INVESTMENT ADVISORY AGREEMENT
Exhibit g.2.
AGREEMENT made as of this 27th day of July, 2010, by and between Tortoise MLP Fund, Inc., a
Maryland corporation having its principal place of business in Leawood, Kansas (the “Company”), and
Tortoise Capital Advisors, L.L.C., a Delaware limited liability company having its principal place
of business in Leawood, Kansas (the “Advisor”).
WHEREAS, the Advisor is registered under the Investment Advisers Act of 1940, as amended (the
“Advisers Act”), as an investment advisor and engages in the business of acting as an investment
advisor;
WHEREAS, the Company and the Advisor entered into a prior Investment
Advisory Agreement dated June 18, 2010, which agreement is to be
deemed terminated in all respects and superceded by this Agreement,
which the parties desire to enter into to provide for
investment advisory services to the Company upon the terms and conditions hereinafter set forth;
and
NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Appointment of Advisor.
The Company appoints the Advisor to act as manager and investment advisor to the Company for
the period and on the terms herein set forth. The Advisor accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. Duties of the Advisor.
Subject to the overall supervision and review of the Board of Directors of the Company
(“Board”), the Advisor will regularly provide the Company with investment research, advice and
supervision and will furnish continuously an investment program for the Company, consistent with
the investment objective and policies of the Company. The Advisor will determine from time to time
what securities shall be purchased for the Company, what securities shall be held or sold by the
Company and what portion of the Company’s assets shall be held uninvested as cash or in other
liquid assets, subject always to the provisions of the Company’s Articles of Incorporation, Bylaws,
and its registration statement under the Investment Company Act of 1940, as amended (the “1940
Act”) and under the Securities Act of 1933 covering the Company’s shares, as filed with the
Securities and Exchange Commission (the “Commission”), as any of the same may be amended from time
to time, and to the investment objectives of the Company, as each of the same shall be from time to
time in effect, and subject, further, to such policies and instructions as the Board may from time
to time establish. To carry out such determinations, the Advisor will exercise full discretion and
act for the Company in the same manner and with the same force and effect as the Company itself
might or could do with respect to purchases, sales or other transactions, as well as with respect
to all other things necessary or incidental to the furtherance or conduct of such purchases, sales
or other transactions. Without limiting the generality of the foregoing, the Advisor shall, during
the term and subject to the provisions of this Agreement, (i) determine the composition of the
portfolio of the Company, the nature and timing of the changes therein and the manner of implementing such changes; (ii)
identify, evaluate and negotiate the structure of the investments made by the Company;
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(iii) perform due diligence on prospective portfolio companies; (iv) close and monitor the Company’s
investments; (v) provide the Company with such other investment advisory, research and related
services as the Company may, from time to time, reasonably require for the investment of its funds.
3. Administrative Duties of the Advisor.
The Advisor agrees to furnish office facilities and clerical and administrative services
necessary to the operation of the Company (other than services provided by the Company’s custodian,
accounting agent, administrator, dividend and interest paying agent and other service providers).
The Advisor is authorized to conduct relations with custodians, depositaries, underwriters,
brokers, dealers, placement agents, banks, insurers, accountants, attorneys, pricing agents, and
other persons as may be deemed necessary or desirable. To the extent requested by the Company, the
Advisor shall (i) oversee the performance of, and payment of the fees to, the Company’s service
providers, and make such reports and recommendations to the Board concerning such matters as the
parties deem desirable; (ii) respond to inquiries and otherwise assist such service providers in
the preparation and filing of regulatory reports, proxy statements, shareholder communications and
the preparation of Board materials and reports; (iii) establish and oversee the implementation of
borrowing facilities or other forms of leverage authorized by the Board; and (iv) supervise any
other aspect of the Company’s administration as may be agreed upon by the Company and the Advisor.
The Company shall reimburse the Advisor or its affiliates for all out-of-pocket expenses incurred
in providing the services set forth in this Section 3. To the extent the Advisor expects to
provide services that this paragraph anticipates will be provided by a separate service provider,
the Advisor may propose to the Board a separate Administrative Agreement pursuant to which one or
more of such services is provided by, and separate compensation is paid to, the Advisor.
4. Delegation of Responsibilities.
The Advisor is authorized to delegate any or all of its rights, duties and obligations under
this Agreement to one or more sub-advisors, and may enter into agreements with sub-advisors, and
may replace any such sub-advisors from time to time in its discretion, in accordance with the 1940
Act, the Advisers Act, and rules and regulations thereunder, as such statutes, rules and
regulations are amended from time to time or are interpreted from time to time by the staff of the
Commission, and if applicable, exemptive orders or similar relief granted by the Commission, and
upon receipt of approval of such sub-advisors by the Board and by shareholders of the Company
(unless any such approval is not required by such statutes, rules, regulations, interpretations,
orders or similar relief).
5. Independent Contractors.
The Advisor and any sub-advisors shall for all purposes herein be deemed to be independent
contractors and shall, unless otherwise expressly provided or authorized, have no authority to act
for or represent the Company in any way or otherwise be deemed to be an agent of the Company.
6. Compliance with Applicable Requirements.
In carrying out its obligations under this Agreement, the Advisor shall at all times conform
to:
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| a. | all applicable provisions of the 1940 Act and the Advisers Act and any applicable rules and regulations adopted thereunder; | ||
| b. | the provisions of the registration statement of the Company, as the same may be amended from time to time under the 1940 Act, including without limitation, the investment objectives set forth therein; | ||
| c. | the provisions of the Company’s Articles of Incorporation, as the same may be amended from time to time; | ||
| d. | the provisions of the Bylaws of the Company, as the same may be amended from time to time; | ||
| e. | all policies, procedures and directives adopted by the Board; and | ||
| f. | any other applicable provisions of state, federal or foreign law. |
7. Policies and Procedures.
The Advisor has adopted and implemented written policies and procedures reasonably designed to
prevent violation of the Federal securities laws by the Advisor. The Advisor shall provide the
Company, at such times as the Company shall reasonably request, with a copy of such policies and
procedures and a report of such policies and procedures; such report shall be of sufficient scope
and in sufficient detail as may reasonably be required to comply with Rule 38a-1 under the 1940 Act
and to provide reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so state.
8. Brokerage.
The Advisor is responsible for decisions to buy and sell securities for the Company,
broker-dealer selection, and negotiation of brokerage commission rates. The Advisor’s primary
consideration in effecting a security transaction will be to obtain the best execution. In
selecting a broker-dealer to execute a particular transaction, the Advisor will take the following
into consideration: the best net price available; the reliability, integrity and financial
condition of the broker-dealer; the size of and the difficulty in executing the order; and the
value of the expected contribution of the broker-dealer to the investment performance of the
Company on a continuing basis. Accordingly, the price to the Company in any transaction may be
less favorable than that available from another broker-dealer if the difference is reasonably
justified by other aspects of the execution services offered.
Subject to such policies as the Board may from time to time determine, the Advisor shall not
be deemed to have acted unlawfully, or to have breached any duty created by this Agreement or
otherwise, solely by reason of its having caused the Company to pay a broker or dealer that
provides brokerage and research services to the Advisor an amount of commission for effecting a
Company investment transaction in excess of the amount of commission another broker or dealer
would have charged for effecting that transaction, if the Advisor determines in good faith that
such amount of commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that particular transaction
or the Advisor’s overall
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responsibilities with respect to the Company and to other clients of the
Advisor as to which the Advisor exercises investment discretion. The Advisor is further authorized
to allocate the orders placed by it on behalf of the Company to such brokers and dealers who also
provide research or statistical material or other services to the Company, the Advisor or to any
sub-advisor. Such allocation shall be in such amounts and proportions as the Advisor shall
determine and the Advisor will report on such allocations regularly to the Board indicating the
brokers to whom such allocations have been made and the basis therefor.
9. Books and Records.
The Advisor will maintain, or cause to be maintained, complete and accurate records in respect
of all transactions relating to the Company’s portfolio. The Advisor will keep or will cause to be
kept records in respect of all such portfolio transactions executed on behalf of the Company. To
the extent permitted by applicable law, the Advisor shall provide such access to its books and
records relating to the Company as the Company may reasonably request. The Advisor shall have
access at all reasonable times to books and records maintained for the Company to the extent
necessary for the Advisor to comply with all applicable securities or other laws to which it is
subject, and further provided that the Company shall produce copies of such records and books
whenever reasonably required to do so by the Advisor for the purpose of legal proceedings or
dealings with any governmental or regulatory authorities or for its internal compliance procedures.
10. Compensation.
For the services, payments and facilities to be furnished hereunder by the Advisor, the
Advisor shall receive from the Company annual compensation in an amount equal to 0.95% of the
average monthly “Managed Assets” of the Company, provided, however, during the
first twelve months of the Company’s operations the Advisor agrees to waive 0.25% of its 0.95%
investment advisory fee, thereby reducing the investment advisory fee to 0.70% annually of the
average monthly Managed Assets of the Company, and during the second twelve months of the Company’s
operations the Advisor agrees to waive 0.10% of its 0.95% investment advisory fee, thereby reducing
the investment advisory fee to 0.85% annually of the average monthly Managed Assets of the Company.
“Managed Assets” means the total assets of the Company (including any assets attributable to any
leverage that may be outstanding but excluding any net deferred tax assets) minus the sum of
accrued liabilities (other than net deferred tax liabilities, debt representing financial leverage
and the aggregate liquidation preference of any outstanding preferred shares). Average monthly
Managed Assets is the sum of the daily Managed Assets for the month divided by the number of days
in the month. Accrued liabilities are expenses incurred in the normal course of the Company’s
operations.
Such compensation shall be calculated and accrued daily and paid quarterly within five (5)
days of the end of each calendar quarter,
In case of initiation or termination of the Agreement during any month, the fee for that month
shall be reduced proportionately on the basis of the number of calendar days during which the
Agreement is in effect and the fee shall be computed upon the basis of the average Managed Assets
for the business days the Agreement is so in effect for that month.
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The Advisor may, from time to time, waive or defer all or any part of the compensation
described in this Section 10. The parties do hereby expressly authorize and instruct the Company’s
administrator, or its successors, to calculate the fee payable hereunder and to remit all payments
specified herein to the Advisor. The value of the Company’s assets shall be computed in accordance
with the Articles of Incorporation of the Company or any applicable policies and determinations of
the Board.
11. Expenses of the Advisor.
The compensation and allocable routine overhead expenses of all investment professionals of
the Advisor and its staff, when and to the extent engaged in providing investment advisory services
required to be provided by the Advisor under Section 2 hereof, will be provided and paid for by the
Advisor and not by the Company. It is understood that the Company will pay all expenses other
than those expressly stated to be payable by the Advisor hereunder, which expenses payable by the
Company shall include, without limitation the following; if applicable:
(i) other than as set forth in the first sentence of this Section 11 above, expenses of
maintaining the Company and continuing its existence and related overhead, including, to the
extent such services are provided by personnel of the Advisor or its affiliates, office
space and facilities, training and benefits,
(ii) commissions, spreads, fees and other expenses connected with the acquisition,
holding and disposition of securities and other investments including placement and similar
fees in connection with direct placements entered into on behalf of the Company,
(iii) auditing, accounting, tax and legal service expenses,
(iv) taxes and interest,
(v) governmental fees,
(vi) expenses of listing shares of the Company with a stock exchange and expenses of
issue, sale, repurchase and redemption (if any) of securities of the Company,
(vii) expenses of registering and qualifying the Company and its securities under
federal and state securities laws and of preparing and filing registration statements and
amendments for such purposes,
(viii) expenses of communicating with shareholders, including website expenses and the
expenses of preparing, printing, and mailing press releases, reports and other notices to
shareholders and of meetings of shareholders and proxy solicitations therefor,
(ix) expenses of reports to governmental officers and commissions,
(x) insurance expenses,
(xi) association membership dues,
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(xii) fees, expenses and disbursements of custodians and subcustodians for all services
to the Company (including without limitation safekeeping of funds, securities and other
investments, keeping of books, accounts and records, and determination of net asset values),
(xiii) fees, expenses and disbursements of transfer agents, dividend and interest
paying agents, shareholder servicing agents, registrars and administrator for all services
to the Company,
(xiv) compensation and expenses of directors of the Company who are not members of the
Advisor’s organization,
(xv) pricing, valuation, and other consulting or analytical services employed in
considering and valuing the actual or prospective investments of the Company,
(xvi) all expenses incurred in leveraging of the Company’s assets through a line of
credit or other indebtedness or issuing and maintaining notes or preferred shares,
(xvii) all expenses incurred in connection with the organization of the Company and any
offering of the Company’s securities, including, without limitation, common shares and
preferred and debt securities, and
(xviii) such non-recurring items as may arise, including expenses incurred in
litigation, proceedings and claims and the obligation of the Company to indemnify its
directors, officers and shareholders with respect thereto.
12. Covenants of the Advisor.
The Advisor covenants that it is registered as an investment adviser under the Investment
Advisers Act of 1940. The Advisor agrees that its activities will at all times be in compliance in
all material respects with all applicable federal and state laws governing its operations and
investments.
13. Non-Exclusivity.
The Company understands that the persons employed by the Advisor to assist in the performance
of the Advisor’s duties under this Agreement may not devote their full time to such service and
nothing contained in this Agreement shall be deemed to limit or restrict the right of the Advisor
or any affiliate of the Advisor to engage in and devote time and attention to other businesses or
to render services of whatever kind or nature, so long as the Advisor’s services to the Company are
not impaired by the provision of such services to others. The Company further understands and
agrees that managers of the Advisor may serve as officers or directors of the
Company, and that officers or directors of the Company may serve as managers of the Advisor to
the extent permitted by law; and that the managers of the Advisor are not prohibited from engaging
in any other business activity or from rendering services to any other person, or from serving as
partners, officers or directors of any other firm or company, including other investment advisory
companies.
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14. Consent to the Use of Name.
The Advisor hereby consents to the royalty free use by the Company of the name “Tortoise” as
part of the Company’s name and consents to the royalty free use of the related “Tortoise” logo;
provided, however, that such consents shall be conditioned upon the employment of the Advisor or
one of its approved affiliates as the investment advisor of the Company. The name “Tortoise” and
the related “Tortoise” logo or any variation thereof may be used from time to time in other
connections and for other purposes by the advisor and its affiliates and other investment companies
that have obtained consent to the use of the name “Tortoise”. The Advisor shall have the right to
require the Company to cease using the name “Tortoise” as part of the Company’s name and the
related “Tortoise” logo if the Company ceases, for any reason, to employ the Advisor or one of its
approved affiliates as the Company’s investment advisor. Future names adopted by the Company for
itself, insofar as such names include identifying words requiring the consent of the Advisor, shall
be the property of the Advisor and shall be subject to the same terms and conditions.
15. Effective Date, Term and Approval.
This Agreement shall become effective with respect to the Company, as of the close of the
initial public offering of common shares of the Company, or such later date as shareholder approval
of this agreement is obtained. This Agreement shall continue in force and effect for two years
from such effective date, and may be continued from year to year thereafter, provided that the
continuation of the Agreement is specifically approved at least annually:
| a. | (i) by the Board or (ii) by the vote of “a majority of the outstanding voting securities” of the Company (as defined in Section 2(a)(42) of the 0000 Xxx); and | ||
| b. | by the affirmative vote of a majority of the directors who are not parties to this Agreement or “interested persons” (as defined in the 0000 Xxx) of a party to this Agreement (other than as directors of the Company), by votes cast in person at a meeting specifically called for such purpose. |
16. Termination.
This Agreement may be terminated by the Company at any time, without the payment of any
penalty by the Company, by vote of the Board or by vote of a majority of the outstanding voting
securities of the Company, on no more than sixty (60) days’ written notice to the Advisor. This
Agreement may be terminated by the Advisor at any time, without the payment of any penalty by the
Advisor, on no less than sixty (60) days’ written notice to the Company. The notice provided for
herein may be waived by the party entitled to receipt thereof. This
Agreement shall automatically terminate in the event of its assignment, the term “assignment”
for purposes of this paragraph having the meaning defined in Section 2(a)(4) of the 1940 Act. Upon
termination pursuant to this Section 16, the Advisor, at the Company’s request, must deliver all
copies of books and records maintained in accordance with this Agreement and applicable law.
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17. Amendment.
No amendment of this Agreement shall be effective unless it is in writing and signed by the
party against which enforcement of the amendment is sought. No amendment to Section 10 or Section
11 of this Agreement shall be effective unless it is approved by the vote of a majority of the
outstanding voting securities of the Company.
18. Liability of Advisor.
The Advisor will not be liable in any way for any default, failure or defect in any of the
securities comprising the Company’s portfolio if it has satisfied the duties and the standard of
care, diligence and skill set forth in this Agreement. However, the Advisor shall be liable to the
Company for any loss, damage, claim, cost, charge, expense or liability resulting from the
Advisor’s willful misconduct, bad faith or gross negligence or disregard by the Advisor of the
Advisor’s duties or standard of care, diligence and skill set forth in this Agreement or a material
breach or default of the Advisor’s obligations under this Agreement.
19. Notices.
Any notices under this Agreement shall be in writing, addressed and delivered, telecopied or
mailed postage paid, to the other party entitled to receipt thereof at such address as such party
may designate for the receipt of such notice. Until further notice to the other party, it is
agreed that the address of the Company and that of the Advisor shall be 00000 Xxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxx 00000.
20. Questions of Interpretation.
Any question of interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act or the Advisers Act shall be
resolved by reference to such term or provision of the 1940 Act or the Advisers Act and to
interpretations thereof, if any, by the United States courts or in the absence of any controlling
decision of any such court, by rules, regulations or orders of the Commission issued pursuant to
said Acts. In addition, where the effect of a requirement of the 1940 Act or the Advisers Act
reflected in any provision of the Agreement is revised by rule, regulation or order of the
Commission, such provision shall be deemed to incorporate the effect of such rule, regulation or
order. Subject to the foregoing, this Agreement shall be governed by and construed in accordance
with the laws (without reference to conflicts of law provisions) of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate
by their respective duly authorized officers on the day and year first written above.
| TORTOISE MLP FUND, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| TORTOISE CAPITAL ADVISORS, L.L.C. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
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