TORTOISE ENERGY CAPITAL CORPORATION (a Maryland Corporation) __________ Shares of Common Stock Par Value $.001 Per Share UNDERWRITING AGREEMENT May , 2005

Exhibit (h)(1)

TORTOISE ENERGY CAPITAL CORPORATION
(a Maryland Corporation)
____________ Shares of Common Stock
Par Value $.001 Per Share

UNDERWRITING AGREEMENT

May __, 2005

Xxxxxx Brothers Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wachovia Capital Markets, LLC
As Representatives of the Several

Underwriters named in Schedule A

c/x Xxxxxx Brothers Inc.
000 0^xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000

x/x Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000

c/o Wachovia Capital Markets, LLC
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000

Ladies and Gentlemen:

Tortoise Energy Capital Corporation, a Maryland corporation (the “Fund”), and the Fund’s investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability company (the “Advisor”), each confirms its agreement with Xxxxxx Brothers Inc. (“Xxxxxx Brothers”) and Xxxxxx, Xxxxxxxx & Company, Incorporated (“Xxxxxx Xxxxxxxx”) and Wachovia Capital Markets, LLC (“Wachovia”) and each of the other Underwriters named in Schedule A hereto (collectively with Xxxxxx Brothers, Xxxxxx Xxxxxxxx and Wachovia, the “Underwriters”), for whom Xxxxxx Brothers, Xxxxxx Xxxxxxxx and Wachovia are acting as representatives (in such capacity, the “Representatives”), with respect to the issue and sale by the Fund and the purchase by the Underwriters, acting severally and not jointly, of the respective number of shares of common stock, par value $.001 per share, of the Fund (“Common Shares”) set forth in Schedule A hereof (collectively, the “Primary Shares”), and with respect to the grant by the Fund to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of ___additional Common Shares to cover over-allotments, if any (the “Option Shares”). The Primary Shares and the Option Shares are collectively referred to as the “Shares.”

The Fund understands that the Underwriters propose to make a public offering of the Shares as soon as Xxxxxx Brothers and Stifel Xxxxxxxx xxxx advisable after this Agreement has been executed and delivered.

The Fund has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form N-2 (File Nos. 333-123180 and 811-21725) covering the registration of the Shares under the Securities Act of 1933, as amended (the “1933 Act”), including the related preliminary prospectus or prospectuses, and a notification on Form N-8A of registration of the Fund as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”), and the rules and regulations of the Commission under the 1933 Act and the 1940 Act (the “Rules and Regulations”). Promptly after execution and delivery of this Agreement, the Fund will either (i) prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) and paragraph (c) or (h) of Rule 497 (“Rule 497”) of the Rules and Regulations or (ii) if the Fund has elected to rely upon Rule 434 (“Rule 434”) of the Rules and Regulations, prepare and file a term sheet (a “Term Sheet”) in accordance with the provisions of Rule 434 and Rule 497. The information included in any such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective, if applicable, (a) pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information” or (b) pursuant to paragraph (d) of Rule 434 is referred to as “Rule 434 Information.” Each prospectus used before such registration statement became effective, and any prospectus that omitted, as applicable, the Rule 430A Information or the Rule 434 Information, that was used after such effectiveness and prior to the execution and delivery of this Agreement, including in each case any statement of additional information incorporated therein by reference, is herein called a “preliminary prospectus.” Such registration statement, including the exhibits and schedules thereto at the time it became effective and including the Rule 430A Information or the Rule 434 Information, as applicable, is herein called the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the Rules and Regulations is herein referred to as the “Rule 462(b) Registration Statement,” and the term “Registration Statement” shall include any Rule 462(b) Registration Statement that shall have been filed. The final prospectus in the form first furnished to the Underwriters for use in connection with the offering of the Shares, including the statement of additional information incorporated therein by reference, is herein called the “Prospectus.” If Rule 434 is relied on, the term “Prospectus” shall refer to the preliminary prospectus dated May ___, 2005, including the statement of additional information incorporated therein by reference, together with the Term Sheet and all references in this Agreement to the date of the Prospectus shall mean the date of the Term Sheet. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).

All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be

deemed to mean and include all such financial statements and schedules and other information which are incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be.

SECTION 1. REPRESENTATIONS AND WARRANTIES.

(a) REPRESENTATIONS AND WARRANTIES BY THE FUND AND THE ADVISOR. The Fund and the Advisor represent and warrant to each Underwriter as of the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agree with each Underwriter, as follows:

(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act, or order of suspension or revocation of registration pursuant to Section 8(e) of the 1940 Act, and no proceedings for any such purpose, have been instituted or are pending or, to the knowledge of the Fund or the Advisor, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.

At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto (filed before the Closing Time) became effective and at the Closing Time (and, if any Option Shares are purchased, at the Date of Delivery), the Registration Statement, the Rule 462(b) Registration Statement, the notification of Form N-8A and all amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act, the 1940 Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Shares are purchased, at the Date of Delivery), included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If Rule 434 is used, the Fund will comply with the requirements of Rule 434 and the Prospectus shall not be “materially different,” as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time it became effective. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Fund in writing by or on behalf of any Underwriter for use in the Registration Statement or Prospectus, which shall be limited to the information set forth in Section 6(b)(ii) hereof.

Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 497 under the 1933 Act, complied when so filed in all material respects with the Rules and Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.

If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Shares, the Fund has complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees thereof.

(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the statement of assets and liabilities included in the Registration Statement and whose report appears in the Prospectus 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 Advisor have no reason to believe that they are not independent public accountants.

(iii) FINANCIAL STATEMENTS. The statement of assets and liabilities included in the Registration Statement and the Prospectus, together with the related notes, comply in form in all material respects with the requirements of Regulation S-X under the1933 Act and presents fairly in accordance with generally accepted accounting principals in the United States (“GAAP”) applied on a consistent basis in all material respects the financial position of the Fund at the date indicated and has been prepared in conformity in all material respects with GAAP.

(iv) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, Shareholders’ equity, properties, business affairs or business prospects of the Fund, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there has not been any change in the capital stock or long-term debt of the Fund except as could not reasonably be expected to have a Material Adverse Effect, (C) 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, (D) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its capital stock, (E) the Fund has not incurred any liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, and (F) the Fund has not entered into any material transaction not in the ordinary course of business.

(v) GOOD STANDING OF THE FUND. The Fund has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Maryland and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement, and the Fund is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.

(vi) NO SUBSIDIARIES. The Fund has no subsidiaries.

(vii) INVESTMENT COMPANY STATUS. The Fund is duly registered with the Commission under the 1940 Act as a nondiversified, closed-end management investment company, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the Fund’s knowledge, threatened by the Commission.

(viii) OFFICERS AND DIRECTORS. No person is serving or acting as an officer, director or investment adviser of the Fund except in accordance with the provisions of the 1940 Act and the Rules and Regulations and the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and the rules and regulations of the Commission promulgated under the Advisers Act (the “Advisers Act Rules and Regulations”). Except as disclosed in the Registration Statement or Prospectus, to the Fund’s knowledge after due inquiry, no director of the Fund is an “interested person” (as defined in the 0000 Xxx) of the Fund or an “affiliated person” (as defined in the 0000 Xxx) of any Underwriter that serves as a Representative.

(ix) CAPITALIZATION. The authorized, issued and outstanding capital stock of the Fund is as set forth in the Prospectus as of the date thereof under the caption “Description of Capital Stock.” All issued and outstanding Common Shares of the Fund have been duly authorized and validly issued and are fully paid and non-assessable, and have been offered and sold or exchanged by the Fund in compliance with all applicable laws (including, without limitation, federal and state securities laws). None of the outstanding Common Shares of the Fund was issued in violation of the preemptive or other similar rights of any securityholder of the Fund. No shares of preferred stock of the Fund have been designated, offered, sold or issued and none of such shares of preferred stock are currently outstanding, and the Fund has no present intention to do so.

(x) AUTHORIZATION AND DESCRIPTION OF SHARES. The Shares to be purchased by the Underwriters from the Fund have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Fund pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid

and non-assessable. The Common Shares conform to all statements relating thereto contained in the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same, and the issuance of the Shares is not subject to the preemptive or other similar rights of any securityholder of the Fund.

(xi) ABSENCE OF DEFAULTS AND CONFLICTS. The Fund is not in violation of its charter or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect. The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement” and the “Fund Accounting Servicing Agreement”, respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the 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 (other than violations of the provisions of the charter or by-laws of the Fund) that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

(xii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the

knowledge of the Fund or the Advisor, threatened, against or affecting the Fund, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which could reasonably be expected to result in a Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the properties or assets of the Fund or the consummation of the transactions contemplated in this Agreement or the performance by the Fund of its obligations hereunder. The aggregate of all pending legal or governmental proceedings to which the Fund is a party or of which any of its property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect.

(xiii) ACCURACY OF EXHIBITS. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto by the 1933 Act, the 1940 Act or by the Rules and Regulations which have not been so described and filed as required.

(xiv) POSSESSION OF INTELLECTUAL PROPERTY; FUND NAME. The Fund owns or possesses, or can acquire on reasonable terms, adequate licenses, copyrights, know-how (including trade secrets or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by the Fund, and the Fund has not received any notice or is not otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Fund therein.

(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Fund of its obligations hereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement (including the use of proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”), except for the registration of the Shares under the 1933 Act, such as have been already obtained or as may be required under the 1940 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), or under the rules of the New York Stock Exchange (“NYSE”) or the NASD, Inc. (“NASD”) or state securities laws.

(xvi) POSSESSION OF LICENSES AND PERMITS. The Fund possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to operate its properties and to conduct the business as contemplated in the Prospectus. The Fund is in compliance with the terms and conditions of all such Governmental Licenses,

except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not have a Material Adverse Effect. The Fund has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses.

(xvii) ADVERTISEMENTS. Any advertising, sales literature or other promotional material (including “prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts” and “electronic road show presentations”) authorized in writing by or prepared by the Fund or the Advisor used in connection with the public offering of the Shares (collectively, “Sales Material”) does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading. Moreover, all Sales Material complied and will comply in all material respects with the applicable requirements of the 1933 Act, the 1940 Act, the Rules and Regulations and the rules and interpretations of the NASD (except that this representation and warranty does not apply to statements in or omissions from the Sales Material made in reliance upon and in conformity with information relating to any Underwriter furnished to the Fund in writing by or on behalf of any Underwriter through you expressly for use therein as set forth in Section 6(b)(ii)).

(xviii) SUBCHAPTER M. The Fund has not made and will not make an election under Section 851(b) of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”) (or any successor provisions thereto), to be treated as a regulated investment company for federal income tax purposes.

(xix) DISTRIBUTION OF OFFERING MATERIALS. The Fund has not distributed and, prior to the later of (A) the Closing Time and (B) completion of the distribution of the Shares, will not distribute any offering material in connection with the offering and sale of the Shares other than the preliminary prospectus and the Prospectus.

(xx) ACCOUNTING CONTROLS.

(A) The Fund (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 30a-3 under the 1940 Act and 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 the Fund’s financial statements in conformity with GAAP and to

maintain accountability for its assets and to maintain compliance with the books and records requirements under the 1940 Act and the Rules and Regulations; (c) access to the Fund’s assets is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for the Fund’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(B) (i) The Fund has established and maintains disclosure controls and procedures (as such term is defined in Rule 30a-3 under the 1940 Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Fund in the reports it files or submits under the 1940 Act is accumulated and communicated to the management of the Fund, including its principal executive officers and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure to be made and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.

(C) Since the date of the most recent balance sheet of the Fund reviewed or audited by Ernst & Young LLP (“E&Y”) and the audit committee of the Fund, (i) the Fund has not been advised of (a) any significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the Fund to record, process, summarize and report financial data, or any material weaknesses in internal controls and (b) any fraud, whether or not material, that involves management or other employees who have significant role in the internal controls of the Fund, and (ii) there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.

(xxi) ABSENCE OF UNDISCLOSED PAYMENTS. Neither the Fund nor, to the knowledge of the Fund, any employee or agent of the Fund, has made any payment of funds of the Fund or received or retained any funds, which payment, receipt or retention of funds is of a character required to be disclosed in the Prospectus.

(xxii) MATERIAL AGREEMENTS. The Offering Agreements have each been duly authorized by all requisite action on the part of the Fund and executed and delivered by the Fund, as of the dates noted therein, and each complies with all applicable provisions of the 1940 Act in all material respects. Assuming due authorization, execution and delivery by the other parties thereto with respect to this Agreement and the other Offering Agreements, each Offering Agreement constitutes a valid and binding agreement of the Fund, enforceable in accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating

to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and except as rights to indemnification or contribution thereunder may be limited by federal or state laws.

(xxiii) REGISTRATION RIGHTS. There are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Fund under the 1933 Act.

(xxiv) NYSE LISTING. The Shares have been duly authorized for listing, upon notice of issuance, on the NYSE and the Fund’s registration statement on Form 8-A under the 1934 Act has become effective.

(xxv) PROPERTY. The Fund does not own or lease any real or personal property.

(xxvi) INSURANCE. The Fund carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Fund are in full force and effect, the Fund is in compliance with the terms of such policies in all material respects, and the Fund has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance.

(xxvii) RELATIONSHIPS. Except as described in the Prospectus, no relationship, direct or indirect, exists between or among the Fund, on the one hand, and the managers, officers, members, customers or suppliers of the Fund, on the other hand, that is required to be described in the Prospectus which is not described. The Fund has not, directly or indirectly, extended or maintained credit, or arranged for the extension of credit, or renewed or amended any extension of credit, in the form of a personal loan to or for any of its managers or executive officers.

(xxviii) ERISA. The Fund does not maintain or contribute to any “employee benefit plan” (as such term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended) or other similar plan, program or arrangement.

(xxix) TAXES. The Fund has (i) filed all federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof, subject to permitted extensions, (ii) paid all taxes due thereon, (iii) no tax deficiency that has been determined adversely to the Fund, and (iv) no knowledge of any tax deficiency, except, in the case of each of clauses (i) through (iv) above, as could not reasonably be expected to have a Material Adverse Effect.

(xxx) STABILIZATION. The Fund has not taken and will not take, directly or indirectly, and action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Shares.

(xxxi) BROKERAGE FEES. There are no contracts, agreements or understandings between the Fund and any person that would give rise to a valid claim against the Fund or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the offering and sale of the shares contemplated by this Agreement, except as disclosed in the Prospectus.

(xxxii) ENVIRONMENTAL. The Fund is, and at all times prior was, (A) in compliance with any and all applicable federal, state, local and foreign laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements relating to the protection of human health and safety, the environment, natural resources or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), which compliance includes obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental Laws to conduct its business and (B) has not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except in the case of clause (A) or (B) where such non-compliance with or liability under Environmental Laws could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and the Fund has not been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any other similar Environmental Law, except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as described in the Prospectus, (A) the Fund is not a party to any proceeding under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is believed no monetary penalties of $100,000 or more will be imposed, and (B) material capital expenditures relating to Environmental Laws.

(b) REPRESENTATIONS AND WARRANTIES BY THE ADVISOR. The Advisor represents and warrants to each Underwriter as of the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in Section 2(b) hereof as follows:

(i) GOOD STANDING OF THE ADVISOR. The Advisor has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of Delaware with full power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign entity to transact business and is in good standing in each other jurisdiction in which such qualification is required except as would not, individually or in the aggregate, result in a material adverse

change in the condition, financial or otherwise, or in the earnings, business affairs or business prospectus of such Advisor, whether or not arising in the ordinary course of business (an “Advisor Material Adverse Effect”).

(ii) INVESTMENT ADVISER STATUS. The Advisor 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 ADVISOR. The description of the Advisor in the Registration Statement and the Prospectus (including any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(iv) CAPITALIZATION. The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and in the Offering Agreements.

(v) AUTHORIZATION OF OFFERING AGREEMENTS; ABSENCE OF DEFAULTS AND CONFLICTS. This Agreement and the Investment Advisory Agreement have each been duly authorized, executed and delivered by the Advisor, and (assuming the due authorization, execution and delivery of each other party thereto) such Agreements each constitutes a valid and binding obligation of the Advisor, enforceable in accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing and except as rights to indemnification or contribution thereunder may be limited by federal or state laws; and neither the execution and delivery of this Agreement or the Investment Advisory Agreement nor the performance by the Advisor 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 Advisor is a party or by which it is bound, (ii) the limited liability company operating agreement and other organizational documents of the Advisor, or (iii) to the Advisor’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 Advisor 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 Advisor 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 Advisor of the transactions contemplated by this Agreement or the Investment Advisory Agreement, except as have been obtained or will be obtained prior to the Closing Time or may be required under the 1933 Act, the 1940 Act, the 1934 Act or state securities laws.

(vi) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not occurred any event which could reasonably be expected to have a material adverse effect on the ability of the Advisor 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 Advisor, threatened against or affecting the Advisor or any “affiliated person” of the Advisor (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 Advisor Material Adverse Effect or, materially and adversely affect the ability of the Advisor 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 Advisor 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 that have not and could not result in an Advisor Material Adverse Effect.

(c) OFFICER’S CERTIFICATES. Any certificate signed by any officer of the Fund or the Advisor delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Fund or the Advisor, as the case may be, to each Underwriter as to the matters covered thereby.

SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.

(a) PRIMARY SHARES. On the basis of the representations, warranties and covenants contained herein and subject to the terms and conditions set forth herein, the Fund agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Fund, at the price per share set forth in Schedule B, the number of Primary Shares set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Primary Shares which such Underwriter may become obligated to purchase pursuant to the provisions of

Section 10 hereof. The respective obligations of the Underwriters with respect to the Primary Shares shall be rounded among the Underwriters to avoid fractional shares, as Xxxxxx Brothers and Xxxxxx Xxxxxxxx may determine.

(b) OPTION SHARES. In addition, on the basis of the representations and warranties contained herein and subject to the terms and conditions set forth herein, the Fund hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional ___Common Shares in the aggregate at the price per share set forth in Schedule B, less an amount per share equal to any dividends or distributions declared by the Fund and payable on the Primary Shares but not payable on the Option Shares. The option hereby granted will expire 45 days after the date hereof (provided that if such date falls on a date that is not a business day, this option will expire on the next succeeding business day) and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Primary Shares upon notice by Xxxxxx Brothers and Xxxxxx Xxxxxxxx to the Fund setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Shares. Any such time and date of delivery (a “Date of Delivery”) shall be determined by Xxxxxx Brothers and Xxxxxx Xxxxxxxx, but shall not be later than seven (7) full business days and no earlier than two (2) full business days after the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Shares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Shares then being purchased which the number of Primary Shares set forth in Schedule A opposite the name of such Underwriter bears to the total number of Primary Shares, subject in each case to such adjustments as Xxxxxx Brothers and Xxxxxx Xxxxxxxx in their joint discretion shall make to eliminate any sales or purchases of a fractional number of Option Shares plus any additional number of Option Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.

(c) PAYMENT. Payment of the purchase price for, and delivery of certificates for, the Primary Shares shall be made at the offices of Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall be agreed upon by Xxxxxx Brothers and Xxxxxx Xxxxxxxx and the Fund, at 10:00 A.M. (Eastern time) on the third full business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten (10) business days after such date as shall be agreed upon by Xxxxxx Brothers and Xxxxxx Xxxxxxxx and the Fund (such time and date of payment and delivery being herein called “Closing Time”). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by Xxxxxx Brothers and Xxxxxx Xxxxxxxx and the Fund, on each Date of Delivery as specified in the notice from Xxxxxx Brothers and Xxxxxx Xxxxxxxx to the Fund.

Payment shall be made to the Fund by wire transfer of immediately available funds to a bank account designated by the Fund, against delivery to the Representatives for the respective accounts of the Underwriters of the Shares to be purchased by them. It is

understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Primary Shares and the Option Shares, if any, which it has agreed to purchase. Each of Xxxxxx Brothers, Xxxxxx Xxxxxxxx and Wachovia, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Primary Shares or the Option Shares, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.

(d) DENOMINATIONS; REGISTRATION. Certificates for the Primary Shares and the Option Shares, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two (2) full business days before the Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Primary Shares and the Option Shares, if the Fund determines to issue any such certificates, will be made available for examination and packaging by Xxxxxx Brothers and Xxxxxx Xxxxxxxx in the City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the relevant Date of Delivery, as the case may be. Delivery of the Primary Shares and the Option Shares shall be made at the Closing Time on the relevant Date of Delivery to the Representatives for the account of each Underwriter against payment by the several Underwriters through the Representatives of the respective aggregate purchase prices of the Primary Shares and the Option Shares being sold by the Fund, by wire transfer in immediately available funds to the accounts specified by the Fund. 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 each Underwriter hereunder. Delivery of the Primary Shares and the Option Shares shall be made through the facilities of The Depository Trust Company unless Xxxxxx Brothers and Xxxxxx Xxxxxxxx shall otherwise instruct. Upon delivery, the Primary Shares and the Option Shares shall be registered in such names and in such denominations as the Representatives shall request in writing not less than two full business days prior to the relevant Date of Delivery. For the purpose of expediting the checking and packaging of the certificates for the Primary Shares and the Option Shares, the Fund shall make the certificates representing the Primary Shares and the Option Shares available for inspection by Xxxxxx Brothers and Xxxxxx Xxxxxxxx in New York, New York, not later than 2:00 p.m., New York City time, on the business day prior to the relevant Date of Delivery.

(e) In order to meet the requirements for listing the Shares on the NYSE, the Underwriters hereby undertake to sell lots of 100 or more Shares to a minimum of 2,000 beneficial owners.

SECTION 3. COVENANTS.

(a) The Fund and Advisor covenant with each Underwriter as follows:

(i) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The Fund, subject to Section 3(a)(ii), will comply with the requirements of Rule 430A or Rule 434, as applicable, and will notify the Representatives as soon as practicable, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall

have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Fund will promptly effect the filings necessary pursuant to Rule 497 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Fund will make every reasonable effort to prevent the issuance of any stop order, or order of suspension or revocation of registration pursuant to Section 8(e) of the 1940 Act, and, if any such stop order or order of suspension or revocation of registration is issued, to obtain the lifting thereof at the earliest possible moment.

(ii) FILING OF AMENDMENTS. The Fund will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, to permit reasonable review by the Representatives of such proposed document, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object; provided, however that this covenant shall not apply to any post-effective amendment required by Rule 8b-16 of the 1940 Act which is filed with the Commission after the later of (x) one year from the date of this Agreement or (y) the date on which the distribution of the Shares is completed.

(iii) DELIVERY OF REGISTRATION STATEMENTS. The Fund has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment (except any post-effective amendment required by Rule 8b-16 of the 1940 Act which is filed with the Commission after the later of (x) one year from the date of this Agreement or (y) the date on which the distribution of the Shares is completed) thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.

(iv) DELIVERY OF PROSPECTUSES. The Fund has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Fund hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Fund will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.

(v) CONTINUED COMPLIANCE WITH SECURITIES LAWS. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Shares, any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Fund, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the Rules and Regulations, the Fund will promptly prepare and file with the Commission, subject to Section 3(a)(ii), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Fund will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.

(vi) BLUE SKY QUALIFICATIONS. The Fund will use its best efforts, in cooperation with the Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Fund shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

(vii) RULE 158. The Fund will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

(viii) USE OF PROCEEDS. The Fund will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under “Use of Proceeds.”

(ix) LISTING. The Fund will use its best efforts to effect the listing of the Shares on the NYSE, subject to notice of issuance, as soon as practicable but no later than two weeks after the effectiveness of the Registration Statement.

(x) RESTRICTION ON SALE OF SHARES. During a period of 180 days from the date of the Prospectus, the Fund will not, without the prior written consent of Xxxxxx Brothers and Xxxxxx Xxxxxxxx, (A) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares or file any registration statement under the 1933 Act with respect to any of the foregoing, (B) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise or (C) publicly disclose the intention to do any of the foregoing. The foregoing sentence shall not apply to the Shares to be sold hereunder or the Common Shares issued pursuant to any dividend reinvestment plan. The Fund shall cause each officer and manager of the Fund set forth on Schedule 3(a)(x) hereto to furnish to the Representatives, prior to the initial Date of Delivery, letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Fund issues an earnings release or material news or a material event relating to the Fund occurs or (2) prior to the expiration of the Lock-Up Period, the Fund announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Xxxxxx Brothers and Xxxxxx Xxxxxxxx, on behalf of the Underwriters, waive such extension in writing.

(xi) REPORTING REQUIREMENTS. The Fund, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1940 Act and the 1934 Act within the time periods required by the 1940 Act and the Rules and Regulations and the 1934 Act and the rules and regulations of the Commission thereunder, respectively.

(xii) NO MANIPULATION OF MARKET FOR SHARES. Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus, the Fund will not (a) take, directly or

indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Shares in violation of federal or state securities laws, and (b) until the Closing Time, or the Date of Delivery, if any, (i) except for Share repurchases permitted in accordance with applicable laws and issuances of Shares or purchases of Shares in the open market pursuant to the Fund’s dividend reinvestment plan, sell, bid for or purchase the Shares or pay any person any compensation for soliciting purchases of the Shares or (ii) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Fund.

(xiii) RULE 462(B) REGISTRATION STATEMENT. If the Fund elects to rely upon Rule 462(b), the Fund shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Fund shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the 1933 Act.

SECTION 4. PAYMENT OF EXPENSES.

(a) EXPENSES. The Fund will pay all expenses incident to the performance of its obligations under this Agreement, including but not limited to (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any agreement among Underwriters and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Shares, (iii) the preparation, issuance and delivery of the certificates for the Shares to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iv) the fees and disbursements of the Fund’s counsel, accountants and other advisers, (v) the printing and delivery to the Underwriters of copies of each preliminary prospectus, Prospectus and any amendments or supplements thereto, (vi) the fees and expenses of any transfer agent or registrar for the Shares, (vii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by the NASD of the terms of the sale of the Shares, (viii) the fees and expenses incurred in connection with the listing of the Shares on the NYSE, (ix) the qualification of the Shares under the securities laws of the several jurisdictions as provided in Section 3(a)(vi) (including related fees and expenses of counsel to the Underwriters), (x) the printing of any Sales Material and (xi) the investor presentations on any “road show” undertaken in connection with the marketing of the Shares, including, without limitation, expenses associated with any internet roadshow, travel and lodging expenses of the representatives and officers of the Fund and the Advisor and the cost of any aircraft chartered in connection with the road show.

(b) TERMINATION OF AGREEMENT. If this Agreement is terminated for any reason, the Fund or the Advisor shall reimburse, or arrange for an affiliate to reimburse, the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters up to a maximum reimbursement of $70,000.00.

SECTION 5. CONDITIONS OF UNDERWRITERS’ OBLIGATIONS. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Fund and the Advisor contained in Section 1 hereof or in certificates of any officer of the Fund or the Advisor delivered pursuant to the provisions hereof, to the performance by the Fund and the Advisor of their respective covenants and other obligations hereunder, and to the following further conditions:

(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act, no notice or order pursuant to Section 8(e) of the 1940 Act shall have been issued, and no proceedings with respect to either shall have been initiated or, to the Fund’s knowledge, threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 497 (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A) or, if the Fund has elected to rely upon Rule 434, a Term Sheet shall have been filed with the Commission in accordance with Rule 497.

(b) OPINION OF COUNSEL FOR THE UNDERWRITERS, THE FUND AND THE ADVISOR.

(i) At Closing Time, the Representatives shall have received from Xxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated as of Closing Time, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus and other related matters as Xxxxxx Brothers and Xxxxxx Xxxxxxxx may reasonably require, and the Fund shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.

(ii) At Closing Time, the Representatives shall have received the favorable opinions, dated as of Closing Time, from Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel for the Fund and Advisor, as to matters set for in Exhibits B, C and D hereto. As to matters of Maryland law, Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP may rely on the opinion of Xxxxxxx LLP.

(c) OFFICERS’ CERTIFICATES. At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or

otherwise, or in the earnings, Shareholders’ equity, properties, business affairs or business prospects of the Fund, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of a duly authorized officer of the Fund and of the chief financial or chief accounting officer of the Fund and of the President or a Vice President or Managing Director of the Advisor, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Sections l(a) and (b) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Fund or the Advisor, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, (iv) no stop order suspending the effectiveness of the Registration Statement, or order of suspension or revocation of registration pursuant to Section 8(e) of the 1940 Act, has been issued and no proceedings for any such purpose have been instituted or are pending or , to the knowledge of the Fund or the Advisor, contemplated by the Commission, (v) the Registration Statement, as of the time it became effective, and the Prospectus, as of its date and as of such Date of Delivery, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, and (vi) since the time the Registration Statement became effective, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus that has not been so set forth.

(d) ACCOUNTANT’S COMFORT LETTER. At the time of the execution of this Agreement, the Representatives shall have received from E&Y a letter in form and substance satisfactory to Xxxxxx Brothers and Xxxxxx Xxxxxxxx, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, (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 three 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.

(e) BRING-DOWN COMFORT LETTER. With respect to a letter of E&Y referred to in clause (d) above and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Fund shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Date of Delivery (i) confirming that they are independent public accounts within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 or Regulation S-X of the Commission, (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 the date not more than three 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 by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.

(f) APPROVAL OF LISTING. At Closing Time, the Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance.

(g) NO OBJECTION. The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.

(h) UNDERWRITER DISCOVERY OF UNTRUE STATEMENT. No Underwriter shall have discovered and disclosed to the Fund on or prior to such Date of Delivery that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxx Xxxxxxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.

(i) LOCK-UP AGREEMENTS. The Lock-Up Agreements of the officers and managers of the Fund set forth on Schedule 3(a)(x), delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Date of Delivery.

(j) CONDITIONS TO PURCHASE OF OPTION SHARES. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Shares, the representations and warranties of the Fund contained herein and the statements in any certificates furnished by the Fund hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:

(i) OFFICERS’ CERTIFICATES. Certificates, dated such Date of Delivery, of a duly authorized officer of the Fund and of the chief financial or chief accounting officer of the Fund and of the President or a Vice President or Managing Director of the Advisor confirming that the information contained in the certificate delivered by each of them at the Closing Time pursuant to Section 5(c) hereof remains true and correct as of such Date of Delivery.

(ii) OPINIONS OF COUNSEL FOR THE UNDERWRITERS, THE FUND AND THE ADVISOR. The favorable opinions of Xxxx Xxxxxxx LLP, counsel for the Underwriters, and Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel for the Fund, dated such Date of Delivery, relating to the Option Shares to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Sections 5(b)(i) and 5(b)(ii) hereof, including reliance by Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP on Xxxxxxx LLP as to matters of Maryland law.

(iii) BRING-DOWN COMFORT LETTER. A bring-down letter from E&Y, in form and substance satisfactory to Xxxxxx Brothers and Xxxxxx Xxxxxxxx and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(e) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three (3) days prior to such Date of Delivery.

(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Fund and the Advisor in connection with the organization and registration of the Fund under the 1940 Act and the issuance and sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to Xxxxxx Brothers and Xxxxxx Xxxxxxxx and counsel for the Underwriters.

(l) TERMINATION OF AGREEMENT. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Shares, on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Shares, may be terminated by Xxxxxx Brothers and Xxxxxx Xxxxxxxx by notice to the Fund at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 13 shall survive any such termination and remain in full force and effect.

SECTION 6. INDEMNIFICATION.

(a) INDEMNIFICATION OF UNDERWRITERS. The Fund and the Advisor agree, jointly and severally, to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any director, officer, employee or affiliate thereof as follows:

(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements

therein, in the light of the circumstances under which they were made, not misleading;

(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Fund; and

(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Fund or the Advisor by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto which shall be limited to the information set forth in Section 6(b)(ii)); and provided further that the Fund or the Advisor will not be liable to any Underwriter with respect to any preliminary prospectus to the extent that the Fund or the Advisor shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from the fact that such Underwriter, in contravention of a requirement of this Agreement or applicable law, sold Shares to a person to whom such Underwriter failed to deliver, at or prior to the Closing Time, a copy of the final Prospectus, as then amended or supplemented if: (i) the Fund has previously furnished copies thereof (sufficiently in advance of the Closing Time to allow for distribution by the Closing Time) to the Underwriter and the loss, liability, claim, damage or expense of such Underwriter resulted from an untrue statement or omission of a material fact contained in or omitted from the preliminary prospectus which was corrected in the final Prospectus as, if applicable, amended or supplemented prior to the Closing Time and such final Prospectus was required by law to be delivered at or prior to the written confirmation of sale to such person and (ii) the timely delivery of such final Prospectus to the party or parties asserting such loss, liability, claim, damage or expense would have constituted a complete defense to the claim asserted by such person.

(b) INDEMNIFICATION OF FUND, ADVISOR, DIRECTORS AND OFFICERS.

(i) Each Underwriter severally agrees to indemnify and hold harmless the Fund and the Advisor, their respective directors, each of the Fund’s officers who signed the Registration Statement, and each person, if any, who controls the Fund or the Advisor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Fund or the Advisor by such Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).

(ii) The Underwriters severally confirm and the Fund and the Advisor acknowledge and agree that the statements relating to the delivery of the Shares on the cover page of the Prospectus and the statements in the Prospectus relating to (A) the undertaking of the Underwriters relating to the requirements for listing on the New York Stock Exchange in the first sentence of the second paragraph under the caption “Underwriting—Listing,” (B) the information set forth under the caption “Underwriting—Discretionary Sales,” (C) the public offering price and the concessions and reallowance figures in the first paragraph under the caption “Underwriting —Commission, Expenses and Sales Load,” (D) the information set forth under the caption “Underwriting—Stabilization, Short Position and Penalty Bids,” (E) the information set forth under the caption “Underwriting—Electronic Distribution,” (F) the information set forth in the last sentence under the caption “Underwriting—Lockup Agreements” and (G) the information set forth in the last paragraph under the caption “Underwriting—Affiliations,” constitutes information provided by the Underwriters which is the only information concerning such Underwriters furnished in writing to the Fund by or on behalf of the Underwriters specifically for inclusion in the Registration Statement and the Prospectus. The Underwriters severally confirm and the Fund and the Advisor acknowledge and agree that the information set forth in the first, second and seventh bullet points under the caption “MLP Characteristics” in the Sales Materials constitutes information provided by the Underwriters which is the only information furnished in writing to the Fund by or on behalf of the Underwriters specifically for inclusion in the Sales Materials.

(c) INDEMNIFICATION FOR MARKETING MATERIALS. In addition to the foregoing indemnification, the Fund and the Advisor also agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a), as limited by the proviso set forth therein, with respect to any Sales Material in the form approved by the Fund and the Advisor for use

by the Underwriters and securities firms to whom the Fund or the Advisor shall have disseminated materials in connection with the public offering of the Shares.

(d) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder except to the extent it is materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Fund and the Advisor. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party, prior to the date of such settlement, (1) reimburses such indemnified party in accordance with such request for the amount of such fees and expenses of counsel as the indemnifying party believes in good faith to be reasonable, and (2) provides written notice to the indemnified party that the indemnifying party disputes in good faith the reasonableness of the unpaid balance of such fees and expenses.

(f) LIMITATIONS ON INDEMNIFICATION. Any indemnification by the Fund shall be subject to the requirements and limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.

SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Advisor on the one hand and the Underwriters on the other hand from the offering of the Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Fund and the Advisor on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

The relative benefits received by the Fund and the Advisor on the one hand and the Underwriters on the other hand in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Shares pursuant to this Agreement (before deducting expenses) received by the Fund and the total underwriting discount received by the Underwriters (whether from the Fund or otherwise), in each case as set forth on the cover of the Prospectus or, if Rule 434 is used, the corresponding location on the Term Sheet, bear to the aggregate initial public offering price of the Shares as set forth on such cover.

The relative fault of the Fund and the Advisor on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Fund or the Advisor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Fund, the Advisor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Fund and each director of the Advisor, respectively, each officer of the Fund who signed the Registration Statement, and each person, if any, who controls the Fund or the Advisor, within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Fund and the Advisor, respectively. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Primary Shares set forth opposite their respective names in Schedule A hereto and not joint.

Any contribution by the Fund shall be subject to the requirements and limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.

SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Fund or the Advisor submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Fund or the Advisor, and shall survive delivery of the Shares to the Underwriters.

SECTION 9. TERMINATION OF AGREEMENT.

(a) TERMINATION; GENERAL. Xxxxxx Brothers and Xxxxxx Xxxxxxxx may terminate this Agreement, by notice to the Fund, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, Shareholders’ equity, properties, business affairs or business prospects of the Fund or the Advisor, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any material outbreak of hostilities or material escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions (including without limitation as a result of terrorist activities), in each case the effect of which is such as to make it, in the judgment of Xxxxxx Brothers and Xxxxxx Xxxxxxxx, impracticable or inadvisable to market the Shares or to enforce contracts for the sale of the Shares, or (iii) if trading in the Common Shares of the Fund or securities generally has been suspended or materially limited by the

Commission or the NYSE, or if trading generally on the American Stock Exchange or in the NASDAQ National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the NASD or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) if a banking moratorium has been declared by either Federal or state authorities.

(b) LIABILITIES. If this Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in full force and effect.

SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters shall fail at Closing Time or any Date of Delivery to purchase the Shares which it or they are obligated to purchase under this Agreement (the “Defaulted Shares”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:

(a) if the number of Defaulted Shares does not exceed 10% of the number of Shares to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

(b) if the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the Underwriters shall have the right, but not the obligation, to purchase severally but not jointly, the full amount thereof, and if not so purchased in full, the obligation of the Underwriters to purchase and of the Fund to sell the Option Shares to be purchased and sold on such Date of Delivery, shall terminate without liability on the part of any non-defaulting Underwriter.

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Fund to sell the relevant Option Shares, as the case may be, either Xxxxxx Brothers and Xxxxxx Xxxxxxxx, on the one hand, or the Fund, on the other, shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven (7) days in order to effect any required changes in the Registration Statement or Prospectus

or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.

SECTION 11. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives, c/x Xxxxxx Brothers 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Syndicate Department, with a copy to: Director of Litigation, Office of General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, XX 00000, and c/o Xxxxxx Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, attention of Equity Capital Markets, and c/o Wachovia Capital Markets, LLC, 0 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Equity Syndicate; and notices to the Fund or the Advisor shall be directed, as appropriate, to the office of the Advisor, 00000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000, attention of Management Committee.

SECTION 12. PARTIES. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Fund, the Advisor and their respective partners and successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Fund, the Advisor and their respective successors and the controlling persons, employees, affiliates, officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Fund, the Advisor and their respective partners and successors, and said controlling persons and officers, directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO CENTRAL STANDARD TIME.

SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

[Remainder of Page Intentionally Left Blank]

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Fund and the Advisor in accordance with its terms.


	Very truly yours, TORTOISE ENERGY CAPITAL CORPORATION
	By:
		Title:
		Name:


	TORTOISE CAPITAL ADVISORS, LLC
	By:
		Title:
		Name:

CONFIRMED AND ACCEPTED,

as of the date first above written:

Each for itself and collectively as Representatives of the other Underwriters named in Schedule A hereto.

XXXXXX BROTHERS INC.



By:
	Authorized Signatory


XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
		Authorized Signatory


WACHOVIA CAPITAL MARKETS, LLC
By:
	Authorized Signatory

SCHEDULE A


Name of Underwriter		Number of Primary Shares
Xxxxxx Brothers Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wachovia Capital Markets, LLC

[OTHERS]

SCHEDULE B

Tortoise Energy Capital Corporation
____________ Common Shares

1 The initial public offering price per share for the Shares, determined as provided in said Section 2, shall be $25.00.

2 The purchase price per share for the Shares to be paid by the several Underwriters shall be $23.875, being an amount equal to the initial public offering price set forth above less $1.125 per share; provided that the purchase price per share for any Option Shares purchased upon the exercise of the over-allotment option described in Section 2(b) shall be reduced by an amount per share equal to any dividends or distributions declared by the Fund and payable on the Primary Shares but not payable on the Option Shares.

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TORTOISE ENERGY CAPITAL CORPORATION (a Maryland Corporation) __________ Shares of Common Stock Par Value $.001 Per Share UNDERWRITING AGREEMENT May , 2005

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TORTOISE ENERGY CAPITAL CORPORATION (a Maryland Corporation) ____________ Shares of Common Stock Par Value $.001 Per Share UNDERWRITING AGREEMENT May __, 2005

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TORTOISE ENERGY CAPITAL CORPORATION (a Maryland Corporation) __________ Shares of Common Stock Par Value $.001 Per Share UNDERWRITING AGREEMENT May , 2005