AUCTION RATE SENIOR NOTES $______________ SERIES __, DUE ___________, ______ ($25,000 DENOMINATIONS) TORTOISE ENERGY INFRASTRUCTURE CORPORATION UNDERWRITING AGREEMENT
EXHIBIT
h.3
AUCTION
RATE SENIOR NOTES
$______________
SERIES __, DUE ___________, ______
($25,000
DENOMINATIONS)
[Date]
[Underwriters]
Ladies
and Gentlemen:
Tortoise
Energy Infrastructure Corporation, a Maryland corporation (the “Company”),
proposes to, subject to the terms and conditions stated herein, issue and
sell
to _______________________ and _________________ (each an “Underwriter” and,
together the “Underwriters”) $______________ aggregate principal amount of
auction rate senior notes Series _ (the “Tortoise Notes”). The Tortoise Notes
will be issued pursuant to the provisions of an indenture (the “Base Indenture”)
dated as of July 13, 2004 between the Company and BNY Midwest Trust Company,
as
trustee (the “Trustee”) and a supplemental indenture between the Company and the
Trustee, to be dated April 7, 2005 (the “Supplemental Indenture,” and together
with the Base Indenture, the “Indenture”). The Company and the Company’s
investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability
company (the “Investment Adviser”), each wishes to confirm its agreement
concerning the purchase of the Tortoise Notes from the Company by the
Underwriters.
The
Company has entered into an Investment Advisory Agreement with the Investment
Adviser dated December 12, 2003 (the “Advisory Agreement”); a Custody Agreement
with U.S. Bank National Association, dated December 12, 2003 (“Custody
Agreement”); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated December 12, 2003 (“Transfer Agency Agreement”); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC,
dated
December 12, 2003 (“Administration Agreement”); a Fund Accounting Servicing
Agreement with U.S. Bancorp Fund Services, LLC, dated December 12, 2003
(“Accounting Agreement”); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with The Bank of New York, dated April 7, 2005 (the
“Auction Agreement”). Collectively, the Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement, the Administration Agreement, the
Accounting
Agreement
and the Auction Agreement (excluding the Broker-Dealer Agreement) are referred
to herein as the “Company Agreements.” This Underwriting Agreement is herein
referred to as the “Agreement.”
Section
1. Representations,
Warranties and Agreements of the Company and the Investment
Adviser.
The
Company and the Investment Adviser jointly and severally represent, warrant
and
agree that:
(a) A
registration statement on Form N-2 (File Nos. 333-131204 and 811-21462),
as
amended by Pre-Effective Amendment No. 1 with respect to the Tortoise Notes,
has
(i) been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), the Investment
Company Act of 1940, as amended (the “1940 Act”), the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”) and the rules and regulations of
the United States Securities and Exchange Commission (the “Commission”)
promulgated under the Securities Act (the “1933 Act Rules and Regulations”) and
the 1940 Act (the “1940 Act Rules and Regulations,” and, together with the 1933
Act Rules and Regulations, the “Rules and Regulations”), (ii) been filed with
the Commission under the Securities Act and the 1940 Act and (iii) become
effective under the Securities Act. If any post-effective amendment to such
registration statement has been filed with the Commission prior to execution
and
delivery of this Agreement, the most recent such amendment has become effective
under the Securities Act. Copies of such registration statement and each
of the
amendments thereto have been delivered by the Company to you. As used in
this
Agreement, “Effective Time” means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto,
if
any, has become effective under the Securities Act; “Effective Date” means the
date of the Effective Time; “Preliminary Prospectus” means each prospectus and
related statement of additional information included in such registration
statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company
with
the Underwriters’ consent pursuant to Rule 497(a) of the 1933 Act Rules and
Regulations; “Registration Statement” means such registration statement, as
amended at the Effective Time, including all information contained in the
final
prospectus (including the statement of additional information) filed with
the
Commission pursuant to Rule 497 of the 1933 Act Rules and Regulations and
deemed
to be a part of the registration statement as of the Effective Time pursuant
to
Rule 430A and/or Rule 430C of the Rules and Regulations; and “Prospectus” means
the prospectus and the statement of additional information filed with the
Commission pursuant to Rule 497 of the Securities Act. If the Company has
filed
a registration statement to register additional Tortoise Notes pursuant to
Rule
462(b) under the Securities Act (the “Rule 462 Registration Statement”), then
any reference herein to the term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. The Commission has not issued
any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus.
(b) The
Company is duly registered under the 1940 Act as a closed-end, non-diversified,
management investment company. A notification of registration of the Company
as
an investment company under the 1940 Act on Form N-8A (the “1940 Act
Notification”) has been prepared by the Company in conformity with the 1940 Act
2
and
has
been filed with the Commission and, at the time of filing thereof and at
the
time of filing any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act
Rules
and Regulations. The Company has not received any notice from the Commission
pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement (or any amendment or supplement
to
either of them).
(c) To
the
knowledge of the Company and the Investment Adviser, no person is serving
or
acting as an officer, director or investment adviser of the Company except
in
accordance with the provisions of the 1940 Act and the 1940 Act Rules and
Regulations and the Investment Advisers Act of 1940, as amended (the “Investment
Adviser’s Act”) and the rules and regulations adopted by the Commission under
the Investment Adviser’s Act (the “Investment Adviser’s Act Rules and
Regulations”).
(d) The
Registration Statement and the 1940 Act Notification conform, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the
Prospectus will, when they become effective or are filed with the Commission,
as
the case may be, conform in all respects to the requirements of the Securities
Act, the 1940 Act, the Trust Indenture Act and the Rules and Regulations
and do
not and will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date
(as to
the Prospectus and the 1940 Act Notification and any amendment or supplement
thereto) 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 case of the Prospectus in light of the circumstances under which
they were made, not misleading; provided that no representation or warranty
is
made as to information contained in or omitted from the Registration Statement,
the 1940 Act Notification or the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the Underwriters
or on
the Underwriters’ behalf specifically for inclusion therein.
(e) The
Company has been duly incorporated and is existing as a corporation in good
standing under the laws of the State of Maryland, is duly qualified to do
business and is in good standing in each jurisdiction in which its ownership
or
lease of property or the conduct of its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to
either) requires such qualification, and has all power and authority necessary
to own or hold property and to conduct the business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to
either), except where the failure to so qualify or to be in good standing
would
not reasonably be expected to have a material adverse effect on the condition
(financial or other), business, prospects, management, shareholders’ equity or
results of operations of the Company (a “Material Adverse Effect”). The Company
has no subsidiaries.
(f) The
Company has an authorized capitalization as set forth in the Registration
Statement and the Prospectus under the caption “Capitalization - (unaudited).”
All of the issued shares of common stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and conform
in
all
3
material
respects to the description thereof contained in the Registration Statement
and
the Prospectus (and any amendment or supplement to either).
(g) The
Tortoise Notes to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued, authenticated and
delivered against payment therefor in accordance with this Agreement and
the
Indenture, will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture; and the Tortoise Notes will conform in
all
material respects to the description thereof contained in the Indenture,
the
Registration Statement and the Prospectus (and any amendment or supplement
to
either).
(h) This
Agreement, the Indenture and each of the Company Agreements have been duly
authorized, executed and delivered by the Company and constitute valid and
legally binding agreements of the Company, enforceable against the Company
in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject
to the
qualification that the enforceability of the Company’s obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and by
general equitable principles.
(i) None
of
the execution, delivery and performance of this Agreement or the Indenture
by
the Company, the performance of the Company Agreements or the consummation
of
the transactions contemplated hereby and thereby (i) conflict with, result
in
the creation or imposition of any lien, charge or encumbrance upon the assets
of
the Company under the terms or provisions of, or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound
or
to which any of the property or assets of the Company is subject, (ii) result
in
any violation of the provisions of the Articles of Incorporation (the
“Articles”) or by-laws of the Company or (iii) result in the violation of any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Company or any of its properties or assets,
except in the case of clauses (i) and (iii), such conflicts, breaches or
violations that in the aggregate would not reasonably be expected to have
a
Material Adverse Effect; and except for the registration of the Tortoise
Notes
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1940 Act, the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and applicable
state securities laws in connection with the purchase and distribution of
the
Tortoise Notes by the Underwriters, no consent, approval, authorization or
order
of, or filing or registration with, any such court or governmental agency
or
body is required for the execution, delivery and performance of this Agreement
or the Indenture by the Company, the performance of the Company Agreements
by
the Company or the consummation of the transactions contemplated hereby and
thereby.
(j) There
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
4
registration
statement under the Securities Act with respect to any securities of the
Company
owned or to be owned by such person or to require the Company to include
such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act. There are no
outstanding options, warrants or other rights to purchase, agreements or
other
obligations to issue, or rights to convert any obligations into or exchange
any
securities for, shares of capital stock of or ownership interests in the
Company.
(k) The
Company has not sustained, since the date of the latest unaudited financial
highlights included in the Prospectus, any material loss or interference
with
its business that has had, or could reasonably be expected to have, a Material
Adverse Effect, and since such date, there has not been any change in the
capital stock or long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
consolidated financial position, shareholders’ equity, results of operations,
business or prospects of the Company that has had or could reasonably be
expected to have a Material Adverse Effect, other than as set forth or
contemplated in the Prospectus.
(l) The
financial statements (including the related notes) filed as part of the
Registration Statement present fairly the financial condition and results
of
operations of the Company, at the dates and for the periods indicated, and
have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(m) Ernst
& Young LLP, who have reviewed the financial statements of the Company,
whose report appears in the Registration Statement and who have delivered
the
letters referred to in Sections 8(f) and (g) hereof, have represented to
the
Company that they are independent public accountants as required by the
Securities Act, the 1940 Act and the Rules and Regulations.
(n) The
Company carries, or is covered by, insurance in such amounts and covering
such
risks as is adequate for the conduct of its business and the value of its
property and as is customary for companies engaged in similar businesses
in
similar industries.
(o) There
are
no legal or governmental proceedings pending to which the Company is a party
or
of which any property or assets of the Company is the subject which are
reasonably likely to be determined adversely to the Company and, if determined
adversely to the Company, would be reasonably likely to have a Material Adverse
Effect; and to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(p) There
are
no contracts or other documents which are required to be described in the
Registration Statement or the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the 1940 Act, the Trust Indenture
Act or by
5
the
Rules
and Regulations which have not been described in the Registration Statement
or
the Prospectus or filed as exhibits to the Registration Statement.
(q) The
Company has filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company which
has had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, might have) a Material Adverse
Effect.
(r) The
Company 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.
(s) Since
the
date as of which information is given in the Registration Statement and the
Prospectus through the date hereof, and except as may otherwise be disclosed
in
the Prospectus, the Company has not (i) issued or granted any securities
other
than shares of common stock of the Company, (ii) incurred any liability or
obligation, direct or contingent, other than non-material liabilities and
obligations which were incurred in the ordinary course of business, or (iii)
entered into any transaction not in the ordinary course of
business.
(t) The
Company or its designee (i) makes and keeps accurate books and records and
(ii)
maintains internal accounting controls which provide reasonable assurance
that
(A) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (B) access
to its assets is permitted only in accordance with management’s authorization
and (C) the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(u) The
Company is not (i) in violation of its Articles or by-laws, (ii) in default,
and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement or other agreement or instrument to which it is a party or by which
it
is bound or to which any of its properties or assets is subject or (iii)
in
violation of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject or has failed to obtain
any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the
conduct of its business, except, in the case of clauses (ii) and (iii), such
defaults, events, violations or failures that in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(v) There
are
no contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or the Underwriters
for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
6
(w) The
statistical, market-related and industry data included in the Prospectus
and the
Registration Statement are based on or derived from sources which the Company
believes to be reliable and accurate.
(x) The
Company, subject to the filing of the Prospectus under Rule 497 under the
1933
Act Rules and Regulations, has taken all required action under the Securities
Act, the 1940 Act, the Trust Indenture Act and the Rules and Regulations
to make
the public offering and consummate the sale of the Tortoise Notes as
contemplated by this Agreement.
(y) Except
as
stated in this Agreement and in the Prospectus (and any amendment or supplement
thereto), the Company has not taken and shall not take, directly or indirectly,
any action designed to cause or result in, or which constituted or which
might
reasonably be expected to constitute, the stabilization or manipulation of
the
price of the Tortoise Notes to facilitate the sale or resale of the Tortoise
Notes.
(z) Other
than the Preliminary Prospectus and the Prospectus, neither the Company nor
the
Investment Adviser has provided or prepared any marketing materials in
connection with the offering and sale of the Tortoise Notes.
(aa) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Investment Adviser’s Act and the Investment Adviser’s Act Rules
and Regulations and the Indenture complies in all material respects with
the
applicable provisions of the Trust Indenture Act.
(bb) Except
as
disclosed in the Registration Statement and the Prospectus (or any amendment
or
supplement to either of them), no director of the Company is an “interested
person” (as defined in the 0000 Xxx) of the Company or an “affiliated person”
(as defined in the 0000 Xxx) of the Underwriters.
Section
2. Representations,
Warranties and Agreements of the Investment Adviser.
The
Investment Adviser represents, warrants and agrees that:
(a) The
Investment Adviser has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
is
duly qualified to do business and is in good standing in each jurisdiction
in
which its ownership or lease of property or the conduct of its business as
described in the Registration Statement and the Prospectus (and any amendment
or
supplement to either) requires such qualification (except where the failure
to
so qualify or to be in good standing would not reasonably be expected to
have a
Material Adverse Effect), and has the power and authority to own or hold
its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to
either).
(b) The
Investment Adviser is duly registered as an investment adviser under the
Investment Adviser’s Act and there does not exist any proceeding or any facts or
circumstances the existence of which could lead to any proceeding which could
affect
7
adversely
the registration or good standing of the Investment Adviser with the Commission.
The Investment Adviser is not prohibited by the Investment Adviser’s Act, the
1940 Act, the Investment Adviser’s Act Rules and Regulations or the 1940 Act
Rules and Regulations from acting under the Advisory Agreement as contemplated
by the Registration Statement and the Prospectus (or any amendment or supplement
thereto).
(c) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute valid and legally
binding agreements of the Investment Adviser, enforceable against the Investment
Adviser in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and
subject to the qualification that the enforceability of the Investment Adviser’s
obligations hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors’
rights generally and by general equitable principles.
(d) None
of
the execution, delivery and performance of this Agreement, the performance
of
the Advisory Agreement or the consummation of the transactions contemplated
hereby and thereby (i) conflict with, result in the creation or imposition
of
any lien, charge or encumbrance upon the assets of the Company under the
terms
or provisions of, or result in a breach or violation of any of the terms
or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Investment
Adviser is a party or by which the Investment Adviser is bound or to which
any
of the property or assets of the Investment Adviser is subject, (ii) result
in
any violation of the provisions of the limited liability company operating
agreement or other organizational documents of the Investment Adviser or
(iii)
result in the violation of any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Investment
Adviser or any of its properties or assets, except in the case of clauses
(i)
and (iii), such conflicts, breaches or violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect; and except
for the
registration of the Tortoise Notes under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with
the purchase and distribution of the Tortoise Notes by the Underwriters,
no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Investment Adviser, the
performance of the Advisory Agreement by the Investment Adviser or the
consummation of the transactions contemplated hereby and thereby.
(e) The
Investment Adviser has the financial resources available to it necessary
for the
performance of its services and obligations as contemplated in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) and
under
this Agreement and the Advisory Agreement.
(f) The
Investment Adviser carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its business and the
8
value
of
its property and as is customary for companies engaged in similar businesses
in
similar industries.
(g) As
of the
date hereof, the description of the Investment Adviser and its business in
the
Registration Statement and the Prospectus (and any amendment or supplement
to
either) conformed as of the date hereof and as of Delivery Date (as defined
herein) will conform in all material respects with the provisions of the
Securities Act, the 1940 Act, and the Rules and Regulations and such description
did not as of the date hereof and will not as of the Delivery Date (as defined
herein) contain an untrue statement of a material fact necessary to make
the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading.
(h) There
are
no legal or governmental proceedings pending to which the Investment Adviser
is
a party or of which any property or assets of the Investment Adviser is the
subject which is reasonably likely to be determined adversely to the Investment
Adviser and, if determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse Effect; and to the best of the
Investment Adviser’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) Since
the
date as of which information is given in the Registration Statement and the
Prospectus through the date hereof, and except as may otherwise be disclosed
in
the Prospectus, there have been no transactions entered into by the Investment
Adviser which are material to the Investment Adviser other than in the ordinary
course of its business.
(j) This
Agreement and the Advisory Agreement comply in all material respects with
all
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations,
the
Investment Adviser’s Act and the Investment Adviser’s Act Rules and
Regulations.
(k) Except
as
stated in this Agreement and in the Prospectus (and any amendment or supplement
thereto), the Investment Adviser has not taken and shall not take, directly
or
indirectly, any action designed to cause or result in, or which constituted
or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Tortoise Notes to facilitate the sale or
resale
of the Tortoise Notes.
(l) The
Investment Adviser is not (i) in violation of its limited liability company
operating agreement or other organizational documents, (ii) in default in
any
material respect, and no event has occurred which, with notice or lapse of
time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage,
deed of
trust, loan agreement or other agreement or instrument to which it is a party
or
by which it is bound or to which any of its properties or assets is subject
or
(iii) in violation of any law, ordinance, governmental rule, regulation or
court
decree to which it or its property or assets may be subject or has failed
to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
9
property
or to the conduct of its business, except, in the case of clauses (ii) and
(iii), such defaults, events, violations or failures that in the aggregate
would
not reasonably be expected to have a Material Adverse Effect.
(m) Neither
the Investment Adviser, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Investment Adviser, has
(i)
used any funds of the Company or the Investment Adviser for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any direct or indirect unlawful payment to
any
foreign or domestic government official or employee from any funds of the
Company or the Investment Adviser, (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, or (iv) made any
bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(n) Neither
the Investment Advisor nor any employee or agent of the Investment Adviser
has
made any payment of funds of the Company or the Investment Adviser or received
or retained any funds, which payment, receipt or retention of funds is of
a
character required to be disclosed in the Prospectus or the Registration
Statement, which is not so disclosed.
(o) There
are
no contracts, agreements or understandings between the Investment Adviser
and
any person that would give rise to a valid claim against the Company or the
Underwriters for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
Section
3. Purchase
of the Tortoise Notes by the Underwriters.
On the
basis of the representations and warranties contained in, and subject to
the
terms and conditions of, this Agreement, the Company agrees to issue and
sell to
the Underwriters and the Underwriters agree to purchase from the Company
the
principal amount of Tortoise Notes set forth opposite such Underwriter’s name in
Schedule 1 hereto.
The
Company shall not be obligated to deliver any of the Tortoise Notes on the
Delivery Date (as hereinafter defined), except upon payment for all the Tortoise
Notes to be purchased on the Delivery Date as provided herein.
Section
4. Offering
of Tortoise Notes by the Underwriters.
The
Underwriters propose to offer the Tortoise Notes for sale upon the terms
and
conditions set forth in the Prospectus.
Section
5. Delivery
of and Payment for the Tortoise Notes.
Delivery of and payment for the Tortoise Notes shall be made at the offices
of
Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or through the facilities of the Depository Trust Company or another
mutually agreeable facility, at 10:00 A.M., New York City time, on __________,
____ or at such other date or place as shall be determined by agreement between
the Underwriters and the Company (the “Delivery Date”). On the Delivery Date,
the Company shall deliver or cause to be delivered the Tortoise Notes to
the
Underwriters through the facilities of the Depository Trust
10
Company
against payment to or upon the order of the Company of the purchase price
by
wire transfer in immediately available funds. Time shall be of the essence,
and
delivery at the time and place specified pursuant to this Agreement is a
further
condition of the obligation of the Underwriters hereunder.
Section
6. Further
Agreements of the Company and the Investment Adviser.
The
Company and the Investment Adviser covenant and agree that:
(a) If,
at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to become effective
under the Securities Act before the offering of the Tortoise Notes may commence,
to use its reasonable best efforts to cause the Registration Statement or
such
post-effective amendment to become effective under the Securities Act as
soon as
possible; if the Registration Statement has become effective and the Prospectus
contained therein omits certain information at the time of effectiveness
pursuant to Rule 430A of the 1933 Act Rules and Regulations, to file a
Prospectus with the Commission pursuant to Rule 497(h) of the 1933 Act Rules
and
Regulations as promptly as possible, not later than the Commission’s close of
business on the second business day following the execution and delivery
of this
Agreement; if the Registration Statement does not so omit such information,
the
Company will file a Prospectus pursuant to Rule 497(c) or (h) of the 1933
Act
Rules and Regulations as promptly as possible, not later than the fifth business
day following the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
except as permitted herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or becomes effective or any supplement to
the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly after
it
receives notice thereof, of the issuance by the Commission of any stop order
or
of any order preventing or suspending the use of any Preliminary Prospectus
or
the Prospectus, of the suspension of the qualification of the Tortoise Notes
for
offering or sale in any jurisdiction, of the initiation or threatening of
any
proceeding for any such purpose, or of any request by the Commission for
the
amending or supplementing of the Registration Statement or the Prospectus
or for
additional information; and, in the event of the issuance of any stop order
or
of any order preventing or suspending the use of any Preliminary Prospectus
or
the Prospectus or suspending any such qualification, to use promptly its
best
efforts to obtain its withdrawal;
(b) To
deliver promptly to the Underwriters such number of the following documents
as
it shall reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in each
case
excluding exhibits) and (ii) each Preliminary Prospectus, the Prospectus
and any
amended or supplemented Prospectus; and, if the delivery of a prospectus
is
required at any time after the Effective Time in connection with the offering
or
sale of the Tortoise Notes or any other securities relating thereto and if
at
such time any events shall have occurred as a result of which the Prospectus
as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any
11
material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is delivered,
not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to
notify
the Underwriters and, upon their request, to file such document and to prepare
and furnish without charge to the Underwriters and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request
of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(c) To
file
promptly with the Commission any amendment to the Registration Statement
or the
Prospectus or any supplement to the Prospectus that may, in the judgment
of the
Company or the Underwriters, be required by the Securities Act or requested
by
the Commission;
(d) Prior
to
filing with the Commission any amendment to the Registration Statement or
supplement to the Prospectus or any Prospectus pursuant to Rule 497 of the
1933
Act Rules and Regulations, to furnish a copy thereof to the Underwriters
and
their counsel and obtain the consent of the Underwriters to the filing, which
consent shall not be unreasonably withheld;
(e) To
make
generally available to the Company’s security holders and to deliver to the
Underwriters an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158) covering a twelve-month
period commencing after the Effective Date and ending not later than 15 months
thereafter;
(f) For
a
period of three years following the Effective Date, to furnish to the
Underwriters, to the extent such information is not freely available on the
Internet, copies of all materials furnished by the Company to its shareholders
and all public reports and all reports and financial statements furnished
by the
Company to the Commission pursuant to the Exchange Act or any rule or regulation
of the Commission thereunder;
(g) Promptly
from time to time, to take such action as the Underwriters may reasonably
request to qualify the Tortoise Notes for offering and sale under the securities
laws of such jurisdictions as the Underwriters may request and to comply
with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
the Tortoise Notes; provided that in connection therewith the Company shall
not
be required to qualify as a foreign corporation or to file a general consent
to
service of process in any jurisdiction;
(h) For
a
period of 180 days from the date of the Prospectus, not to, without the prior
written consent of the Underwriters, directly or indirectly, (1) offer for
sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition
by any
person at any time in the future of) any Tortoise Notes or securities
convertible into or exchangeable for Tortoise Notes, or sell or grant options,
rights or warrants with respect to any Tortoise Notes or securities convertible
into or exchangeable for
12
Tortoise
Notes, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or
risks
of ownership of such Tortoise Notes, whether any such transaction described
in
clause (1) or (2) above is to be settled by delivery of Tortoise Notes or
other
securities, in cash or otherwise; and
(i) To
apply
the net proceeds from the sale of the Tortoise Notes in a manner consistent
with
the investment objectives, policies and restrictions of the Company as set
forth
in the Prospectus.
Section
7. Expenses.
The
Company agrees to pay (a) the costs incident to the authorization, issuance,
sale and delivery of the Tortoise Notes and any taxes payable in connection
therewith; (b) the costs incident to the preparation, printing and filing
under
the Securities Act and the 1940 Act of the Registration Statement, the
Prospectus, and the 1940 Act Notification and any amendments or supplements
and
exhibits thereto; (c) the costs of distributing the Registration Statement
as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus,
the
Prospectus and any amendment or supplement to the Prospectus, all as provided
in
this Agreement; (d) the costs of producing and distributing this Agreement,
and
any other related documents in connection with the offering, purchase, sale
and
delivery of the Tortoise Notes; (e) the preparation, issuance and delivery
of
the certificates for the Tortoise Notes, if any, 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 Tortoise Notes to the Underwriters, (f)
any
applicable listing or other fees including the fees paid to the rating agencies
in connection with the rating of the Tortoise Notes; (g) the fees and expenses
of qualifying the Tortoise Notes under the securities laws of the several
jurisdictions as provided in Section 6(g) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) all costs and reasonable expenses of the
Underwriters, other than the fees and disbursements of counsel to the
Underwriters; (i) the fees and expenses of the Company’s accountants and the
fees and expenses of counsel for the Company, of the transfer agent and the
auction agent as set forth in the Auction Agreement; and (j) all other costs
and
reasonable expenses incident to the performance of the obligations of the
Company under this Agreement.
Section
8. Conditions
of Underwriters’ Obligations.
The
obligations of the Underwriters hereunder are subject to the accuracy, when
made
and on the Delivery Date, of the representations and warranties of the Company
and the Investment Adviser contained herein, to the performance by the Company
and the Investment Adviser of their respective obligations hereunder, and
to
each of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance
with
Section 6(a); no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that
purpose shall have been initiated or threatened by the Commission; and any
request
13
of
the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus or otherwise shall have been complied with.
(b) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Indenture, the Auction Agreement,
the
Tortoise Notes, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel
for
the Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to
pass upon such matters.
(c) The
Company shall have furnished to the Underwriters, in form and substance
reasonably satisfactory to the Underwriters, the written opinion of Vedder,
Price, Xxxxxxx & Kammholz, P.C., dated the Delivery Date, to the effect of
paragraphs (i) through (xvi) below:
(i) The
Company is a corporation duly incorporated and existing under and by virtue
of
the laws of the State of Maryland and is in good standing with the Department
of
Assessments and Taxation of Maryland;
(ii) The
Company has the corporate power to own, lease and operate its property or
assets
and to conduct its business in all material respects as described in the
Registration Statement and the Prospectus under the caption “The Company.”
(iii) The
authorized stock of the Company conforms as to legal matters in all material
respects to the description thereof in the Prospectus under the caption
“Description of Stock.” The Tortoise Notes being delivered on the Delivery Date
to the Underwriters hereunder have been duly authorized and, when issued
and
delivered in accordance with the terms of this Agreement, will constitute
legal,
valid and binding obligations of the Company entitled to the benefits of
the
Indenture;
(iv) The
Tortoise Notes conform in all material respects to the statements concerning
them contained in the Prospectus and the Indenture and there are no restrictions
upon the transfer of any of the Tortoise Notes pursuant to the Company’s
Articles or by-laws or any Material Contract (as defined below); except for
the
restrictions on transfer on the Tortoise Notes contained in the Auction
Agreement;
(v) To
such
counsel’s knowledge, the Company is not (i) in violation of its Articles or
by-laws, (ii) in default, and no event has occurred which, with notice or
lapse
of time or both, would constitute such a default, in the due performance
or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement listed on Schedule
I
to such counsel’s opinion (each a “Material Contract”) or (iii) in violation of
any law, ordinance, governmental rule, regulation or court decree to
14
which
it
or its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or
permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clauses (ii) and (iii), such defaults, events,
violations or failures that in the aggregate would not reasonably be expected
to
have a Material Adverse Effect;
(vi) To
such
counsel’s knowledge, and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company is a party
or of
which any property or assets of the Company is the subject which is reasonably
likely to be determined adversely to the Company and, if determined adversely
to
the Company, would be reasonably likely to have a Material Adverse Effect;
and,
to the best of such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) The
Registration Statement was declared effective under the Securities Act as
of the
date and time specified in such opinion, the Prospectus was filed with the
Commission pursuant to Rule 497 of the 1933 Act Rules and Regulations on
the
date specified in such opinion and no stop order suspending the effectiveness
of
the Registration Statement or any part thereof has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(viii) The
Registration Statement and the Prospectus and any further amendments or
supplements thereto made by the Company prior to the Delivery Date (except
for
the financial statements and related schedules therein, as to which such
counsel
need express no opinion) comply as to form in all material respects with
the
requirements of the Securities Act, the 1940 Act, the Trust Indenture Act
and
the Rules and Regulations;
(ix) The
statements contained in the Registration Statement and the Prospectus (and
any
amendment or supplement thereto through the date of the opinion) under the
captions “The Auction,” and “Description of Tortoise Notes,” “Description of
Stock ” and “Federal Income Tax Matters,” and the statements contained in the
Statement of Additional Information under the caption “Additional Information
Concerning the Auction,” insofar as they purport to summarize provisions of the
Indenture, the Company’s Articles and by-laws, contracts, agreements or other
legal documents referred to therein, tax laws, legal conclusions, doctrines
or
practices of the United States, constitute accurate summaries of the terms
of
such documents, laws, legal conclusions, doctrines or practices in all material
respects;
(x) To
such
counsel’s knowledge, there are no contracts or other documents which are
required to be described in the Registration Statement and the Prospectus
or
filed as exhibits to the Registration Statement by the Securities Act, the
1940
Act, the Trust Indenture Act or by the Rules and Regulations which
15
have
not
been described in the Registration Statement and the Prospectus or filed
as
exhibits to the Registration Statement;
(xi) The
Indenture has been duly authorized, executed and, so far as known to such
counsel, delivered, has been duly qualified under the Trust Indenture Act,
and
constitutes a legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to enforcement of remedies,
to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
relating to or affecting creditors’ rights generally and by general equitable
principles);
(xii) The
global certificate representing the Tortoise Notes has been duly
executed;
(xiii) This
Agreement and each of the Company Agreements has been duly authorized, executed,
and, so far as known to such counsel, delivered by the Company and each of
the
Company Agreements constitute the valid and legally binding agreements of
the
Company, and are enforceable against the Company in accordance with their
terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of the Company’s obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ rights generally and by general equitable
principles;
(xiv) None
of
the issuance and sale of the Tortoise Notes being delivered on the Delivery
Date
by the Company pursuant to this Agreement, the execution, delivery and
performance by the Company of this Agreement or the Indenture, the performance
by the Company of each of the Company Agreements or the consummation of the
transactions contemplated hereby and thereby (i) result in the creation or
imposition of any lien, charge or encumbrance upon the assets of the Company
under the terms of provisions of, or result in a breach or violation of any
of
the terms or provisions of, or constitute a default under, any Material
Contract, (ii) result in any violation of the provisions of the Articles
or
by-laws of the Company or (iii) result in the violation of any Maryland or
Federal law or regulation or any order of any Maryland or Federal governmental
authority known to such counsel, except in the case of clauses (i) and (iii),
such breaches or violations that in the aggregate would not reasonably be
expected to have a Material Adverse Effect; and, except for the registration
of
the Tortoise Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Tortoise Notes by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such
governmental authority is required for the execution, delivery and performance
of this Agreement or the Indenture, the performance of the Company Agreements
by
the Company or the consummation of the transactions contemplated hereby,
except
for such consents,
16
approvals,
authorizations, orders, filings or registrations as have been obtained or
made;
(xv) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the Investment Adviser’s Act,
the 1940 Act Rules and Regulations and the Investment Adviser’s Act Rules and
Regulations and the Indenture complies in all material respects with the
applicable provisions of the Trust Indenture Act;
(xvi) To
such
counsel’s knowledge, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the
Company to include any securities in the securities registered pursuant to
the
Registration Statement; and
(xvii) The
Company is duly registered under the 1940 Act as a closed-end, non-diversified,
management investment company and the 1940 Act Notification has been duly
filed
with the Commission, and, at the time of filing thereof and at the time of
filing any amendment or supplement thereto, complied as to form in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and
Regulations and, to the best of such counsel’s knowledge after reasonable
inquiry, the Company has not received any notice from the Commission pursuant
to
Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or
the
Registration Statement (or any amendment or supplement to either of
them).
In
rendering such opinions, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America and
the
laws of the State of Maryland. To the extent such counsel deems proper and
to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of the State of Maryland upon the opinion
of
Xxxxxxx LLP or other counsel of good standing whom such counsel believes
to be
reliable and who are satisfactory to the Underwriters; provided that (x)
such
reliance is expressly authorized by the opinion so relied upon and a copy
of
each such opinion is delivered to the Underwriters and is, in form and
substance, satisfactory to the Underwriters and their counsel and (y) such
counsel states in their opinion that they believe that they and the Underwriters
are justified in relying thereon.
Such
counsel shall also state that it has participated in conferences with officers
and employees of the Company and the Investment Adviser, representatives
of the
independent auditors for the Company, Maryland counsel to the Company, the
Underwriters and counsel for the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except to the
limited
extent otherwise covered by paragraphs (viii) and (ix) hereof and have made
no
independent check or verification thereof, on the basis of the foregoing,
no
facts have come to such counsel's attention that would have led such
17
counsel
to believe that (a) the Registration Statement (except the financial statements
and other financial and statistical data contained therein, as to which such
counsel expresses no opinion), at the time it became effective, contained
an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements contained
therein not misleading or (b) the Prospectus (except the financial statements
and other financial and statistical data contained therein, as to which such
counsel expresses no opinion), as of its issue date and as of the Closing
Date,
contained or contains an untrue statement of a material fact or omitted or
omits
to state a material fact required to be stated therein or necessary to make
the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(d) Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx LLP, counsel to the Investment Adviser, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The
Investment Adviser has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
is
duly qualified to do business and is in good standing in each jurisdiction
in
which its ownership or lease of property or the conduct of its business as
described in the Registration Statement and the Prospectus (and any amendment
or
supplement to either) requires such qualification, except where the failure
to
so qualify or to be in good standing would not reasonably be expected to
have a
Material Adverse Effect, and has the power and authority to own or hold its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to
either);
(ii) The
Investment Adviser is duly registered as an investment adviser under the
Investment Adviser’s Act and is not prohibited by the Investment Adviser’s Act,
the 1940 Act, the Investment Adviser’s Act Rules and Regulations or the 1940 Act
Rules and Regulations from acting under the Advisory Agreement as contemplated
by the Registration Statement and the Prospectus (or any amendment or supplement
thereto);
(iii) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute the valid and legally
binding agreements of the Investment Adviser, and, with respect to this
Agreement is enforceable against the Investment Adviser in accordance with
its
terms, except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification that
the
enforceability of the Investment Adviser’s obligations hereunder may be limited
by bankruptcy, insolvency, reorganization, moratorium and other laws relating
to
or affecting creditors’ rights generally and by general equitable
principles;
(iv) None
of
the execution, delivery and performance of this Agreement by the Investment
Adviser, the performance of the Advisory
18
Agreement
or the consummation of the transactions contemplated hereby and thereby (i)
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon the assets of the Investment Adviser under the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument known to such counsel
to
which the Investment Adviser is a party or by which the Investment Adviser
is
bound or to which any of the property or assets of the Investment Adviser
is
subject, (ii) result in any violation of the provisions of the limited liability
company operating agreement or other organizational documents of the Investment
Adviser or (iii) result in any violation of any statute known to such counsel
or
any order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Investment Adviser or any of
its
properties or assets, except in the case of clauses (i) and (iii), such
conflicts, breaches and violations that in the aggregate would not reasonably
be
expected to have a Material Adverse Effect; and except for the registration
of
the Tortoise Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Tortoise Notes by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such
court or governmental agency or body is required for the execution, delivery
and
performance of this Agreement, the performance of the Advisory Agreement
or the
consummation of the transactions contemplated hereby and thereby;
(v) To
such
counsel’s knowledge, the Investment Adviser is not (i) in violation of its
limited liability company operating agreement or other organizational documents,
(ii) in default, and no event has occurred which, with notice or lapse of
time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage,
deed of
trust, loan agreement or other agreement or instrument to which it is a party
or
by which it is bound or to which any of its properties or assets is subject
or
(iii) in violation of any law, ordinance, governmental rule, regulation or
court
decree to which it or its property or assets may be subject or has failed
to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of clauses (ii) and
(iii),
such defaults, events, violations or failures that in the aggregate would
not
reasonably be expected to have a Material Adverse Effect;
(vi) To
such
counsel’s knowledge and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Investment Adviser
is a
party or of which any property or assets of the Investment Adviser is the
subject which is reasonably likely to be determined adversely to the Investment
Adviser and, if determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse
19
Effect;
and, to such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
and
(vii) The
description of the Investment Adviser and its business in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) complied
and comply in all material respects with the requirements of the Securities
Act,
the 1940 Act, the Investment Adviser’s Act, the Rules and Regulations and the
Investment Adviser’s Act Rules and Regulations.
In
rendering such opinion, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America, the
General Corporation Law of the State of Delaware, and the laws of the State
of
Kansas.
(e) The
Underwriters shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel to
the Underwriters, such opinion or opinions, dated the Delivery Date, with
respect to the issuance and sale of the Tortoise Notes, the Indenture, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) At
the
time of execution of this Agreement, the Underwriters shall have received
from
Ernst & Young LLP a letter or letters, in form and substance satisfactory to
the Underwriters, addressed to the Underwriters and dated the date hereof
(i)
confirming that they are independent public accountants within the meaning
of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Securities Act and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as
of
which specified financial information is given in the Prospectus, as of a
date
not more than five days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings.
(g) With
respect to the letter or letters of Ernst & Young LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the
execution of this Agreement (the “Initial Letter”), the Company shall have
furnished to the Underwriters a letter (the “Bring-Down Letter”) of such
accountants, addressed to the Underwriters and dated the Delivery Date (i)
confirming that they are independent public accountants within the meaning
of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Securities Act, (ii) stating, as of the date of the Bring-Down Letter
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the
Prospectus, as of a date not more than five days prior to the date of the
Bring-Down Letter), the conclusions and findings of such firm with respect
to
the financial information and other matters covered
20
by
the
Initial Letter and (iii) confirming in all material respects the conclusions
and
findings set forth in the Initial Letter.
(h) The
Company shall have furnished to the Underwriters on the Delivery Date a
certificate, dated the Delivery Date, of its Chairman of the Board of Directors,
its Chief Executive Officer or President and its Chief Financial Officer
or
Treasurer or an Assistant Treasurer stating that:
(i) The
representations, warranties and agreements of the Company contained herein
and
in the Auction Agency Agreement are true and correct as of the date hereof
and
as of the Delivery Date; the Company has complied with all its agreements
contained herein prior to or on the Delivery Date; and the conditions set
forth
in Section 8 have been fulfilled;
(ii) Since
the
respective dates as of which information is given in the Prospectus, other
than
as set forth in or contemplated by the Prospectus, (A) there has not occurred
any change or any development that might have a Material Adverse Effect,
(B)
there has not been any change in the capital stock, short-term debt or long-term
debt of the Company that might have a Material Adverse Effect, (C) the Company
has not incurred any material liability or obligation, direct or contingent,
(D)
there has not occurred a material loss or interference with the Company’s
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action,
order
or decree and (E) the Company has not declared or paid any dividend on its
shares of common stock, except for dividends declared in the ordinary course
of
business, and, except as set forth in or contemplated by the Prospectus,
the
Company has not entered into any transaction (other than purchases and sales
of
portfolio transactions) or agreement (other than investment-related agreements)
material to the Company; and
(iii) They
carefully have examined the Registration Statement and the Prospectus and,
in
their opinion (and in forming such opinion each officer may rely on information
provided by the other parties to this Agreement) (A) as of the Effective
Date,
the Registration Statement did not contain any 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, (B) as of its date and the
Delivery Date, the Prospectus did not contain any 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, and (C) since the Effective Date, no event has
occurred which should have been set forth in a supplement to, or amendment
of,
the Prospectus which has not been set forth in such a supplement or
amendment.
(i) The
Investment Adviser shall have furnished to the Underwriters on the Delivery
Date
a certificate, dated the Delivery Date, of the Chairman of its Board
21
of
Directors, President or a Vice President and its Chief Financial Officer,
Treasurer or an Assistant Treasurer, dated the Delivery Date, stating
that:
(i) The
representations, warranties and agreements of the Investment Adviser contained
herein are true and correct as of the date hereof and as of the Delivery
Date;
the Investment Adviser has complied with all its agreements contained herein
prior to or on the Delivery Date; and the conditions set forth in Section
8 of
this Agreement have been fulfilled; and
(ii) They
have
examined the Registration Statement and the Prospectus and, in their opinion
(and in forming such opinion each officer may rely on information provided
by
the other parties to this Agreement) (A) as of the Effective Date, the
Registration Statement did not contain any 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, (B) as of its date and the Delivery
Date, the Prospectus did not contain any 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, and (C) since the Effective Date, no event has occurred
which should have been set forth in a supplement to, or amendment of, the
Prospectus which has not been set forth in such a supplement or
amendment.
(j) The
Company shall not have sustained since the date of the latest audited financial
statements included in the Prospectus (A) any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action,
order
or decree, or (B) since such date, there shall not have been any change in
the
capital stock, short-term debt or long-term debt of the Company or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, prospects, shareholders’ equity or
results of operations of the Company, otherwise than as described or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (A) or (B), is, in the judgment of the Underwriters, so material
and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Tortoise Notes being delivered on the Delivery
Date on the terms and in the manner contemplated in the Prospectus and in
this
Agreement.
(k) The
Company shall have furnished to the Underwriters a report showing compliance
with the asset coverage requirements of the 1940 Act and the 1940 Act Tortoise
Notes Asset Coverage (as defined in the Registration Statement), each dated
the
Delivery Date and in form and substance satisfactory to the Underwriters.
Each
such report shall assume the receipt of the net proceeds from the sale of
the
Tortoise Notes and may use portfolio holdings and valuations as of the close
of
business of any day not more than six business days preceding the Delivery
Date,
provided, however, that the Company represents in such report that its total
net
assets as of the Delivery Date have not declined by 5% or more from such
valuation date.
22
(l) The
Company shall have delivered and the Underwriters shall have received evidence
satisfactory to it that the Tortoise Notes are rated at least “AAA” by Xxxxx’x
Investors Service, Inc. and “AAA” by Fitch, Inc., a division of the McGraw Hill
Companies, as of the Delivery Date, and subsequent to the execution and delivery
of this Agreement, (i) no downgrading shall have occurred in the rating accorded
the Tortoise Notes by any “nationally recognized statistical rating
organization” as that term is defined by the Commission for purposes of Rule
436(g)(2) of the 1933 Act Rules and Regulations and (ii) no such organization
shall have publicly announced that is has under surveillance or review, with
possible negative implications, its rating of the Tortoise Notes.
(m) Neither
the Company nor the Investment Adviser shall have failed at or prior to the
Delivery Date to have performed or complied with any of the agreements contained
herein and required to be performed or complied with by them at or prior
to the
Delivery Date.
(n) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York
Stock
Exchange or the American Stock Exchange or in the over-the-counter market,
or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited
or the
settlement of such trading generally shall have been materially disrupted
or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such), including, without limitation,
as a
result of terrorist activities after the date hereof, or any other calamity
or
crisis as to make it, in the judgment of the Underwriters, impracticable
or
inadvisable to proceed with the public offering or delivery of the Tortoise
Notes being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(o) The
Underwriters shall not have discovered and disclosed to the Company on or
prior
to the Delivery Date that the Registration Statement or the Prospectus or
any
amendment or supplement thereto contains an untrue statement of a fact which,
in
the reasonable opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, is material or omits to state a fact which, in the reasonable
opinion of such counsel, is material and is required to be stated therein
or is
necessary to make the statements therein not misleading.
(p) The
Company and the Investment Adviser shall have furnished to the Underwriters
such
further certificates, documents and opinions of counsel as the
23
Underwriters
shall reasonably request (including certificates of officers of the Company
and
the Investment Adviser).
All
opinions, letters, evidence and certificates mentioned above or elsewhere
in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel
for
the Underwriters.
Section
9. Indemnification
and Contribution.
(a) The
Company and the Investment Adviser shall jointly and severally indemnify
and
hold harmless each Underwriter, its directors, officers and employees and
each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or
several, or any action in respect thereof (including, but not limited to,
any
loss, claim, damage, liability or action relating to purchases and sales
of
Tortoise Notes), to which such Underwriter, director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in the 1940 Act Notification, or (B) in any Preliminary
Prospectus, the Prospectus, the Registration Statement or in any amendment
or
supplement thereto including information deemed to be a part of the Registration
Statement pursuant to Rule 430A and/or Rule 430C of the Rules and Regulations,
if applicable, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment
or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) any act or failure
to act
or any alleged act or failure to act by such Underwriter in connection with,
or
relating in any manner to, the Tortoise Notes or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered
by
clause (i) or (ii) above (provided that neither the Company nor the Investment
Adviser shall be liable under Section 9(a) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that
such
loss, claim, damage, liability or action resulted directly from any such
acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its willful misfeasance, bad faith or gross negligence in the performance
of its
duties or reckless disregard of applicable obligations and duties), and shall
reimburse such Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company nor the
Investment Adviser shall be liable in any such case to the extent that any
such
loss, claim, damage, liability or action (i) arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and
in
conformity with written information furnished to the Company or the Investment
Adviser by or on behalf of the Underwriters specifically for inclusion therein
which information consists solely of the information
24
specified
in Section 9(e); or (ii) results solely from an untrue statement of material
fact contained in, or the omission of a material fact from, a Preliminary
Prospectus, which untrue statement or omission was corrected in the Prospectus
(as then amended or supplemented) if (A) an Underwriter sold Tortoise Notes
to
the person alleging such loss, claim, damage, liability or action without
sending or giving, at or prior to the written confirmation of such sale,
a copy
of the Prospectus (as then amended or supplemented), (B) within a reasonable
amount of time prior to such sale or such confirmation, the Company had
furnished to such Underwriter copies of the corrected Prospectus which, if
delivered, would have cured the defect giving rise to such loss, claim, damage,
liability or action, and (C) the Underwriter failed to deliver such corrected
Prospectus. The foregoing indemnity agreement is in addition to any liability
which the Company or the Investment Adviser may otherwise have to any
Underwriter or to any director, officer, employee or controlling person of
that
Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless
the
Company, its officers and employees, each of its directors, and each person,
if
any, who controls the Company within the meaning of the Securities Act, from
and
against any loss, claim, damage or liability, joint or several, or any action
in
respect thereof, to which the Company or any such director, officer, employee
or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement
or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission
or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made
in reliance upon and in conformity with written information furnished to
the
Company by or on behalf of the Underwriters specifically for inclusion therein,
which information is limited to the information set forth in Section 9(e),
and
shall reimburse the Company and any such director, officer, employee or
controlling person for any legal or other expenses reasonably incurred by
the
Company or any such director, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against
any
such loss, claim, damage, liability or action as such expenses are incurred.
The
foregoing indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Company or any such director, officer,
employee or controlling person.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of any
claim or the commencement of any action, the indemnified party shall, if
a claim
in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify
the
indemnifying party shall not relieve it from any liability which it may have
under this Section 9 except to the extent it has been materially prejudiced
by
such failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to
25
an
indemnified party otherwise than under this Section 9. If any such claim
or
action shall be brought against an indemnified party, and it shall notify
the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however,
that
the indemnified party shall have the right to employ separate counsel to
represent the indemnified party, and its respective directors, officers,
employees and controlling persons who may be subject to liability arising
out of
any claim in respect of which indemnity may be sought under this Section
9 if,
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both an indemnified party (and/or its officers,
employees, directors and each person who controls the indemnified party within
the meaning of the Securities Act) and the indemnifying party and the
indemnified party shall have been advised by its counsel that representation
of
both the indemnified party (and/or its officers, employees, directors and
each
person who controls the indemnified party within the meaning of the Securities
Act) and the indemnifying party would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the
same counsel has been proposed) and in the reasonable judgment of the
indemnified party, it is advisable for the indemnified party and its directors,
officers, employees and controlling persons to be jointly represented by
separate counsel, then in that event the fees and expenses of one such separate
counsel shall be paid by the Company or the Investment Adviser. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise
or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without
its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment.
(d) If
the
indemnification provided for in this Section 9 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b) in respect of any loss, claim, damage or liability,
or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion
as
shall be appropriate to reflect the relative benefits received by the Company
and the Investment Adviser (treated jointly as one person for
26
this
purpose) on the one hand and the Underwriters on the other from the offering
of
the Tortoise Notes or (ii) if the allocation provided by clause (i) above
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 Company and the Investment Adviser (treated jointly as one person
for this purpose) on the one hand and the Underwriters on the other with
respect
to the statements or omissions which resulted in such loss, claim, damage
or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Investment
Adviser (treated jointly as one person for this purpose) on the one hand
and the
Underwriters on the other with respect to such offering shall be deemed to
be in
the same proportion as the total net proceeds from the offering of the Tortoise
Notes purchased under this Agreement (before deducting expenses) received
by the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Tortoise Notes purchased
under
this Agreement, on the other hand, bear to the total gross proceeds from
the
offering of the Tortoise Notes under this Agreement, in each case as set
forth
in the table on the cover page of the Prospectus. The relative fault shall
be
determined by reference to whether the 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 Company or the Investment Adviser, on one
hand,
or the Underwriters, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Investment Adviser and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation or
by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 9(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim. Notwithstanding the provisions of this Section 9(d), the
Underwriters shall not be required to contribute any amount in excess of
the
amount by which the total price at which the Tortoise Notes underwritten
by it
and distributed to the public were offered to the public exceeds the amount
of
any damages which such Underwriter has otherwise paid or become liable to
pay by
reason of any 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 Securities Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent misrepresentation.
(e) The
Underwriters severally confirm and the Company and the Investment Adviser
acknowledge that the statements set forth in the last sentence on the front
cover page, its name and paragraphs four, six, seven and eight under the
section
“Underwriting,” in the Prospectus are correct and constitute the only
information concerning the Underwriters furnished in writing to the Company
specifically for inclusion in the Registration Statement and the
Prospectus.
Section
10. Defaulting
Underwriters.
If, on
the Delivery Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the
27
remaining
non-defaulting Underwriters shall be obligated to purchase the Tortoise Notes
which the defaulting Underwriter agreed but failed to purchase on the Delivery
Date in the respective proportions which the aggregate principal amount of
Tortoise Notes set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total aggregate principal amount
of Tortoise Notes set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that
the
remaining non-defaulting Underwriters shall not be obligated to purchase
any
amount of the Tortoise Notes on the Delivery Date if the aggregate principal
amount of Tortoise Notes which the defaulting Underwriter or Underwriters
agreed
but failed to purchase on such date exceeds 9.09% of the aggregate principal
amount of Tortoise Notes to be purchased on the Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110%
of
the aggregate principal amount of Tortoise Notes which it agreed to purchase
on
the Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, shall have the right,
but shall not be obligated, to purchase, in such proportion as may be agreed
upon among them, the total aggregate principal amount of Tortoise Notes to
be
purchased on such Delivery Date. If the remaining Underwriters do not elect
to
purchase the Tortoise Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Delivery Date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter
or the
Company, except that the Company will continue to be liable for the payment
of
expenses to the extent set forth in Sections 7 and 12. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1
hereto
who, pursuant to this Section 10, purchases Tortoise Notes which a defaulting
Underwriter agreed but failed to purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability
it may
have to the Company for damages caused by its default. If other Underwriters
are
obligated or agree to purchase the Tortoise Notes of a defaulting or withdrawing
Underwriter, either the non-defaulting Underwriters or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus
or
in any other document or arrangement.
Section
11. Termination.
The
obligations of the Underwriters hereunder may be terminated by the Underwriters
by notice given to and received by the Company prior to delivery of and payment
for the Tortoise Notes if, prior to that time, any of the events described
in
Sections 8(j) or 8(n), shall have occurred or if the Underwriters shall decline
to purchase the Tortoise Notes for any reason permitted under this
Agreement.
Section
12. Reimbursement
of Underwriters’ Expenses.
If (a)
the Company shall fail to tender the Tortoise Notes for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of
the
Company to perform any agreement on its part to be performed, or because
any
other condition of the Underwriters’ obligations hereunder required to be
fulfilled by the Company is not fulfilled or (b) the Underwriters decline
to
purchase the Tortoise Notes because of a failure by the Company or the
Investment Adviser to perform their respective obligations under this Agreement,
the
28
Company
shall reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters
in
connection with this Agreement and the proposed purchase of the Tortoise
Notes,
and upon demand the Company shall pay the full amount thereof to the
Underwriters.
Section
13. Notices,
Etc.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to _____________________________________; and with a copy to
Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx, Esq. (Fax: 000-000-0000; Telephone
000-000-0000);
(b) if
to the
Company, shall be delivered or sent by mail, telex or facsimile transmission
to
the address of the Company set forth in the Registration Statement, Attention:
Xxxxx Xxxxxxx (Fax: 000-000-0000); with a copy to Vedder, Price, Xxxxxxx
&
Kammholz, P.C., 000 X. XxXxxxx Xxxxxx ,Xxxxxxx, XX 00000; Attention: Xxxxxxx
Xxxxxxxx Xxxxx (Fax: 000-000-0000; Telephone 000-000-0000); and
(c) if
to the
Investment Adviser, shall be delivered or sent by mail, telex or facsimile
transmission to Tortoise Capital Advisors, LLC, 00000 Xxxxxx Xxxxxxxxx, Xxxxxxxx
Xxxx, XX 00000, Attention: Xxxxx Xxxxxxx, with a copy to Xxxxxxxxx Xxxxxxx
Xxxxx
Xxxxxx LLP, 000 Xxxxx Xxxxxx , Xx. Xxxxx, XX 00000; Attention: Xxxx X. Short,
Esq. (Fax: 000-000-0000; Telephone 000-000-0000).
Any
such
statements, requests, notices or agreements shall take effect at the time
of
receipt thereof. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the
Underwriters.
Section
14. Persons
Entitled to Benefit of Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, the Investment Adviser, and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of
only
those persons, except that (A) the representations, warranties, indemnities
and
agreements of the Company and the Investment Adviser contained in this Agreement
shall also be deemed to be for the benefit of the directors, officers and
the
person or persons, if any, who control the Underwriters within the meaning
of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 9(b) of this Agreement shall be deemed
to be
for the benefit of the Board of Directors of the Company, officers and employees
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities
Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
Section
15. Survival.
The
respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or
29
made
by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Tortoise Notes and shall remain in full
force and effect, regardless of any investigation made by or on behalf of
any of
them or any person controlling any of them.
Section
16. Definition
of the Term “Business Day”.
For
purposes of this Agreement, “business day” means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order
to
close.
Section
17. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of New
York.
Section
18. Counterparts.
This
Agreement may be executed in one or more counterparts and, if executed in
more
than one counterpart, the executed counterparts shall each be deemed to be
an
original but all such counterparts shall together constitute one and the
same
instrument.
Section
19. Headings.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
Section
20. Limitation
of Liability.
A copy
of the Articles of the Company is on file with the Secretary of State of
the
State of Maryland. This Agreement has been executed on behalf of the Company
by
an officer of the Company in such capacity and not individually and the
obligations of the Company under this Agreement are not binding upon such
officer or any of the directors or the shareholders of the Company individually
but are binding only upon the assets and property of the Company.
Section
21. No
Fiduciary Duty.
The
Company acknowledges and agrees that in connection with this offering, sale
of
the Tortoise Notes or any other services the Underwriters may be deemed to
be
providing hereunder, notwithstanding any preexisting relationship,
advisory or otherwise,
between
the parties or any oral representations or assurances previously or subsequently
made by the Underwriters:
(i) no
fiduciary or agency relationship between the Company and any other person,
on
the one hand, and the Underwriters, on the other, exists;
(ii) the
Underwriters are not acting as advisors, expert or otherwise, to the
Company,
including, without limitation, with respect to the determination of the public
offering price of the Tortoise
Notes, and such relationship between the Company, on the one hand, and the
Underwriters, on the other, is entirely and solely commercial,
based
on arms-length negotiations; (iii)
any
duties and obligations that the Underwriters may have to the Company shall
be
limited to those duties and obligations specifically stated herein;
and
(iv) the
Underwriters and their respective affiliates may have interests that differ
from
those of the Company.
The
Company hereby waives any claims that the Company may have against the
Underwriters with respect to any breach of fiduciary duty in connection with
this offering.
30
If
the
foregoing correctly sets forth the agreement among the Company, the Investment
Adviser and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very
truly yours,
|
TORTOISE
CAPITAL ADVISORS LLC
|
||
| By: |
| Name: | ||
| Title: |
Accepted:
|
By:
|
| By: |
| Name: | ||
| Authorized Representative |
31
SCHEDULE
1
|
Name
of Underwriter
|
Principal
Amount of
Tortoise
Notes
|
Purchase
Price Paid by Underwriters
|
