Exhibit h.1
TORTOISE ENERGY CAPITAL CORPORATION
(a Maryland Corporation)
__________ Shares of Common Stock
Par Value $_____ Per Share
UNDERWRITING AGREEMENT
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Ladies and Gentlemen:
Tortoise Energy Capital Corporation, a Maryland corporation (the "FUND"),
and the Fund's investment adviser, Tortoise Capital Advisors, LLC, a Delaware
limited liability company (the "ADVISER"), each confirms its agreement with
____________, _____________ and each of the other Underwriters named in Schedule
A hereto (collectively, the "UNDERWRITERS"), for whom ________________ and
_________________ are acting as representatives (in such capacity, the
"REPRESENTATIVES"), with respect to the issue and sale by the Fund and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares of common stock, par value $____ per share, of the
Fund ("COMMON SHARES") set forth in Schedule A hereof (collectively, the
"PRIMARY SHARES"), and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of _______ additional Common
Shares to cover over-allotments, if any (the "OPTION SHARES"). The Primary
Shares and the Option Shares are collectively referred to as the "SHARES."
The Fund understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form N-2 (File Nos. 333-131204 and
811-21462) which became effective on __________, ____ and a related preliminary
prospectus supplement, covering the registration of the Shares under the
Securities Act of 1933, as amended (the "1933 ACT"), and a notification on Form
N-8A of registration of the Fund as an investment company under the Investment
Company Act of 1940, as amended (the "1940 ACT"), and the rules and regulations
of the Commission under the 1933 Act and the 1940 Act (the "RULES AND
REGULATIONS"). Promptly after execution and delivery of this Agreement, the Fund
will prepare and file a post-effective amendment and a prospectus supplement in
accordance with the provisions of Rule 430A ("RULE 430A") and paragraph (c)
and/or (h) of Rule 497 ("RULE 497") of the Rules and Regulations. The
information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective pursuant to
paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION." Each
prospectus used before such registration statement became effective, and any
prospectus that omitted the Rule 430A Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement,
including in each case any statement of additional information incorporated
therein by reference, is herein called a "PRELIMINARY PROSPECTUS." Such
registration statement, including the amendments thereto, the exhibits and
schedules thereto at the time it became effective and including the Rule 430A
Information and any statement of additional information incorporated therein by
reference, is herein called the "REGISTRATION STATEMENT." Any registration
statement filed pursuant to Rule 462(b) of the Rules and Regulations is herein
referred to as the "RULE 462(B) REGISTRATION STATEMENT," and
the term "REGISTRATION STATEMENT" shall include any Rule 462(b) Registration
Statement that shall have been filed. The final prospectus in the form first
furnished to the Underwriters for use in connection with the offering of the
Shares, including the statement of additional information incorporated therein
by reference, is herein called the "PROSPECTUS." For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The
Fund and the Adviser represent and warrant to each Underwriter as of the
date hereof, as of the Applicable Time (as defined below), as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agree with each
Underwriter, as follows:
(i) Compliance With Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, or order of
suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, and no proceedings for any such purpose, have been
instituted or are pending or, to the knowledge of the Fund or the
Adviser, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendment thereto
(filed before the Closing Time) became effective and at the Closing
Time, as hereinafter defined (and, if any Option Shares are purchased,
at the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement, the notification of Form N-8A and all
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations 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 not misleading. Neither the Prospectus nor any amendment or
supplement thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option
Shares are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
written information furnished to the Fund by or on behalf of any
Underwriter for use in the Registration Statement or Prospectus.
As of the Applicable Time (as defined below), the Rule 482
Statement (as defined below) issued at or prior to the Applicable
Time, if any, the Statutory Prospectus (as defined below) and the
information included on Schedule C hereto, all considered together
(collectively, the
"GENERAL DISCLOSURE PACKAGE"), did not include any untrue statement of
a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means 5:30 p.m. (Eastern time) on __________,
____ or such other time as agreed by the Fund and the Representatives.
"Rule 482 Statement" means a document prepared in accordance with
the provisions of Rule 482 of the 1933 Act in connection with the
offering of the Shares and which is set forth on Schedule D hereto.
"Statutory Prospectus" as of any time means the prospectus
relating to the Shares that is included in the Registration Statement
immediately prior to that time, including any document incorporated by
reference therein.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 497 under the 1933 Act,
complied when so filed in all material respects with the Rules and
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Shares, the Fund has complied or
will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees thereof.
At the time of filing the Registration Statement, any 462(b)
Registration Statement and any post-effective amendments thereto and
at the date hereof, the Fund was not and is not an "ineligible
issuer," as defined in Rule 405 of the Rules and Regulations.
(ii) Incorporation of Documents by Reference. The documents
incorporated in the Registration Statement, the Prospectus and
the Statutory Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act, the
1940 Act and the Rules and Regulations and, when read together
with the other information in the Prospectus, (a) at the time the
Registration Statement became effective, (b) at the time the
Prospectus was issued and (c) at the Closing Time, 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 not misleading.
(iii) Independent Accountants. The accountants who certified
the statement of assets and liabilities included in the
Registration Statement have confirmed to the Fund their status as
independent public accountants as required by the 1933 Act and
the Rules and Regulations and the Fund and the Adviser have no
reason to believe that they are not independent public
accountants.
(iv) Financial Statements. The statement of assets and
liabilities included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related
notes, presents fairly in accordance with generally accepted
accounting principles
("GAAP") in all material respects the financial position of the
Fund at the date indicated and has been prepared in conformity
with GAAP. The supporting schedules, if any, present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of audited financial statements included in
the Registration Statement.
(v) Expense Summary. The information set forth in the
Prospectus in the fee table contained in the section of the
Prospectus entitled "Summary of Company Expenses" has been
prepared in all material respects in accordance with the
requirements of Form N-2, and interpretations thereunder, and to
the extent estimated or projected, such estimates or projections
are reasonably believed to be attainable and reasonably based.
(vi) No Material Adverse Change. Since the respective dates
as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund,
whether or not arising in the ordinary course of business (other
than as a result of changes in market conditions generally) (a
"MATERIAL ADVERSE EFFECT"), (B) there have been no transactions
entered into by the Fund, other than those in the ordinary course
of business, which are material with respect to the Fund, and (C)
there has been no dividend or distribution of any kind declared,
paid or made by the Fund on any class of its capital stock.
(vii) Good Standing of the Fund. The Fund has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland and has the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement; and the Fund is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse
Effect.
(viii) No Subsidiaries. The Fund has no subsidiaries.
(ix) Investment Company Status. The Fund is duly registered
with the Commission under the 1940 Act as a nondiversified,
closed end management investment company, and no order of
suspension or revocation of such registration has been issued or
proceedings therefor initiated or, to the Fund's knowledge,
threatened by the Commission.
(x) Officers and Directors. No person is serving or acting
as an officer, director or investment adviser of the Fund except
in accordance with the provisions of the 1940 Act and the Rules
and Regulations and the Investment Advisers Act of 1940, as
amended (the "ADVISERS ACT"), and the rules and regulations of
the Commission promulgated under the Advisers Act (the "ADVISERS
ACT RULES AND REGULATIONS"). Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, to the Fund's knowledge after due inquiry, no
director of the Fund is an "Interested Person" (as defined in the
0000 Xxx) of the Fund or an "Affiliated Person" (as defined in
the 0000 Xxx) of any Underwriter that serves as a Representative.
(xi) Capitalization. The authorized, issued and outstanding
capital stock of the Fund is as set forth in the General
Disclosure Package and the Prospectus as of the date thereof
under the captions "The Company" and "Description of Securities."
All issued
and outstanding Common Shares of the Fund and all issued and
outstanding Money Market Cumulative Preferred Shares of the Fund
(the "PREFERRED SHARES") have been duly authorized and validly
issued and are fully paid and non-assessable, and have been
offered and sold or exchanged by the Fund in compliance with all
applicable laws (including, without limitation, federal and state
securities laws). None of the outstanding Common Shares or
Preferred Shares of the Fund was issued in violation of the
preemptive or other similar rights of any securityholder of the
Fund.
(xii) Authorization and Description of Shares. The Shares to
be purchased by the Underwriters from the Fund have been duly
authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Fund
pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued, fully paid and
non-assessable. The Common Shares conform to all statements
relating thereto contained in the General Disclosure Package and
the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the
same; and the issuance of the Shares is not subject to the
preemptive or other similar rights of any securityholder of the
Fund.
(xiii) Absence of Defaults and Conflicts. The Fund is not in
violation of its charter or by-laws, or in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other 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 (collectively, "AGREEMENTS AND INSTRUMENTS")
except for such violations or defaults that would not result in a
Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Investment Advisory Agreement,
the Custody Agreement, the Stock Transfer Agency Agreement, the
Fund Administration Servicing Agreement and the Fund Accounting
Servicing Agreement referred to in the Registration Statement (as
used herein, individually the "Investment Advisory Agreement,"
the "Custody Agreement," the "Stock Transfer Agency Agreement,"
the "Fund Administration Servicing Agreement," and the "Fund
Accounting Servicing Agreement," respectively and collectively
the "OFFERING AGREEMENTS") and the consummation of the
transactions contemplated in the Offering Agreements and in the
Registration Statement (including the issuance and sale of the
Shares and the use of the proceeds from the sale of the Shares as
described in the General Disclosure Package and the Prospectus
under the caption "Use of Proceeds") and compliance by the Fund
with its obligations thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Fund pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Fund or any
applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Fund or any of
its assets, properties or operations (except for such violations
that would not result in a Material Adverse Effect). As used
herein, a "REPAYMENT EVENT" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Fund.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Fund or the Adviser,
threatened, against or affecting the Fund, which is required to
be disclosed in the Registration Statement (other than as
disclosed therein), or which could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be
expected to materially and adversely affect the properties or
assets of the Fund or the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of
its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Fund is a party or of which
any of its property or assets is the subject which are not
described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus (or the documents incorporated by
reference therein) or to be filed as exhibits thereto by the 1933
Act, the 1940 Act or by the Rules and Regulations which have not
been so described and filed as required.
(xvi) Possession of Intellectual Property; Fund Name. The
Fund owns or possesses, or can acquire on reasonable terms,
adequate licenses, copyrights, know-how (including trade secrets
or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by the Fund, and the Fund has not received
any notice or is not otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to
protect the interest of the Fund therein.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the
Fund of its obligations hereunder, in connection with the
offering, issuance or sale of the Shares hereunder or the
consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or as may be required
under the 1933 Act, the 1940 Act, the Securities Exchange Act of
1934, as amended (the "1934 ACT"), or under the rules of the New
York Stock Exchange ("NYSE") or the NASD, Inc. ("NASD") or state
securities laws. In furtherance of the foregoing, the Fund
represents and warrants that it has previously filed, in
consultation with the Underwriters, with the NASD all Rule 482
Statements which are required to be filed with the NASD.
(xviii) Possession of Licenses and Permits. The Fund
possesses such permits, licenses, approvals, consents and other
authorizations (collectively, "GOVERNMENTAL LICENSES") issued by
the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to operate its properties and to
conduct the business as contemplated in the Prospectus. The Fund
is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect. All of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect.
The Fund has not received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses.
(xix) Advertisements. Any advertising, sales literature or
other promotional material (including "prospectus wrappers,"
"broker kits," "road show slides" and "road show scripts" and
"electronic road show presentations"), including, without
limitation, the "investor guide" prepared by the Fund and dated
__________ ____ entitled "Add-On Offering of Common Stock (NYSE:
TYY)," authorized in writing by or prepared by the Fund or the
Adviser used in connection with the public offering of the Shares
(collectively, "SALES MATERIAL") does 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 light of the circumstances under which they were made
not misleading. Moreover, all Sales Material complied and will
comply in all material respects with the applicable requirements
of the 1933 Act, the 1940 Act, the Rules and Regulations and the
rules and interpretations of the NASD (except that this
representation and warranty does not apply to statements in or
omissions from the Sales Material made in reliance upon and in
conformity with written information relating to any Underwriter
furnished to the Fund by or on behalf of any Underwriter through
you expressly for use therein), including any requirement to file
any Rule 482 Statement.
(xx) Subchapter M. The Fund has not made and will not make
an election under Section 851(b) of the Internal Revenue Code of
1986, as amended (the "CODE") (or any successor provisions
thereto), to be treated as a regulated investment company for
federal income tax purposes.
(xxi) Distribution of Offering Materials. The Fund has not
distributed and, prior to the later of (A) the Closing Time and
(B) completion of the distribution of the Shares, will not
distribute any offering material to the public in connection with
the offering and sale of the Shares other than the Registration
Statement, the Statutory Prospectus, the Rule 482 Statement and
the Prospectus.
(xxii) Accounting Controls and Disclosure Controls. The Fund
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization
and with the applicable requirements of the 1940 Act, the Rules
and Regulations, the NASD and the Code; (B) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets and to
maintain compliance with the books and records requirements under
the 1940 Act and the Rules and Regulations; (C) access to assets
is permitted only in accordance with the management's general or
specific authorization; and (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
The Fund has developed and maintains disclosure controls and
procedures (as such term is defined in Rule 30a-3 of the 0000
Xxx) that are effective in ensuring that information required to
be disclosed by the Fund in the reports that it files or submits
under the 1940 Act is recorded, processed, summarized and
reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation, controls
and procedures designed to ensure that information required to be
disclosed by the Fund in the reports that it files or submits
under the 1940 Act is accumulated and communicated to the Fund's
management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate
to allow timely decisions regarding required disclosure.
(xxiii) Absence of Undisclosed Payments. Neither the Fund
nor, to the Fund's Knowledge, any employee or agent of the Fund,
has made any payment of funds of the Fund or received or retained
any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus and which
payment has not been so disclosed.
(xxiv) Material Agreements. The Offering Agreements have
each been duly authorized by all requisite action on the part of
the Fund and executed and delivered by the Fund, as of the dates
noted therein, and each complies with all applicable provisions
of the 1940 Act in all material respects. Assuming due
authorization, execution and delivery by the other parties
thereto with respect to this Agreement and the other Offering
Agreements, each Offering Agreement constitutes a valid and
binding agreement of the Fund, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing and except as rights to indemnification or contribution
thereunder may be limited by federal or state laws.
(xxv) Registration Rights. There are no persons with
registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Fund under the 1933 Act.
(xxvi) NYSE Listing. The Shares have been duly authorized
for listing, upon notice of issuance, on the NYSE and the Fund's
registration statement on Form 8 A under the 1934 Act has become
effective.
(xxvii) Payment of Taxes. All United States federal income
tax returns of the Fund required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except assessments
that are being contested in good faith and as to which adequate
reserves have been provided. The United States federal income tax
returns of the Fund through the fiscal year ended __________,
____ have been settled and no assessment in connection therewith
has been made against the Fund. The Fund has filed all other tax
returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law except insofar as
the failure to file such returns would not result in a Material
Adverse Effect, and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Fund,
except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Fund in
respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or
re-assessments for additional tax for any years not finally
determined, except to the extent of any inadequacy that would not
result in a Material Adverse Effect. All material taxes which the
Fund is required by law to withhold or to collect for payment
have been duly withheld and collected and have been paid to the
appropriate governmental authority or agency or have been
accrued, reserved against and entered on the books of the Fund.
(xxviii) Insurance. The Fund carries on or is entitled to
the benefits of insurance, with financially sound and reputable
insurers, in such amounts and covering such risks as are
generally maintained by companies of established repute engaged
in the same or similar business, and all such insurance is in
full force and effect. The Fund has no reason to believe that it
will not be able to (A) renew its existing insurance coverage as
and when such policies expire or (B) obtain comparable coverage
from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect.
(xxix) Statistical and Market-Related Data. Any statistical
and market-related data included in the Registration Statement,
the General Disclosure Package and the
Prospectus are based on or derived from sources that the Fund
believes to be reliable and accurate, and the Fund has obtained
written consent to the use of such data from such sources.
(b) Representations and Warranties by the Adviser. The Adviser
represents and warrants to each Underwriter as of the date hereof, as of
the Applicable Time, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof as follows:
(i) Good Standing of the Adviser. The Adviser has been duly
organized and is validly existing and in good standing as a limited
liability company under the laws of the State of Delaware with full
power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package
and the Prospectus and is duly qualified as a foreign entity to
transact business and is in good standing in each other jurisdiction
in which such qualification is required except as would not,
individually or in the aggregate, result in a material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of such Adviser, whether or not arising
in the ordinary course of business (an "ADVISER MATERIAL ADVERSE
EFFECT").
(ii) Investment Adviser Status. The Adviser is duly registered
and in good standing with the Commission as an investment adviser
under the Advisers Act, and is not prohibited by the Advisers Act, the
1940 Act, or the rules and regulations under such acts, from acting
under the Investment Advisory Agreement for the Fund as contemplated
by the Prospectus.
(iii) Description of Adviser. The description of the Adviser in
the Registration Statement, the General Disclosure Package and the
Prospectus (including any amendment or supplement thereto) complied
and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and is true and correct and does
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(iv) Capitalization. The Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the General Disclosure Package,
Prospectus and in the Offering Agreements.
(v) Authorization of Offering Agreements; Absence of Defaults and
Conflicts. This Agreement and the Investment Advisory Agreement have
each been duly authorized, executed and delivered by the Adviser, and
(assuming the due authorization, execution and delivery of each other
party thereto) each such Agreement constitutes a valid and binding
obligation of the Adviser, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal
or state laws; and neither the execution and delivery of this
Agreement or the Investment Advisory Agreement nor the performance by
the Adviser of its obligations hereunder or thereunder will conflict
with, or result in a breach of any of the terms and provisions of, or
constitute, with or without the giving of notice or lapse of time or
both, a default under, (i) any agreement or instrument to which the
Adviser is a party or by which it is bound, (ii) the limited liability
company operating agreement and other organizational documents of the
Adviser, or (iii) to the Adviser's knowledge, by any law, order,
decree, rule or regulation applicable to it of
any jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Adviser or its
properties or operations other than any conflict, breach or default
that would not, individually or in the aggregate, reasonably be
expected to result in an Adviser Material Adverse Effect; and no
consent, approval, authorization or order of any court or governmental
authority or agency is required for the consummation by the Adviser of
the transactions contemplated by this Agreement or the Investment
Advisory Agreement, except as have been obtained or will be obtained
prior to the Closing Time or may be required under the 1933 Act, the
1940 Act, the 1934 Act or state securities laws.
(vi) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement, the General
Disclosure Package and the Prospectus, there has not occurred any
event which could reasonably be expected to have a material adverse
effect on the ability of the Adviser to perform its respective
obligations under this Agreement and the Investment Advisory
Agreement.
(vii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Adviser, threatened against or affecting the
Adviser or any "affiliated person" of the Adviser (as such term is
defined in the 0000 Xxx) or any partners, directors, officers or
employees of the foregoing, whether or not arising in the ordinary
course of business, which could reasonably be expected to result in
Adviser Material Adverse Effect or, materially and adversely affect
the ability of the Adviser to function as an investment adviser with
respect to the Fund or perform its obligations under this Agreement or
the Investment Advisory Agreement, or which is required to be
disclosed in the Registration Statement and the Prospectus.
(viii) Absence of Violation or Default. The Adviser is not in
violation of its limited liability company operating agreement or
other organizational documents or in default under any agreement,
indenture or instrument, except for such violations or defaults that
have not and could not result in an Adviser Material Adverse Effect.
(c) Officer's Certificates. Any certificate signed by any officer of
the Fund or the Adviser delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty by the Fund
or the Adviser, as the case may be, to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery To Underwriters; Closing.
(a) Primary Shares. On the basis of the representations, warranties
and covenants contained herein and subject to the terms and conditions set
forth herein, the Fund agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Fund, at the price per share set forth in Schedule B, the
number of Primary Shares set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Primary Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Shares. In addition, on the basis of the representations
and warranties contained herein and subject to the terms and conditions set
forth herein, the Fund hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional _______ Common
Shares in the aggregate at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared
by the Fund and payable on the Primary Shares but not payable on the Option
Shares. The option hereby granted will expire 45 days after the date hereof
and may be exercised
in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Primary Shares upon notice by the Representatives to
the Fund setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Shares. Any such time and date of
delivery (a "DATE OF DELIVERY") shall be determined by the Representatives,
but shall not be later than seven (7) full business days and no earlier
than three (3) full business days after the exercise of said option, nor in
any event prior to the Closing Time. If the option is exercised as to all
or any portion of the Option Shares, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total
number of Option Shares then being purchased which the number of Primary
Shares set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Primary Shares, subject in each case to such
adjustments as Xxxxxx Xxxxx in its discretion shall make to eliminate any
sales or purchases of a fractional number of Option Shares plus any
additional number of Option Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Primary Shares shall be made at the offices of Xxxx
Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
place as shall be agreed upon by the Representatives and the Fund, at 10:00
A.M. (Eastern time) on the third business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other
time not later than ten (10) business days after such date as shall be
agreed upon by the Representatives and the Fund (such time and date of
payment and delivery being herein called "CLOSING TIME"). In addition, in
the event that any or all of the Option Shares are purchased by the
Underwriters, payment of the purchase price for such Option Shares shall be
made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representatives and the Fund, on each Date of Delivery
as specified in the notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery
to the Representatives for the respective accounts of the Underwriters of
the Shares to be purchased by them. It is understood that each Underwriter
has authorized the Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Primary Shares
and the Option Shares, if any, which it has agreed to purchase.
_______________, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Primary Shares or the Option Shares, if any, to be
purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Primary Shares
and the Option Shares, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at
least three (3) full business days before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Primary
Shares and the Option Shares, if the Fund determines to issue any such
certificates, will be made available for examination and packaging by the
Representatives in the City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be. The Primary Shares and the Option Shares to
be purchased hereunder shall be delivered to you at the Closing Time or the
relevant Date of Delivery, as the case may be, through the facilities of
the Depository Trust Company or another mutually agreeable facility,
against payment of the purchase price therefor in immediately available
funds to the order of the Fund.
Section 3. Covenants.
(a) The Fund and Adviser covenant with each Underwriter as follows:
(i) Compliance With Securities Regulations and Commission
Requests. The Fund, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 430C, as applicable, and will notify
the Representatives as soon as practicable, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus
or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (or any document
incorporated by reference therein) or for additional information, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Shares for offering or sale in
any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to
Section 8(e) of the 1933 Act concerning the Registration Statement,
and (v) if the Fund becomes the subject of a proceeding under Section
8A of the 1933 Act in connection with the offering of the Shares. The
Fund will promptly effect the necessary post-effective amendment and
the filings required pursuant to Rule 497 and will take such steps as
it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Fund will make every reasonable
effort to prevent the issuance of any stop order, or order of
suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, and, if any such stop order or order of suspension or
revocation of registration is issued, to obtain the lifting thereof at
the earliest possible moment.
(ii) Filing of Amendments and Exchange Act Documents. The Fund
will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)) or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, and will furnish the
Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and
will not file or use any such documents to which the Representatives
or counsel for the Underwriters shall reasonably object. The Fund has
given the Representatives notice of any filings made pursuant to the
1934 Act or the rules and regulations of the Commission under the 1934
Act (the "1934 ACT REGULATIONS") within 48 hours prior to the
Applicable Time; the Fund will give the Representatives notice of its
intention to make any such filing from the Applicable Time to the
Closing Time and will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed
filing, or as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters
shall object; provided, however that this covenant shall not apply to
any post-effective amendment required by Rule 8b-16 of the 1940 Act
which is filed with the Commission after the later of (x) one year
from the date of this Agreement or (y) the date on which the
distribution of the Shares is completed.
(iii) Delivery of Registration Statements. The Fund has furnished
or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act which
is filed with the Commission after the later of (x) one year from the
date of this Agreement or (y) the date on which the distribution of
the Shares is completed) thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S T.
(iv) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Fund
hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Fund will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(v) Continued Compliance With Securities Laws. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Fund, to
amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include any untrue statements of
a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the Rules and Regulations, the Fund will promptly prepare and file
with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with
such requirements, and the Fund will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters
may reasonably request. If at any time following issuance of a Rule
482 Statement, there occurred or occurs an event or development as a
result of which such Rule 482 Statement conflicted with or would
conflict with the information contained in the Registration Statement
(or any other registration statement relating to the Shares) or the
Statutory Prospectus or any preliminary prospectus, or such Rule 482
Statement included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances, prevailing at the subsequent time, not misleading, the
Fund will promptly notify the Representatives and will promptly amend
or supplement, at its own expense, such Rule 482 Statement to
eliminate or correct such conflict, untrue statement or omission.
(vi) Blue Sky Qualifications. The Fund will use its best efforts,
in cooperation with the Underwriters, to qualify the Shares for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Representatives
may designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
the foregoing shall not apply to the extent that the Shares are
"covered securities" that are exempt from state regulation of
securities offerings pursuant to Section 18 of the 1933 Act; and
provided, further, that the Fund shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(vii) Rule 158. The Fund will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds
received by it from the sale of the Shares in the manner specified in
the General Disclosure Package and the Prospectus under "Use of
Proceeds."
(ix) Listing. The Fund will use its best efforts to effect the
listing of the Shares on the NYSE, subject to notice of issuance.
(x) Restriction on Sale of Shares. During a period of 90 days
from the date of the Prospectus, the Fund will not, without the prior
written consent of _____________, (A) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of
Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement
under the 1933 Act with respect to any of the foregoing or (B) enter
into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Shares, whether any such swap
or transaction described in clause (A) or (B) above is to be settled
by delivery of Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Shares to be
sold hereunder or the Common Shares issued pursuant to any dividend
reinvestment plan.
(xi) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1940 Act and the 1934 Act within the time periods
required by the 1940 Act and the Rules and Regulations and the 1934
Act and the rules and regulations of the Commission thereunder,
respectively.
(xii) No Manipulation of Market for Shares. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein, in the General Disclosure Package or in the
Prospectus, the Fund will not (a) take, directly or indirectly, any
action designed to cause or to result in, or that 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
Shares in violation of federal or state securities laws, and (b) until
the Closing Time, or the Date of Delivery, if any, (i) except for
Share repurchases permitted in accordance with applicable laws and
issuances of Shares or purchases of Shares in the open market pursuant
to the Fund's dividend reinvestment plan, sell, bid for or purchase
the Shares or pay any person any compensation for soliciting purchases
of the Shares or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities
of the Fund.
(xiii) Rule 462(b) Registration Statement. If the Fund elects to
rely upon Rule 462(b), the Fund shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the
Fund shall at the time of filing either pay to the Commission the
filing fee for
the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under
the 1933 Act.
(xiv) Sales Materials. The Fund represents and agrees that,
unless it obtains the prior consent of the Representatives, it will
not use any Sales Materials in connection with any public offering of
any Shares.
Section 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any agreement among Underwriters and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Shares, (iii) the preparation,
issuance and delivery of the certificates for the Shares to the
Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Shares to
the Underwriters, (iv) the fees and disbursements of the Fund's counsel,
accountants and other advisers, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Rule 482
Statement and of the Prospectus and any amendments or supplements thereto
and any costs associated with electronic delivery of any of the foregoing
by the Underwriters to investors, (vi) the fees and expenses of any
transfer agent or registrar for the Shares, (vii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the NASD of the terms of the
sale of the Shares, (viii) the fees and expenses incurred in connection
with the listing of the Shares on the NYSE, (ix) the printing of any Sales
Material and (x) the fees and expenses (including, without limitation, any
damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the
Shares made by the Underwriters caused by a breach of the representation
contained in the third paragraph of Section 1(a)(i) hereof.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Fund or the Adviser shall reimburse, or arrange for an
affiliate to reimburse, the Underwriters for all of their out of pocket
expenses, including reasonable fees and disbursements of counsel for the
Underwriters. If this Agreement is terminated for any reason other than by
the Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Fund or the Adviser shall reimburse, or arrange
for an affiliate to reimburse, the Underwriters for all of their out of
pocket expenses, including reasonable fees and disbursements of counsel for
the Underwriters up to a maximum reimbursement of $________.
Section 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Fund and the Adviser contained in Section
1 hereof or in certificates of any officer of the Fund or the Adviser delivered
pursuant to the provisions hereof, to the performance by the Fund and the
Adviser of their respective covenants and other obligations hereunder, and to
the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act, no
notice or order pursuant to Section 8(e) of the 1940 Act shall have been
issued, and no proceedings with respect to either shall have been initiated
or, to the Fund's knowledge, threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 497 (or a
post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A)
(b) Opinions of Counsel.
(i) Opinion of Counsel for the Fund and the Adviser. At Closing
Time, the Representatives shall have received the favorable opinions,
dated as of Closing Time, from Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP,
counsel for the Fund and Advisor and Vedder, Price, Xxxxxxx &
Kammholz, P.C., special counsel for the Fund, together with signed and
reproduced copies of such letters for each of the other Underwriters,
which opinions shall be substantially similar to those opinions
delivered on February 27, 2004, in connection with the initial public
offering of the Fund, and to such further effect as counsel to the
Underwriters may reasonably request. As to matters of Maryland law,
Vedder, Price, Xxxxxxx & Kammholz, P.C. may rely on the opinion of
Xxxxxxx LLP.
(ii) Opinion of Counsel for the Underwriters. At Closing Time,
the Representatives shall have received the favorable opinion, dated
as of Closing Time, from Xxxx Xxxxxxx LLP, counsel for the
Underwriters, together with signed and reproduced copies of such
letters for each of the other Underwriters, which opinion shall be in
form and substance satisfactory to the Representatives.
(c) Officers' Certificates. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package,
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Fund, whether
or not arising in the ordinary course of business, and the Representatives
shall have received a certificate of a duly authorized officer of the Fund
and of the chief financial or chief accounting officer of the Fund and of
the President or a Vice President or Managing Director of the Adviser,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Sections l(a) and (b) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Fund
or the Adviser, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, has been issued and
no proceedings for any such purpose have been instituted or are pending or,
to the knowledge of the Fund or the Adviser, contemplated by the
Commission.
(d) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP
("E&Y") a letter dated such date, in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement, the General Disclosure Package and
the Prospectus.
(e) Bring-Down Comfort Letter. At Closing Time, the Representatives
shall have received from E&Y a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the specified date
referred to shall be a date not more than three (3) business days prior to
Closing Time.
(f) Approval of Listing. At Closing Time, the Shares shall have been
approved for listing on the NYSE, subject only to official notice of
issuance.
(g) No Objection. [INTENTIONALLY RESERVED].
(h) Conditions to Purchase of Option Shares. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Shares, the representations and
warranties of the Fund contained herein and the statements in any
certificates furnished by the Fund hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificates. Certificates, dated such Date of
Delivery, of a duly authorized officer of the Fund and of the chief
financial or chief accounting officer of the Fund and of the President
or a Vice President or Managing Director of the Adviser confirming
that the information contained in the certificate delivered by each of
them at the Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
(ii) Opinions of Counsel.
a) Opinions of Counsel for the Fund and the Adviser. The
favorable opinions of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel
for the Fund and the Adviser and Vedder, Price, Xxxxxxx &
Kammholz, P.C., special counsel for the Fund, dated such Date of
Delivery, relating to the Option Shares to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(i) hereof, including reliance by Vedder,
Price, Xxxxxxx & Kammholz, P.C. on Xxxxxxx LLP as to matters of
Maryland law.
b) Opinion of Counsel for the Underwriters. The favorable
opinion of Xxxx Xxxxxxx LLP, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Shares to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)(ii) hereof.
(iii) Bring-Down Comfort Letter. A letter from E&Y, in form and
substance satisfactory to the Representatives and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(e) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five (5) days prior to
such Date of Delivery.
(i) Maintenance of Rating. Since the execution of this Agreement,
there shall not have been any decrease in the rating of any of the Fund's
securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the 0000 Xxx) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of
the possible change.
(j) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Shares as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Fund and the Adviser in
connection with the organization and registration of the Fund under the
1940 Act and the issuance and sale of the Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to
the purchase of Option Shares, on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the
relevant Option Shares, may be terminated by the Representatives by notice
to the Fund at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7, 8 and 13 shall survive any such
termination and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Adviser agree,
jointly and severally, to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any director,
officer, employee or affiliate thereof as follows:
(i) 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 the Rule
430A Information 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 preliminary prospectus, any Rule 482 Statement or the 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;
(ii) 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 6(e) below) any such
settlement is effected with the written consent of the Fund; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
_____________), 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 (i) or (ii) 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
reliance upon and in conformity with written information furnished to
the Fund or the Adviser by any Underwriter through _____________
expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary
prospectus, any Rule 482 Statement or the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification of Fund, Adviser, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Fund and
the Adviser, their respective directors, each of the Fund's officers who
signed the Registration Statement, and each person, if any, who controls
the Fund or the Adviser within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any preliminary prospectus or the Prospectus (or any
amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Fund or the Adviser by such Underwriter
through _____________ expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Indemnification for Marketing Materials. In addition to the
foregoing indemnification, the Fund and the Adviser also agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in Section 6(a), as limited by the proviso set forth therein, with respect
to any Sales Material in the form approved by the Fund, the Adviser and the
Representatives for use by the Underwriters and securities firms to whom
the Fund or the Adviser shall have disseminated materials in connection
with the public offering of the Shares.
(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. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by _____________, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Fund and the Adviser. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties 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 6 or
Section 7 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 6(a)(ii) 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) Limitations on Indemnification. Any indemnification by the Fund
shall be subject to the requirements and limitations of Section 17(i) of
the 1940 Act and 1940 Act Release 11330.
Section 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and the
Adviser on the one hand and the Underwriters on the other hand from the offering
of the Shares pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Fund and the Adviser on the one hand
and of the Underwriters 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.
The relative benefits received by the Fund and the Adviser on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Fund and the total
underwriting discount received by the Underwriters (whether from the Fund or
otherwise), in each case as set forth on the cover of the Prospectus, bear to
the aggregate public offering price of the Shares as set forth on such cover.
The relative fault of the Fund and the Adviser on the one hand and the
Underwriters 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 or the Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Adviser and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 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.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Fund and each director of the Adviser, respectively, each
officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Fund and the Adviser, respectively. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Primary Shares set forth opposite
their respective names in Schedule A hereto and not joint.
Any contribution by the Fund shall be subject to the requirements and
limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section 8. Representations and Warranties To Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or the Adviser submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Fund or the Adviser, and shall survive delivery of the
Shares to the Underwriters.
Section 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the
Prospectus or General Disclosure Package, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Fund or the Adviser, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any material outbreak of hostilities or
material escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Shares or to enforce contracts
for the sale of the Shares, or (iii) if trading in the Common Shares of the
Fund has been suspended or materially limited by the Commission or the
NYSE, or if trading generally on the American Stock Exchange or in the
NASDAQ National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by any of said exchanges or by such system or by order
of the Commission, the NASD or any other governmental authority, or a
material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either Federal or Kansas authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7, 8 and 13 shall survive such termination and remain
in full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or any Date of Delivery to purchase
the Shares which it or they are obligated to purchase under this Agreement (the
"DEFAULTED SHARES"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Shares in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the
number of Shares to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number of
Shares to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Shares to be
purchased and sold on such Date of Delivery, shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Shares, as the
case may be, either the Representatives or the Fund shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven (7) days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives, c/o
______________________________, attention of ________________, Managing
Director; and notices to the Fund or the Adviser shall be directed, as
appropriate, to the office of the Adviser, 00000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxx 00000, attention of Management Committee.
Section 12. No Advisory or Fiduciary Relationship. The Fund acknowledges
and agrees that (a) the purchase and sale of the Shares pursuant to this
Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Fund, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Fund, or any of its stockholders, creditors or employees or any other
party, (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Fund with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Fund on other matters) and no
Underwriter has any obligation to the Fund with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Fund, and (e) the Underwriters have not provided legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Fund has consulted its own respective legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
Section 13. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Fund, the Adviser and their respective
partners and successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Fund, the Adviser and their respective successors and
the controlling persons and officers and directors referred to in Sections 6 and
7 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 the Underwriters, the Fund, the
Adviser and their respective partners and successors, and said controlling
persons and officers, directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
Section 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY
PROVIDED, SPECIFIED TIMES OF DAY REFER TO CENTRAL STANDARD TIME.
Section 15. Effect of Headings. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the
Underwriters, the Fund and the Adviser in accordance with its terms.
Very truly yours,
TORTOISE ENERGY CAPITAL CORPORATION
By ____________________________________
Name:
Title:
TORTOISE CAPITAL ADVISORS, LLC
By ____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
___________________________________
By:________________________________
Authorized Signatory
___________________________________
By:________________________________
Authorized Signatory
Each for itself and collectively as Representatives of the other Underwriters
named in Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriter Primary Shares
--------------------------------------------------------------------------------
TOTAL...........................................................____________
============
25
SCHEDULE B
Tortoise Energy Capital Corporation
__________ Common Shares
1 The public offering price per share for the Shares, determined as
provided in said Section 2, shall be $______.
2 The purchase price per share for the Shares to be paid by the several
Underwriters shall be $______, being an amount equal to the public offering
price set forth above less $____ per share; provided that the purchase price per
share for any Option Shares purchased upon the exercise of the over-allotment
option described in Section 2(b) shall be reduced by an amount per share equal
to any dividends or distributions declared by the Fund and payable on the
Primary Shares but not payable on the Option Shares.
26
SCHEDULE C
Price Per Share = $_____
27
SCHEDULE D
The Investor Guide dated _________ _______ entitled "Add-On Offering
of Common Stock (NYSE: TYY)"
28
