Par Value $.001 Per Share UNDERWRITING AGREEMENT
EXHIBIT
h.1
(a
Maryland Corporation)
____________
Shares of Common Stock
Par
Value
$.001 Per Share
___________,
200_
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
____________________ ____________________ and each of the other Underwriters
named in Schedule A hereto (collectively, the “UNDERWRITERS”), for
whom ____________________ 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-______ 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/or Rule 430C ("RULE 430C")
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
_________, 200_, 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
2
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 principles (“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
3
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
4
(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
5
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
6
(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.
7
(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,
8
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
9
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 ____________________ 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 ______________________________ or at such
other place as shall be agreed upon
10
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, Rule 430C 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
11
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.
12
(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 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,
13
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.
14
(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
15
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 and/or
Rule
430C) 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 ____________________, counsel for the Fund and
Advisor and ____________________, special counsel for the Fund, as to matters
set forth in Exhibit A, B and C hereto. As to matters of Maryland
law, ____________________ may rely on the opinion of
____________________.
(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 1(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 ____________________ 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 __________ 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.
16
(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 _______________, counsel for the Fund and the Adviser
and
_______________, 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 _______________ on _______________ as to matters
of Maryland law.
(iii) Bring-Down
Comfort Letter.
A
letter from _____, 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.
17
(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 __________), 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
18
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 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 __________ 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
19
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
__________, 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)
20
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
21
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
22
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
23
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, ____________________, attention of _______________; and notices
to the Fund or the Adviser shall be directed, as appropriate, to the office
of
the Adviser, _______________, attention of _______________.
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.
24
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.
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Very
truly yours,
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By:
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__________________________________________________
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Name:
|
||
|
|
Title:
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TORTOISE
CAPITAL ADVISORS, LLC
|
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By:
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__________________________________________________
|
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Name:
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||
|
|
Title:
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CONFIRMED
AND ACCEPTED, as of the date first above written:
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__________________________________________________
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By:
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_________________________________________________
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|||
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Authorized Signatory
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||||
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Each
for
itself and collectively as Representatives of the other Underwriters named
in
Schedule A hereto.
25
SCHEDULE
A
|
Name
of Underwriter
|
Number
of
Primary
Shares
|
|
|
_______________
|
|
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_______________
|
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_______________
|
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|
_______________
|
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|
_______________
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_______________
|
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_______________
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_______________
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_______________
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_______________
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_______________
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_______________
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_______________
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_______________
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_______________
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TOTAL:
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_______________
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26
SCHEDULE
B
__________
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.
27
