EXHIBIT h.1
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
(a Maryland Corporation)
____________ Shares of Common Stock
Par Value $.00l Per Share
UNDERWRITING AGREEMENT
___________, 2004
Xxxxxx, Xxxxxxxx & Company, Inc.
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the "FUND"),
and the Fund's investment adviser, Tortoise Capital Advisors, LLC, a __________
limited liability company (the "ADVISER"), each confirms its agreement with
Xxxxxx, Xxxxxxxx & Company, Inc. ("XXXXXX XXXXXXXX") and Xxxxxx Brothers Inc.
("XXXXXX BROTHERS"), RBC Xxxx Xxxxxxx Inc. ("RBC") and each of the other
Underwriters named in Schedule A hereto (collectively with Xxxxxx Xxxxxxxx, the
"UNDERWRITERS"), for whom Xxxxxx Xxxxxxxx, Xxxxxx Brothers and RBC 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 $.001 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 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. 333-110143 and
811-21462) covering the registration of the Shares under the Securities Act of
1933, as amended (the "1933 ACT"), including the related preliminary prospectus
or prospectuses, 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 either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("RULE
430A") and paragraph (c) or (h) of Rule 497 ("RULE 497") of the Rules and
Regulations or (ii) if the Fund has elected to rely upon Rule 434 ("RULE 434")
of the Rules and Regulations, prepare and file a term sheet (a "TERM SHEET") in
accordance with the provisions of Rule 434 and Rule 497. 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, if applicable, (a)
pursuant to paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "RULE 434
INFORMATION." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 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 exhibits and schedules thereto at the time it became effective and
including the Rule 430A Information or the Rule 434 Information, as applicable,
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." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated _________, 2004, including the statement of
additional information incorporated therein by reference, together with the Term
Sheet and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet 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 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. If Rule 434 is used,
the Fund will comply with the requirements of Rule 434 and the Prospectus shall
not be "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. 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 information furnished to the Fund by or
on behalf of any Underwriter for use in the Registration Statement or
Prospectus.
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.
(ii) 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.
(iii) FINANCIAL STATEMENTS. The statement of assets and
liabilities included in the Registration Statement and the Prospectus,
together with the related notes, presents fairly in accordance with
generally accepted accounting principals ("GAAP") in all material
respects the financial position of the Fund at the date indicated and
has been prepared in conformity in all material respects with GAAP.
(iv) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or 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.
(v) 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.
(vi) NO SUBSIDIARIES. The Fund has no subsidiaries.
(vii) 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.
(viii) 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 or 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.
(ix) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Fund is as set forth in the Prospectus as of the
date thereof under the caption "Description of Common Shares." All
issued and outstanding Common Shares of the Fund 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 of the
Fund was issued in violation of the preemptive or other similar rights
of any securityholder of the Fund. No shares of preferred stock of the
Fund have been designated, offered, sold or issued and none of such
shares of preferred stock are currently outstanding, and the Fund has
no present intention to do so.
(x) 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 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.
(xi) 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" and 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 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.
(xii) 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.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus 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.
(xiv) 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.
(xv) 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.
(xvi) 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.
(xvii) 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") 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 information relating to any Underwriter
furnished to the Fund by or on behalf of any Underwriter through you
expressly for use therein).
(xviii) 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.
(xix) 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 and the
Prospectus.
(xx) ACCOUNTING 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.
(xxi) 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.
(xxii) 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.
(xxiii) 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.
(xxiv) 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.
(b) REPRESENTATIONS AND WARRANTIES BY THE ADVISER. The Adviser
represents and warrants to each Underwriter as of the date hereof, 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 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 prospectus 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 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 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) such Agreements each 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 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 Xxxxxxxx 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. Xxxxxx Xxxxxxxx, 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 434, 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 for
additional information, and (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.
The Fund will promptly effect the filings necessary 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. 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)), any Term Sheet 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 document to which the Representatives or
counsel for the Underwriters shall reasonably 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
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.
(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 extend
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 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 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, no
later than two weeks after the effectiveness of the Registration
Statement.
(x) RESTRICTION ON SALE OF SHARES. During a period of 180 days
from the date of the Prospectus, the Fund will not, without the prior
written consent of Xxxxxx Xxxxxxxx, (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 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.
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, Prospectus and any
amendments or supplements thereto, (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 and (ix) the printing of any Sales Material.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated
for any reason, 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 $70,000.
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) or, if the Fund has elected to rely upon Rule 434, a Term Sheet shall have
been filed with the Commission in accordance with Rule 497.
(b) 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, as to matters set for in Exhibit A, B and C hereto. As to
matters of Maryland law, Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP may rely on the
opinion of Xxxxxxx LLP.
(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, 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 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. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(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(d) hereof remains true and
correct as of such Date of Delivery.
(ii) 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)
hereof, including reliance by Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP on
Xxxxxxx LLP as to matters of Maryland law.
(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) 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.
(j) 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 and the Rule 434 Information, if applicable, 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 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 Xxxxxx
Xxxxxxxx), 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 Xxxxxx Xxxxxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the Fund or the Adviser
will not be liable to any Underwriter with respect to any Prospectus to
the extent that the Fund or the Adviser shall sustain the burden of
proving that any such loss, liability, claim, damage or expense
resulted from the fact that such Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Shares to a
person to whom such Underwriter failed to send or give, at or prior to
the Closing Time, a copy of the final Prospectus, as then amended or
supplemented if: (i) the Fund has previously furnished copies thereof
(sufficiently in advance of the Closing Time to allow for distribution
by the Closing Time) to the Underwriter and the loss, liability, claim,
damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the
preliminary Prospectus which was corrected in the final Prospectus as,
if applicable, amended or supplemented prior to the Closing Time and
such final Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person and (ii) such
failure to give or send such final Prospectus by the Closing Time to
the party or parties asserting such loss, liability, claim, damage or
expense would have constituted a defense to the claim asserted by such
person.
(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 and the Rule 434
Information, if applicable, 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 Xxxxxx Xxxxxxxx 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 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 and the Adviser
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
Xxxxxx Xxxxxxxx, 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; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party, prior to the date of such settlement, (1) reimburses such indemnified
party in accordance with such request for the amount of such fees and expenses
of counsel as the indemnifying party believes in good faith to be reasonable,
and (2)
provides written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses.
(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 Advisor 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 or, if Rule
434 is used, the corresponding location on the Term Sheet, bear to the aggregate
initial 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, 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 Missouri 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, Xxxxxx Xxxxxxxx & Company, Inc., 000 Xxxxx Xxxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, attention of Equity Capital Markets; 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. 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 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MISSOURI 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 14. 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 INFRASTRUCTURE CORPORATION
By:
----------------------------------------
Name:
Title:
TORTOISE CAPITAL ADVISORS, LLC
By:
----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
-----------------------------------------
Authorized Signatory
XXXXXX BROTHERS INC.
By:
-----------------------------------------
Authorized Signatory
-
RBC XXXX XXXXXXX INC.
By:
-----------------------------------------
Authorized Signatory
Each for itself and collectively as Representatives of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Number of Primary
Name of Underwriter Shares
------------------- -----------------
Xxxxxx, Xxxxxxxx & Company, Incorporated ....... _______________
Xxxxxx Brothers, Inc. .......................... _______________
RBC Xxxx Xxxxxxx Inc. .......................... _______________
Advest, Inc. ................................... _______________
BB&T Capital Markets ........................... _______________
Xxxxxx Xxxxxxxxxx Xxxxx LLC .................... _______________
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ........... _______________
Xxxxxx Xxxxxx & Company, Inc. .................. _______________
Xxxxxxxxxxx .................................... _______________
Xxxxxxx Xxxxxx Xxxxxx .......................... _______________
Xxxxx Fargo .................................... _______________
XX Xxxxxxxxx + Co., LLC ........................ _______________
Xxxxxxxx Xxxxxx & Co. .......................... _______________
Xxxxxx/Hunter Incorporated ..................... _______________
Xxxxxxxxxx Securities .......................... _______________
TOTAL: .........................................
================
SCHEDULE B
Tortoise Energy Infrastructure Corporation
__________ Common Shares
1 The initial 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 initial 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.
