Page 13 of 22 – SEC Filing
below), unless specifically permitted
in writing by the Trust, acquire any common
shares of the Trust or take any action, directly or indirectly, including by means of any Derivative Securities (as defined below),
which would cause Saba and/or the Saba Entities to beneficially own common shares of the Trust in excess of the Ownership Limit
immediately following such acquisition or action (except to the extent such common shares are issued by the Trust to all existing
shareholders), whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or
upon the satisfaction of one or more conditions (whether or not within the control of such party) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to beneficial
ownership (as such term is used in Rule 13d-3 under the Exchange Act ), and whether or not any of the foregoing is acquired or
obtained by means of borrowing of securities, operation of any Derivative Security or otherwise.
For the purposes
of this Agreement:
| (i) | the term “Derivative Securities” means, with respect to any person, any rights, options or other securities convertible into or exchangeable for securities, bank debt or other obligations or any obligations measured by the price or value of any securities, bank debt or other obligations of such person, including without limitation any swaps or other derivative arrangements; |
| (ii) | the term “Ownership Limit” means, at any time prior to the completion of the Tender Offer, 1,814,145 common shares of the Trust, and at any time following the completion of the Tender Offer means the lesser of (x) 1,814,145 common shares or (y) the sum of (A) 1% of the number of common shares of the Trust outstanding immediately following the completion of the Tender Offer and (B) the number of outstanding common shares of the Trust beneficially owned by Saba and the Saba Entities immediately following the completion of the Tender Offer (such amount to be confirmed in writing by Saba, together with a written affirmation by Saba that it has tendered 100% of its and each Saba Entity’s then-owned common shares of the Trust in the Tender Offer). |
| 2.5. | Saba represents and warrants as follows: |
| (a) | It has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby. |
| (b) | This Agreement has been duly and validly authorized, executed and delivered by it and is enforceable against Saba in accordance with its terms. |
| (c) | The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not contravene any agreement, organizational document or provision of law applicable to it. |
| (d) | Saba beneficially owns, directly or indirectly, and has the sole power to vote all the common shares of the Trust as described in the recitals to this Agreement, and its ownership of common |
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