Page 8 of 22 – SEC Filing
Notwithstanding anything contained
in this Agreement to the contrary, in no event shall the Trust pay for any common shares tendered in the Tender Offer prior to
November 5, 2017, nor shall the Tender Offer expire before November 5, 2017. The Trust will pay for any common shares tendered
in the Tender Offer prior to November 27, 2017.
| (b) | The Tender Offer shall not provide for preferential treatment for any shareholders of the Trust. |
| (c) | The Tender Offer shall require odd lot tenders to be subject to the same proration terms as tenders of 100 shares or more. |
| (d) | Although the Trust has committed to conduct the Tender Offer under the circumstances set forth above, the Trust will not commence the Tender Offer or accept tenders of the Trust’s common shares during any period when (i) such transactions, if consummated, would: (A) result in the delisting of the Trust’s shares from the NYSE or (B) impair the Trust’s status as a regulated investment company under the Internal Revenue Code of 1986, as amended (the “Code”); (ii) there is any (A) legal or regulatory action or proceeding instituted or threatened challenging such transaction, (B) suspension of or limitation on prices for trading securities generally on the NYSE or other national securities exchange(s), including the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) National Market System, or (C) declaration of a banking moratorium by federal or state authorities or any suspension of payment by banks in the United States; or (iii) the Board of Trustees of the Trust (the “Trust Board”) determines in good faith and upon the written advice of counsel, that effecting any such transaction would constitute a breach of its fiduciary duty owed to the Trust or its shareholders. In the event of a delay pursuant to any of clauses (i), (ii) or (iii) above, the Trust will provide prompt written notice to Saba together with a detailed written analysis stating the reason for such delay and reasonable support for such determination. In the event of a delay pursuant to either of clauses (i) or (ii) above, the Trust will commence the Tender Offer as soon as practicable and no later than 20 days after the termination of such delaying event. |
| (e) | The Trust shall not issue any common shares or any securities exchangeable or convertible into common shares prior to the payment of the Tender Offer proceeds. |
| 1.2. | Beginning August, 2017, through July, 2019, the Trust will pay monthly distributions (subject to the limitations below), which shall be declared by the Trust Board in an amount stated as a percentage of the Trust’s average monthly NAV for the month preceding the distribution as determined herein. The Trust will calculate the average NAV from the previous month by taking the simple average of the NAV of the Trust based on the number of business days in that month on which the NAV is calculated. The amount of the distribution will be calculated as 10% of the previous month’s average NAV, divided by twelve (12). Such distribution shall be paid monthly unless (i) the Trust Board determines in good faith that the declaration or payment of such distribution would constitute a breach of its fiduciary duty owed to the Trust or its shareholders, or (ii) the declaration or payment of such distribution would violate the 1940 Act or the Delaware Statutory Trust Act or would impair the Trust’s status as a regulated investment company under the Code. Each such distribution may be sourced from income, return of capital and/or capital gain, to the extent permitted by the 1940 Act and the rules and regulations thereunder. Nothing herein shall prevent the Trust from paying a larger dividend or distribution if approved by the Trust Board. |
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