TORTOISE ENERGY INFRASTRUCTURE CORPORATION UNDERWRITING AGREEMENT
EXHIBIT
h.2
SERIES
__ MONEY MARKET CUMULATIVE PREFERRED
(MMP®) SHARES
UNDERWRITING
AGREEMENT
[Date]
[Underwriters]
Ladies
and Gentlemen:
Tortoise
Energy Infrastructure Corporation, a Maryland corporation (the “Company”),
proposes to, subject to the terms and conditions stated herein, issue and
sell
to _______________ and __________________ (each an “Underwriter” and, together
the “Underwriters”) ______ shares of its Series __ Money Market Cumulative
Preferred (MMP®) Shares, $25,000 liquidation preference per share
(the “MMP Shares”). The Company and the Company’s investment adviser, Tortoise
Capital Advisors, LLC, a Delaware limited liability company (the “Investment
Adviser”), each wishes to confirm its agreement concerning the purchase of the
MMP Shares from the Company by the Underwriters.
The
Company has entered into an Investment Advisory Agreement with the Investment
Adviser dated December 12, 2003 (the “Advisory Agreement”); a Custody Agreement
with U.S. Bank National Association, dated December 12, 2003 (“Custody
Agreement”); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated December 12, 2003 (“Transfer Agency Agreement”); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC,
dated
December 12, 2003 (“Administration Agreement”); a Fund Accounting Servicing
Agreement with U.S. Bancorp Fund Services, LLC, dated December 12, 2003
(“Accounting Agreement”); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with The Bank of New York, dated July 12, 2005 (the
“Auction Agency Agreement”). Collectively, the Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement, the Administration Agreement, the
Accounting Agreement and the Auction Agency Agreement (excluding the
Broker-Dealer Agreement) are referred to herein as the “Company Agreements.”
This Underwriting Agreement is herein referred to as the
“Agreement.”
Section
1. Representations, Warranties and Agreements of the Company and the
Investment Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A
registration statement on Form N-2 (File Nos. 333-131204 and 811-21462),
as
amended by Pre-Effective Amendment No. 1, has (i) been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), the Investment Company Act of 1940, as amended (the
“1940 Act”), and the rules and regulations of the United States Securities and
Exchange Commission (the “Commission”) promulgated under the Securities Act (the
“1933 Act Rules and Regulations”) and the 1940 Act (the “1940 Act Rules and
Regulations,” and, together with the 1933 Act Rules and Regulations, the “Rules
and Regulations”), (ii) been filed with the Commission under the Securities Act
and the 1940 Act and (iii) become effective under the Securities Act. If
any
post-effective amendment to such registration statement has been filed with
the
Commission prior to execution and delivery of this Agreement, the most recent
such amendment has become effective under the Securities Act. Copies of such
registration statement and each of the amendments thereto have been delivered
by
the Company to you. As used in this Agreement, “Effective Time” means the date
and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, has become effective under the
Securities Act; “Effective Date” means the date of the Effective Time;
“Preliminary Prospectus” means each prospectus and related statement of
additional information included in such registration statement, or amendments
thereof, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the Underwriters’ consent pursuant
to Rule 497(a) of the 1933 Act Rules and Regulations; “Registration Statement”
means such registration statement, as amended at the Effective Time, including
all information contained in the final prospectus (including the statement
of
additional information) filed with the Commission pursuant to Rule 497 of
the
1933 Act Rules and Regulations and deemed to be a part of the registration
statement as of the Effective Time pursuant to Rule 430A and/or Rule 430C
of the
Rules and Regulations; and “Prospectus” means the prospectus and the statement
of additional information filed with the Commission pursuant to Rule 497
of the
Securities Act. If the Company has filed a registration statement to register
additional MMP Shares pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. The Commission has not issued any order preventing or suspending
the
use of any Preliminary Prospectus or the Prospectus.
(b) The
Company is duly registered under the 1940 Act as a closed-end, non-diversified,
management investment company. A notification of registration of the Company
as
an investment company under the 1940 Act on Form N-8A (the “1940 Act
Notification”) has been prepared by the Company in conformity with the 1940 Act
and has been filed with the Commission and, at the time of filing thereof
and at
the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the
1940
Act Rules and Regulations. The Company has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940
Act
Notification or the Registration Statement (or any amendment or supplement
to
either of them).
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(c) To
the knowledge of the Company and the Investment Adviser, no person is serving
or
acting as an officer, director or investment adviser of the Company except
in
accordance with the provisions of the 1940 Act and the 1940 Act Rules and
Regulations and the Investment Advisers Act of 1940, as amended (the “Investment
Adviser’s Act”) and the rules and regulations adopted by the Commission under
the Investment Adviser’s Act (the “Investment Adviser’s Act Rules and
Regulations”).
(d) The
Registration Statement and the 1940 Act Notification conform, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the
Prospectus will, when they become effective or are filed with the Commission,
as
the case may be, conform in all respects to the requirements of the Securities
Act, the 1940 Act and the Rules and Regulations and do not and will not,
as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and the 1940 Act Notification and any amendment or supplement thereto) contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
case of
the Prospectus, in light of the circumstances under which they were made,
not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement, the
1940
Act Notification or the Prospectus in reliance upon and in conformity with
written information furnished to the Company through the Underwriters or
on the
Underwriters’ behalf specifically for inclusion therein.
(e) The
Company has been duly incorporated and is existing as a corporation in good
standing under the laws of the State of Maryland, is duly qualified to do
business and is in good standing in each jurisdiction in which its ownership
or
lease of property or the conduct of its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to
either) requires such qualification, and has all power and authority necessary
to own or hold property and to conduct the business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to
either), except where the failure to so qualify or to be in good standing
would
not reasonably be expected to have a material adverse effect on the condition
(financial or other), business, prospects, management, shareholders’ equity or
results of operations of the Company (a “Material Adverse Effect”). The Company
has no subsidiaries.
(f) The
Company has an authorized capitalization as set forth in the Registration
Statement and the Prospectus under the caption “Capitalization - (unaudited).”
All of the issued shares of common stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and conform
in
all material respects to the description thereof contained in the Registration
Statement and the Prospectus (and any amendment or supplement to
either).
(g) The
MMP Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly authorized and, when issued and delivered against payment
therefor in accordance with this Agreement, will be validly issued, fully
paid
and non-assessable; and the MMP Shares will conform in all material respects
to
the
3
description
thereof contained in the Registration Statement and the Prospectus (and any
amendment or supplement to either) and will be free and clear of all preemptive
rights or any other claim of any third party.
(h) This
Agreement and each of the Company Agreements have been duly authorized, executed
and delivered by the Company and constitute valid and legally binding agreements
of the Company, enforceable against the Company in accordance with their
terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of the Company’s obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ rights generally and by general equitable
principles.
(i) None
of the execution, delivery and performance of this Agreement by the Company,
the
performance of the Company Agreements or the consummation of the transactions
contemplated hereby and thereby (i) conflict with, result in the creation
or
imposition of any lien, charge or encumbrance upon the assets of the Company
under the terms or provisions of, or result in a breach or violation of any
of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to
which the Company is a party or by which the Company is bound or to which
any of
the property or assets of the Company is subject, (ii) result in any violation
of the provisions of the Articles of Incorporation (the “Articles”) or by-laws
of the Company or (iii) result in the violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets, except
in the
case of clauses (i) and (iii), such conflicts, breaches or violations that
in
the aggregate would not reasonably be expected to have a Material Adverse
Effect; and except for the registration of the MMP Shares under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the 1940 Act, the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and applicable state securities
laws in connection with the purchase and distribution of the MMP Shares by
the
Underwriters, no consent, approval, authorization or order of, or filing
or
registration with, any such court or governmental agency or body is required
for
the execution, delivery and performance of this Agreement by the Company,
the
performance of the Company Agreements by the Company or the consummation
of the
transactions contemplated hereby and thereby.
(j) There
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company
to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any
other registration statement filed by the Company under the Securities Act.
There are no outstanding options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company.
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(k) The
Company has not sustained, since the date of the latest unaudited financial
highlights included in the Prospectus, any material loss or interference
with
its business that has had, or could reasonably be expected to have, a Material
Adverse Effect, and since such date, there has not been any change in the
capital stock or long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
consolidated financial position, shareholders’ equity, results of operations,
business or prospects of the Company that has had or could reasonably be
expected to have a Material Adverse Effect, other than as set forth or
contemplated in the Prospectus.
(l) The
financial statements (including the related notes) filed as part of the
Registration Statement present fairly the financial condition and results
of
operations of the Company, at the dates and for the periods indicated, and
have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(m) Ernst
& Young LLP, who have reviewed the financial statements of the Company,
whose report appears in the Registration Statement and who have delivered
the
letters referred to in Sections 8(f) and (g) hereof, have represented to
the
Company that they are independent public accountants as required by the
Securities Act, the 1940 Act and the Rules and Regulations.
(n) The
Company carries, or is covered by, insurance in such amounts and covering
such
risks as is adequate for the conduct of its business and the value of its
property and as is customary for companies engaged in similar businesses
in
similar industries.
(o) There
are no legal or governmental proceedings pending to which the Company is
a party
or of which any property or assets of the Company is the subject which is
reasonably likely to be determined adversely to the Company and, if determined
adversely to the Company, would be reasonably likely to have a Material Adverse
Effect; and to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(p) There
are no contracts or other documents which are required to be described in
the
Registration Statement or the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the 1940 Act or by the Rules
and
Regulations which have not been described in the Registration Statement or
the
Prospectus or filed as exhibits to the Registration Statement.
(q) The
Company has filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company which
has had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, might have) a Material Adverse
Effect.
5
(r) The
Company has not made and will not make an election under Section 851(b) of
the
Internal Revenue Code of 1986, as amended (the “Code”), or any successor
provisions thereto, to be treated as a regulated investment company for federal
income tax purposes.
(s) Since
the date as of which information is given in the Registration Statement and
the
Prospectus through the date hereof, and except as may otherwise be disclosed
in
the Prospectus, the Company has not (i) issued or granted any securities
other
than shares of common stock of the Company pursuant to the Company’s automatic
dividend reinvestment plan, (ii) incurred any liability or obligation, direct
or
contingent, other than non-material liabilities and obligations which were
incurred in the ordinary course of business, or (iii) entered into any
transaction not in the ordinary course of business.
(t) The
Company or its designee (i) makes and keeps accurate books and records and
(ii)
maintains internal accounting controls which provide reasonable assurance
that
(A) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (B) access
to its assets is permitted only in accordance with management’s authorization
and (C) the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(u) The
Company is not (i) in violation of its Articles or by-laws, (ii) in default,
and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement or other agreement or instrument to which it is a party or by which
it
is bound or to which any of its properties or assets is subject or (iii)
in
violation of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject or has failed to obtain
any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the
conduct of its business, except, in the case of clauses (ii) and (iii), such
defaults, events, violations or failures that in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(v) There
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or the
Underwriters for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
(w) The
statistical, market-related and industry data included in the Prospectus
and the
Registration Statement are based on or derived from sources which the Company
believes to be reliable and accurate.
(x) The
Company, subject to the filing of the Prospectus under Rule 497 under the
1933
Act Rules and Regulations, has taken all required action under the Securities
Act, the 1940 Act and the Rules and Regulations to make the public offering
and
consummate the sale of the MMP Shares as contemplated by this
Agreement.
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(y) Except
as stated in this Agreement and in the Prospectus (and any amendment or
supplement thereto), the Company has not taken and shall not take, directly
or
indirectly, any action designed to cause or result in, or which constituted
or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the MMP Shares to facilitate the sale or resale
of
the MMP Shares.
(z) Other
than the Preliminary Prospectus and the Prospectus, neither the Company nor
the
Investment Advisor has provided or prepared any marketing materials in
connection with the offering and sale of the MMP Shares.
(aa) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Investment Adviser’s Act and the Investment Adviser’s Act Rules
and Regulations.
(bb) Except
as disclosed in the Registration Statement and the Prospectus (or any amendment
or supplement to either of them), no director of the Company is an “interested
person” (as defined in the 0000 Xxx) of the Company or an “affiliated person”
(as defined in the 0000 Xxx) of the Underwriters.
Section
2. Representations, Warranties and Agreements of the Investment
Adviser. The Investment Adviser represents, warrants and agrees
that:
(a) The
Investment Adviser has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
is
duly qualified to do business and is in good standing in each jurisdiction
in
which its ownership or lease of property or the conduct of its business as
described in the Registration Statement and the Prospectus (and any amendment
or
supplement to either) requires such qualification (except where the failure
to
so qualify or to be in good standing would not reasonably be expected to
have a
Material Adverse Effect), and has the power and authority to own or hold
its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to
either).
(b) The
Investment Adviser is duly registered as an investment adviser under the
Investment Adviser’s Act and there does not exist any proceeding or any facts or
circumstances the existence of which could lead to any proceeding which could
affect adversely the registration or good standing of the Investment Adviser
with the Commission. The Investment Adviser is not prohibited by the Investment
Adviser’s Act, the 1940 Act, the Investment Adviser’s Act Rules and Regulations
or the 1940 Act Rules and Regulations from acting under the Advisory Agreement
as contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute valid and legally
binding agreements of the Investment Adviser, enforceable against the Investment
Adviser in accordance with their terms, except as rights to indemnity and
contribution
7
hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Investment Adviser’s obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors’
rights generally and by general equitable principles.
(d) None
of the execution, delivery and performance of this Agreement, the performance
of
the Advisory Agreement or the consummation of the transactions contemplated
hereby and thereby (i) conflict with, result in the creation or imposition
of
any lien, charge or encumbrance upon the assets of the Company under the
terms
or provisions of, or result in a breach or violation of any of the terms
or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Investment
Adviser is a party or by which the Investment Adviser is bound or to which
any
of the property or assets of the Investment Adviser is subject, (ii) result
in
any violation of the provisions of the limited liability company operating
agreement or other organizational documents of the Investment Adviser or
(iii)
result in the violation of any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Investment
Adviser or any of its properties or assets, except in the case of clauses
(i)
and (iii), such conflicts, breaches or violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect; and except
for the
registration of the MMP Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with
the purchase and distribution of the MMP Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such
court or governmental agency or body is required for the execution, delivery
and
performance of this Agreement by the Investment Adviser, the performance
of the
Advisory Agreement by the Investment Adviser or the consummation of the
transactions contemplated hereby and thereby.
(e) The
Investment Adviser has the financial resources available to it necessary
for the
performance of its services and obligations as contemplated in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) and
under
this Agreement and the Advisory Agreement.
(f) The
Investment Adviser carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its businesses and
the
value of its property and as is customary for companies engaged in similar
businesses in similar industries.
(g) As
of the date hereof, the description of the Investment Adviser and its business
in the Registration Statement and the Prospectus (and any amendment or
supplement to either) conformed as of the date hereof and as of the Delivery
Date (as defined herein) will conform in all material respects with the
provisions of the Securities Act, the 1940 Act, and the Rules and Regulations
and such description did not as of the date hereof and will not as of the
Delivery Date (as defined herein) contain an untrue
8
statement
of a material fact necessary to make the statements therein (in the case
of a
prospectus, in light of the circumstances under which they were made) not
misleading.
(h) There
are no legal or governmental proceedings pending to which the Investment
Adviser
is a party or of which any property or assets of the Investment Adviser is
the
subject which is reasonably likely to be determined adversely to the Investment
Adviser and, if determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse Effect; and to the best of the
Investment Adviser’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) Since
the date as of which information is given in the Registration Statement and
the
Prospectus through the date hereof, and except as may otherwise be disclosed
in
the Prospectus, there have been no transactions entered into by the Investment
Adviser which are material to the Investment Adviser other than in the ordinary
course of its business.
(j) This
Agreement and the Advisory Agreement comply in all material respects with
all
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations,
the
Investment Adviser’s Act and the Investment Adviser’s Act Rules and
Regulations.
(k) Except
as stated in this Agreement and in the Prospectus (and any amendment or
supplement thereto), the Investment Adviser has not taken and shall not take,
directly or indirectly, any action designed to cause or result in, or which
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the MMP Shares to facilitate
the
sale or resale of the MMP Shares.
(l) The
Investment Adviser is not (i) in violation of its limited liability company
operating agreement or other organizational documents, (ii) in default in
any
material respect, and no event has occurred which, with notice or lapse of
time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage,
deed of
trust, loan agreement or other agreement or instrument to which it is a party
or
by which it is bound or to which any of its properties or assets is subject
or
(iii) in violation of any law, ordinance, governmental rule, regulation or
court
decree to which it or its property or assets may be subject or has failed
to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except, in the case of clauses (ii) and
(iii), such defaults, events, violations or failures that in the aggregate
would
not reasonably be expected to have a Material Adverse Effect.
(m) Neither
the Investment Adviser, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Investment Adviser, has
(i)
used any funds of the Company or the Investment Adviser for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any direct or indirect unlawful payment to
any
foreign or domestic government
9
official
or employee from any funds of the Company or the Investment Adviser, (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(n) Neither
the Investment Advisor nor any employee or agent of the Investment Adviser
has
made any payment of funds of the Company or the Investment Adviser or received
or retained any funds, which payment, receipt or retention of funds is of
a
character required to be disclosed in the Prospectus or the Registration
Statement, which is not so disclosed.
(o) There
are no contracts, agreements or understandings between the Investment Adviser
and any person that would give rise to a valid claim against the Company
or the
Underwriters for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
Section
3. Purchase of the MMP Shares by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms
and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the
number
of MMP Shares set forth opposite such Underwriter’s name on Schedule I hereto.
The
price
that the Underwriters shall pay for the MMP Shares shall be $_______ per
share
($25,000 liquidation preference per share less an underwriting fee of $____
per
share).
The
Company shall not be obligated to deliver any of the MMP Shares on the Delivery
Date (as hereinafter defined), except upon payment for all the MMP Shares
to be
purchased on the Delivery Date as provided herein.
Section
4. Offering of MMP Shares by the Underwriters. The Underwriters
propose to offer the MMP Shares for sale upon the terms and conditions set
forth
in the Prospectus.
Section
5. Delivery of and Payment for the MMP Shares. Delivery of and
payment for the MMP Shares shall be made at the offices of Xxxxxxxx &
Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through
the facilities of the Depository Trust Company or another mutually agreeable
facility, at 10:00 A.M., New York City time, on _____, ____ or at such other
date or place as shall be determined by agreement between the Underwriters
and
the Company (the “Delivery Date”). On the Delivery Date, the Company shall
deliver or cause to be delivered the MMP Shares to the Underwriters through
the
facilities of the Depository Trust Company against payment to or upon the
order
of the Company of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of
the Underwriters hereunder.
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Section
6. Further Agreements of the Company and the Investment Adviser. The
Company and the Investment Adviser covenant and agree that:
(a) If,
at the time this Agreement is executed and delivered, it is necessary for
the
Registration Statement or a post-effective amendment thereto to become effective
under the Securities Act before the offering of the MMP Shares may commence,
to
use its reasonable best efforts to cause the Registration Statement or such
post-effective amendment to become effective under the Securities Act as
soon as
possible; if the Registration Statement has become effective and the Prospectus
contained therein omits certain information at the time of effectiveness
pursuant to Rule 430A of the 1933 Act Rules and Regulations, to file a
Prospectus with the Commission pursuant to Rule 497(h) of the 1933 Act Rules
and
Regulations as promptly as possible, not later than the Commission’s close of
business on the second business day following the execution and delivery
of this
Agreement; if the Registration Statement does not so omit such information,
the
Company will file a Prospectus pursuant to Rule 497(c) or (h) of the 1933
Act
Rules and Regulations as promptly as possible, not later than the fifth business
day following the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
except as permitted herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or becomes effective or any supplement to
the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly after
it
receives notice thereof, of the issuance by the Commission of any stop order
or
of any order preventing or suspending the use of any Preliminary Prospectus
or
the Prospectus, of the suspension of the qualification of the MMP Shares
for
offering or sale in any jurisdiction, of the initiation or threatening of
any
proceeding for any such purpose, or of any request by the Commission for
the
amending or supplementing of the Registration Statement or the Prospectus
or for
additional information; and, in the event of the issuance of any stop order
or
of any order preventing or suspending the use of any Preliminary Prospectus
or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To
deliver promptly to the Underwriters such number of the following documents
as
it shall reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in each
case
excluding exhibits) and (ii) each Preliminary Prospectus, the Prospectus
and any
amended or supplemented Prospectus; and, if the delivery of a prospectus
is
required at any time after the Effective Time in connection with the offering
or
sale of the MMP Shares or any other securities relating thereto and if at
such
time any events shall have occurred as a result of which the Prospectus as
then
amended or supplemented would include an untrue statement of a material fact
or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall
be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Underwriters and, upon their request, to file
such
document and to prepare and furnish without charge to the Underwriters and
to
any dealer in securities as many copies as the Underwriters may
11
from
time
to time reasonably request of an amended or supplemented Prospectus which
will
correct such statement or omission or effect such compliance;
(c) To
file promptly with the Commission any amendment to the Registration Statement
or
the Prospectus or any supplement to the Prospectus that may, in the judgment
of
the Company or the Underwriters, be required by the Securities Act or requested
by the Commission;
(d) Prior
to filing with the Commission any amendment to the Registration Statement
or
supplement to the Prospectus or any Prospectus pursuant to Rule 497 of the
1933
Act Rules and Regulations, to furnish a copy thereof to the Underwriters
and
their counsel and obtain the consent of the Underwriters to the filing, which
consent shall not be unreasonably withheld;
(e) To
make generally available to the Company’s security holders and to deliver to the
Underwriters an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158) covering a twelve-month
period commencing after the Effective Date and ending not later than 15 months
thereafter;
(f) For
a period of three years following the Effective Date, to furnish to the
Underwriters, to the extent such information is not freely available on the
Internet, copies of all materials furnished by the Company to its shareholders
and all public reports and all reports and financial statements furnished
by the
Company to the Commission pursuant to the Exchange Act or any rule or regulation
of the Commission thereunder;
(g) Promptly
from time to time, to take such action as the Underwriters may reasonably
request to qualify the MMP Shares for offering and sale under the securities
laws of such jurisdictions as the Underwriters may request and to comply
with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
the MMP Shares; provided that in connection therewith the Company shall not
be
required to qualify as a foreign corporation or to file a general consent
to
service of process in any jurisdiction;
(h) For
a period of 180 days from the date of the Prospectus, not to, without the
prior
written consent of the Underwriters, directly or indirectly, (1) offer for
sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition
by any
person at any time in the future of) any MMP Shares or securities convertible
into or exchangeable for MMP Shares, or sell or grant options, rights or
warrants with respect to any MMP Shares or securities convertible into or
exchangeable for MMP Shares, or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such MMP Shares, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of MMP
Shares
or other securities, in cash or otherwise; and
12
(i) To
apply the net proceeds from the sale of the MMP Shares in a manner consistent
with the investment objectives, policies and restrictions of the Company
as set
forth in the Prospectus.
Section
7. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the MMP Shares and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act and the 1940 Act of the
Registration Statement, the Prospectus, and the 1940 Act Notification and
any
amendments or supplements and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto
and
any post-effective amendments thereof (including, in each case, exhibits),
any
Preliminary Prospectus, the Prospectus and any amendment or supplement to
the
Prospectus, all as provided in this Agreement; (d) the costs of producing
and
distributing this Agreement, and any other related documents in connection
with
the offering, purchase, sale and delivery of the MMP Shares; (e) the
preparation, issuance and delivery of the certificates for the MMP Shares,
if
any, to the Underwriters, including any stock or other transfer taxes and
any
stamp or other duties payable upon the sale, issuance or delivery of the
MMP
Shares to the Underwriters, (f) any applicable listing or other fees including
the fees paid to the rating agencies in connection with the rating of the
MMP
Shares; (g) the fees and expenses of qualifying the MMP Shares under the
securities laws of the several jurisdictions as provided in Section 6(g)
and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) all costs and reasonable
expenses of the Underwriters, other than the fees and disbursements of counsel
to the Underwriters; (i) the fees and expenses of the Company’s accountants and
the fees and expenses of counsel for the Company, of the transfer agent and
the
auction agent as set forth in the Auction Agency Agreement; and (j) all other
costs and reasonable expenses incident to the performance of the obligations
of
the Company under this Agreement.
Section
8. Conditions of Underwriters’ Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Investment Adviser contained herein, to the performance by the Company and
the
Investment Adviser of their respective obligations hereunder, and to each
of the
following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance
with
Section 6(a); no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that
purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(b) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Auction Agency Agreement, the MMP
Shares, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably
13
satisfactory
in all material respects to counsel for the Underwriters, and the Company
shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) The
Company shall have furnished to the Underwriters, in form and substance
reasonably satisfactory to the Underwriters, the written opinion of Vedder,
Price, Xxxxxxx & Kammholz, P.C., dated the Delivery Date, to the effect of
paragraphs (i) through (xv) below:
(i) The
Company is a corporation duly incorporated and existing under and by virtue
of
the laws of the State of Maryland and is in good standing with the Department
of
Assessments and Taxation of Maryland;
(ii) The
Company has the corporate power to own, lease and operate its property or
assets
and to conduct its business in all material respects as described in the
Registration Statement and the Prospectus under the caption “The Company.”
(iii) The
authorized stock of the Company conforms as to legal matters in all material
respects to the description thereof in the Prospectus under the captions
“Description of Money Market Cumulative Preferred Shares” and “Description of
Common Stock”. The MMP Shares being delivered on the Delivery Date to the
Underwriters hereunder have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly issued, fully
paid and non assessable;
(iv) The
MMP Shares conform in all material respects to the statements concerning
them
contained in the Prospectus and there are no restrictions upon the voting
or
transfer of any of the MMP Shares pursuant to the Company’s Articles or by-laws
or any Material Contract (as defined below); except for the restrictions
on
transfer on the MMP Shares contained in the Auction Agency
Agreement;
(v) To
such counsel’s knowledge, the Company is not (i) in violation of its Articles or
by-laws, (ii) in default, and no event has occurred which, with notice or
lapse
of time or both, would constitute such a default, in the due performance
or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement listed on Schedule
I
to such counsel’s opinion (each a “Material Contract”) or (iii) in violation of
any law, ordinance, governmental rule, regulation or court decree to which
it or
its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or
permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clauses (ii) and (iii), such defaults, events,
violations or failures that in the aggregate would not reasonably be expected
to
have a Material Adverse Effect;
14
(vi) To
such counsel’s knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company is
a party
or of which any property or assets of the Company is the subject which is
reasonably likely to be determined adversely to the Company and, if determined
adversely to the Company, would be reasonably likely to have a Material Adverse
Effect; and, to the best of such counsel’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(vii) The
Registration Statement was declared effective under the Securities Act as
of the
date and time specified in such opinion, the Prospectus was filed with the
Commission pursuant to Rule 497 of the 1933 Act Rules and Regulations on
the
date specified in such opinion and no stop order suspending the effectiveness
of
the Registration Statement or any part thereof has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(viii) The
Registration Statement and the Prospectus and any further amendments or
supplements thereto made by the Company prior to the Delivery Date (except
for
the financial statements and related schedules therein, as to which such
counsel
need express no opinion) comply as to form in all material respects with
the
requirements of the Securities Act, the 1940 Act and the Rules and
Regulations;
(ix) The
statements contained in the Registration Statement and the Prospectus (and
any
amendment or supplement thereto through the date of the opinion) under the
captions “The Auction” “Description of Money Market Cumulative Preferred Shares”
“Description of Common Stock” and “Federal Income Tax Matters,” and the
statements contained in the Statement of Additional Information under the
caption “Additional Information Concerning the Auction” insofar as they purport
to summarize provisions of the Company’s Articles and by-laws, contracts,
agreements or other legal documents referred to therein, tax laws, legal
conclusions, doctrines or practices of the United States, constitute accurate
summaries of the terms of such documents, laws, legal conclusions, doctrines
or
practices in all material respects;
(x) To
such counsel’s knowledge, there are no contracts or other documents which are
required to be described in the Registration Statement and the Prospectus
or
filed as exhibits to the Registration Statement by the Securities Act, the
1940
Act or by the Rules and Regulations which have not been described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement;
(xi) This
Agreement and each of the Company Agreements has been duly authorized, executed
and so far as known to such counsel, delivered by the Company and each of
the
Company Agreements constitute the valid and legally binding agreements of
the
Company, and are enforceable against the
15
Company
in accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject
to the
qualification that the enforceability of the Company’s obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and by
general equitable principles;
(xii) None
of the issue and sale of the MMP Shares being delivered on the Delivery Date
by
the Company pursuant to this Agreement, the execution, delivery and performance
by the Company of this Agreement, the performance by the Company of each
of the
Company Agreements or the consummation of the transactions contemplated hereby
and thereby (i) result in the creation or imposition of any lien, charge
or
encumbrance upon the assets of the Company under the terms of provisions
of, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under any Material Contract (ii) result in any violation
of
the provisions of the Articles or by-laws of the Company or (iii) result
in the
violation of any Maryland or Federal law or regulation or any order of any
Maryland or Federal governmental authority known to such counsel, except
in the
case of clauses (i) and (iii), such breaches or violations that in the aggregate
would not reasonably be expected to have a Material Adverse Effect; and,
except
for the registration of the MMP Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may
be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the MMP Shares by the
Underwriters, no consent, approval, authorization or order of, or filing
or
registration with, any such governmental authority is required for the
execution, delivery and performance of this Agreement, the performance of
the
Company Agreements by the Company or the consummation of the transactions
contemplated hereby, except for such consents, approvals, authorizations,
orders, filings or registrations as have been obtained or made;
(xiii) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the Investment Adviser’s Act,
the 1940 Act Rules and Regulations and the Investment Adviser’s Act Rules and
Regulations;
(xiv) To
such counsel’s knowledge, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the
Company to include such securities in the securities registered pursuant
to the
Registration Statement; and
(xv) The
Company is duly registered under the 1940 Act as a closed-end, non-diversified,
management investment company and the 1940 Act Notification has been duly
filed
with the Commission, and, at the time of filing thereof and at the time of
filing any amendment or supplement thereto, complied as to form in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act
Rules
and Regulations and, to the best of such counsel’s
16
knowledge
after reasonable inquiry, the Company has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940
Act
Notification or the Registration Statement (or any amendment or supplement
to
either of them).
In
rendering such opinions, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America and
the
laws of the State of Maryland. To the extent such counsel deems proper and
to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of the State of Maryland upon the opinion
of
Xxxxxxx LLP or other counsel of good standing whom such counsel believes
to be
reliable and who are satisfactory to the Underwriters; provided that (x)
such
reliance is expressly authorized by the opinion so relied upon and a copy
of
each such opinion is delivered to the Underwriters and is, in form and
substance, satisfactory to the Underwriters and their counsel and (y) such
counsel states in their opinion that they believe that they and the Underwriters
are justified in relying thereon.
Such
counsel shall also state that it has participated in conferences with officers
and employees of the Company and the Investment Adviser, representatives
of the
independent auditors for the Company, Maryland counsel to the Company, the
Underwriters and counsel for the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except to the
limited
extent otherwise covered by paragraphs (iii), (iv) and (ix) hereof and have
made
no independent check or verification thereof, on the basis of the foregoing,
no
facts have come to such counsel's attention that would have led such counsel
to
believe that (a) the Registration Statement (except the financial statements
and
other financial and statistical data contained therein, as to which such
counsel
expresses no opinion), at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact required
to
be stated therein or necessary to make the statements contained therein not
misleading or (b) the Prospectus (except the financial statements and other
financial and statistical data contained therein, as to which such counsel
expresses no opinion), as of its issue date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits
to state a material fact required to be stated therein or necessary to make
the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(d) Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx LLP, counsel to the Investment Adviser, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The
Investment Adviser has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
is
duly qualified to do business and is in good standing in each jurisdiction
in
which its ownership or lease of property or the conduct of its
17
business
as described in the Registration Statement and the Prospectus (and any amendment
or supplement to either) requires such qualification, except where the failure
to so qualify or to be in good standing would not reasonably be expected
to have
a Material Adverse Effect, and has the power and authority to own or hold
its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to
either);
(ii) The
Investment Adviser is duly registered as an investment adviser under the
Investment Adviser’s Act and is not prohibited by the Investment Adviser’s Act,
the 1940 Act, the Investment Adviser’s Act Rules and Regulations or the 1940 Act
Rules and Regulations from acting under the Advisory Agreement as contemplated
by the Registration Statement and the Prospectus (or any amendment or supplement
thereto);
(iii) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute the valid and legally
binding agreements of the Investment Adviser, and, with respect to this
Agreement is enforceable against the Investment Adviser in accordance with
its
terms, except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification that
the
enforceability of the Investment Adviser’s obligations hereunder may be limited
by bankruptcy, insolvency, reorganization, moratorium and other laws relating
to
or affecting creditors’ rights generally and by general equitable
principles;
(iv) None
of the execution, delivery and performance of this Agreement by the Investment
Adviser, the performance of the Advisory Agreement or the consummation of
the
transactions contemplated hereby and thereby (i) conflict with, result in
the
creation or imposition of any lien, charge or encumbrance upon the assets
of the
Investment Adviser under the terms or provisions of, or result in a breach
or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or
instrument known to such counsel to which the Investment Adviser is a party
or
by which the Investment Adviser is bound or to which any of the property
or
assets of the Investment Adviser is subject, (ii) result in any violation
of the
provisions of the limited liability company operating agreement or other
organizational documents of the Investment Adviser or (iii) result in any
violation of any statute known to such counsel or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Investment Adviser or any of its properties or assets,
except in the case of clauses (i) and (iii), such conflicts, breaches and
violations that in the aggregate would not reasonably be expected to have
a
Material Adverse Effect; and except for the registration of the MMP Shares
under
the Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and applicable
state
securities laws in connection with the purchase and distribution of the MMP
Shares by the Underwriters, no consent, approval, authorization or order
of, or
18
filing
or
registration with, any such court or governmental agency or body is required
for
the execution, delivery and performance of this Agreement, the performance
of
the Advisory Agreement or the consummation of the transactions contemplated
hereby and thereby;
(v) To
such counsel’s knowledge, the Investment Adviser is not (i) in violation of its
limited liability company operating agreement or other organizational documents,
(ii) in default, and no event has occurred which, with notice or lapse of
time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage,
deed of
trust, loan agreement or other agreement or instrument to which it is a party
or
by which it is bound or to which any of its properties or assets is subject
or
(iii) in violation of any law, ordinance, governmental rule, regulation or
court
decree to which it or its property or assets may be subject or has failed
to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of clauses (ii) and
(iii),
such defaults, events, violations or failures that in the aggregate would
not
reasonably be expected to have a Material Adverse Effect;
(vi) To
such counsel’s knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Investment
Adviser
is a party or of which any property or assets of the Investment Adviser is
the
subject which is reasonably likely to be determined adversely to the Investment
Adviser and, if determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse Effect; and, to such counsel’s
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
(vii) The
description of the Investment Adviser and its business in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) complied
and comply in all material respects with the requirements of the Securities
Act,
the 1940 Act, the Investment Adviser’s Act, the Rules and Regulations and the
Investment Adviser’s Act Rules and Regulations.
In
rendering such opinion, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America, the
General Corporation Law of the State of Delaware, and the laws of the State
of
Kansas.
(e) The
Underwriters shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel to
the Underwriters, such opinion or opinions, dated the Delivery Date, with
respect to the issuance and sale of the MMP Shares, the Registration Statement,
the Prospectus and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such documents
as
they reasonably request for the purpose of enabling them to pass upon such
matters.
19
(f) At
the time of execution of this Agreement, the Underwriters shall have received
from Ernst & Young LLP a letter or letters, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated
the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of
Regulation S-X of the Securities Act and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the
Prospectus, as of a date not more than five days prior to the date hereof),
the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with registered public offerings.
(g) With
respect to the letter or letters of Ernst & Young LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the
execution of this Agreement (the “Initial Letter”), the Company shall have
furnished to the Underwriters a letter (the “Bring-Down Letter”) of such
accountants, addressed to the Underwriters and dated the Delivery Date (i)
confirming that they are independent public accountants within the meaning
of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Securities Act, (ii) stating, as of the date of the Bring-Down Letter
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the
Prospectus, as of a date not more than five days prior to the date of the
Bring-Down Letter), the conclusions and findings of such firm with respect
to
the financial information and other matters covered by the Initial Letter
and
(iii) confirming in all material respects the conclusions and findings set
forth
in the Initial Letter.
(h) The
Company shall have furnished to the Underwriters on the Delivery Date a
certificate, dated the Delivery Date, of its Chairman of the Board of Directors,
its Chief Executive Officer or President and its Chief Financial Officer
or
Treasurer or an Assistant Treasurer stating that:
(i) The
representations, warranties and agreements of the Company contained herein
and
in the Auction Agency Agreement are true and correct as of the date hereof
and
as of the Delivery Date; the Company has complied with all its agreements
contained herein prior to or on the Delivery Date; and the conditions set
forth
in Section 8 have been fulfilled;
(ii) Since
the respective dates as of which information is given in the Prospectus,
other
than as set forth in or contemplated by the Prospectus, (A) there has not
occurred any change or any development that might have a Material Adverse
Effect, (B) there has not been any change in the capital stock, short-term
debt
or long-term debt of the Company that might have a Material Adverse Effect,
(C)
the Company has not incurred any material liability or obligation, direct
or
contingent, (D) there has not occurred a material loss or interference with
the
Company’s business from fire, explosion, flood or other calamity, whether or not
20
covered
by insurance, or from any labor dispute or court or governmental action,
order
or decree and (E) the Company has not declared or paid any dividend on its
shares of common stock, except for dividends declared in the ordinary course
of
business, and, except as set forth in or contemplated by the Prospectus,
the
Company has not entered into any transaction (other than purchases and sales
of
portfolio transactions) or agreement (other than investment-related agreements)
material to the Company; and
(iii) They
carefully have examined the Registration Statement and the Prospectus and,
in
their opinion (and in forming such opinion each officer may rely on information
provided by the other parties to this Agreement) (A) as of the Effective
Date,
the Registration Statement did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they
were made, not misleading, (B) as of its date and the Delivery Date, the
Prospectus did not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and (C) since the Effective Date, no event
has occurred which should have been set forth in a supplement to, or amendment
of, the Prospectus which has not been set forth in such a supplement or
amendment.
(i) The
Investment Adviser shall have furnished to the Underwriters on the Delivery
Date
a certificate, dated the Delivery Date, of the Chairman of its Board of
Directors, President or a Vice President and its Chief Financial Officer,
Treasurer or an Assistant Treasurer, dated the Delivery Date, stating
that:
(i) The
representations, warranties and agreements of the Investment Adviser contained
herein are true and correct as of the date hereof and as of the Delivery
Date;
the Investment Adviser has complied with all its agreements contained herein
prior to or on the Delivery Date; and the conditions set forth in Section
8 of
have been fulfilled; and
(ii) They
have examined the Registration Statement and the Prospectus and, in their
opinion (and in forming such opinion each officer may rely on information
provided by the other parties to this Agreement) (A) as of the Effective
Date,
the Registration Statement did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they
were made, not misleading, (B) as of its date and the Delivery Date, the
Prospectus did not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and (C) since the Effective Date, no event
has occurred which should have been set forth in a supplement to, or amendment
of, the Prospectus which has not been set forth in such a supplement or
amendment.
(j) The
Company shall not have sustained since the date of the latest audited financial
statements included in the Prospectus (A) any loss or interference with
21
its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action,
order
or decree, or (B) since such date, there shall not have been any change in
the
capital stock, short-term debt or long-term debt of the Company or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, prospects, shareholders’ equity or
results of operations of the Company, otherwise than as described or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (A) or (B), is, in the judgment of the Underwriters, so material
and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the MMP Shares being delivered on the Delivery
Date
on the terms and in the manner contemplated in the Prospectus and in this
Agreement.
(k) The
Company shall have furnished to the Underwriters a report showing compliance
with the asset coverage requirements of the 1940 Act and the 1940 Act Shares
Asset Coverage (as defined in the Registration Statement), each dated the
Delivery Date and in form and substance satisfactory to the Underwriters.
Each
such report shall assume the receipt of the net proceeds from the sale of
the
MMP Shares and may use portfolio holdings and valuations as of the close
of
business of any day not more than six business days preceding the Delivery
Date,
provided, however, that the Company represents in such report that its total
net
assets as of the Delivery Date have not declined by 5% or more from such
valuation date.
(l) The
Company shall have delivered and the Underwriters shall have received evidence
satisfactory to it that the MMP Shares are rated at least “AA” by Xxxxx’x
Investors Service, Inc. and “AA” by Fitch, Inc., a division of the McGraw Hill
Companies, as of the Delivery Date, and subsequent to the execution and delivery
of this Agreement, (i) no downgrading shall have occurred in the rating accorded
the MMP Shares by any “nationally recognized statistical rating organization” as
that term is defined by the Commission for purposes of Rule 436(g)(2) of
the
1933 Act Rules and Regulations and (ii) no such organization shall have publicly
announced that is has under surveillance or review, with possible negative
implications, its rating of the MMP Shares.
(m) Neither
the Company nor the Investment Adviser shall have failed at or prior to the
Delivery Date to have performed or complied with any of the agreements contained
herein and required to be performed or complied with by them at or prior
to the
Delivery Date.
(n) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York
Stock
Exchange or the American Stock Exchange or in the over-the-counter market,
or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited
or the
settlement of such trading generally shall have been materially disrupted
or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an
22
escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on
the financial markets in the United States shall be such), including, without
limitation, as a result of terrorist activities after the date hereof, or
any
other calamity or crisis as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery
of
the MMP Shares being delivered on such Delivery Date on the terms and in
the
manner contemplated in the Prospectus.
(o) The
Underwriters shall not have discovered and disclosed to the Company on or
prior
to the Delivery Date that the Registration Statement or the Prospectus or
any
amendment or supplement thereto contains an untrue statement of a fact which,
in
the reasonable opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, is material or omits to state a fact which, in the reasonable
opinion of such counsel, is material and is required to be stated therein
or is
necessary to make the statements therein not misleading.
(p) The
Company and the Investment Adviser shall have furnished to the Underwriters
such
further certificates, documents and opinions of counsel as the Underwriters
shall reasonably request (including certificates of officers of the Company
and
the Investment Adviser).
All
opinions, letters, evidence and certificates mentioned above or elsewhere
in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel
for
the Underwriters.
Section
9. Indemnification and Contribution.
(a) The
Company and the Investment Adviser shall jointly and severally indemnify
and
hold harmless each Underwriter, its directors, officers and employees and
each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or
several, or any action in respect thereof (including, but not limited to,
any
loss, claim, damage, liability or action relating to purchases and sales
of MMP
Shares), to which such Underwriter, director, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar
as
such loss, claim, damage, liability or action arises out of, or is based
upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in the 1940 Act Notification, or (B) in any Preliminary
Prospectus, the Prospectus, the Registration Statement or in any amendment
or
supplement thereto including information deemed to be a part of the Registration
Statement pursuant to Rule 430A and/or Rule 430C of the Rules and Regulations,
if applicable, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment
or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) any act or failure
to act
or any alleged act or failure to act by such Underwriter in connection with,
or
relating in any manner to, the MMP Shares or the
23
offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that neither the Company nor
the
Investment Adviser shall be liable under Section 9(a) to the extent that it
is determined in a final judgment by a court of competent jurisdiction that
such
loss, claim, damage, liability or action resulted directly from any such
acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its willful misfeasance, bad faith, or gross negligence in the performance
of
its duties or reckless disregard of applicable obligations and duties, and
shall
reimburse such Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company nor the
Investment Adviser shall be liable in any such case to the extent that any
such
loss, claim, damage, liability or action (i) arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and
in
conformity with written information furnished to the Company or the Investment
Adviser by or on behalf of the Underwriters specifically for inclusion therein
which information consists solely of the information specified in Section
9(e);
or (ii) results solely from an untrue statement of material fact contained
in,
or the omission of a material fact from, a Preliminary Prospectus, which
untrue
statement or omission was corrected in the Prospectus (as then amended or
supplemented) if (A) an Underwriter sold MMP Shares to the person alleging
such
loss, claim, damage, liability or action without sending or giving, at or
prior
to the written confirmation of such sale, a copy of the Prospectus (as then
amended or supplemented), (B) within a reasonable amount of time prior to
such
sale or such confirmation, the Company had furnished to such Underwriter
copies
of the corrected Prospectus which, if delivered, would have cured the defect
giving rise to such loss, claim, damage, liability or action, and (C) the
Underwriter failed to deliver such corrected Prospectus. The foregoing indemnity
agreement is in addition to any liability which the Company or the Investment
Adviser may otherwise have to any Underwriter or to any director, officer,
employee or controlling person of that Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless
the
Company, its officers and employees, each of its directors, and each person,
if
any, who controls the Company within the meaning of the Securities Act, from
and
against any loss, claim, damage or liability, joint or several, or any action
in
respect thereof, to which the Company or any such director, officer, employee
or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement
or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission
or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged
24
untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of
the Underwriters specifically for inclusion therein, which information is
limited to the information set forth in Section 9(e), and shall reimburse
the
Company and any such director, officer, employee or controlling person for
any
legal or other expenses reasonably incurred by the Company or any such director,
officer, employee or controlling person in connection with investigating
or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement
is in
addition to any liability which the Underwriters may otherwise have to the
Company or any such director, officer, employee or controlling
person.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of any
claim or the commencement of any action, the indemnified party shall, if
a claim
in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify
the
indemnifying party shall not relieve it from any liability which it may have
under this Section 9 except to the extent it has been materially prejudiced
by
such failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 9. If any such claim
or
action shall be brought against an indemnified party, and it shall notify
the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however,
that
the indemnified party shall have the right to employ separate counsel to
represent the indemnified party, and its respective directors, officers,
employees and controlling persons who may be subject to liability arising
out of
any claim in respect of which indemnity may be sought under this Section
9 if,
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both an indemnified party (and/or its officers,
employees, directors and each person who controls the indemnified party within
the meaning of the Securities Act) and the indemnifying party and the
indemnified party shall have been advised by its counsel that representation
of
both the indemnified party (and/or its officers, employees, directors and
each
person who controls the indemnified party within the meaning of the Securities
Act) and the indemnifying party would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the
same counsel has been proposed) and in the reasonable judgment of the
indemnified party, it is advisable for the indemnified party and its directors,
officers, employees and controlling persons to be jointly represented by
separate counsel, then in that event the fees and expenses of one such separate
counsel shall be paid by the Company or the Investment Adviser. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
25
compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without
its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment.
(d) If
the indemnification provided for in this Section 9 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b) in respect of any loss, claim, damage or liability,
or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion
as
shall be appropriate to reflect the relative benefits received by the Company
and the Investment Adviser (treated jointly as one person for this purpose)
on
the one hand and the Underwriters on the other from the offering of the MMP
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative fault
of
the Company and the Investment Adviser (treated jointly as one person for
this
purpose) on the one hand and the Underwriters on the other with respect to
the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Investment
Adviser (treated jointly as one person for this purpose) on the one hand
and the
Underwriters on the other with respect to such offering shall be deemed to
be in
the same proportion as the total net proceeds from the offering of the MMP
Shares purchased under this Agreement (before deducting expenses) received
by
the Company, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the MMP Shares
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the MMP Shares under this Agreement, in each
case
as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Investment Adviser,
on one hand, or the Underwriters, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Investment Adviser
and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation or
by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this
26
Section
9(d), any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), the Underwriters shall
not
be required to contribute any amount in excess of the amount by which the
total
price at which the MMP 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 paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation.
(e) The
Underwriters severally confirm and the Company and the Investment Adviser
acknowledge that the statements set forth in the last sentence on the front
cover page, its name and paragraphs four, six, seven and eight under the
section
“Underwriting,” in the Prospectus are correct and constitute the only
information concerning the Underwriters furnished in writing to the Company
specifically for inclusion in the Registration Statement and the
Prospectus.
Section
10. Defaulting Underwriters. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase
the MMP
Shares which the defaulting Underwriter agreed but failed to purchase on
the
Delivery Date in the respective proportions which the number of MMP Shares
set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of MMP Shares set forth opposite the names
of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any number of the MMP Shares on the Delivery Date if the number
of
MMP Shares which the defaulting Underwriter or Underwriters agreed but failed
to
purchase on such date exceeds 9.09% of the number of MMP Shares to be purchased
on the Delivery Date, and any remaining non-defaulting Underwriter shall
not be
obligated to purchase more than 110% of the number of MMP Shares which it
agreed
to purchase on the Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, the total number of MMP Shares
to
be purchased on such Delivery Date. If the remaining Underwriters do not
elect
to purchase the MMP Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Delivery Date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter
or the
Company, except that the Company will continue to be liable for the payment
of
expenses to the extent set forth in Sections 7 and 12. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1
hereto
who, pursuant to this Section 10, purchases MMP Shares which a defaulting
Underwriter agreed but failed to purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability
it may
have to the Company for damages caused by its default. If other Underwriters
are
27
obligated
or agree to purchase the MMP Shares of a defaulting or withdrawing Underwriter,
either the non-defaulting Underwriters or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that
in
the opinion of counsel for the Company or counsel for the Underwriters may
be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
Section
11. Termination. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the
Company
prior to delivery of and payment for the MMP Shares if, prior to that time,
any
of the events described in Sections 8(j) or 8(n), shall have occurred or
if the
Underwriters shall decline to purchase the MMP Shares for any reason permitted
under this Agreement.
Section
12. Reimbursement of Underwriters’ Expenses. If (a) the Company
shall fail to tender the MMP Shares for delivery to the Underwriters by reason
of any failure, refusal or inability on the part of the Company to perform
any
agreement on its part to be performed, or because any other condition of
the
Underwriters’ obligations hereunder required to be fulfilled by the Company is
not fulfilled or (b) the Underwriters decline to purchase the MMP Shares
because
of a failure by the Company or the Investment Adviser to perform their
respective obligations under this Agreement, the Company shall reimburse
the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with
this
Agreement and the proposed purchase of the MMP Shares, and upon demand the
Company shall pay the full amount thereof to the Underwriters.
Section
13. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to __________________________________________ and with a copy
to
Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx, Esq. (Fax: 000-000-0000; Telephone
000-000-0000);
(b) if
to the Company, shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Xxxxx Xxxxxxx (Fax: 000-000-0000); with a copy to Vedder,
Price, Xxxxxxx & Kammholz, P.C., 000 X. XxXxxxx Xxxxxx ,Xxxxxxx, XX 00000;
Attention: Xxxxxxx Xxxxxxxx Xxxxx (Fax: 000-000-0000; Telephone 000-000-0000);
and
(c) if
to the Investment Adviser, shall be delivered or sent by mail, telex or
facsimile transmission to Tortoise Capital Advisors, LLC, 00000 Xxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxx, with a copy
to
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, 000 Xxxxx Xxxxxx , Xx. Xxxxx, XX 00000;
Attention: Xxxx X. Short, Esq. (Fax: 000-000-0000; Telephone 000-000-0000).
Any
such
statements, requests, notices or agreements shall take effect at the time
of
receipt thereof. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the
Underwriters.
28
Section
14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company,
the
Investment Adviser, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements
of
the Company and the Investment Adviser contained in this Agreement shall
also be
deemed to be for the benefit of the directors, officers and the person or
persons, if any, who control the Underwriters within the meaning of Section
15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 9(b) of this Agreement shall be deemed to be for the
benefit of the Board of Directors of the Company, officers and employees
of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing
in
this Agreement is intended or shall be construed to give any person, other
than
the persons referred to in this Section 13, any legal or equitable right,
remedy
or claim under or in respect of this Agreement or any provision contained
herein.
Section
15. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the MMP Shares and
shall remain in full force and effect, regardless of any investigation made
by
or on behalf of any of them or any person controlling any of them.
Section
16. Definition of the Term “Business Day”. For purposes of this
Agreement, “business day” means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to
close.
Section
17. Trademarks. Xxxxxx Brothers Inc. hereby licenses the Company, on
a non-exclusive basis, to use its trademarks “Money Market Cumulative Preferred”
and “MMP” in connection with the MMP Shares. The Company agrees that, other that
in connection with and in reference to the MMP Shares, it will make no use
of
such trademarks without the prior written consent of Xxxxxx Brothers Inc..
The
provisions of this Section 16 shall survive the delivery of the MMP Shares
and
shall remain in full force and effect.
Section
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
Section
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or
interpretation of, this Agreement.
29
Section
21. Limitation of Liability. A copy of the Articles of the Company
is on file with the Secretary of State of the State of Maryland. This Agreement
has been executed on behalf of the Company by an officer of the Company in
such
capacity and not individually and the obligations of the Company under this
Agreement are not binding upon such officer or any of the directors or the
shareholders of the Company individually but are binding only upon the assets
and property of the Company.
Section
22. No Fiduciary Duty. The Company acknowledges and agrees that in
connection with this offering, sale of the MMP Shares or any other services
the
Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any
oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company
and
any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to
the
Company, including, without limitation, with respect to the determination
of the
public offering price of the MMP Shares, and such relationship between the
Company, on the one hand, and the Underwriters, on the other, is entirely
and
solely commercial, based on arms-length negotiations; (iii) any duties and
obligations that the Underwriters may have to the Company shall be limited
to
those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ
from
those of the Company. The Company hereby waives any claims that the Company
may
have against the Underwriters with respect to any breach of fiduciary duty
in
connection with this offering.
30
If
the
foregoing correctly sets forth the agreement among the Company, the Investment
Adviser and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very
truly yours,
|
TORTOISE
CAPITAL ADVISORS LLC
|
||
| By: |
| Name: | ||
| Title: |
Accepted:
|
By:
|
| By: |
| Name: | ||
| Authorized Representative |
31
SCHEDULE
I
|
Number
of MMP Shares
|
|
|
Total
|
32
