EXHIBIT 99.h.1
TORTOISE NORTH AMERICAN ENERGY CORPORATION
(a Maryland corporation)
____________ Shares of Common Stock
Par Value $0.001 Per Share
UNDERWRITING AGREEMENT
___________, 2005
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company, Inc.
c/o RBC Capital Markets Corporation
5700 Xxxxxxxx Tower
0000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
Tortoise North American Energy Corporation, a Maryland corporation (the
"Fund"), and the Fund's investment adviser, Tortoise Capital Advisors, LLC, a
Delaware limited liability company (the "Adviser"), each confirms its agreement
with RBC Capital Markets Corporation ("RBC") and Xxxxxx, Xxxxxxxx & Company,
Inc. ("Xxxxxx Xxxxxxxx") and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters"), for whom RBC and Xxxxxx Xxxxxxxx are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Fund and the purchase by the Underwriters,
acting severally and not jointly, of the respective number of shares of
beneficial interest, par value $0.001 per share, of the Fund ("Common Shares")
set forth in Schedule A hereof (collectively, the "Primary Shares"), and with
respect to the grant by the Fund to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of _________ additional Common Shares to cover over-allotments, if any (the
"Option Shares"). The Primary Shares and Option Shares are collectively referred
to as the "Shares."
The Fund understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (File Nos. 333-122022 and
811-21700) covering the registration of the Shares under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary prospectus
or prospectuses, and a notification on Form N-8A of registration of the Fund as
an investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and the rules and regulations of the Commission under the 1933 Act
and the 1940 Act (the "Rules and Regulations"). Promptly after execution and
delivery of this Agreement, the Fund will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") and
paragraph (c) or (h) of Rule 497 ("Rule 497") of the Rules and Regulations or
(ii) if the Fund has elected to rely upon Rule 434 ("Rule 434") of the Rules and
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
the
provisions of Rule 434 and Rule 497. The information included in any such
prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective, if applicable, (a) pursuant to paragraph (b) of
Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, including in each case any statement of additional
information incorporated therein by reference, is herein called a "Preliminary
Prospectus." Such registration statement, including the exhibits and schedules
thereto at the time it became effective and including the Rule 430A Information
or the Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and the term "Registration Statement" shall include any Rule 462(b)
Registration Statement that shall have been filed. The final prospectus in the
form first furnished to the Underwriters for use in connection with the offering
of the Shares, including the statement of additional information incorporated
therein by reference, is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations And Warranties By The Fund And The Adviser. The Fund
and the Adviser represent and warrant to each Underwriter as of the date hereof,
as of the Closing Time referred to in Section 2(c) hereof, and as of each Date
of Delivery (if any) referred to in Section 2(b) hereof, and agree with each
Underwriter, as follows:
(i) Compliance With Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act, or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act, and no proceedings for any such
purpose, have been instituted or are pending or, to the knowledge of the Fund or
the Adviser, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto (filed before
the Closing Time) became
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effective and at the Closing Time, as hereinafter defined (and, if any Option
Shares are purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement, the notification of Form N-8A and all
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus nor any
amendment or supplement thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any Option
Shares are purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Fund will comply with the requirements of Rule 434 and the Prospectus shall
not be "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Fund by or
on behalf of any Underwriter for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 497 under the 1933 Act, complied when so filed in all
material respects with the Rules and Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with the
offering and sale of the Shares, the Fund has complied or will comply with the
requirements of Rule 111 under the 1933 Act Rules and Regulations relating to
the payment of filing fees thereof.
(ii) Independent Accountants. The accountants who certified the
statement of assets and liabilities included in the Registration Statement have
confirmed to the Fund their status as independent public accountants as required
by the 1933 Act and the Rules and Regulations and the Fund and the Adviser have
no reason to believe that they are not independent public accountants.
(iii) Financial Statements. The statement of assets and liabilities
included in the Registration Statement and the Prospectus, together with the
related notes, presents fairly in accordance with generally accepted accounting
principals ("GAAP") in all material respects the financial position of the Fund
at the date indicated and has been prepared in conformity in all material
respects with GAAP.
(iv) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Fund, whether or not arising in the
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ordinary course of business (other than as a result of changes in market
conditions generally) (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Fund, other than those in the ordinary course
of business, which are material with respect to the Fund, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the Fund on
any class of its capital stock.
(v) Good Standing Of The Fund. The Fund has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Maryland and has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Fund is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(vi) No Subsidiaries. The Fund has no subsidiaries.
(vii) Investment Company Status. The Fund is duly registered with the
Commission under the 1940 Act as a nondiversified, closed-end management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the Fund's
knowledge, threatened by the Commission.
(viii) Officers And Directors. No person is serving or acting as an
officer, director or investment adviser of the Fund except in accordance with
the provisions of the 1940 Act and the Rules and Regulations and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and the rules and
regulations of the Commission promulgated under the Advisers Act (the "Advisers
Act Rules and Regulations"). Except as disclosed in the Registration Statement
or Prospectus, to the Fund's knowledge after due inquiry, no director of the
Fund is an "Interested Person" (as defined in the 0000 Xxx) of the Fund or an
"Affiliated Person" (as defined in the 0000 Xxx) of any Underwriter that serves
as a Representative.
(ix) Capitalization. The authorized, issued and outstanding capital
stock of the Fund is as set forth in the Prospectus as of the date thereof under
the caption "Description of Capital Stock." All issued and outstanding Common
Shares of the Fund have been duly authorized and validly issued and are fully
paid and non-assessable, and have been offered and sold or exchanged by the Fund
in compliance with all applicable laws (including, without limitation, federal
and state securities laws). None of the outstanding Common Shares of the Fund
was issued in violation of the preemptive or other similar rights of any
securityholder of the Fund. No shares of preferred stock of the Fund have been
designated, offered, sold or issued and none of such shares of preferred stock
are currently outstanding, and the Fund has no present intention to do so.
(x) Authorization And Description Of Shares. The Shares to be
purchased by the Underwriters from the Fund have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Fund pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued, fully paid and
non-assessable. The Common Shares conform to all statements relating thereto
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contained in the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the same; and the
issuance of the Shares is not subject to the preemptive or other similar rights
of any securityholder of the Fund.
(xi) Absence Of Defaults And Conflicts. The Fund is not (i) in
violation of its charter, bylaws or other organizational documents, or (ii) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound, or to which any of the property
or assets of the Fund is subject (collectively, "Agreements and Instruments")
except, in the case of clause (ii), for defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock
Transfer Agency Agreement, the Fund Administration Servicing Agreement and the
Fund Accounting Servicing Agreement referred to in the Registration Statement
(as used herein, individually the "Investment Advisory Agreement," the "Custody
Agreement," the "Stock Transfer Agency Agreement," the "Fund Administration
Servicing Agreement," and the "Fund Accounting Servicing Agreement,"
respectively, and collectively the "Offering Agreements") and the consummation
of the transactions contemplated in the Offering Agreements and in the
Registration Statement (including the issuance and sale of the Shares and the
use of the proceeds from the sale of the Shares as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Fund with its
obligations thereunder have been duly authorized by all necessary corporate
action (including all necessary corporate action required pursuant to the 1940
Act and the Rules and Regulations thereunder) and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to, the Agreements
and Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the charter or
by-laws of the Fund or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Fund or any of its assets,
properties or operations (except for such violations that would not result in a
Material Adverse Effect). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Fund.
(xii) Absence Of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Fund or
the Adviser, threatened, against or affecting the Fund, which is required to be
disclosed in the Registration Statement (other than as disclosed therein), or
which could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect the
properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of its obligations
hereunder. The aggregate of all pending legal or governmental proceedings to
which the Fund is a party or of which any of its property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine
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litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiii) Accuracy Of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits thereto by the 1933 Act, the 1940 Act or by the Rules
and Regulations which have not been so described and filed as required.
(xiv) Possession Of Intellectual Property; Fund Name. The Fund owns or
possesses, or can acquire on reasonable terms, adequate licenses, copyrights,
know-how (including trade secrets or confidential information, systems or
procedures), trademarks, service marks, trade names (including the name
"Tortoise North American Energy Corporation") or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by the Fund, and the Fund has not received any notice or is not
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Fund therein.
(xv) Absence Of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Fund of its obligations hereunder, in
connection with the offering, issuance or sale of the Shares hereunder or the
consummation of the transactions contemplated by this Agreement, except such as
have been already obtained or as may be required under the 1933 Act, the 1940
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), or under
the rules of the New York Stock Exchange ("NYSE") or the NASD, Inc ("NASD") or
state securities laws.
(xvi) Possession Of Licenses And Permits. The Fund possesses such
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to operate its properties and to
conduct the business as contemplated in the Prospectus. The Fund is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect. The Fund has not received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses.
(xvii) Advertisements. Any advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker kits," "road show
slides" and "road show scripts" and "electronic road show presentations")
authorized in writing by or prepared by the Fund or the Adviser used in
connection with the public offering of the Shares (collectively, "Sales
Material") does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading. Moreover, all Sales Material complied and will comply in all
material respects with the applicable requirements of the 1933
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Act, the 1940 Act, the Rules and Regulations and the rules and interpretations
of the NASD (except that this representation and warranty does not apply to
statements in or omissions from the Sales Material made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Fund by
or on behalf of any Underwriter through you expressly for use therein).
(xviii) Distribution Of Offering Materials. The Fund has not
distributed and, prior to the later of (A) the Closing Time and (B) completion
of the distribution of the Shares, will not distribute any offering material to
the public in connection with the offering and sale of the Shares other than the
Registration Statement and the Prospectus.
(xix) Accounting Controls. The Fund maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or specific
authorization and with the applicable requirements of the 1940 Act, the Rules
and Regulations, the NASD and the Code; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets and to maintain compliance with the books and records requirements under
the 1940 Act and the Rules and Regulations; (C) access to assets is permitted
only in accordance with the management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xx) Absence Of Undisclosed Payments. Neither the Fund nor, to the
Fund's Knowledge, any employee or agent of the Fund, has made any payment of
funds or received or retained any funds, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(xxi) Material Agreements. The Offering Agreements have each been duly
authorized by all requisite action on the part of the Fund and executed and
delivered by the Fund, as of the dates noted therein, and each complies with all
applicable provisions of the 1940 Act in all material respects. Assuming due
authorization, execution and delivery by the other parties thereto with respect
to this Agreement and the other Offering Agreements, each Offering Agreement
constitutes a valid and binding agreement of the Fund, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing and except as rights to indemnification or contribution
thereunder may be limited by federal or state laws.
(xxii) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Fund under the 1933 Act.
(xxiii) NYSE Listing. The Shares have been duly authorized for
listing, upon notice of issuance, on the NYSE and the Fund's registration
statement on Form 8-A under the 1934 Act has become effective.
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(b) Representations And Warranties By The Adviser. The Adviser represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof as follows:
(i) Good Standing Of The Adviser. The Adviser has been duly organized
and is validly existing and in good standing as a limited liability company
under the laws of the State of Delaware with full power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign entity to transact business and is
in good standing in each other jurisdiction in which such qualification is
required except as would not, individually or in the aggregate, result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospectus of such Adviser, whether or
not arising in the ordinary course of business (an "Adviser Material Adverse
Effect").
(ii) Investment Adviser Status. The Adviser is duly registered and in
good standing with the Commission as an investment adviser under the Advisers
Act, and is not prohibited by the Advisers Act, the 1940 Act, or the rules and
regulations under such acts, from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus.
(iii) Description Of Adviser. The description of the Adviser in the
Registration Statement and the Prospectus (including any amendment or supplement
thereto) complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and is true and correct and does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) Capitalization. The Adviser has the financial resources available
to it necessary for the performance of its services and obligations as
contemplated in the Prospectus and in the Offering Agreements.
(v) Authorization Of Offering Agreements; Absence Of Defaults And
Conflicts. This Agreement and the Investment Advisory Agreement have each been
duly authorized, executed and delivered by the Adviser, and, assuming the due
authorization, execution and delivery of each other party thereto, each such
agreement constitutes a valid and binding obligation of the Adviser, enforceable
in accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or state
laws; and neither the execution and delivery of this Agreement or the Investment
Advisory Agreement nor the performance by the Adviser of its obligations
hereunder or thereunder will conflict with, or result in a breach of any of the
terms and provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, (i) any agreement or instrument to which
the Adviser is a party or by which it is bound, (ii) the limited liability
company operating agreement and other organizational documents of the Adviser,
or
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(iii) to the Adviser's knowledge, by any law, order, decree, rule or regulation
applicable to it of any jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or securities
association having jurisdiction over the Adviser or its properties or operations
other than any conflict, breach or default that would not, individually or in
the aggregate, reasonably be expected to result in an Adviser Material Adverse
Effect; and no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by the Adviser
of the transactions contemplated by this Agreement or the Investment Advisory
Agreement, except as have been obtained or will be obtained prior to the Closing
Time or may be required under the 1933 Act, the 1940 Act, the 1934 Act or state
securities laws.
(vi) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not occurred any event which could reasonably be expected to have a
material adverse effect on the ability of the Adviser to perform its respective
obligations under this Agreement and the Investment Advisory Agreement.
(vii) Absence Of Proceedings. Except as disclosed in the Registration
Statement, there is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Adviser, threatened against or affecting
the Adviser or any "affiliated person" of the Adviser (as such term is defined
in the 0000 Xxx) or any partners, directors, officers or employees of the
foregoing, whether or not arising in the ordinary course of business, which
could reasonably be expected to result in Adviser Material Adverse Effect or,
materially and adversely affect the ability of the Adviser to function as an
investment adviser with respect to the Fund or perform its obligations under
this Agreement or the Investment Advisory Agreement, or which is required to be
disclosed in the Registration Statement and the Prospectus.
(viii) Absence Of Violation Or Default. The Adviser is not in
violation of its limited liability company operating agreement or other
organizational documents or in default under any agreement, indenture or
instrument, except for such violations or defaults that have not and could not
result in an Adviser Material Adverse Effect.
(c) Officer's Certificates. Any certificate signed by any officer of the
Fund or the Adviser delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Fund or the
Adviser, as the case may be, to each Underwriter as to the matters covered
thereby.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Primary Shares. On the basis of the representations, warranties and
covenants contained herein and subject to the terms and conditions set forth
herein, the Fund agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Fund, at the price per share set forth in Schedule B, the number of Primary
Shares set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Primary Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Shares. In addition, on the basis of the representations and
warranties contained herein and subject to the terms and conditions set forth
herein, the Fund hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional ________________ Common Shares in the
aggregate at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Fund and payable
on the Primary Shares but not payable on the Option Shares. The option hereby
granted will expire 45 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Primary Shares upon notice by the Representatives to the Fund setting forth the
number of Option Shares as to which the several Underwriters are then exercising
the option and the time and date of payment and delivery for such Option Shares.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
the Representatives, but shall not be later than seven (7) full business days
and no earlier than three (3) full business days after the exercise of said
option, nor in any event prior to the Closing Time. If the option is exercised
as to all or any portion of the Option Shares, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Shares then being purchased which the number of Primary Shares set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Primary Shares, subject in each case to such adjustments as RBC in its
discretion shall make to eliminate any sales or purchases of a fractional number
of Option Shares plus any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Primary Shares shall be made at the offices of Xxxxxx &
Xxxxxx, L.L.P., 0000 Xxxxxx Xxxxxx, 0000 Xxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000
or at such other place as shall be agreed upon by the Representatives and the
Fund, at 9:00 A.M. (Central time) on the third business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten (10) business days after such date as shall
be agreed upon by the Representatives and the Fund (such time and date of
payment and delivery being herein called "Closing Time"). In addition, in the
event that any or all of the Option Shares are purchased by the Underwriters,
payment of the purchase price for such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Fund, on each Date of Delivery as specified in the
notice from the Representatives to the Fund.
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Payment shall be made to the Fund by wire transfer of immediately available
funds to a bank account designated by the Fund, against delivery to the
Representatives for the respective accounts of the Underwriters of the Shares to
be purchased by them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Primary Shares and the Option Shares, if
any, which it has agreed to purchase. RBC, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Primary Shares or the Option Shares, if
any, to be purchased by any Underwriter whose funds have not been received by
the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Primary Shares and
the Option Shares, if any, shall be in such denominations and registered in such
names as the Representatives may request in writing at least three (3) full
business days before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Primary Shares and the Option Shares, if
the Fund determines to issue any such certificates, will be made available for
examination and packaging by the Representatives in the City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be. The Primary Shares
and the Option Shares to be purchased hereunder shall be delivered to you at the
Closing Time or the relevant Date of Delivery, as the case may be, through the
facilities of the Depository Trust Company or another mutually agreeable
facility, against payment of the purchase price therefor in immediately
available funds to the order of the Fund.
SECTION 3. COVENANTS.
(a) The Fund and Adviser covenant with each Underwriter as follows:
(i) Compliance With Securities Regulations And Commission Requests.
The Fund, subject to Section 3(a)(ii), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives as soon as
practicable, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Fund will promptly effect the
filings necessary pursuant to Rule 497 and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 497 was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Fund will make
every reasonable effort to prevent the issuance of any stop order, or order of
suspension or revocation of registration pursuant to Section 8(e) of the 1940
Act, and, if any such stop order or order of suspension or revocation of
registration is issued, to obtain the lifting thereof at the earliest possible
moment.
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(ii) Filing Of Amendments. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus, and
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object; provided, however that this
covenant shall not apply to any post-effective amendment required by Rule 8b-16
of the 1940 Act which is filed with the Commission after the later of (x) one
year from the date of this Agreement or (y) the date on which the distribution
of the Shares is completed.
(iii) Delivery Of Registration Statement. The Fund has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment (except any post-effective amendment required by Rule 8b-16 of the
1940 Act which is filed with the Commission after the later of (x) one year from
the date of this Agreement or (y) the date on which the distribution of the
Shares is completed) thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) Delivery Of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Fund hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) Continued Compliance With Securities Laws. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Shares, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Fund, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the Rules and Regulations, the Fund will promptly prepare and
file with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the
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Registration Statement or the Prospectus comply with such requirements, and the
Fund will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify the Shares for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
provided, however, that the foregoing shall not apply to the extent that the
Shares are "covered securities" that are exempt from state regulation of
securities offerings pursuant to Section 18 of the 1933 Act; and provided,
further, that the Fund shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(vii) Rule 158. The Fund will timely file such reports pursuant to the
1934 Act and the 1940 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(viii) Use Of Proceeds. The Fund will use the net proceeds received by
it from the sale of the Shares in the manner specified in the Prospectus under
"Use of Proceeds."
(ix) Listing. The Fund will use its best efforts to effect the listing
of the Shares on the NYSE, subject to notice of issuance, no later than two
weeks after the effectiveness of the Registration Statement.
(x) Restriction On Sale Of Shares. During a period of 180 days from
the date of the Prospectus, the Fund will not, without the prior written consent
of RBC, (A) directly or indirectly, offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or dispose
of Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement under the 1933
Act with respect to any of the foregoing or (B) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Shares, whether
any such swap or transaction described in clause (A) or (B) above is to be
settled by delivery of Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Shares to be sold
hereunder or the Common Shares issued pursuant to any dividend reinvestment
plan.
(xi) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1940
Act and the 1934 Act within the time periods required by the 1940 Act and the
Rules and Regulations and the 1934 Act and the rules and regulations of the
Commission thereunder, respectively.
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(xii) No Manipulation Of Market For Shares. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, the Fund will not (a) take, directly
or indirectly, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Fund to facilitate the sale or resale of the Shares
in violation of federal or state securities laws, and (b) until the Closing
Time, or the Date of Delivery, if any, (i) except for Share repurchases
permitted in accordance with applicable laws and issuances of Shares or
purchases of Shares in the open market pursuant to the Fund's dividend
reinvestment plan, sell, bid for or purchase the Shares or pay any person any
compensation for soliciting purchases of the Shares or (ii) pay or agree to pay
to any person any compensation for soliciting another to purchase any other
securities of the Fund.
(xiii) Rule 462(B) Registration Statement. If the Fund elects to rely
upon Rule 462(b), the Fund shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Fund shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Fund will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Shares, (iii) the preparation, issuance and delivery of the certificates for the
Shares to the Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the Shares
to the Underwriters, (iv) the fees and disbursements of the Fund's counsel,
accountants and other advisers, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vi) the fees and expenses of any transfer
agent or registrar for the Shares, (vii) the filing fees incident to, the review
by the NASD of the terms of the sale of the Shares, (viii) the fees and expenses
incurred in connection with the listing of the Shares on the NYSE and (ix) the
printing of any Sales Material.
(b) Termination Of Agreement. If this Agreement is terminated for any
reason, the Fund or the Adviser shall reimburse, or arrange for an affiliate to
reimburse, the Underwriters for all of their out of pocket expenses, including
reasonable fees and disbursements of counsel for the Underwriters up to a
maximum reimbursement of $50,000.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Fund and the Adviser
contained in Section 1 hereof or in
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certificates of any officer of the Fund or the Adviser delivered pursuant to the
provisions hereof, to the performance by the Fund and the Adviser of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness Of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act, no notice or order pursuant
to Section 8(e) of the 1940 Act shall have been issued, and no proceedings with
respect to either shall have been initiated or, to the Fund's knowledge,
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 497 (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A) or, if the Fund has elected to rely upon Rule 434, a Term Sheet shall have
been filed with the Commission in accordance with Rule 497.
(b) Opinion Of Counsel For The Fund And The Adviser. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, from Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel for the Fund and Advisor,
as to the matters set forth in Exhibit A hereto and Exhibit B hereto. In
rendering the opinion as to the matters set forth in Exhibit A hereto, Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx LLP may rely upon the opinion of Xxxxxxx LLP in the form of
Exhibit C hereto as to matters of Maryland law.
(c) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Fund, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of a duly authorized officer
of the Fund and of the chief financial or chief accounting officer of the Fund
and of the President or a Vice President or Managing Director of the Adviser,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Sections l(a) and (b)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Fund or the Adviser, as applicable,
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement, or order of
suspension or revocation of registration pursuant to Section 8(e) of the 1940
Act, has been issued and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Fund or the Adviser,
contemplated by the Commission.
(d) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP ("E &
Y") a letter dated such date, in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
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(e) Bring-Down Comfort Letter. At Closing Time, the Representatives shall
have received from E & Y a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the specified date referred to shall be a date
not more than three (3) business days prior to Closing Time.
(f) Approval Of Listing. At Closing Time, the Shares shall have been
approved for listing on the NYSE, subject only to official notice of issuance.
(g) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(h) Conditions To Purchase Of Option Shares. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Shares, the representations and warranties of
the Fund contained herein and the statements in any certificates furnished by
the Fund hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificates. Certificates, dated such Date of Delivery,
of a duly authorized officer of the Fund and of the chief financial or chief
accounting officer of the Fund and of the President or a Vice President or
Managing Director of the Adviser confirming that the information contained in
the certificate delivered by each of them at the Closing Time pursuant to
Section 5(c) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions Of Counsel For The Fund And The Adviser. The favorable
opinions of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel for the Fund and the
Adviser, dated such Date of Delivery, relating to the Option Shares to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinions required by Section 5(b) hereof.
(iii) Bring-Down Comfort Letter. A letter from E & Y, in form and
substance satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(e) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five (5) days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Shares as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions herein contained; and all proceedings taken
by the Fund and the Adviser in connection with the organization and registration
of the Fund under the 1940 Act and the issuance and sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(j) Termination Of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Shares, on
a Date of Delivery which is after the Closing
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Time, the obligations of the several Underwriters to purchase the relevant
Option Shares, may be terminated by the Representatives by notice to the Fund at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 13
shall survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) Indemnification Of Underwriters. The Fund and the Adviser agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, and any director, officer, employee
or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Fund; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by RBC), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Fund or the Adviser by any Underwriter
through RBC expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the Fund or the Adviser will not
be liable to any Underwriter with respect to any Prospectus to the extent that
the Fund or the Adviser shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Shares
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to a person to whom such Underwriter failed to send or give, at or prior to the
Closing Time, a copy of the final Prospectus, as then amended or supplemented
if: (i) the Fund has previously furnished copies thereof (sufficiently in
advance of the Closing Time to allow for distribution by the Closing Time) to
the Underwriter and the loss, liability, claim, damage or expense of such
Underwriter resulted from an untrue statement or omission of a material fact
contained in or omitted from the preliminary Prospectus which was corrected in
the final Prospectus as, if applicable, amended or supplemented prior to the
Closing Time and such final Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person and (ii) such failure
to give or send such final Prospectus by the Closing Time to the party or
parties asserting such loss, liability, claim, damage or expense would have
constituted a defense to the claim asserted by such person.
(b) Indemnification Of Fund, Adviser, Directors And Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Fund and the
Adviser, their respective directors, each of the Fund's officers who signed the
Registration Statement, and each person, if any, who controls the Fund or the
Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Fund or the Adviser by such Underwriter
through RBC expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Indemnification For Marketing Materials. In addition to the foregoing
indemnification, the Fund and the Adviser also agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 6(a), as limited by the proviso set forth
therein, with respect to any Sales Material in the form approved by the Fund and
the Adviser for use by the Underwriters and securities firms to whom the Fund or
the Adviser shall have disseminated materials in connection with the public
offering of the Shares.
(d) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxx Xxxxxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Fund and the Adviser. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the
-18-
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement Without Consent If Failure To Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(f) Limitations On Indemnification. Any indemnification by the Fund shall
be subject to the requirements and limitations of Section 17(i) of the 1940 Act
and 1940 Act Release 11330.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Advisor on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Fund and the Adviser on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
-19-
The relative benefits received by the Fund and the Adviser on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Fund and the total
underwriting discount received by the Underwriters (whether from the Fund or
otherwise), in each case as set forth on the cover of the Prospectus or, if Rule
434 is used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Shares as set forth on such cover.
The relative fault of the Fund and the Adviser on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Adviser and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Fund and each manager of the Adviser, respectively, each
officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Fund and the Adviser, respectively. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Primary Shares set forth opposite their respective
names in Schedule A hereto and not joint.
Any contribution by the Fund shall be subject to the requirements and
limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.
-20-
SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Fund or the Adviser submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Fund or the Adviser, and shall survive delivery of the
Shares to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Fund, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Fund or the Adviser, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any material outbreak of hostilities or
material escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) if trading in the Common Shares of the Fund has been suspended
or materially limited by the Commission or the NYSE, or if trading generally on
the NYSE or in the NASDAQ National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either Federal or Missouri authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 13 shall survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at Closing Time or any Date
of Delivery to purchase the Shares which it or they are obligated to purchase
under this Agreement (the "Defaulted Shares"), the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Shares in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the number of
Shares to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated,
-21-
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number of Shares
to be purchased on such date, this Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the obligation of the Underwriters
to purchase and of the Fund to sell the Option Shares to be purchased and sold
on such Date of Delivery, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Shares, as the
case may be, either the Representatives or the Fund shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven (7) days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives, RBC Capital Markets Corporation, 5700 Xxxxxxxx Tower, 0000 Xxxx
Xxx Xxxx., Xxxxxxx, Xxxxx 00000, attention: Xxxxxx Xxxxxxxxxx; and notices to
the Fund or the Adviser shall be directed, as appropriate, to the office of the
Adviser, 00000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000,
attention of Management Committee, with a copy to Xxxxxx X. Xxxxxx, Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxxx Xxxx, XX 00000.
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Fund, the Adviser and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Adviser and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Fund, the
Adviser and their respective partners and successors, and said controlling
persons and officers, directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Shares
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
-22-
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY
REFER TO CENTRAL STANDARD TIME.
SECTION 14. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 15. NO FIDUCIARY DUTY
The Fund and the Adviser acknowledge and agree that: (i) the purchase and
sale of the Shares pursuant to this Agreement is an arm's-length commercial
transaction between the Fund and the Adviser, on the one hand, and the
Underwriters, on the other; (ii) in connection with such purchase and sale, the
Underwriters have not assumed an advisory or fiduciary responsibility to the
Fund or the Adviser, including, without limitation, with respect to the
determination of the public offering price of the Shares; (iii) any duties and
obligations that the Underwriters may have to the Fund or the Adviser 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 Fund or the Adviser. The Fund and the Adviser each agree that it
will not claim, in connection with such transaction, that the Underwriters owe a
fiduciary duty to it.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the
Underwriters, the Fund and the Adviser in accordance with its terms.
Very truly yours,
TORTOISE NORTH AMERICAN ENERGY
CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
TORTOISE CAPITAL ADVISORS, LLC
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-23-
CONFIRMED AND ACCEPTED,
as of the date first above written:
RBC CAPITAL MARKETS CORPORATION
By:
------------------------------------
Authorized Signatory
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
------------------------------------
Authorized Signatory
Each for itself and collectively as Representatives of the other Underwriters
named in Schedule A hereto.
-24-
SCHEDULE A
Name of Underwriter Number of Primary Shares
------------------- ------------------------
RBC Capital Markets Corporation...................... _______________
Xxxxxx, Xxxxxxxx & Company, Incorporated............. _______________
X.X. Xxxxxxx & Sons, Inc............................. _______________
Xxxxxx Brothers Inc.................................. _______________
Xxxxxxxxxxx & Co. Inc................................ _______________
Wachovia Capital Markets, LLC........................ _______________
Advest, Inc..........................................
BB&T Capital Markets, a division of
Xxxxx & Strongfellow, Inc......................... _______________
Xxxxxx, Xxxxx Xxxxx Incorporated..................... _______________
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc..................... _______________
KeyBanc Capital Markets.............................. _______________
Xxxxxx Xxxxxx & Company, Inc......................... _______________
Xxxx Xxxx & Co., Inc................................. _______________
SunTrust Capital Markets, Inc........................ _______________
Xxxxx Fargo Securities, Inc.......................... _______________
Xxxxxxxxxx Securities, Inc........................... _______________
Total.............................................
===============
Schedule A-1-
SCHEDULE B
Tortoise North American Energy Corporation
__________ Common Shares
1. The initial public offering price per share for the Shares, determined
as provided in said Section 2, shall be $____________.
2. The purchase price per share for the Shares to be paid by the several
Underwriters shall be $________, being an amount equal to the initial public
offering price set forth above less $._______ per share; provided that the
purchase price per share for any Option Shares purchased upon the exercise of
the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Primary Shares but not payable on the Option Shares.
Schedule B-1-
Exhibit A
[Xxxxxxxxx Xxxxxxx Opinion]
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company, Incorporated
And The Other Several Underwriters
Named In Schedule A To The Underwriting
Agreement Referred To Below
c/o RBC Capital Markets Corporation
5700 Xxxxxxxx Tower
0000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Tortoise North American Energy Corporation, a
Maryland corporation (the "Company"), in connection with (i) the issuance and
sale by the Company of ____________ shares of common stock, $.001 par value per
share (the "Shares"), pursuant to the Underwriting Agreement dated ___________,
2005 (the "Underwriting Agreement"), by and among you (the "Underwriters"), the
Company and Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the "Adviser"), and (ii) the registration of the Shares under the Securities
Act of 1933, as amended (the "1933 Act") and the Investment Company Act of 1940,
as amended (the "1940 Act"). This opinion is provided to you pursuant to Section
5(b) of the Underwriting Agreement. Capitalized terms not otherwise defined
herein are defined as set forth in the Underwriting Agreement.
In rendering this opinion, we have examined:
(a) the Underwriting Agreement;
(b) the Charter of the Company, as amended and restated to date (the
"Charter") and the By-Laws of the Company, as amended and restated to date (the
"Bylaws" and together with the Charter, the "Organizational Documents");
(c) the Company's registration statement on Form N-2 (Registration Nos.
333-122022 and 811-21700) and pre-effective amendments Xx. 0, Xx. 0, Xx. 0 and
No. 4 thereto, and the exhibits to the registration statements as filed with the
Securities and Exchange Commission (the "Commission") (such registration
statements as amended at the time they became effective being herein referred to
collectively as the "Registration Statement"), and the definitive prospectus and
statement of additional information deemed to be included in the Registration
Statement in the form filed by the Company pursuant to Rule 497 of the Rules and
Regulations (herein referred to collectively as the "Prospectus");
(d) the Offering Agreements;
(e) the written consent of the Sole Director of the Company dated
__________, 2005, resolutions certified by the Secretary of the Company which
were adopted at a meeting of the
Board of Directors of the Company held on ___________, 2005, minutes of a
special meeting of the Executive Committee of the Board of Directors held on
_____________, 2005 and the unanimous Consent of the initial shareholders of the
Company dated _________, 2005 (collectively, the "Resolutions");
(f) the certificates and documents being delivered on the date hereof at
the closing of the sale of the Shares pursuant to the Underwriting Agreement;
and
(g) such other documents as we, in our professional judgment, have deemed
necessary or appropriate as a basis for the opinions set forth below (items (a)
and (f) above are referred to herein collectively as the "Transaction
Documents").
In examining the Transaction Documents, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
documents purporting to be originals and the conformity to originals of all
documents submitted to us as copies. As to questions of fact material to our
opinion, we have relied (without investigation) upon the representations and
warranties of the Company and the Adviser in the Transaction Documents, and
certificates and written statements of directors and officers of, and the
accountants for, the Company and of officers and employees of the Adviser and
certain public officials. We have also assumed that each of the Transaction
Documents has been duly authorized, executed and delivered by, and constitutes
the legal and valid obligation of each party thereto (other than the Company)
and is enforceable against each such party (other than the Company) in
accordance with its terms. We have also assumed that all representations,
warranties, statements and information contained in the Transaction Documents
are complete, there has been no oral or written modification of or amendment to
any of the Transaction Documents and there has been no waiver of any provision
of any of the Transaction Documents, by actions or omissions of the parties or
otherwise. With respect to matters based on our knowledge or matters known to
us, our opinion is based on such information as has come to the actual attention
of the following attorneys in our firm who have represented the Company in
connection with the transactions contemplated by the Transaction Documents:
Xxxxx X. Xxxxxxx, Xxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxxx and Xxxx
Xxxxxxx.
We express no opinion as to the laws of any jurisdiction other than the
federal law of the United States, and the Maryland General Corporation Law (the
"Maryland Act") (except that we express no opinion as to any choice of law
provisions thereof). With respect to all matters pertaining to the Maryland Act
in paragraphs 1, 2, 3, 4, 5 and 6 we are relying, with your consent, solely upon
the opinion of Xxxxxxx LLP attached hereto, special Maryland counsel to the
Company, dated _____________, 2005, which may be relied upon by us and counsel
for the Underwriters.
Based upon and subject to the qualifications, assumptions and limitations
set forth herein, we are of the opinion that:
1. 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
State Department of Assessments and Taxation of Maryland.
A-2
2. The Company has the corporate power to own, lease and operate its
property or assets and to conduct its business in all material respects
substantially as described in the Prospectus under the caption "The Company."
3. The authorized stock of the Company conforms as to legal matters in all
material respects to the description thereof in the Prospectus under the caption
"Description of Shares."
4. The sale and issuance of the Shares have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting Agreement,
the Shares will be validly issued, fully paid and nonassessable. The issuance of
the Shares will not be subject to preemptive rights under the Maryland Act or
the Charter or Bylaws.
5. The Company has the corporate power to enter into the Underwriting
Agreement and the Offering Agreements. The execution, delivery and performance
of the Underwriting Agreement and Offering Agreements have been duly authorized
by the Company, including all authorizations by the Company, its disinterested
directors and its shareholders as may be required by the 1940 Act and the Rules
and Regulations thereunder. Each of the Underwriting Agreement and Offering
Agreements has been duly executed and, so far as is known to us, delivered by
the Company.
6. The execution and delivery by the Company of the Underwriting Agreement
and the Offering Agreements, and the consummation by the Company of the
transactions contemplated thereunder, will not conflict with or constitute a
breach of the Charter or the Bylaws, or any Maryland law or regulation, or, so
far as is known to us, any order of any Maryland governmental authority (other
than any law, regulation or order in connection with the securities laws of the
State of Maryland, as to which no opinion is hereby expressed).
7. The Registration Statements are effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and
Regulations has been made within the time period required by Rule 497; and, to
our, knowledge, no stop order suspending the effectiveness of the Registration
Statements has been issued under the 1933 Act, and no order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act has been
issued, and to our knowledge no proceedings for any such purpose have been
instituted or are pending or threatened in writing by the Commission;
8. The Company is registered under the 1940 Act as a closed-end,
nondiversified management investment company;
9. The Registration Statements and the Prospectus and each amendment or
supplement to the foregoing as of their respective effective or issue dates
(except the financial statements and other financial and statistical data
contained therein, as to which we express no opinion) and the notification on
Forth N-8A and any amendment thereto, comply as to form in all material respects
with the requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations; and
10. To the best of our knowledge, based solely on officers' certificate(s),
there are no contracts or documents that are required to be described in the
Registration Statements or the
A-3
Prospectus, or to be filed as an exhibit to the Registration Statements that are
not described or filed as required by the 1933 Act, the 1940 Act or the Rules
and Regulations.
11. Insofar as statements in the Prospectus under the captions "Description
of Shares" and "Certain Provisions in the Company's Charter and Bylaws" purport
to summarize certain provisions of Maryland law or the Charter or Bylaws, such
statements constitute a fair summary in all material respects.
12. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, except where the failure to so qualify or to be in
good standing would not result in a Material Adverse Effect.
13. To our knowledge, the Company is not in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by which
it is bound, or to which any of the property or assets of the Company is
subject, except for such defaults that would not result in a Material Adverse
Effect.
14. The execution of the Underwriting Agreement and the Offering Agreements
and the transactions contemplated thereby and the compliance by the Company with
its obligations thereunder will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or repayment event under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to any material contract, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument known to us to which it is a party
or by which it may be bound, or to which any property or assets of the Company
is subject.
15. The Company possesses such Governmental Licenses issued by the
appropriate federal, state, local or foreign regulatory agencies, or bodies
necessary to operate its properties and to conduct the business as contemplated
in the Prospectus. To our knowledge, the Company is in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material Adverse Effect.
16. The statements made in the Prospectus under the captions "Tax Matters,"
insofar as they constitute matters of law or legal conclusions, have been
reviewed by us and are correct in all material respects and fairly summarize in
all material respects the Federal income tax laws referred to therein;
17. To our knowledge, there are no legal or governmental proceedings
pending or threatened in writing against the Company, or to which the Company or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus, but are not described therein as
required, or which could reasonably be expected to have a Material Adverse
Effect or which could reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated by the Underwriting Agreement
or the performance of the Company thereunder.
A-4
18. The Shares are duly authorized for listing, subject to official notice
of issuance, on the NYSE and the Company's registration statement on Form 8-A
under the 1934 Act is effective.
We have participated in conferences and telephone conferences with officers
and employees of the Company, the Adviser, representatives of the independent
auditors for the Company, special 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.
Although we are not passing upon, and do 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
discussed in paragraphs 11 and 16 hereof, and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to our
attention that would have led us to believe that (a) the Registration Statement,
at the time it became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) the Prospectus, as
of its 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
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading, or (c) the Form N-8A
as of ____________, 2005 contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, except that in each case we
express no belief with respect to the financial statements, schedules and other
financial information and statistical data included therein or excluded
therefrom or the exhibits to the Registration Statement.
The foregoing opinions are subject to the following qualifications:
(i) The enforceability of any obligation of the Company may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation,
moratorium, marshaling or other laws affecting the enforcement generally of
creditors' rights and remedies.
(ii) The enforceability of any obligation of the Company is subject to
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law), public policy, applicable law relating to
fiduciary duties, and judicial imposition of an implied covenant of good faith
and fair dealing.
(iii) We express no opinion as to compliance with any state securities laws
or regulations.
(iv) No opinion is given herein as to the availability of specific
performance or equitable relief of any kind.
(v) The opinions expressed herein relate only to laws which are
specifically referred to in this opinion and which laws, in our experience, are
normally directly applicable to transactions of the type provided for in the
Transaction Documents. The opinions herein are subject to the effect of any
judicial decisions which may permit the introduction of parole evidence to
modify the terms or interpretations of agreements.
A-5
(vi) We express no opinion as to the validity, binding effect or
enforceability of (i) purported waivers of any statutory or other rights, court
rules or defenses to obligations or consents to any actions where such waivers
or consents (a) are against public policy or (b) constitute waivers of rights or
consents to actions which by law, regulation or judicial decision may not
otherwise be waived or given; (ii) provisions indemnifying any person against,
relieving any person of liability for granting any person a right of
contribution with respect to, that person's own negligent or wrongful acts or in
any other circumstances where enforcement of such provisions would be against
public policy or limited or prohibited by applicable law, including, without
limitation, the enforcement of rights to indemnity that may be limited by
Federal or state securities laws; (iii) any provisions which purport to
authorize or permit any person to act in a manner which is determined not to be
in good faith or commercially reasonable or any provisions which purport to
waive any rights in respect of such acts; (iv) any provisions which purport to
authorize or permit any person to exercise any right or remedy upon any
nonmaterial breach or default; (v) any forum selection provision; (vi) any
powers of attorney to the extent that they purport to grant rights and powers
that may not be granted under applicable law; (vii) any provisions that purport
to permit the exercise of "self-help" remedies, including, without limitation,
the exercise of rights of setoff or purported rights to enter onto the property
of any person or take physical possession of any property; (viii) any right or
obligation to the extent that the same maybe varied by course of dealing or
performance; (ix) any provision which may provide for the compounding of
interest or the payment or accrual of interest on interest; or (x) any provision
that is subject to any mutual mistake of fact or misunderstanding, fraud, duress
or undue influence.
(vii) The opinions expressed herein are matters of professional judgment
and are not a guarantee of result.
This opinion is solely for the information of the addressees hereof and is
not to be quoted in whole or in part or otherwise referred to, nor is it to be
filed with any government agency or any other person, without in each case our
prior written consent, and no one other than the addressee hereof is entitled to
rely on this opinion. This opinion is given to you as of the date hereof and we
assume no obligation to advise you of any change that may hereafter be brought
to our attention.
A-6
Exhibit B
[Xxxxxxxxx Xxxxxxx Opinion]
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company, Incorporated
And The Other Several Underwriters
Named In Schedule A To The Underwriting
Agreement Referred To Below
c/o RBC Capital Markets Corporation
5700 Xxxxxxxx Tower
0000 Xxxx Xxx Xxxx.
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to Tortoise Capital Advisors, L.L.C., a
Delaware limited liability company (the "Adviser") in connection with (i) the
issuance and sale by Tortoise North American Energy Corporation, a Maryland
corporation (the "Company"), of _____________ shares of common stock, $.001 par
value per share (the "Shares"), pursuant to the Underwriting Agreement dated
______________, 2005 (the "Underwriting Agreement"), by and among you (the
"Underwriters"), the Company and the Adviser. This opinion is provided to you
pursuant to Section 5(b) of the Underwriting Agreement. Capitalized terms not
otherwise defined herein are defined as set forth in the Underwriting Agreement.
In rendering this opinion, we have examined:
(a) the Underwriting Agreement;
(b) the Articles of Organization and Amended and Restated Limited
Liability. Company Agreement of the Adviser (the "Organizational Documents");
(c) the Company's registration statements on Form N-2 (Registration Nos.
333-122022 and 811-21700) and pre-effective amendments Xx. 0, Xx. 0 and No. 3
thereto, and the exhibits to the registration statements as filed with the
Securities and Exchange Commission (the "Commission") (such registration
statements as amended at the time they became effective being herein referred to
collectively as the "Registration Statement"), and the definitive prospectus and
statement of additional information deemed to be included in the Registration
Statement in the form filed by the Company pursuant to Rule 497 of the Rules and
Regulations (herein referred to collectively as the "Prospectus");
(d) the Investment Advisory Agreement;
(e) the Resolutions of the Management Committee of the Adviser dated
_____________, 2005;
(f) the certificates and documents being delivered on the date hereof at
the closing of the sale of the Shares pursuant to the Underwriting Agreement;
and
(g) such other documents as we, in our professional judgment, have deemed
necessary or appropriate as a basis for the opinions set forth below (items (a)
and (f) are referred to herein collectively as the "Transaction Documents").
In examining the Transaction Documents, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
documents purporting to be originals and the conformity to originals of all
documents submitted to us as copies. As to questions of fact material to our
opinion, we have relied (without investigation) upon the representations and
warranties of the Company and the Adviser in the Transaction Documents, and
certificates and written statements of officers and employees of the Adviser and
of directors and officers of the Company and certain public officials. We have
also assumed that each of the Transaction Documents has been duly authorized,
executed and delivered by, and constitutes the legal and valid obligation of
each party thereto (other than the Adviser) and is enforceable against each such
party (other than the Adviser) in accordance with its terms. We have also
assumed that all representations, warranties, statements and information
contained in the Transaction Documents are complete, there has been no oral or
written modification of or amendment to any of the Transaction Documents and
there has been no waiver of any provision of any of the Transaction Documents,
by actions or omissions of the parties or otherwise. With respect to matters
based on our knowledge or known to us, our opinion is based on such information
as has come to the actual attention of the following attorneys in our firm who
have represented the Adviser in connection with the transactions contemplated by
the Transaction Documents: Xxxxx X. Xxxxxxx, Xxxx Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx.
We express no opinion as to the laws of any jurisdiction other than the
federal law of the United States and the laws of the State of Delaware (except
that we express no opinion as to any choice of law provisions thereof). For
purposes of this opinion, we have assumed that the laws of the State of
Delaware, if applicable, are identical in all relevant respects to the laws of
the State of Missouri, as to which assumption we express no opinion.
Based upon and subject to the qualifications, assumptions and limitations
set forth herein, we are of the opinion that:
1. The Adviser is duly organized and validly existing as a limited
liability company in good standing under the laws of the State of Delaware.
2. The Adviser has the power and authority as a Delaware limited liability
company to own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations under
the Underwriting Agreement and the Investment Advisory Agreement.
3. The Adviser is registered with the Commission as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the Advisers
Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations
from acting under the Investment Advisory Agreement as contemplated by the
Prospectus.
4. The Underwriting Agreement and the Investment Advisory Agreement have
been duly authorized by all requisite action on the part of the Adviser, have
each been duly executed
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and, so far as known to us, delivered on behalf of the Adviser, and each of the
Underwriting Agreement and Investment Advisory Agreement constitute valid and
binding obligations of the Adviser, enforceable against the Adviser in
accordance with its terms.
5. To our knowledge, there is not pending or threatened in writing any
action, suit, proceeding, inquiry or investigation, to which the Adviser is a
party or any "affiliated person" of the Adviser (as such term is defined in the
0000 Xxx) or any partners, officers, directors or employees of the foregoing,
before or brought by any court or governmental agency or body, which might
reasonably be expected to (i) result in any Material Adverse Effect or (ii)
materially impair or adversely affect the ability of the Adviser to function as
an investment adviser with respect to the Company or perform its obligations
under the Underwriting Agreement or Investment Advisory Agreement.
6. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency of the United States of America or the State of Delaware (other than (i)
under the 1933 Act, the 1940 Act and the Rules and Regulations; (ii) such as
have been obtained; and (iii) as may be required under the securities or blue
sky laws of the various states, as to each of which we express no opinion) is
necessary or required in connection with the performance by the Adviser of its
obligations under the Underwriting Agreement and the Investment Advisory
Agreement.
7. The execution and delivery of the Underwriting Agreement and the
Investment Advisory Agreement by the Adviser, and performance by the Adviser of
its obligations thereunder do not and will not, whether with or without the
giving of notice or lapse of time or both: (A) result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Adviser, or (B) violate or constitute a breach of, or default under any material
agreement or instrument known to us and to which the Adviser is a party or by
which it is bound or (C) violate any applicable federal or State of Delaware
law, statute, rule, regulation, or any judgment, order, writ or decree, known to
us, of any governmental authority or administrative agency of the United States
of America or the State of Delaware (except in each case for such violations,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the ability of the Adviser to perform its obligations
under the Underwriting Agreement or Investment Advisory Agreement) nor will such
action result in any violation or breach of the provisions of the Organizational
Documents of the Adviser.
The foregoing opinions are subject to the following qualifications:
(i) The enforceability of any obligation of the Adviser may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation,
moratorium, marshaling or other laws affecting the enforcement generally of
creditors' rights and remedies.
(ii) The enforceability of any obligation of the Adviser is subject to
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law), public policy, applicable law relating to
fiduciary duties, and judicial imposition of an implied covenant of good faith
and fair dealing.
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(iii) We express no opinion as to compliance with any state securities laws
or regulations.
(iv) No opinion is given herein as to the availability of specific
performance or equitable relief of any kind.
(v) The opinions expressed herein relate only to laws which are
specifically referred to in this opinion and which laws, in our experience, are
normally directly applicable to transactions of the type provided for in the
Transaction Documents. The opinions herein are subject to the effect of any
judicial decision which may permit the introduction of parole evidence to modify
the terms or interpretation of agreements.
(vi) We express no opinion as to the validity, binding effect or
enforceability of (i) purported waivers of any statutory or other rights, court
rules or defenses to obligations or consents to any actions where such waivers
or consents (a) are against public policy or (b) constitute waivers of rights or
consents to actions which by law, regulation or judicial decision may not
otherwise be waived or given; (ii) provisions indemnifying any person against,
relieving any person of liability for, or granting any person a right of
contribution with respect to, that person's own negligent or wrongful acts or in
any other circumstances where enforcement of such provisions would be against
public policy or limited or prohibited by applicable law, including, without
limitation, the enforcement of rights to indemnity that may be limited by
Federal or state securities laws; (iii) any provisions which purport to
authorize or permit any person to act in a manner which is determined not to be
in good faith or commercially reasonable or any provisions which purport to
waive any rights in respect of such acts; (iv) any provisions which purport to
authorize or permit any person to exercise any right or remedy upon any
nonmaterial breach or default; (v) any forum selection provision; (vi) any
powers of attorney to the extent that they purport to grant rights and powers
that may not be granted under applicable law; (vii) any provisions that purport
to permit the exercise of "self-help" remedies, including, without limitation,
the exercise of rights of setoff or purported rights to enter onto the property
of any person or take physical possession of any property; (viii) any right or
obligation to the extent that the same may be varied by course of dealing or
performance; (ix) any provision which may provide for the compounding of
interest or the payment or accrual of interest on interest; or (x) any provision
that is subject to any mutual mistake of fact or misunderstanding, fraud, duress
or undue influence.
The opinions expressed herein are matters of professional judgment and are
not a guarantee of result. This opinion is solely for the information of the
addressees hereof and is not to be quoted in whole or in part or otherwise
referred to, nor is it to be filed with any government agency or any other
person, without in each case our prior written consent, and no one other than
the addressee hereof is entitled to rely on this opinion. This opinion is given
to you as of the date hereof and we assume no obligation to advise you of any
change which may hereafter be brought to our attention.
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Exhibit C
[Venable Opinion]
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Re: Tortoise North American Energy Corporation
Ladies and Gentlemen:
We have served as special Maryland counsel to Tortoise North American
Energy Corporation, a Maryland corporation registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as a closed-end management
investment company (the "Fund'), in connection with the sale and issuance of up
to ____________ shares (the "Shares") of common stock, $.001 par value per share
(the "Common Stock"), of the Fund (including up to ___________ Shares which the
Underwriters (as defined herein) have the option to purchase solely to cover
over-allotments), pursuant to the Underwriting Agreement, dated as of
___________, 2005 (the "Underwriting Agreement"), by and among the Fund,
Tortoise Capital Advisors, LLC, a Delaware limited liability company, and RBC
Capital Markets Corporation and Xxxxxx, Xxxxxxxx & Company, Incorporated, as
representatives of the several underwriters named therein (collectively, the
"Underwriters"). This firm did not participate in the negotiation or drafting of
the Underwriting Agreement.
This opinion is being delivered to you in connection with Section 5(b) of
the Underwriting Agreement. Unless otherwise defined herein, capitalized terms
used herein have the meanings given to them in the Underwriting Agreement.
In connection with our representation of the Fund, and as a basis for the
opinion hereinafter set forth, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of the following documents
(hereinafter collectively referred to as the "Documents"):
(a) The Registration Statement on Form N-2 (File Nos. 333-122022 and
811-21700) relating to the Shares, and all amendments and Rule 462(b) filings
relating thereto, substantially in the form transmitted to the United States
Securities and Exchange Commission for filing pursuant to the Securities Act of
1933, as amended (the "1933 Act"), and the 1940 Act (the "Registration
Statement"), and the definitive prospectus and statement of additional
information deemed to be included in the Registration Statement in the form
filed by the Company pursuant to Rule 497 of the Rules and Regulations under the
1933 Act (referred to collectively herein as the "Prospectus");
(b) The charter of the Fund (the "Charter"), certified as of a recent date
by the State Department of Assessments and Taxation of Maryland (the "SDAT");
(c) The Bylaws of the Find (the "Bylaws'), certified as of the date hereof
by an officer of the Fund;
(d) A certificate of the SDAT as to the good standing of the Fund, dated as
of a recent date;
(e) Resolutions adopted by the Board of Directors of the Fund, or a duly
authorized committee thereof (the "Resolutions"), relating to, among other
thins, (a) the sale and issuance of the Shares to the Underwriters and (b) the
authorization of the execution and delivery by the Fund of the Underwriting
Agreement and the Offering Agreements (as defined in the Underwriting
Agreement), certified as of the date hereof by an officer of the Fund;
(f) The Underwriting Agreement, certified as of the date hereof by an
officer of the Fund;
(g) The Offering Agreements, certified as of the date hereof by an officer
of the Fund;
(h) A certificate executed by an officer of the Fund, dated as of the date
hereof; and
(i) Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Fund) is duly authorized to do so.
3. Each of the parties (other than the Fund) executing any of the Documents
has duly and validly executed and delivered each of the Documents to which such
party is a signatory, and such party's obligations set forth therein are legal,
valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and
content of all Documents submitted to us as unexecuted drafts do not differ in
any respect relevant to this opinion from the form and content of such Documents
as executed and delivered. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All representations, warranties, statements
and information contained in the Documents are true and complete. There has been
no oral or written modification of or amendment to any of the Documents, and
there has been no waiver of any provision of any of the Documents, by action or
omission of the parties or otherwise.
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The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
(i) The Fund 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
SDAT.
(ii) The Fund has the corporate power to own, lease and operate its
property or assets and to conduct its business in all material respects
substantially as described in the Prospectus under the caption "The Company."
(iii) The authorized stock of the Fund conforms as to legal matters in all
material respects to the description thereof in the Prospectus under the caption
"Description of Shares."
(iv) The sale and issuance of the Shares have been duly authorized and,
when issued and delivered in accordance with the terms of the Underwriting
Agreement and the Resolutions, the Shares will be validly issued, fully paid and
nonassessable. The issuance of the Shares will not be subject to preemptive
rights under the Maryland General Corporation Law (the "MOCL") or the Charter or
Bylaws.
(v) The Fund has the corporate power to enter into the Underwriting
Agreement and the Offering Agreements. The execution and delivery of the
Underwriting Agreement and the Offering Agreements have been duly authorized by
the Fund. Each of the Underwriting Agreement and the Offering Agreements has
been duly executed and, so far as is known to us, delivered by the Fund.
(vi) The execution and delivery by the Fund of the Underwriting Agreement
and the Offering Agreements, and the consummation by the Fund of the
transactions contemplated thereunder, will not conflict with or constitute a
breach of the Charter or the Bylaws, or any Maryland law or regulation, or, so
far as is known to us, any order of any Maryland governmental authority (other
than any law, regulation or order in connection with the securities laws of the
State of Maryland, as to which no opinion is hereby expressed).
(vii) Insofar as statements in the Prospectus under the captions
"Description of Shares" and "Certain Provisions in the Company's Charter and
Bylaws" purport to summarize certain provisions of Maryland law or the Charter
or Bylaws, such statements constitute a fair summary of such provisions in all
material respects.
The foregoing opinion is limited to the MGCL and we do not express any
opinion herein concerning any other law. We express no opinion as to the
applicability or effect of federal or state securities laws, including the
securities laws of the State of Maryland, or the 1940 Act or as to federal or
state laws regarding fraudulent transfers. We note that the Offering Agreements
provide that they shall be governed by the laws of states other than the State
of Maryland. To the extent that any matter as to which our opinion is expressed
herein would be governed by any jurisdiction other than the State of Maryland,
we do not express any opinion on such matter. Our
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opinion expressed in paragraph (vi) above is based upon our consideration of
only those Maryland laws or regulations and orders of Maryland governmental
authorities, if any, which, in our experience, are normally applicable to the
transactions of the type referred to in such paragraph. The opinion expressed
herein is subject to the effect of any judicial decision which may permit the
introduction of parol evidence to modify the terms or the interpretation of
agreements.
The opinion expressed herein is limited to the matters specifically set
forth herein and no other opinion shall be inferred beyond the matters expressly
stated. We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your benefit in rendering
your opinion of even date herewith to the Underwriters pursuant to Section 5(b)
of the Underwriting Agreement. Accordingly, this opinion may not be relied upon
by, quoted in any manner to, or delivered to any other person or entity (other
than Xxxxxxxxx Xxxxxxx Xxxxx and Xxxxxx LLP, counsel to the Fund, and Xxxxxx &
Xxxxxx L.L.P., counsel to the Underwriters, in connection with opinions to be
issued by them of even date herewith relating to the sale and issuance of the
Shares) without in each instance, our prior written consent.
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