427,915 Shares of Common Stock Par Value $0.001 Per Share of TORTOISE ENERGY INFRASTRUCTURE CORPORATION PLACEMENT AGENCY AGREEMENT March 27, 2007
Exhibit h.4
427,915 Shares of Common Stock
Par Value $0.001 Per Share
Par Value $0.001 Per Share
of
March 27, 2007
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Placement Agent
As Placement Agent
One Financial Plaza
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the “FUND”), and the
Fund’s investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the “ADVISER”), propose to sell shares of common stock, par value $0.001 per share, of the Fund
(the “SHARES”), directly to certain investors (the “INVESTORS”). The Fund and the Advisor desire
to engage Xxxxxx, Xxxxxxxx & Company, Incorporated as the placement agent (the “PLACEMENT AGENT”)
in connection with such issuance and sale. The Shares are more fully described in the Registration
Statement (as hereinafter defined).
The Fund has filed with the Securities and Exchange Commission (the “COMMISSION”) a
registration statement on Form N-2 (File Nos. 333-140457 and 811-21462) which became effective on
March 14, 2007, covering the registration of the Shares under the Securities Act of 1933, as
amended (the “1933 ACT”), and a notification on Form N-8A of registration of the Fund as an
investment company under the Investment Company Act of 1940, as amended (the “1940 ACT”), and the
rules and regulations of the Commission under the 1933 Act and the 1940 Act (the “RULES AND
REGULATIONS”). Promptly after execution and delivery of this Agreement, the Fund will prepare and
file a prospectus supplement in accordance with the provisions of Rule 430A (“RULE 430A”) and
paragraph (c) and/or (h) of Rule 497 (“RULE 497”) of the Rules and Regulations. The information
included in any such prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as “RULE 430A INFORMATION.” Each
prospectus used before such registration statement became effective, and any prospectus that
omitted the Rule 430A Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, including in each case any statement of additional information
incorporated therein by reference, is herein called a “PRELIMINARY PROSPECTUS.” Such registration
statement, including the amendments thereto, the exhibits and schedules thereto at
the time it became effective and including the Rule 430A Information and any statement of
additional information incorporated therein by reference, is herein called the “REGISTRATION
STATEMENT.” Any registration statement filed pursuant to Rule 462(d) of the Rules and Regulations
is herein referred to as the “RULE 462(D) REGISTRATION STATEMENT,” and the term “REGISTRATION
STATEMENT” shall include any Rule 462(d) Registration Statement that shall have been filed. The
final prospectus in the form first furnished to the Placement Agent for use in connection with the
issuance and sale of the Shares to the Investors, including the statement of additional information
incorporated therein by reference, is herein called the “PROSPECTUS.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which are incorporated by
reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be.
The Fund hereby confirms that the Placement Agent, in connection with its duties in such
capacity, is authorized to distribute or cause to be distributed the Prospectus in accordance with
the terms of this Agreement.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser
represent and warrant to the Placement Agent as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agree with the Placement Agent, as follows:
(i) Compliance With Registration Requirements. Each of the Registration Statement and
any Rule 462(d) Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or any Rule 462(d)
Registration Statement has been issued under the 1933 Act, or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act, and no proceedings for
any such purpose, have been instituted or are pending or, to the knowledge of the Fund or
the Adviser, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(d) Registration
Statement and any post-effective amendment thereto relating to the issuance and sale of the
Shares to the Investors (filed before the Closing Time) became effective and at the Closing
Time, as hereinafter defined, the Registration Statement, the Rule 462(d) Registration
Statement, the notification of Form N-8A and all amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not
and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus, any Preliminary Prospectus nor any amendment or
supplement thereto, at the time the Prospectus, Preliminary Prospectus or any such amendment
or supplement was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement, Prospectus or
Preliminary Prospectus made in reliance upon and in conformity with written information
furnished to the Fund by or on behalf of the Placement Agent for use in the Registration
Statement or Prospectus.
As of the date hereof, the Statutory Prospectus (as defined below) and the information
included on Schedule A hereto, all considered together (collectively, the “GENERAL
DISCLOSURE PACKAGE”), did not include any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement, “Statutory Prospectus” as
of any time means the prospectus relating to the Shares that is included in the Registration
Statement immediately prior to that time, including any document incorporated by reference
therein.
Each preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule
497 under the 1933 Act, complied when so filed in all material respects with the Rules and
Regulations and each preliminary prospectus and the Prospectus delivered to the Placement
Agent for use in connection with the issuance and sale of Shares to the Investors was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
If a Rule 462(d) Registration Statement is required in connection with the issuance and
sale of the Shares to the Investors, the Fund has complied or will comply with the
requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing
fees thereof.
At the time of filing the Registration Statement, any 462(d) Registration Statement and
any post-effective amendments thereto relating to the issuance and sale of the Shares to the
Investors and at the date hereof, the Fund was not and is not an “ineligible issuer,” as
defined in Rule 405 of the Rules and Regulations.
(ii) Incorporation of Documents by Reference. The documents incorporated in the
Registration Statement, the Prospectus and the Statutory Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act, the 1940 Act and the Rules and
Regulations and, when read together with the other information in the Prospectus, (a) at the
time the Registration Statement became effective, (b) at the time the Prospectus was issued
and (c) at the Closing Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the statement of assets
and liabilities included in the Registration Statement have confirmed to the Fund their
status as independent public accountants as required by the 1933 Act and the Rules and
Regulations and the Fund and the Adviser have no reason to believe that they are not
independent public accountants.
(iv) Financial Statements. The statement of assets and liabilities included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related notes, presents fairly in accordance with generally accepted accounting principles
(“GAAP”) in all material respects the financial position of the Fund at the date indicated
and has been prepared in conformity with GAAP. The supporting schedules, if any, present
fairly in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent with that
of audited financial statements included in the Registration Statement.
(v) Expense Summary. The information set forth in the Prospectus in the fee table
contained in the section of the Prospectus entitled “Summary of Company Expenses” has been
prepared in all material respects in accordance with the requirements of Form N-2, and
interpretations thereunder, and to the extent estimated or projected, such estimates or
projections are reasonably believed to be attainable and reasonably based.
(vi) No Material Adverse Change. Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Fund, whether or not arising in the ordinary course of business (other than
as a result of changes in market conditions generally) (a “MATERIAL ADVERSE EFFECT”), (B)
there have been no transactions entered into by the Fund, other than those in the ordinary
course of business, which are material with respect to the Fund, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Fund on any class of its
capital stock.
(vii) Good Standing of the Fund. The Fund has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of Maryland and has
the corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Fund is duly qualified as a foreign
corporation to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(viii) No Subsidiaries. The Fund has no subsidiaries.
(ix) Investment Company Status. The Fund is duly registered with the Commission under
the 1940 Act as a nondiversified, closed-end management investment company, and no order of
suspension or revocation of such registration has been issued or proceedings therefor
initiated or, to the Fund’s knowledge, threatened by the Commission.
(x) Officers and Directors. No person is serving or acting as an officer, director or
investment adviser of the Fund except in accordance with the provisions of the 1940 Act and
the Rules and Regulations and the Investment Advisers Act of 1940, as amended (the “ADVISERS
ACT”), and the rules and regulations of the Commission promulgated under the Advisers Act
(the “ADVISERS ACT RULES AND REGULATIONS”). Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, to the Fund’s knowledge after
due inquiry, no director of the Fund is an “Interested Person” (as defined in the 0000 Xxx)
of the Fund or an “Affiliated Person” (as defined in the 0000 Xxx) of the Placement Agent.
(xi) Capitalization. The authorized, issued and outstanding capital stock of the Fund
is as set forth in the General Disclosure Package and the Prospectus as of the date thereof
under the captions “The Company” and “Description of Securities.” All issued and
outstanding shares of common stock, par value $0.001 per share (the “COMMON SHARES”), and
all issued and outstanding Money Market Cumulative Preferred Shares of the Fund (the
“PREFERRED SHARES”) have been duly authorized and validly issued and are fully paid and
non-assessable, and have been offered and sold or exchanged by the Fund in compliance with
all applicable laws (including, without limitation, federal and state securities laws).
None of the outstanding Common Shares or Preferred Shares of the Fund was issued in
violation of the preemptive or other similar rights of any securityholder of the Fund.
(xii) Authorization and Description of Shares. The Shares to be purchased by the
Investors from the Fund have been duly authorized for issuance and sale to the Investors
pursuant to this Agreement and, when issued and delivered by the Fund pursuant to one or
more Purchase Agreements (as defined herein) against payment of the consideration set forth
therein, will be validly issued, fully paid and non-assessable. The Shares conform to all
statements relating thereto contained in the General Disclosure Package and the Prospectus
and such description conforms in all material respects to the rights set forth in the
instruments defining the same; and the issuance and sale of the Shares is not subject to the
preemptive or other similar rights of any securityholder of the Fund.
(xiii) Absence of Defaults and Conflicts. The Fund is not in violation of its charter
or by-laws, or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound, or to which any of the property or assets of the Fund
is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or
defaults that would not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, any Purchase Agreements, the Investment Advisory Agreement,
the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration
Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the
Registration Statement (as used herein, individually the “Investment Advisory Agreement,”
the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration
Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and
collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions
contemplated in the Offering Agreements and in the Registration Statement (including the
issuance and sale of the Shares to the Investors and the use of the proceeds from the sale
of the Shares as described in the General Disclosure Package and the Prospectus under the
caption “Use of Proceeds”) and compliance by the Fund with its obligations thereunder have
been duly authorized by all necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Fund
pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the charter or by-laws of the
Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Fund or any of its assets, properties or operations (except for such
violations that would not result in a Material Adverse Effect). As used herein, a
“REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Fund.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Fund or the Adviser, threatened, against
or affecting the Fund, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which could reasonably be expected to result in a
Material Adverse Effect, or which could reasonably be expected to materially and adversely
affect the properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement and any Purchase Agreements or the performance by the Fund of
its obligations hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Fund is a party or of which any of its property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus (or the documents incorporated
by reference therein) or to be filed as exhibits thereto by the 1933 Act, the 1940 Act or by
the Rules and Regulations which have not been so described and filed as required.
(xvi) Possession of Intellectual Property; Fund Name. The Fund owns or possesses, or
can acquire on reasonable terms, adequate licenses, copyrights, know-how (including trade
secrets or confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, “INTELLECTUAL PROPERTY”) necessary
to carry on the business now operated by the Fund, and the Fund has not received any notice
or is not otherwise aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the interest of the Fund
therein.
(xvii) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Fund of its
obligations hereunder and under any Purchase Agreement, in connection with the issuance and
sale of the Shares to the Investors or the consummation of the transactions contemplated by
this Agreement and any Purchase Agreement, except such as have been already obtained or as
may be required under the 1933 Act, the 1940 Act, the Securities Exchange Act of 1934, as
amended (the “1934 ACT”), or under the rules of the New York Stock Exchange (“NYSE”) or the
NASD, Inc. (“NASD”) or state securities laws. In furtherance of the foregoing, the Fund
represents and warrants that it has previously filed, in consultation with the Placement
Agent, with the NASD all Rule 482 Statements which are required to be filed with the NASD.
(xviii) Possession of Licenses and Permits. The Fund possesses such permits, licenses,
approvals, consents and other authorizations (collectively, “GOVERNMENTAL LICENSES”) issued
by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary
to operate its properties and to conduct the business as contemplated in the Prospectus.
The Fund is in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect. All of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse Effect. The Fund
has not received any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses.
(xix) Advertisements. Any advertising, sales literature or other promotional material
(including “prospectus wrappers,” “broker kits,” “electronic road
show presentations,” “road show slides” and “road show scripts”) authorized in writing
by or prepared by the Fund or the Adviser used in connection with the issuance and sale of
the Shares to the Investors (collectively, “SALES MATERIAL”) does not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under which they
were made not misleading. Moreover, all Sales Material complied and will comply in all
material respects with the applicable requirements of the 1933 Act, the 1940 Act, the Rules
and Regulations and the rules and interpretations of the NASD (except that this
representation and warranty does not apply to statements in or omissions from the Sales
Material made in reliance upon and in conformity with written information relating to the
Placement Agent furnished to the Fund by or on behalf of the Placement Agent through you
expressly for use therein), including any requirement to file any Rule 482 Statement.
(xx) Subchapter M. The Fund has not made and will not make an election under Section
851(b) of the Internal Revenue Code of 1986, as amended (the “CODE”) (or any successor
provisions thereto), to be treated as a regulated investment company for federal income tax
purposes.
(xxi) Distribution of Offering Materials. The Fund has not distributed and, prior to
the later of (A) the Closing Time and (B) completion of the distribution of the Shares, will
not distribute any offering material to the public in connection with the offering and sale
of the Shares other than the Registration Statement, the Statutory Prospectus and the
Prospectus.
(xxii) Accounting Controls and Disclosure Controls. The Fund maintains a system of
internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization
and with the applicable requirements of the 1940 Act, the Rules and Regulations, the NASD
and the Code; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain
accountability for assets and to maintain compliance with the books and records requirements
under the 1940 Act and the Rules and Regulations; (C) access to assets is permitted only in
accordance with the management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Fund has developed and
maintains disclosure controls and procedures (as such term is defined in Rule 30a-3 of the
0000 Xxx) that are effective in ensuring that information required to be disclosed by the
Fund in the reports that it files or submits under the 1940 Act is recorded, processed,
summarized and reported, within the time periods specified in the rules and forms of the
Commission, including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Fund in the reports that it files or submits
under the 1940 Act is accumulated and communicated to the Fund’s management, including its
principal executive officer or officers and its principal financial officer or officers, as
appropriate to allow timely decisions regarding required disclosure.
(xxiii) Absence of Undisclosed Payments. Neither the Fund nor, to the Fund’s
Knowledge, any employee or agent of the Fund, has made any payment of funds of the Fund or
received or retained any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus and which payment has not been so
disclosed.
(xxiv) Material Agreements; Enforceability. The Offering Agreements have each been
duly authorized by all requisite action on the part of the Fund and executed and delivered
by the Fund, as of the dates noted therein, and each complies with all applicable provisions
of the 1940 Act in all material respects. Assuming due authorization, execution and
delivery by the other parties thereto with respect to this Agreement, each Purchase
Agreement and the other Offering Agreements, this Agreement, each Purchase Agreement and
each Offering Agreement constitutes a valid and binding agreement of the Fund, enforceable
in accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing and
except as rights to indemnification or contribution thereunder may be limited by federal or
state laws.
(xxv) Registration Rights. There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Fund under the 1933 Act.
(xxvi) NYSE Listing. The Fund’s common stock has been duly authorized for listing on
the NYSE and the Fund’s registration statement on Form 8-A under the 1934 Act has become
effective.
(xxvii) Payment of Taxes. All United States federal income tax returns of the Fund
required by law to be filed have been filed and all taxes shown by such returns or otherwise
assessed, which are due and payable, have been paid, except assessments that are being
contested in good faith and as to which adequate reserves have been provided. The United
States federal income tax returns of the Fund through the fiscal year ended December 31,
2005 have been settled and no assessment in connection therewith has been made against the
Fund. The Fund has filed all other tax returns that are required to have been filed by them
pursuant to applicable foreign, state, local or other law except insofar as the failure to
file such returns would not result in a Material Adverse Effect, and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Fund, except for such
taxes, if any, as are being contested in good faith and as to which adequate reserves have
been provided. The charges, accruals and reserves on the books of the Fund in respect of
any income and corporation tax liability for any years not finally determined are adequate
to meet any assessments or re-assessments for additional tax for any years not finally
determined, except to the extent of any inadequacy that would not result in a Material
Adverse Effect. All material taxes which the Fund is required by law to withhold or to
collect for payment have been duly withheld and collected and have been paid to the
appropriate governmental authority or agency or have been accrued, reserved against and
entered on the books of the Fund.
(xxviii) Insurance. The Fund carries on or is entitled to the benefits of insurance,
with financially sound and reputable insurers, in such amounts and covering such risks as
are generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Fund has no reason to
believe that it will not be able to (A) renew its existing insurance coverage as and when
such policies expire or (B) obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect.
(xxix) Statistical and Market-Related Data. Any statistical and market-related data
included in the Registration Statement, the General Disclosure Package and the Prospectus
are based on or derived from sources that the Fund believes to be reliable and accurate, and
the Fund has obtained written consent to the use of such data from such sources.
(b) Representations and Warranties by the Adviser. The Adviser represents and warrants to the
Placement Agent as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof
as follows:
(i) Good Standing of the Adviser. The Adviser has been duly organized and is validly
existing and in good standing as a limited liability company under the laws of the State of
Delaware with full power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
is duly qualified as a foreign entity to transact business and is in good standing in each
other jurisdiction in which such qualification is required except as would not, individually
or in the aggregate, result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of such Adviser,
whether or not arising in the ordinary course of business (an “ADVISER MATERIAL ADVERSE
EFFECT”).
(ii) Investment Adviser Status. The Adviser is duly registered and in good standing
with the Commission as an investment adviser under the Advisers Act, and is not prohibited
by the Advisers Act, the 1940 Act, or the rules and regulations under such acts, from acting
under the Investment Advisory Agreement for the Fund as contemplated by the Prospectus.
(iii) Description of Adviser. The description of the Adviser in the Registration
Statement, the General Disclosure Package and the Prospectus (including any amendment or
supplement thereto) complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and is true and correct and does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were
made, not misleading.
(iv) Capitalization. The Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the General
Disclosure Package, Prospectus and in the Offering Agreements.
(v) Authorization of Offering Agreements; Absence of Defaults and Conflicts. This
Agreement and the Investment Advisory Agreement have each been duly authorized, executed and
delivered by the Adviser, and (assuming the due authorization, execution and delivery of
each other party thereto) each such Agreement constitutes a valid and binding obligation of
the Adviser, enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable principles
(whether considered in a proceeding in equity or at law) or an implied covenant of good
faith and fair dealing and except as rights to indemnification or contribution thereunder
may be limited by federal or state laws; and neither the execution and delivery of this
Agreement, any Purchase Agreement or the Investment Advisory Agreement nor the performance
by the Adviser of its obligations hereunder or thereunder will conflict with, or result in a
breach of any of the terms and provisions of, or constitute, with or without the giving of
notice or lapse of time or both, a default under, (i) any agreement or instrument to which
the Adviser is a party or by which it is bound, (ii) the limited liability company operating
agreement and other organizational documents of the Adviser, or (iii) to the Adviser’s
knowledge, by any law, order, decree, rule or regulation applicable to it of any
jurisdiction, court, federal or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association having jurisdiction over the
Adviser or its properties or operations other than any conflict, breach or default that
would not, individually or in the aggregate, reasonably be expected to result in an Adviser
Material Adverse Effect; and no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by the Adviser of the
transactions contemplated by this Agreement, any Purchase Agreement or the Investment
Advisory Agreement, except as have been obtained or will be obtained prior to the Closing
Time or may be required under the 1933 Act, the 1940 Act, the 1934 Act or state securities
laws.
(vi) No Material Adverse Change. Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus,
there has not occurred any event which could reasonably be expected to have a material
adverse effect on the ability of the Adviser to perform its respective obligations under
this Agreement and the Investment Advisory Agreement.
(vii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Adviser, threatened against or affecting
the Adviser or any “affiliated person” of the Adviser (as such term is defined in the 0000
Xxx) or any partners, directors, officers or employees of the foregoing, whether or not
arising in the ordinary course of business, which could reasonably be expected to result in
Adviser Material Adverse Effect or, materially and adversely affect the ability of the
Adviser to function as an investment adviser with respect to the Fund or
perform its obligations under this Agreement or the Investment Advisory Agreement, or
which is required to be disclosed in the Registration Statement and the Prospectus.
(viii) Absence of Violation or Default. The Adviser is not in violation of its limited
liability company operating agreement or other organizational documents or in default under
any agreement, indenture or instrument, except for such violations or defaults that have not
and could not result in an Adviser Material Adverse Effect.
(c) Officer’s Certificates. Any certificate signed by any officer of the Fund or the Adviser
delivered to the Placement Agent or to counsel for the Placement Agent shall be deemed a
representation and warranty by the Fund or the Adviser, as the case may be, to the Placement Agent
as to the matters covered thereby.
Section 2. Agreement to Act as Placement Agent, Delivery and Payment.
(a) Engagement of Placement Agent. The Placement Agent agrees to act as the Fund’s exclusive
placement agent, on a reasonable efforts basis, in connection with the issuance and sale by the
Fund of the Shares to the Investors. The Fund acknowledges and agrees that the Placement Agent’s
engagement hereunder is not an agreement by the Placement Agent or any of its affiliates to
underwrite or purchase any securities or otherwise provide any financing. As compensation for
their services hereunder, the Fund agrees to pay at the Closing Time (as defined below) to the
Placement Agent by wire transfer of immediately available funds an amount equal to ___% of the
proceeds received by the Fund from the sale of the Shares.
(b) Payment. Payment of the purchase price for, and delivery of the Shares shall be made at a
closing (the “Closing”) at the offices of Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 A.M. (Eastern time) to take place no later than the third or fourth business day
(as permitted under Rule 15c6-1 under the 0000 Xxx) after the determination of the sales price of
the Shares (such time and date of payment and delivery being herein called the “CLOSING TIME”).
All actions taken at the Closing shall be deemed to have occurred simultaneously.
(c) Payment for the Shares. Payment of the purchase price for the Shares shall be made by the
Investors by wire transfer in immediately available funds to a bank account designated by the Fund,
upon delivery of the Shares through the facilities of The Depository Trust Company, to the
Investors, and shall be registered in such name or names and shall be in such denominations, as the
Investors may request at least one business day before the Closing Time.
(d) Purchase Agreements. The several purchases of the Shares by the Investors shall be
evidenced by the execution of one or more purchase agreements each substantially in the form
attached hereto as Exhibit A (the “PURCHASE AGREEMENT”).
(e) No other Sales of Common Shares. Prior to the earlier of (i) the date on which this
Agreement is terminated and (ii) the Closing Time, the Fund shall not, without the prior consent of
the Placement Agent, solicit or accept offers to purchase Common Shares (other than pursuant to the
exercise of options or warrants to purchase Common Shares that are outstanding at the date hereof)
otherwise than through the Placement Agent.