP
& ENERGY FUND
By: /s/ Mark R. Bradley
----------------------------------
Name: Mark R. Bradley
Title: President and CEO
BNP PARIBAS PRIME BROKERAGE
INTERNATIONAL,LTD.,ON BEHALF OF ITSELF
AND AS AGENT FOR THE BNPP ENTITIES
By: /s/ Darren P. Riley
----------------------------------
Name: DARREN P. RILEY
Title: Director
Execution copy
APPENDIX A - COLLATERAL REQUIREMENTS
THIS APPENDIX forms a part of the Committed Facility Agreement entered into
between BNP Paribas Prime Brokerage International, Ltd. ("PBL") and First Trust
New Opportunities MLP & Energy Fund ("CUSTOMER") (the "COMMITTED FACILITY
AGREEMENT").
1. COLLATERAL REQUIREMENTS -
The Collateral Requirements in relation to all positions held in the
accounts established pursuant to the 40 Act Financing Agreements (the
"Positions") shall be the greatest of:
(a) the sum of (i) the aggregate product of (x) the Collateral
Percentage applicable to such Positions and (y) the Current Market
Value of such respective Positions and (ii) 10% of the Fixed Rate
Financing Amount;
(b) the sum of the collateral requirements of such Positions as per
Regulation T or Regulation X, as applicable, of the Board of
Governors of the Federal Reserve System, as amended from time to
time;
(c) the sum of the collateral requirements of such Positions as per
FINRA Rule 4210, as amended from time to time; or
(d) 50% of the Portfolio Gross Market Value.
2. ELIGIBLE SECURITIES -
(a) Positions in the following eligible equity and fixed income security
types ("ELIGIBLE SECURITIES") are covered under the Committed
Facility Agreement:
i. common stock traded on the following U.S. exchanges: the New
York Stock Exchange, NASDAQ, NYSE Arca, and NYSE MKT;
ii. non-USD common stock, provided such stock is (A) listed in the
FTSE All-World Index, (B) traded on a major exchange in one of
the following countries: Canada, United Kingdom, France,
Germany, Switzerland, Austria, Spain, Italy, The Netherlands,
Finland, Belgium, Japan, Australia, or Portugal and (C)
denominated in one of the following currencies: CAD, GBP, EUR,
JPY, CHF, AUD or SEK; or
iii. non-convertible and convertible preferred securities and
corporate bonds denominated in USD, provided such securities
are issued by an issuer incorporated in one of the following
countries: USA, Canada, United Kingdom, France, Germany,
Switzerland, Austria, Spain, Italy, The Netherlands, Finland,
Belgium, Japan, Australia, or Portugal.
(b) Notwithstanding the foregoing, the following will not be part of the
collateral commitment and shall have no collateral value:
i. any security type not covered above, as determined by PBL in
its sole discretion;
ii. any short security position;
iii. any security offered through a private placement or any
restricted securities;
iv. any security that is not maintained as a book-entry security
on a major depository, such as The Depository Trust Company,
Euroclear, or Clearstream;
1
v. any securities that are municipal securities, asset-backed
securities, mortgage securities or Structured Securities
(notwithstanding the fact that such securities would otherwise
be covered);
vi. to the extent 20% of the Eligible Collateral's Current Market
Value consists of non-investment grade corporate bonds and/or
preferred securities (for the avoidance of doubt, unrated
securities are considered to be non-investment grade), any
non-investment grade corporate bonds and preferred securities
in excess of such 20%; and
vii. to the extent 30% of the Eligible Collateral's Current Market
Value consists of non-USD securities (whether common stock,
preferred securities, or corporate bonds), any non-USD
securities in excess of such 30%.
3. EQUITY SECURITIES COLLATERAL PERCENTAGE -
The Collateral Percentage for a Position consisting of applicable Eligible
Securities shall be:
i. subject to paragraphs ii and iii below, the sum of (A) the Equity
Core Collateral Rate and (B) the product of (1) the Equity Core
Collateral Rate and (2) the sum of the Equity Concentration Factor,
the Equity Liquidity Factor, and the Equity Volatility Factor;
ii. 100% if (A) the product determined under paragraph i above is
greater than 100%, (B) the Current Market Value per share of the
relevant equity securities is lower than USD $3, or (C) if Section
3(a), (b) or (c) so provides; and
iii. determined by PBL on a case-by-case basis, if Customer or Customer's
Advisor (i) is an Affiliate of the Issuer of the relevant equity
securities or (ii) beneficially owns more than 9% of either (a) the
voting interests of the Issuer or (b) any voting class of equity
securities of the Issuer (in each case, whether such positions are
held in accounts established pursuant to the 40 Act Financing
Agreements or otherwise).
(a) EQUITY CONCENTRATION FACTOR.
The "EQUITY CONCENTRATION FACTOR" shall be determined pursuant to
the following table, provided that notwithstanding any other
provision of this Appendix, the Collateral Percentage shall be 100%
with respect to the relevant Position if the Position Concentration
is equal to or greater than 10% of the Portfolio Gross Market Value.
--------------------------------------------------------------------
POSITION CONCENTRATION EQUITY CONCENTRATION FACTOR
--------------------------------------------------------------------
Less than 5% 0
--------------------------------------------------------------------
5%+ to 10% 0.5
--------------------------------------------------------------------
(b) EQUITY LIQUIDITY FACTOR.
The "EQUITY LIQUIDITY FACTOR" shall be determined pursuant to the
following table, provided that notwithstanding any other provision
of this Appendix, the Collateral Percentage shall be 100% with
respect to the relevant Position if the Days of Trading Volume is
equal to or greater than 10.
2
--------------------------------------------------------------------
EQUITY
DAYS OF TRADING VOLUME LIQUIDITY FACTOR
--------------------------------------------------------------------
Less than 2 0
--------------------------------------------------------------------
Equal to or greater than 2 and less than 5 1
--------------------------------------------------------------------
Equal to or greater than 5 and less than 7 2
--------------------------------------------------------------------
Equal to or greater than 7 and less than 10 3
--------------------------------------------------------------------
(c) EQUITY VOLATILITY FACTOR.
The "EQUITY VOLATILITY FACTOR" shall be determined pursuant to the
following table, provided that notwithstanding any other provision
of this Appendix, the Collateral Percentage shall be 100% with
respect to the relevant Position if the Equity Volatility is equal
to or greater than 100%.
--------------------------------------------------------------------
EQUITY
EQUITY VOLATILITY VOLATILITY FACTOR
--------------------------------------------------------------------
Less than 20% -0.15
--------------------------------------------------------------------
Equal to or greater than 20% and less than 35% 0
--------------------------------------------------------------------
Equal to or greater than 35% and less than 50% 0.5
--------------------------------------------------------------------
Equal to or greater than 50% and less than 75% 1
--------------------------------------------------------------------
Equal to or greater than 75% and less than 100% 2
--------------------------------------------------------------------
4. DEBT SECURITIES COLLATERAL PERCENTAGE -
The Collateral Percentage for a Position consisting of applicable Debt
Securities shall be the sum of (A) the Debt Core Collateral Rate and (B)
the product of (1) the Debt Core Collateral Rate and (2) the sum of the
Debt Concentration Factor and the Debt Liquidity Adjustment; provided that
the Collateral Percentage for any debt security which trades below 40% of
its nominal value shall be 100%.
(a) DEBT CORE COLLATERAL RATE.
The "DEBT CORE COLLATERAL RATE" shall be based on the credit quality
of the Issuer as set forth below. The lower of the S&P or Moody's
rating as shown below will be used to determine the credit quality
of the Issuer; provided, that if there is only one such rating, then
the Debt Core Collateral Rate corresponding to such rating shall be
used.
--------------------------------------------------------------------
DEBT CORE
S& P'S RATING MOODY'S RATING COLLATERAL RATE
--------------------------------------------------------------------
AAA to A- Aaa to A3 50%
--------------------------------------------------------------------
BBB+ to BBB- Baa1 to Baa3 50%
--------------------------------------------------------------------
BB+ to BB- Ba1 to Ba3 75%
--------------------------------------------------------------------
B+ to B- / NR B1 to B3 / NR 75%
--------------------------------------------------------------------
CCC+ to CCC- Caa1 to Caa3 100%
--------------------------------------------------------------------
Below CCC- or defaulted Below Caa3 or defaulted 100%
--------------------------------------------------------------------
(b) DEBT CONCENTRATION FACTOR
The "DEBT CONCENTRATION FACTOR" shall be determined pursuant to the
following table, provided that notwithstanding any other provision
of this Appendix, the Collateral Percentage shall be 100% with
respect to the relevant Position if the Position Concentration is
equal to or greater than 10% of the Portfolio Gross Market Value.
3
--------------------------------------------------------------------
POSITION CONCENTRATION DEBT CONCENTRATION FACTOR
--------------------------------------------------------------------
Less than 5% 0
--------------------------------------------------------------------
5%+ to 10% 0.5
--------------------------------------------------------------------
(c) DEBT LIQUIDITY ADJUSTMENT
The "DEBT LIQUIDITY ADJUSTMENT" shall be determined pursuant to the
following table; provided that, notwithstanding any other provision
of this Appendix, the Collateral Percentage shall be 100% with
respect to the relevant Position if its percentage of Issue Size is
equal to or greater than 10%.
--------------------------------------------------------------------
PERCENTAGE OF ISSUE SIZE DEBT LIQUIDITY ADJUSTMENT
--------------------------------------------------------------------
Less than 10% 0
--------------------------------------------------------------------
5. POSITIONS OUTSIDE THE SCOPE OF THIS APPENDIX -
For the avoidance of doubt, the Collateral Requirements set forth
herein are limited to the types and sizes of securities specified
herein. The Collateral Requirement for any Position or part of a
Position not covered by the terms of this Appendix shall be
determined by PBL in its sole discretion.
6. ONE-OFF COLLATERAL REQUIREMENTS -
From time to time PBL may, at its sole discretion, agree to a different
Collateral Requirement than the Collateral Requirement determined by this
Appendix for a particular Position; provided that, for the avoidance of
doubt, the commitment in Section 6(a) of the Committed Facility Agreement
shall apply only with respect to the Collateral Requirements based upon
the Collateral Percentage determined pursuant to Sections 3 and 4 hereof
and PBL shall have the right at any time to increase the Collateral
Requirement for such Position up to the Collateral Requirement that would
be required as determined in accordance to Sections 3 and 4 hereof.
7. CERTAIN DEFINITIONS -
(a) "AFFILIATE" means an affiliate as defined in Rule 144(a)(1) under
the Securities Act of 1933.
(b) "BLOOMBERG" means the Bloomberg Professional service.
(c) "COLLATERAL PERCENTAGE" means the percentage as determined by PBL
according to this Appendix A.
(d) "CURRENT MARKET VALUE" means with respect to a Position, an amount
equal to the product of (i) the number of the relevant security and
(ii) the price per share of the relevant security (determined by
PBL).
(e) "DAYS OF TRADING VOLUME" means with respect to an equity security,
an amount equal to the quotient of (i) the number of shares of such
security constituting the Position, as numerator and (ii) the 90-day
average daily trading volume of such security as shown on Bloomberg
(or, if the 90-day average daily trading volume of such security is
unavailable, the 30-day average daily trading volume of such
security, as determined by PBL in its sole discretion), as
denominator.
(f) "DEBT SECURITY" means convertible and non-convertible preferred
securities and corporate debt securities.
4
(g) "EQUITY CORE COLLATERAL RATE" means 15%.
(h) "EQUITY VOLATILITY" means with respect to an equity security, the
90-day historical volatility of such security as determined by PBL
in its sole discretion or, if the 90-day historical price volatility
of such security is unavailable, the 30-day historical price
volatility of such security as determined by PBL in its sole
discretion.
(i) "GROSS MARKET VALUE" of one or more Positions means an amount equal
to the sum of all Current Market Values of all such Positions,
where, for the avoidance of doubt, the Current Market Value of each
Position is expressed as a positive number whether or not such
Position is held long.
(j) "ISSUER" means, with respect to an applicable security, the issuer
of such security.
(k) "ISSUE SIZE" means with respect to a Position in an applicable
security of an Issuer, the aggregate market value of all such
securities issued by the Issuer and still outstanding.
(l) "PORTFOLIO GROSS MARKET VALUE" means the Gross Market Value of all
of Customer's Positions that are Eligible Securities.
(m) "POSITION CONCENTRATION" means with respect to a Position, an amount
equal to the quotient of (i) the absolute value of the Current
Market Value of such Position and (ii) the Gross Market Value of all
of Customer's Positions, expressed as a percentage; provided that in
the event that two Positions hedge one another as determined by PBL,
only the absolute value of the Current Market Value of the unhedged
portion of such Positions shall be considered for the purposes of
Section 3(a).
(n) "STRUCTURED SECURITIES" means any security (i) the payment to a
holder of which is linked to a different security, provided that
such different security is issued by a different issuer or (ii)
structured in such a manner that the credit risk of acquiring the
security is primarily related to an entity other than the issuer of
the security itself.
5
Execution copy
APPENDIX B
PRICING
FIRST TRUST NEW OPPORTUNITIES MLP & ENERGY FUND
BNP PARIBAS PRIME BROKERAGE INTERNATIONAL, LTD.
FINANCING RATES
CUSTOMER DEBIT RATE (applicable to the Outstanding Debit Floating Rate
Financing)
1 Month LIBOR + 70 bps per annum on the Outstanding Debit Floating
Rate Financing
ISO CODE
USD
10-YEAR FIXED RATE
Fixed Base Rate + Liquidity Premium, where
Fixed Base Rate = [TBD on the Fixing Date]
Liquidity Premium = 70 bps
ARRANGEMENT FEE
Customer shall pay an arrangement fee equal to the product of the Fixed
Rate Financing Amount and 10 bps upon execution, to be paid on the Fixing
Date.
COMMITMENT FEE
Customer shall pay a commitment fee equal to 55 bps per annum on the
amount of undrawn Floating Rate Financing Amount, to be paid when the
amounts calculated under the Financing Rates section above are due;
provided, however, that the Commitment Fee shall be waived on any day on
which the Drawn Amount is 80% or more of the Total Facility Size.
BREAKAGE FEE
Upon the occurrence of a Fixed Rate Financing Prepayment Event, Customer
and PBL shall, in good faith and a commercially reasonable manner, jointly
determine a Breakage Fee equal to the cost (or benefit) of entering into a
replacement swap rate transaction to offset the Interest Rate Hedging
Transaction as follows:
(a) Both parties shall each seek to obtain two market quotations
from Reference Market- makers by 12:00 p.m. New York time on
the Business Day following the Fixed Rate Financing Prepayment
Date (the "DETERMINATION DATE"). The parties shall determine
the Breakage Fee at such time by taking the average of the
market quotations obtained as of such time, and taking into
account any associated commission fees and transaction costs
to terminate the existing swap rate transaction (if any) and
enter into the replacement swap rate transaction. If, as of
12:00 p.m. New York time, (i) only one market quotation is
obtained, such market quotation shall be used for the Breakage
Fee determination or (ii) no market quotations have been
obtained, PBL shall determine the rate of such replacement
swap transaction, subject to approval by Customer and such
approval will not be unreasonably withheld.
(b) If entering into the replacement swap rate transaction results
in (a) an economic benefit to PBL, then PBL shall pay the
Breakage Fee to Customer, and (b) an economic cost to PBL,
then Customer shall pay the Breakage Fee to PBL, in either
event, by the close of business on the Determination Date.
(c) "INTEREST RATE HEDGING TRANSACTION" means an assumed
transaction that could be entered into to hedge the interest
rate risk in connection with providing the Fixed Rate
Financing Rate on the Fixed Rate Financing Amount for the term
of the Fixed Rate Period. For purposes of any calculations to
be used herein, the terms of the Interest Rate Hedging
Transaction shall be as follows:
i. The Notional Amount will be equal to the Fixed Rate
Financing Amount.
ii. The Trade Date will be the Fixing Date.
iii. The Effective Date will be two (2) Business Days
following the Trade Date.
iv. The Termination Date will be ten (10) years from the
Effective Date, as adjusted, if necessary, in accordance
with the Modified Following Business Day Convention.
v. PBL Pays Fixed/ Receives Floating; Monthly.
vi. Fixed Rate will be the Fixed Base Rate.
vii. Floating Rate Option will be USD-LIBOR-BBA. The
Designated Maturity will be 1 Month.
viii. Fixed / Floating Rate Day Count Fraction will be:
Actual/360. ix. Business Days will be London and New
York Business Days.
(d) "REFERENCE MARKET-MAKER" means a leading dealer in the
relevant market selected by the relevant party in good faith
(a) from among dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at
the time in deciding whether to offer or to make an extension
of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
FACILITY BREAKAGE FEE
In the event that this Agreement is terminated by Customer upon at least
five (5) Business Days' prior written notice to PBL, Customer shall pay to
PBL a Facility Breakage Fee due on the Facility Breakage Payment Date. The
"FACILITY BREAKAGE FEE" shall be equal to the sum of the Facility Breakage
Rate and any unpaid accrued interest. For the purposes of the foregoing,
"FACILITY BREAKAGE RATE" means the product of (i) the Total Facility Size
and (ii) (A) if Customer provided less than 30 calendar days' advance
notice of termination, 10 bps; (B) if Customer provided less than 90 days'
advance notice of termination but greater than 30 days' advance notice of
termination, 7.5 bps; and (C) if Customer provided 90 or more calendar
days' advance notice of termination, 0 bps.
2
EX-99.2K OTH CONTRCT
5
exhibit_k4.txt
AMEND #1 TO COMMITTED FACILITY AGREEMENT
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT ("AMENDMENT") dated as of May 12, 2014 to the Committed
Facility Agreement dated April 7, 2014 between BNP Paribas Prime Brokerage
International, LTD. ("PBL") and First Trust New Opportunities MLP & Energy Fund
("Customer"), (the "AGREEMENT").
WHEREAS, the parties hereto desire to amend the Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual agreements provided herein, the
parties agree to amend the Agreement as follows:
1. AMENDMENT TO SECTION 1 OF THE AGREEMENT ("DEFINITIONS")
The relevant definitions in Section 1 of the Agreement are hereby replaced
as follows:
(i) ""FIXED RATE FINANCING AMOUNT" means an amount of cash financing
provided by PBL to Customer equal to $39,000,000 with a Fixed Rate
Period duration of ten (10) years and an interest rate equal to the
10-Year Fixed Rate as set forth in Appendix B attached hereto."
(ii) ""FIXING DATE" means May 12, 2014."
(iii) "FUNDING EVENT" means on any day, (the "Rating Decline Date of
Determination") BNP Paribas' long-term credit rating has declined to
a level three or more notches below its highest rating by any of
Standard & Poor's Ratings Services, Moody's Investor Service, Inc.
or Fitch Ratings, Ltd. during the period beginning on and including
the date of this Agreement and ending on and including the Rating
Decline Date of Determination.
(iv) ""INITIAL FLOATING RATE FINANCING AMOUNT" means $141,000,000."
(v) ""TOTAL FACILITY SIZE" means $180,000,000."
2. AMENDMENT TO APPENDIX B TO THE AGREEMENT ("PRICING").
The "Fixed Base Rate" as set forth in the section titled "Financing Rates"
in Appendix B to the Agreement is hereby amended by replacing the words
"[TBD on the Fixing Date]" with the words "260.88 bps".
3. REPRESENTATIONS
Each party represents to the other party that all representations
contained in the Agreement are true and accurate as of the date of this
Amendment and that such representations are deemed to be given or repeated
by each party, as the case may be, on the date of this Amendment.
4. MISCELLANEOUS
(a) DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings specified for such
terms in the Agreement.
(b) ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding of the parties with respect to its subject matter
and supersedes all oral communications and prior writings (except as
otherwise provided herein) with respect thereto.
(c) COUNTERPARTS. This Amendment may be executed and delivered in
counterparts (including by facsimile transmission), each of which
will be deemed an original.
1
(d) HEADINGS. The headings used in this Amendment are for convenience of
reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Amendment.
(e) GOVERNING LAW. This Amendment will be governed by and construed in
accordance with the Jaws of the State of New York (without reference
to choice of law doctrine).
(Signature page follows)
2
IN WITNESS WHEREOF the parties have executed this Amendment with effect from
the first date specified on the first page of this, Amendment.
BNP PARIBAS PRIME BROKERAGE FIRST TRUST NEW OPPORTUNITIES MLP
INTERNATIONAL, LTD., ON BEHALF OF & ENERGY FUND
ITSELF AND AS AGENT FOR THE BNPP
ENTITIES
/s/ Darren Riley /s/ James M. Dykas
---------------------------------- ----------------------------------
Name: Darren Riley Name: James M. Dykas
Title: Director Treasurer and CFO
3
EX-99.2K OTH CONTRCT
6
exhibit_k5.txt
AMEND #2 TO COMMITTED FACILITY AGREEMENT
SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT ("AMENDMENT") dated as of August 28,2014 to the
Committed Facility Agreement dated April 7, 2014 between BNP Paribas Prime
Brokerage International, LTD. ("PBL") and First Trust New Opportunities MLP &
Energy Fund ("CUSTOMER"), (as amended from time to time, the "AGREEMENT").
WHEREAS, the parties hereto desire to amend the Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual agreements provided herein, the
parties agree to amend the Agreement as follows:
I. AMENDMENT TO SECTION 1 OF THE AGREEMENT ("DEFINITIONS")
(a) The following definitions are hereby added to Section I of the
Agreement:
(i) ""SECOND FIXED RATE FINANCING AMOUNT" means an amount of cash
financing provided by PBL to Customer equal to $39,750,000
with a Fixed Rate Period duration often (10) years and an
interest rate equal to the Second H)-Year Fixed Rate as set
forth in Appendix B attached hereto."
(ii) ""INITIAL FIXED RATE FINANCING AMOUNT" means an amount of cash
financing provided by PBL to Customer equal to $39,000,000
with a Fixed Rate Period duration often (10) years and an
interest rate equal to the Initial 10-Year Fixed Rate as set
forth in Appendix B attached hereto."
(b) The relevant definitions in Section 1 of the Agreement are hereby
replaced as follows:
(i) ""FIXED RATE FINANCING AMOUNT" means the Initial Fixed Rate
Financing Amount and the Second Fixed Rate Financing Amount,
individually or collectively, as applicable. Each of the
Initial Fixed Rate Financing Amount and the Second Fixed Rate
Financing Amount shall be deemed to be a separate Borrowing
for the purposes of determining interest payments pursuant to
Section 5 below."
(ii) ""FIXED RATE PERIOD" means the period commencing on the
relevant Fixing Date and expiring on the tenth anniversary of
such Fixing Date, as adjusted, if necessary, in accordance
with the Modified Following Business Day Convention, unless
the parties agree in writing to amend or extend the term of
the relevant Fixed Rate Period (the "FIXED RATE PERIOD END
DATE")."
(iii) ""FIXING DATE" means (i) with respect to the Initial Fixed
Rate Financing Amount, May 12, 2014 (the "INITIAL FIXING
DATE") and (ii) with respect to the Second Fixed Rate
Financing Amount, August 28, 2014 (the "SECOND FIXING DATE")."
(iv) ""INITIAL FLOATING RATE FINANCING AMOUNT" means $101,250,000."
2. AMENDMENT TO SECTION 2 OF THE AGREEMENT ("BORROWINGS")
(a} Section 2(a) of the Agreement is hereby deleted in its entirety and
replaced with:
""(a) On the Second Fixing Date, PBL shall (i) lend funds to
Customer equal to the Second Fixed Rate Financing Amount and (ii)
make funds available up to the Initial Floating Rate Financing
1
Amount, taking into account the Outstanding Debit Floating Rate
Financing as of the Second Fixing Date. Such cash financing shall be
made available in immediately available funds."
(b) Section 2(d) of the Agreement ("Conversion of Fixed Rate Financing
Amounts to Floating Rate Financing Amounts") is hereby amended by
replacing sub-clause i with;
(i) "On the relevant Fixed Rate Period End Date, the Initial Fixed
Rate Financing Amount or Second Fixed Rate Financing Amount,
as applicable, shall be reduced to zero and the Floating Rate
Financing Amount shall be correspondingly increased by the
same amount Such increase to the Floating Rate Financing
Amount on such Fixed Rate Period End Date shall be deemed to
be a separate Borrowing for the purposes of determining
interest payments pursuant to Section 5 below."
(c) Section 2 of the Agreement is hereby amended by adding the following
clause at the end thereof:
(e) The parties agree that on the Initial Fixing Date, PBL lent
funds to Customer equal to the Initial Fixed Rate Financing
Amount and that, subject to the terms of this Agreement, such
loan shall remain in place for the applicable Fixed Rate
Period.
3. AMENDMENT TO SECTION 4 OF THE AGREEMENT ("PREPAYMENTS")
Section 4 of the Agreement is hereby amended by adding the word "relevant"
before the words "Interest Rate Hedging Transaction".
4. AMENDMENT TO SECTION 6 OF THE AGREEMENT ("SCOPE OF COMMITTED FACILITY")
Section 6(c) of the Agreement is hereby amended by adding the word
"relevant" before the words "Liquidity Premium".
5. AMENDMENT TO APPENDIX B TO THE AGREEMENT
(a) The section titled "Financing Rates" in Appendix B to the Agreement
is hereby amended by adding the following:
(i) The word "Initial" before the words "10-Year Fixed Rate"; and
(ii) the words "Second 10-Year Fixed Rate
Fixed Base Rate + Liquidity Premium, where
Fixed Base Rate + 236.38 bps
Liquidity Premium = 70 bps"
(b) The section titled "Arrangement Fee" in Appendix B to the Agreement
is hereby deleted in its entirety and replaced with:
"Customer shall pay an arrangement fee equal to the product of the
Second Fixed Rate Financing Amount and 10 bps upon execution, to be
paid on the Second Fixing Date."
(c) The first paragraph of the section titled "Breakage Fee" in Appendix
B to the Agreement is hereby amended by adding the word "relevant"
before the words "Interest Rate Hedging Transaction".
2
(d) The defined tenn "Interest Rate Hedging Transaction" ls hereby
amended by adding the word "relevant" before the term "Fixed Base
Rate" therein.
6. REPRESENTATIONS
Each party represents to the other party that all representations
contained in the Agreement are true and accurate as of the date of this
Amendment and that such representations are deemed to be given or repeated
by each party, as the case may be, on the date of this Amendment.
7. MISCELLANEOUS
(a) DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings specified for such
terms in the Agreement.
(b) ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding of the parties with respect to its subject matter
and supersedes all oral communications and prior writings (except as
otherwise provided herein) with respect thereto.
(c) COUNTERPARTS. This Amendment may be executed and delivered in
counterparts (including by facsimile transmission), each of which
will be deemed an original.
(d) HEADINGS. The headings used In this Amendment are for convenience of
reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Amendment.
(e) GOVERNING LAW. This Amendment will be governed by and construed in
accordance with the laws of the State of New York (without reference
to choice of law doctrine).
(The remainder of this page is intentionally left blank.)
3
IN WITNESS WHEREOF the parties have executed this Amendment with effect from the
first date specified on the first page of this Amendment.
BNP PARlBAS PRIME BROKERAGE FIRST TRUST NEW OPPORTUNITIES MIP &
INTERNATIONAL, LTD., ON BEHALF OF ENERGY FUND
ITSELF AND AS AGENT FOR THE BNPP
ENTITIES
/s/ Darren Riley /s/ James M. Dykas
---------------------------------- ----------------------------------
Name: Darren Riley Name: James M. Dykas
Title: Director Treasurer and CFO
28.8.2014
4
EX-99.2K OTH CONTRCT
7
exhibit_k6.txt
AMEND #3 TO COMMITTED FACILITY AGREEMENT
EXECUTION COPY
SECOND AMENDMENT AGREEMENT
AMENDMENT AGREEMENT ("AMENDMENT") dated as of January 21,2015 to the Committed
Facility Agreement dated April 7, 2014 between BNP Paribas Prime Brokerage
International, Ltd. ("PBL") and First Trust New Opportunities MLP & Energy Fund
("CUSTOMER"), (the "AGREEMENT").
WHEREAS, the parties hereto desire to amend the Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual agreements provided herein, the
parties agree to amend the Agreement as follows:
1. AMENDMENTS TO THE AGREEMENT
(a) Section 1 of the Agreement ('Definitions') is hereby amended to add
the following sentence to the end of the definition of "Floating
Rate Financing Amount":
The Floating Rate Financing Amount may also be reduced
pursuant to Section 2(e).
(b) Section 1 of the Agreement ('Definitions') is hereby amended to add
the following sentence to the end of the definition of "Total
Facility Size":
The Total Facility Size may be reduced pursuant to Section
2(e).
(c) Section 2 of the Agreement ('Borrowings') is hereby amended by
replacing the last paragraph thereof with the following:
(e) On the occurrence of the Notice Date referred to in the last
paragraph of Section 6, (i) the Total Facility Size shall be
reduced to an amount equal to the Drawn Amount, and (ii) the
Floating Rate Financing Amount shall be reduced by an amount
equal (in nominal terms) to the reduction in the Total
Facility Size made pursuant to the foregoing clause (i).
(d) Section 6 of the Agreement ('Scope of Committed Facility') is hereby
amended by adding the following new paragraph to the end thereof:
Notwithstanding the foregoing or anything to the contrary
herein, if a Funding Event has occurred, an amount equal to
the Excess Financing Amount as of the Notice Date, if any,
which, for the avoidance of doubt, would otherwise have been
subject to the commitment described in the Agreement shall be
due and payable immediately upon demand by PBL on any day on
or after the 29th calendar day following the Notice Date;
provided that, if such 29th calendar day is not a Business
Day, then such Excess Financing Amount shall be due and
payable immediately upon demand by PBL on any day on or after
the Business Day immediately preceding such 29th calendar day
(the "RATING DECLINE TERMINATION DATE"). Upon such
termination, BNPP PB, Inc. shall pay to Customer a fee equal
to 20 bps on the Excess Financing Amount on the Rating Decline
Termination Date.
2. REPRESENTATIONS
Each party represents to the other party that all representations
contained in the Agreement are true and accurate as of the date of this
Amendment and that such representations are deemed to be given or repeated
by each party, as the case may be, on the date of this Amendment.
3. MISCELLANEOUS
1
(a) DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings specified for such
terms in the Agreement.
(b) ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding of the parties with respect to its subject matter
and supersedes all oral communications and prior writings (except
as otherwise provided herein) with respect thereto.
(c) COUNTERPARTS. This Amendment may be executed and delivered in
counterparts (including by facsimile transmission), each of which
will be deemed an original.
(d) HEADINGS. The headings used in this Amendment are for convenience of
reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Amendment.
(e) GOVERNING LAW. This Amendment will be governed by and construed in
accordance with the laws of the State of New York (without reference
to choice of law doctrine).
(Signature page follows)
2
IN WITNESS WHEREOF the parties have executed this Amendment with effect from the
first date specified on the first page of this Amendment.
BNP PARIBAS PRIME BROKERAGE FIRST TRUST NEW OPPORTUNITIES MLP
INTERNATIONAL, LTD. & ENERGY FUND
/s/ M. Andrews Yeo /s/ Mark R. Bradley
----------------------------------- -----------------------------------
Name: M. Andrews Yeo Name: Mark R. Bradley
Title: Managing Director Title: President and CEO
3
EX-99.2K OTH CONTRCT
8
exhibit_k7.txt
AMEND #4 TO COMMITTED FACILITY AGREEMENT
THIRD AMENDMENT AGREEMENT
AMENDMENT AGREEMENT ("AMENDMENT") dated as of March 18, 2016 to the Committed
Facility Agreement dated April 7, 2014 between BNP Paribas Prime Brokerage
International, Ltd. ("PBL") and First Trust New Opportunities MLP & Energy Fund
("CUSTOMER"), (the "AGREEMENT").
WHEREAS, the parties hereto desire to amend the Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual agreements provided herein, the
parties agree to amend the Agreement as follows:
1. AMENDMENT TO SECTION 1 "FUNDING EVENT" DEFINITION
The parties agree to amend the definition of "Funding Event" in Section 1
of the Agreement to replace the beginning date of the period specified
therein with the date of this Amendment.
2. MISCELLANEOUS
(a) DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings specified for such
terms in the Agreement.
(b) ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding of the parties with respect to its subject matter
and supersedes all oral communications and prior writings (except as
otherwise provided herein) with respect thereto.
(c) COUNTERPARTS. This Amendment may be executed and delivered in
counterparts (including by facsimile transmission), each of which
will be deemed an original.
(d) HEADINGS. The headings used in this Amendment are for convenience of
reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Amendment.
(e) GOVERNING LAW. This Amendment will be governed by and construed in
accordance with the laws of the State of New York (without reference
to choice of law doctrine).
(Signature page follows)
1
IN WITNESS WHEREOF the parties have executed this Amendment with effect from the
first date specified on the first page of this Amendment.
BNP PARIBAS PRIME BROKERAGE FIRST TRUST NEW OPPORTUNITIES MLP
INTERNATIONAL, LTD. & ENERGY FUND
/s/ Jeffrey Lowe /s/ James M. Dykas
--------------------------------- ---------------------------------
Name: Jeffrey Lowe Name: James M. Dykas
Title: Managing Director Title: President and CEO
/s/ JP Muir
---------------------------------
Name: JP Muir
Title: Managing Director
EX-99.2L OPIN COUNSL
9
exhibit_l1.txt
OPINION AND CONSENT OF CHAPMAN AND CUTLER LLP
CHAPMAN AND CUTLER LLP 111 WEST MONROE STREET
CHICAGO, ILLINOIS 60603
September 29, 2016
First Trust New Opportunities MLP & Energy Fund
120 East Liberty Drive, Suite 400
Wheaton, IL 60187
Ladies and Gentlemen:
As counsel to First Trust New Opportunities MLP & Energy Fund (the
"Fund"), we delivered to you an opinion letter dated September 20, 2016 in
connection with a Registration Statement filed by the Fund with the Securities
and Exchange Commission (the "SEC") on Form N-2, File No. 333-212884 (as amended
from time to time, the "Registration Statement"). The Registration Statement was
filed for the purpose of registering with the SEC common shares of beneficial
interest of the Fund, par value $0.01 per share (the "Shares"). This opinion
relates to the offer and sale of up to 5,000,000 Shares under the Registration
Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents and
proceedings as we have considered necessary for the purposes of this opinion. We
have also examined and are familiar with the proceedings taken by the Fund to
authorize the issuance and sale of up to 5,000,000 Shares. In addition, we have
examined a copy of the Registration Statement, including the exhibits thereto,
and a copy of the Prospectus dated September 22, 2016 (the "Prospectus")
included in the Registration Statement and a copy of a Prospectus Supplement to
the Prospectus dated September 29, 2016 (the "Prospectus Supplement").
In this connection we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate and other
records, certificates and other papers as we deemed it necessary to examine for
the purpose of this opinion, including the declaration of trust and by-laws of
the Fund, actions of the board of trustees of the Fund authorizing the issuance
of shares of the Fund and the Registration Statement.
We assume that, upon sale of the Shares, the Fund will receive the
authorized consideration therefor, which will at least equal the net asset value
of the Shares.
Based upon the foregoing, we are of the opinion that when the Shares are
issued and sold after authorized consideration therefor is received by the Fund
in accordance with the Prospectus and Prospectus Supplement, they will be
validly issued, fully paid and nonassessable by the Fund, except that, as set
forth in the Registration Statement, shareholders of the Fund may under certain
circumstances be held personally liable for obligations of the Fund.
First Trust New Opportunities MLP & Energy Fund
September 29, 2016
Page 2
In rendering the foregoing opinion, we have relied upon the opinion of
Morgan, Lewis & Bockius LLP expressed in their letter to us dated September 29,
2016.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under section 7 of the Act.
Very truly yours,
/s/ Chapman and Cutler LLP
CHAPMAN AND CUTLER LLP
EX-99.2L OPIN COUNSL
10
exhibit_l2.txt
OPINION AND CONSENT OF MORGAN, LEWIS ? BOCKIUS LLP
September 29, 2016
Chapman and Cutler LLP
111 West Monroe Street
Chicago, Illinois 60603
First Trust New Opportunities MLP & Energy Fund
120 East Liberty Drive, Suite 400
Wheaton, IL 60187
RE: First Trust New Opportunities MLP & Energy Fund
-----------------------------------------------
Ladies and Gentlemen:
We have acted as special Massachusetts counsel to First Trust New
Opportunities MLP & Energy Fund, a Massachusetts business trust (the "Fund"), in
connection with the Fund's Post-Effective Amendment No. 1 to its Registration
Statement on Form N-2 to be filed with the Securities and Exchange Commission
(the "Commission") on or about September 29 2016 (the "Amendment"), and the
Supplement, dated September 29, 2016 (the "Supplement") to the base prospectus
dated September 22, 2016 (the "Base Prospectus"), to be filed with the
Commission under Rule 497 under the Securities Act of 1933, as amended (the
"1933 Act") on or about September 29, 2016, with respect to 5,000,000 of its
common shares of beneficial interest, $.01 par value per share (the "Shares").
You have requested that we deliver this opinion to you, as special counsel to
the Fund, for use by you in connection with your opinion to the Fund with
respect to the Shares.
In connection with the furnishing of this opinion, we have examined the
following documents:
(a) a certificate dated as of a recent date of the Secretary of the
Commonwealth of Massachusetts as to the existence of the Fund;
(b) copies of the Fund's Declaration of Trust and of all amendments
thereto (the "Declaration") on file in the office of the Secretary of the
Commonwealth of Massachusetts;
(c) a certificate of the Secretary of the Fund, certifying as to, and
attaching copies of, the Fund's Declaration, the Fund's By-laws as currently in
effect (the "By-laws) and resolutions adopted by the Board of Trustees at a
meeting held on July 19, 2016 (the "Resolutions");
(d) a printer's proof of the Base Prospectus received on September 19,
2016;
Chapman and Cutler LLP
First Trust New Opportunities MLP & Energy Fund
September 29, 2016
Page 2
(e) a printer's proof of the Supplement received on September 28, 2016;
and
(f) a printer's proof of the Amendment received on September 29, 2016.
In such examination, we have assumed the genuineness of all signatures,
the conformity to the originals of all of the documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form and the legal competence of each individual
executing any document. We have also assumed that the Supplement and the
Amendment, when filed with the Commission, will be in substantially the form of
the printer's proofs referenced in subparagraphs (e) and (f) above. We have
further assumed that (a) the Fund's Declaration and the Resolutions will not
have been amended, modified or withdrawn with respect to matters relating to the
authorization of the issuance of the Shares and will be in full force and effect
on the date of issuance of such Shares; (b) there will be no changes in
applicable law between the date of this opinion and any date of issuance or
delivery of any Shares; and (c) at the time of delivery of any Shares, all
contemplated additional actions shall have been taken.
We note that the Board of Trustees of the Fund has approved offerings of the
Shares in any method permitted by law including in any manner deemed to be
"at-the-market," as such term is defined in Rule 415 under the 1933 Act, and we
have assumed that all offers and sales of the Shares will be made in accordance
with such Resolutions and at a price per share that is not less than the then
current net asset value per share, exclusive of any distributing commission or
discount, which net asset value shall be determined in accordance with Section
23(b) of the Investment Company Act of 1940, as amended.
This opinion is based entirely on our review of the documents listed above
and such investigation of law as we have deemed necessary or appropriate. We
have made no other review or investigation of any kind whatsoever, and we have
assumed, without independent inquiry, the accuracy of the information set forth
in such documents. We have further assumed that there are no other documents
that are contrary to or inconsistent with the opinions expressed herein. As to
our opinion below relating to the valid existence of the Fund, our opinion
relies entirely upon and is limited by the certificate referenced in
subparagraph (a) above.
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts located in such Commonwealth, except that we
express no opinion as to any Massachusetts securities law. No opinion is given
herein as to the choice of law which any tribunal may apply. In addition, to the
extent that the Fund's Declaration, By-laws or the Resolutions refer to,
Chapman and Cutler LLP
First Trust New Opportunities MLP & Energy Fund
September 29, 2016
Page 3
incorporate or require compliance with the Investment Company Act of 1940, as
amended, or any other law or regulation applicable to the Fund, except for the
internal substantive laws of the Commonwealth of Massachusetts, as aforesaid, we
have assumed compliance by the Fund with such Act and such other laws and
regulations. Further, we express no opinion with respect to, and we assume no
responsibility for, any offering documentation relating to the Fund, including
the Registration Statement, the Amendment thereto, the Base Prospectus and the
Supplement.
We understand that all of the foregoing assumptions and limitations are
acceptable to you.
Based upon and subject to the foregoing, please be advised that it is our
opinion that:
1. The Fund has been formed and is validly existing under the Fund's
Declaration and the laws of the Commonwealth of Massachusetts as a voluntary
association with transferable shares of beneficial interest commonly referred to
as a "Massachusetts business trust."
2. The Shares, when issued and sold in accordance with the Resolutions,
will be validly issued, fully paid and nonassessable, except that, as set forth
in the Amendment, shareholders of the Fund may under certain circumstances be
held personally liable for its obligations.
This opinion is given as of the date hereof and we assume no obligation
to update this opinion to reflect any changes in law or any other facts or
circumstances which may hereafter come to our attention. We hereby consent to
your reliance on this opinion in connection with your opinion to the Fund with
respect to the Shares, to the reliance by the Fund on this opinion, to the
reference to our name in the Amendment and in the Supplement under the heading
"Legal Matters" and to the filing of this opinion as an exhibit to the
Amendment. In rendering this opinion and giving this consent, we do not concede
that we are in the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
MORGAN, LEWIS & BOCKIUS LLP
EX-99.2N OTH CONSENT
11
exhibit_n.txt
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No. 333-212884 on Form N-2 of First
Trust New Opportunities MLP & Energy Fund, of our report dated December 23, 2015
relating to the financial statements and financial highlights of First Trust New
Opportunities MLP & Energy Fund as of and for the year ended October 31, 2015,
appearing in the annual report on Form N-CSR of the First Trust New
Opportunities MLP & Energy Fund.
/s/ Deloitte & Touche LLP
Chicago, Illinois
September 29, 2016