TORTOISE ENERGY INFRASTRUCTURE CORPORATION FORM OF PLACEMENT AGENCY AGREEMENT [Date]
EXHIBIT
h.5
____________
Shares of Common Stock
Par
Value
$0.001 Per Share
of
FORM
OF PLACEMENT AGENCY AGREEMENT
[Date]
[Placement
Agent]
___________________
___________________
___________________
Ladies
and Gentlemen:
Tortoise
Energy Infrastructure Corporation, a Maryland corporation (the “FUND”), proposes
to sell shares of common stock, par value $0.001 per share, of the Fund (the
“SHARES”), directly to certain investors (the “INVESTORS”). The Fund
and Tortoise Capital Advisors, LLC (the “ADVISER”) desire to engage [Placement
Agent] as the placement agent (the “PLACEMENT AGENT”) in connection with such
issuance and sale. The Shares are more fully described in the
Registration Statement (as hereinafter defined).
The
Fund
has filed with the Securities and Exchange Commission (the “COMMISSION”) a
registration statement on Form N-2 (File Nos. ____________ and ____________)
which became effective on [Date], covering the registration of the Shares under
the Securities Act of 1933, as amended (the “1933 ACT”), and a notification on
Form N-8A of registration of the Fund as an investment company under the
Investment Company Act of 1940, as amended (the “1940 ACT”), and the rules and
regulations of the Commission under the 1933 Act and the 1940 Act (the “RULES
AND REGULATIONS”). Promptly after execution and delivery of this
Agreement, the Fund will prepare and file a prospectus supplement in accordance
with the provisions of Rule 430A (“RULE 430A”) and paragraph (c) and/or (h) of
Rule 497 (“RULE 497”) of the Rules and Regulations. The information
included in any such prospectus that was omitted from such registration
statement at the time it became effective but that is deemed to be part of
such
registration statement at the time it became effective pursuant to paragraph
(b)
of Rule 430A is referred to as “RULE 430A INFORMATION.” Each prospectus used
before such registration statement became effective, including any statement
of
additional information incorporated therein by reference, is herein called
a
“PRELIMINARY PROSPECTUS.” Such registration statement, including a 462(d)
post-effective amendment or other amendment thereto, the exhibits and schedules
thereto at the time it became effective and including the Rule 430A Information
and any statement of additional information incorporated therein by reference,
is herein called the “REGISTRATION STATEMENT.” The final prospectus in the form
first furnished to the Placement Agent for use in connection with the issuance
and sale of the Shares to the Investors, including the statement of additional
information
incorporated
therein by reference, is herein called the “PROSPECTUS.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
(“▇▇▇▇▇”).
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 maybe.
The
Fund
hereby confirms that the Placement Agent, in connection with its duties in
such
capacity, is authorized to distribute or cause to be distributed the Prospectus
in accordance with the terms of this Agreement.
Section
1. Representations
and Warranties.
(a) Representations
and Warranties by the Fund and the Adviser. The Fund and the
Adviser represent and warrant to the Placement Agent as of the date hereof
and
as of the Closing Time referred to in Section 2(b) hereof, and agree with the
Placement Agent, as follows:
(i) Compliance
With Registration Requirements. Each of the Registration
Statement and any Rule 462(d) post-effective amendment has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, or order of
suspension or revocation of registration pursuant to Section 8(e) of the 1940
Act, and no proceedings for any such purpose, have been instituted or are
pending or, to the knowledge of the Fund or the Adviser, are contemplated by
the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At
the
respective times the Registration Statement, any Rule 462(d) post-effective
amendment and any other post-effective amendment thereto relating to the
issuance and sale of the Shares to the Investors (filed before the Closing
Time)
became effective and at the Closing Time, as hereinafter defined, the
Registration Statement, the Rule 462(d) post-effective amendment, the
notification on Form N-8A and all amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act,
the 1940 Act and the Rules and Regulations and did not and will not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus, any Preliminary Prospectus nor
any amendment or supplement thereto, at the time, the Prospectus, Preliminary
Prospectus or any such amendment or supplement was issued and at the Closing
Time, included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement,
Prospectus or Preliminary
2
Prospectus
made in reliance upon and in conformity with written information furnished
to
the Fund by or on behalf of the Placement Agent for use in the Registration
Statement or Prospectus.
As
of the
date hereof, the Statutory Prospectus (as defined below) and the information
included on Schedule A hereto, all considered together (collectively, the
“GENERAL DISCLOSURE PACKAGE”), did not include any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading.
As
used
in this subsection and elsewhere in this Agreement, “Statutory Prospectus” as of
any time means the prospectus relating to the Shares that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 497 under the 1933 Act, complied when so filed in all material
respects with the Rules and Regulations and the Prospectus delivered to the
Placement Agent for use in connection with the issuance and sale of Shares
to
the Investors was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by
Regulation S-T.
At
the
time of filing the Registration Statement or any 462(d) post-effective
amendments thereto relating to the issuance and sale of the Shares to the
Investors and at the date hereof, the Fund was not and is not an “ineligible
issuer,” as defined in Rule 405 of the Rules and Regulations.
(ii) Incorporation
of Documents by Reference. The documents incorporated in the
Registration Statement, the Prospectus and the Statutory Prospectus, at the
time
they were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the rules
and
regulations of the Commission under the 1934 Act, the 1940 Act and the Rules
and
Regulations and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement became effective, (b)
at
the time the Prospectus was issued and (c) at the Closing Time, did not and
will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(iii) Independent
Accountants. The accountants who certified the statement of
assets and liabilities included in the Registration Statement have confirmed
to
the Fund their status as independent public accountants as required by the
1933
Act and the Rules and Regulations and the Fund and the Adviser have no reason
to
believe that they are not independent public accountants.
(iv) Financial
Statements. The statement of assets and liabilities included
in the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related notes, presents fairly in accordance
with
generally accepted accounting principles (“GAAP”) in all material respects the
financial position of the Fund at the date indicated and has
3
been
prepared in conformity with GAAP. The supporting schedules, if any,
present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of audited
financial statements included in the Registration Statement.
(v) Expense
Summary. The information set forth in the Prospectus in the
fee table contained in the section of the Prospectus entitled “Summary of
Company Expenses” has been prepared in all material respects in accordance with
the requirements of Form N-2, and interpretations thereunder, and to the extent
estimated or projected, such estimates or projections are reasonably believed
to
be attainable and reasonably based.
(vi) No
Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or otherwise, or
in
the earnings, business affairs or business prospects of the Fund, whether or
not
arising in the ordinary course of business (other than as a result of changes
in
market conditions generally) (a “MATERIAL ADVERSE EFFECT”), (B) there have been
no transactions entered into by the Fund, other than those in the ordinary
course of business, which are material with respect to the Fund, and (C) there
has been no dividend or distribution of any kind declared, paid or made by
the
Fund on any class of its capital stock.
(vii) Good
Standing of the Fund. The Fund has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Maryland and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Fund is duly qualified as a foreign corporation to transact business
and
is in good standing in each other jurisdiction in which such qualification
is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(viii) No
Subsidiaries. The Fund has no subsidiaries.
(ix) Investment
Company Status. The Fund is duly registered with the
Commission under the 1940 Act as a nondiversified, closed-end management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the Fund’s
knowledge, threatened by the Commission.
(x) Officers
and Directors. No person is serving or acting as an officer,
director or investment adviser of the Fund except in accordance with the
provisions of the 1940 Act and the Rules and Regulations and the Investment
Advisers Act of 1940, as amended (the “ADVISERS ACT”), and the rules and
regulations of the Commission promulgated under the Advisers Act (the “ADVISERS
ACT RULES AND REGULATIONS”). Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, to the Fund’s
knowledge after due inquiry, no director of the Fund is an “Interested Person”
(as defined in the ▇▇▇▇
▇▇▇)
of the Fund or an “Affiliated Person” (as defined in the ▇▇▇▇ ▇▇▇) of the
Placement Agent.
4
(xi) Capitalization. The
authorized, issued and outstanding capital stock of the Fund is as set forth
in
the General Disclosure Package and the Prospectus as of the date thereof under
the captions “The Company” and “Description of Securities.” All issued and
outstanding shares of common stock, par value $0.001 per share (the “COMMON
SHARES”), and all issued and outstanding Preferred Shares of the Fund (the
“PREFERRED SHARES”) have been duly authorized and validly issued and are fully
paid and non-assessable, and have been offered and sold or exchanged by the
Fund
in compliance with all applicable laws (including, without limitation, federal
and state securities laws). None of the outstanding Common Shares or
Preferred Shares of the Fund was issued in violation of the preemptive or other
similar rights of any securityholder of the Fund.
(xii) Authorization
and Description of Shares. The Shares to be purchased by the
Investors from the Fund have been duly authorized for issuance and sale to
the
Investors pursuant to this Agreement and, when issued and delivered by the
Fund
pursuant to one or more Purchase Agreements (as defined herein) against payment
of the consideration set forth therein, will be validly issued, fully paid
and
non-assessable. The Shares conform to all statements relating thereto
contained in the General Disclosure Package and the Prospectus and such
description conforms in all material respects to the rights set forth in the
instruments defining the same; and the issuance and sale of the Shares is not
subject to the preemptive or other similar rights of any securityholder of
the
Fund.
(xiii) Absence
of Defaults and Conflicts. The Fund is not in violation of
its charter or by-laws, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be
bound, or to which any of the property or assets of the Fund is subject
(collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or
defaults that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and any Purchase Agreements
(collectively, the “OFFERING AGREEMENTS”) and the consummation of the
transactions contemplated in the Offering Agreements and in the Registration
Statement (including the issuance and sale of the Shares to the Investors and
the use of the proceeds from the sale of the Shares as described in the General
Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and
compliance by the Fund with its obligations thereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance
upon
any property or assets of the Fund pursuant to, the Agreements and Instruments
or 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 “FUND AGREEMENTS”) (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
5
government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Fund or any of its assets, properties or operations (except for such
violations that would not result in a Material Adverse Effect). As
used herein, a “REPAYMENT EVENT” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Fund.
(xiv) Absence
of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Fund
or
the Adviser, threatened, against or affecting the Fund, which is required to
be
disclosed in the Registration Statement (other than as disclosed therein),
or
which could reasonably be expected to result in a Material Adverse Effect,
or
which could reasonably be expected to materially and adversely affect the
properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement and any Purchase Agreements or the performance
by
the Fund of its obligations hereunder and thereunder. The aggregate
of all pending legal or governmental proceedings to which the Fund is a party
or
of which any of its property or assets is the subject which are not described
in
the Registration Statement, including ordinary routine litigation incidental
to
the business, could not reasonably be expected to result in a Material Adverse
Effect.
(xv) Accuracy
of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus (or
the
documents incorporated by reference therein) or to be filed as exhibits thereto
by the 1933 Act, the 1940 Act or by the Rules and Regulations which have not
been so described and filed as required.
(xvi) Possession
of Intellectual Property; Fund Name. The Fund owns or
possesses, or can acquire on reasonable terms, adequate licenses, copyrights,
know-how (including trade secrets or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “INTELLECTUAL PROPERTY”) necessary to carry on the
business now operated by the Fund, and the Fund has not received any notice
or
is not otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Fund therein.
(xvii) Absence
of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of,
any
court or governmental authority or agency is necessary or required for the
performance by the Fund of its obligations hereunder and under any Purchase
Agreement, in connection with the issuance and sale of the Shares to the
Investors or the consummation of the transactions contemplated by this Agreement
and any Purchase Agreement, except such as have been already obtained or as
may
be required under the 1933 Act, the 1940 Act, the Securities Exchange Act of
1934, as amended (the “1934 ACT”), or under the rules of the New York Stock
Exchange (“NYSE”) or the Financial Industry Regulatory Authority, Inc. (“FINRA”)
or state securities laws.
(xviii) Possession
of Licenses and Permits. The Fund possesses such permits,
licenses, approvals, consents and other authorizations (collectively,
“GOVERNMENTAL
6
LICENSES”)
issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to operate its properties and to conduct the business as
contemplated in the Prospectus. The Fund is in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not
have a Material Adverse Effect. The Fund has not received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses.
(xix) [Intentionally
Omitted].
(xx) Subchapter
M. The Fund has not made and will not make an election under
Section 851(b) of the Internal Revenue Code of 1986, as amended (the “CODE”) (or
any successor provisions thereto), to be treated as a regulated investment
company for federal income tax purposes.
(xxi) Distribution
of Offering Materials. The Fund has not distributed and,
prior to the later of (A) the Closing Time and (B) completion of the
distribution of the Shares, will not distribute any offering material to the
public in connection with the offering and sale of the Shares other than the
Registration Statement, the Statutory Prospectus and the
Prospectus.
(xxii) Accounting
Controls and Disclosure Controls. The Fund maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management’s general or specific authorization and with the applicable
requirements of the 1940 Act, the Rules and Regulations, FINRA and the Code;
(B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain accountability for assets and to maintain compliance with the books
and
records requirements under the 1940 Act and the Rules and Regulations; (C)
access to assets is permitted only in accordance with the management’s general
or specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is
taken with respect to any differences. The Fund has developed and
maintains disclosure controls and procedures (as such term is defined in Rule
30a-3 of the ▇▇▇▇ ▇▇▇) that are effective in ensuring that information required
to be disclosed by the Fund in the reports that it files or submits under the
1940 Act is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information required
to be disclosed by the Fund in the reports that it files or submits under the
1940 Act is accumulated and communicated to the Fund’s management, including its
principal executive officer or officers and its principal financial
officer or officers, as appropriate to allow timely decisions regarding required
disclosure.
(xxiii) Absence
of Undisclosed Payments. Neither the Fund nor, to the Fund’s
Knowledge, any employee or agent of the Fund, has made any payment of funds
of
the Fund or received
or retained any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus and which payment has
not
been so disclosed.
7
(xxiv) Material
Agreements; Enforceability. The Offering Agreements and the
Fund 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, the Offering
Agreements and the Fund Agreements, each Offering Agreement and each Fund
Agreement constitutes a valid and binding agreement of the Fund, enforceable
in
accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or state
laws.
(xxv) Registration
Rights. There are no persons with registration rights or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Fund under the 1933
Act.
(xxvi) NYSE
Listing. The Fund’s common stock has been duly authorized
for listing on the NYSE and the Fund’s registration statement on Form 8-A under
the 1934 Act has become effective.
(xxvii) Payment
of Taxes. All United States federal income tax returns of
the Fund required by law to be filed have been filed and all taxes shown by
such
returns or otherwise assessed, which are due and payable, have been paid, except
assessments that are being contested in good faith and as to which adequate
reserves have been provided. The United States federal income tax
returns of the Fund through the fiscal year ended [Date] have been settled
and
no assessment in connection therewith has been made against the
Fund. The Fund has filed all other tax returns that are required to
have been filed by them pursuant to applicable foreign, state, local or other
law except insofar as the failure to file such returns would not result in
a
Material Adverse Effect, and has paid all taxes due pursuant to such returns
or
pursuant to any assessment received by the Fund, except for such taxes, if
any,
as are being contested in good faith and as to which adequate reserves have
been
provided. The charges, accruals and reserves on the books of the Fund
in respect of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or reassessments for additional
tax for any years not finally determined, except to the extent of any inadequacy
that would not result in a Material Adverse Effect. All material
taxes which the Fund is required by law to withhold or to collect for payment
have been duly withheld and collected and have been paid to the appropriate
governmental authority or agency or have been accrued, reserved against and
entered on the books of the Fund.
(xxviii) Insurance. The
Fund carries on or is entitled to the benefits of insurance, with financially
sound and reputable insurers, in such amounts and covering such risks as are
generally maintained by companies of established repute engaged in the same
or
similar business, and all such insurance is in full force and
effect. The Fund has no reason to believe that it will not be able to
(A) renew its existing insurance coverage as and when such policies expire
or
(B) obtain comparable coverage from similar institutions as may be necessary
8
or
appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect.
(xxix) Statistical
and Market-Related Data. Any statistical and market-related
data included in the Registration Statement, the General Disclosure Package
and
the Prospectus are based on or derived from sources that the Fund believes
to be
reliable and accurate, and the Fund has obtained written consent to the use
of
such data from such sources.
(b) Representations
and Warranties by the Adviser. The Adviser represents and
warrants to the Placement Agent as of the date hereof and as of the Closing
Time
referred to in Section 2(b) hereof as follows:
(i) Good
Standing of the Adviser. The Adviser has been duly organized
and is validly existing and in good standing as a limited liability company
under the laws of the State of Delaware with full power and authority to own,
lease and operate its properties and to conduct its business as described in
the
General Disclosure Package and the Prospectus and is duly qualified as a foreign
entity to transact business and is in good standing in each other jurisdiction
in which such qualification is required except as would not, individually or
in
the aggregate, result in a material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
such
Adviser, whether or not arising in the ordinary course of business (an “ADVISER
MATERIAL ADVERSE EFFECT”).
(ii) Investment
Adviser Status. The Adviser is duly registered and in good
standing with the Commission as an investment adviser under the Advisers Act,
and is not prohibited by the Advisers Act, the 1940 Act, or the rules and
regulations under such acts, from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus.
(iii) Description
of Adviser. The description of the Adviser in the
Registration Statement, the General Disclosure Package and the Prospectus
(including any amendment or supplement thereto) complied and comply in all
material respects with the provisions of the 1933 Act, the 1940 Act, the
Advisers Act; the Rules and Regulations and the Advisers Act Rules and
Regulations and is true and correct and does not contain any untrue statement
of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) Capitalization. The
Adviser has the financial resources available to it necessary for the
performance of its services and obligations as contemplated in the General
Disclosure Package, Prospectus, the Investment Advisory Agreement 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
9
bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or state
laws; and neither the execution and delivery of this Agreement, any Purchase
Agreement or the Investment Advisory Agreement nor the performance by the
Adviser of its obligations hereunder or thereunder will conflict with, or result
in a breach of any of the terms and provisions of, or constitute, with or
without the giving of notice or lapse of time or both, a default under, (i)
any
agreement or instrument to which the Adviser is a party or by which it is bound,
(ii) the limited liability company operating agreement and other organizational
documents of the Adviser, or (iii) to the Adviser’s knowledge, by any law,
order, decree, rule or regulation applicable to it of any jurisdiction, court,
federal or state regulatory body, administrative agency or other governmental
body, stock exchange or securities association having jurisdiction over the
Adviser or its properties or operations other than any conflict, breach or
default that would not, individually or in the aggregate, reasonably be expected
to result in an Adviser Material Adverse Effect; and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Adviser of the transactions contemplated
by
this Agreement, any Purchase Agreement or the Investment Advisory Agreement,
except as have been obtained or will be obtained prior to the Closing Time
or
may be required under the 1933 Act, the 1940 Act, the 1934 Act or state
securities laws.
(vi) No
Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, there has not occurred any event which could
reasonably be expected to have a material adverse effect on the ability of
the
Adviser to perform its respective obligations under this Agreement and the
Investment Advisory Agreement.
(vii) Absence
of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Adviser,
threatened against or affecting the Adviser or any “affiliated person” of the
Adviser (as such term is defined in the ▇▇▇▇ ▇▇▇) or any partners, directors,
officers or employees of the foregoing, whether or not arising in the ordinary
course of business, which could reasonably be expected to result in Adviser
Material Adverse Effect or, materially and adversely affect the ability of
the
Adviser to function as an investment adviser with respect to the Fund or perform
its obligations under this Agreement or the Investment Advisory Agreement,
or
which is required to be disclosed in the Registration Statement and the
Prospectus.
(viii) Absence
of Violation or Default. The Adviser is not in violation of
its limited liability company operating agreement or other organizational
documents or in default under any agreement, indenture or instrument, except
for
such violations or defaults that have not and could not result in an Adviser
Material Adverse Effect.
(c) Officer’s
Certificates. Any certificate signed by any officer of the
Fund or the Adviser delivered to the Placement Agent or to counsel for the
Placement Agent shall be deemed a representation and
warranty by the Fund or the Adviser, as the case may be, to the Placement
Agent
as to the matters covered thereby.
10
Section
2. Agreement
to Act as Placement Agent, Delivery and Payment.
(a) Engagement
of Placement Agent. The Placement Agent agrees to act as the
Fund’s exclusive placement agent, on a reasonable efforts basis, in connection
with the issuance and sale by the Fund of the Shares to the
Investors. The Fund acknowledges and agrees that the Placement
Agent’s engagement hereunder is not an agreement by the Placement Agent or any
of its affiliates to underwrite or purchase any securities or otherwise provide
any financing. As compensation for their services hereunder, the Fund
agrees to pay at the Closing Time (as defined below) to the Placement Agent
by
wire transfer of immediately available funds an amount equal to ___% of the
proceeds received by the Fund from the sale of the Shares.
(b) Payment. Payment
of the purchase price for, and delivery of the Shares shall be made at a closing
(the “Closing”) at the offices of [Name], [Address], at
____ _.M. (Eastern time) to take place no later than the third
or fourth business day (as permitted under Rule 15c6-1 under the ▇▇▇▇ ▇▇▇)
after
the determination of the sales price of the Shares (such time and date of
payment and delivery being herein called the “CLOSING TIME”). All
actions taken at the Closing shall be deemed to have occurred
simultaneously.
(c) Payment
for the Shares. Payment of the purchase price for the Shares
shall be made by the Investors by wire transfer in immediately available funds
to a bank account designated by the Fund, upon delivery of the Shares through
the facilities of The Depository Trust Company, to the Investors, and shall
be
registered in such name or names and shall be in such denominations, as the
Investors may request at least one business day before the Closing
Time.
(d) Purchase
Agreements. The several purchases of the Shares by the
Investors shall be evidenced by the execution of one or more purchase agreements
each substantially in the form attached hereto as Exhibit A (the “PURCHASE
AGREEMENT”).
(e) No
other Sales of Common Shares. Prior to the earlier of (i)
the date on which this Agreement is terminated and (ii) the Closing Time, the
Fund shall not, without the prior consent of the Placement Agent, solicit or
accept offers to purchase Common Shares (other than pursuant to the exercise
of
options or warrants to purchase Common Shares that are outstanding at the date
hereof) otherwise than through the Placement Agent.
Section
3. Covenants.
(a) The
Fund
and Adviser covenant with the Placement Agent 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 430C, as applicable, and will notify the Placement Agent as soon
as
practicable, and confirm the notice in writing, (1) 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 any document incorporated by reference
therein) or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the
11
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 or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement,
and (v) if the Fund becomes the subject of a proceeding under Section 8A of
the
1933 Act in connection with the issuance and sale of the Shares to the
investors. The Fund will promptly effect any necessary post-effective
amendment and the filings required pursuant to Rule 497 and will take such
steps
as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 497 was received for filing by the Commission
and, in the event that it was not, it will promptly file such
prospectus. The Fund will make every reasonable effort to prevent the
issuance of any stop order, or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act, and, if any such stop order or order
of suspension or revocation of registration is issued, to obtain the lifting
thereof at the earliest possible moment.
(ii) Filing
of Amendments and Exchange Act Documents. The Fund will give
the Placement Agent notice of its intention to file or prepare any amendment
to
the Registration Statement relating to the offering, issuance or sale of Shares
(including any filing under Rule 462(d)) 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 Placement
Agent 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 documents to which the Placement Agent or counsel for the Placement Agent
shall reasonably object. The Fund has given the Placement Agent
notice of any filings made pursuant to the 1934 Act or the rules and regulations
of the Commission under the 1934 Act (the “1934 ACT REGULATIONS”) within 48
hours prior to the date hereof; the Fund will give the Placement Agent notice
of
its intention to make any such filing from the date hereof to the Closing Time
and will furnish the Placement Agent with copies of any such documents a
reasonable amount of time prior to such proposed filing, or as the case may
be,
and will not file or use any such document to which the Placement Agent or
counsel for the Placement Agent shall object; provided, however that this
covenant shall not apply to any post-effective amendment required by Rule 8b-16
of the 1940 Act which is filed with the Commission after the later of (x) one
year from the date of this Agreement or (y) the date on which the distribution
of the Shares is completed.
(iii) Delivery
of Registration Statements. The Fund has furnished or will
deliver to the Placement Agent and counsel for the Placement Agent, without
charge, signed copies of the Registration Statement as originally filed and
of
each amendment thereto relating to the offering, issuance or sale of Shares
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the Placement Agent,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment relating to the offering, issuance or sale of Shares
(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). The copies of the Registration
Statement and each amendment thereto, relating to the offering, issuance or
sale
of Shares to the Investors, furnished
12
to
the
Placement Agent will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(iv) Delivery
of Prospectuses. The Fund has delivered to the Placement
Agent, without charge, as many copies of each preliminary prospectus as the
Placement Agent 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 the Placement Agent, 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 the Placement
Agent may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Placement Agent will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, 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 Placement
Agent or for the Fund, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the Rules and Regulations,
the
Fund will promptly prepare and file with the Commission, subject to Section
3(a)(ii), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Fund will furnish to the Placement Agent
such number of copies of such amendment or supplement as the Placement Agent
may
reasonably request.
(vi) Blue
Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Placement Agent, to qualify the Shares for issuance and
sale to the Investors under the applicable securities laws of such states and
other jurisdictions of the United States as the Placement Agent may designate
and to maintain such qualifications in effect so long as required in connection
with the issuance and sale 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 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 to the Placement Agent the benefits contemplated by, the
last
paragraph of Section 11(a) of the 1933 Act.
13
(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 General Disclosure
Package and 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.
(x) [Intentionally
Omitted].
(xi) Reporting
Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will
file all documents required to be filed with the Commission pursuant to the
1940
Act and the 1934 Act within the time periods required by the 1940 Act and the
Rules and Regulations and the 1934 Act and the rules and regulations of the
Commission thereunder, respectively.
(xii) No
Manipulation of Market for Shares. Except for the
authorization of actions permitted to be taken by the Placement Agent as
contemplated herein, in the General Disclosure Package 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 (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) [Intentionally
Omitted].
(xiv) Sales
Materials. The Fund represents and agrees that, unless it
obtains the prior consent of the Placement Agent, it will not use any sales
or
marketing materials in connection with any issuance or sale of any
Shares.
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 Placement Agent of this Agreement and such other documents
as may be required in connection with the issuance, sale and delivery of the
Shares to the Investors, including, without limitation, any Purchase Agreements,
(iii) the preparation, issuance and delivery of the certificates for the Shares
to the Investors, 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
Investors, (iv) the fees and disbursements of the Fund’s counsel, accountants
and other advisers, (v) the printing and delivery to the Placement Agent of
copies of each preliminary prospectus and of the Prospectus and any amendments
or supplements thereto and any costs associated with electronic delivery of
any
of the foregoing by the Placement Agent to investors, (vi) the fees and expenses
of any transfer agent or registrar for
14
the
Shares, (vii) the fees and disbursements of the Placement Agent’s counsel (not
to exceed $25,000), and the fees and disbursements of counsel in connection
with
any state “blue sky” laws (and filing fees in connection therewith), (viii) the
fees and expenses incurred in connection with the listing of the Shares on
the
NYSE and (ix) the fees and expenses (including, without limitation, any damages
or other amounts payable in connection with legal or contractual liability)
associated with the reforming of any contracts for sale of the Shares to the
investors caused by a breach of the representation contained in the third
paragraph of Section 1(a)(i) hereof.
(b) Termination
of Agreement. If this Agreement is terminated by the
Placement Agent in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Fund or the Adviser shall reimburse, or arrange for an
affiliate to reimburse, the Placement Agent for all of the Placement Agent’s out
of pocket expenses, including reasonable fees and disbursements of counsel
for
the Placement Agent. If this Agreement is terminated for any reason
other than by the Placement Agent in accordance with the provisions of Section
5
or Section 9(a)(i) hereof, the Fund or the Adviser shall reimburse, or arrange
for an affiliate to reimburse, the Placement Agent for all of the Placement
Agent’s out of pocket expenses, including reasonable fees and disbursements of
counsel for the Placement Agent up to a maximum reimbursement of
$25,000.
Section
5. Conditions
of the Placement Agent’s Obligations.
The
obligations of the Placement Agent hereunder are subject to the accuracy of
the
representations and warranties of the Fund and the Adviser contained in Section
1 hereof or in 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(d) 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 Placement Agent. 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).
(b) Opinions
of Counsel.
(i) Opinion
of Counsel for the Fund and the Adviser. At the Closing
Time, the Placement Agent shall have received the favorable opinions, dated
as
of Closing Time, from ▇▇▇▇▇▇ Price P.C., counsel for the Fund, and from
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Adviser, which opinions
shall be substantially similar to those opinions delivered on [Date], in
connection with a registered direct offering by the Fund of shares of common
stock, in the case of the opinion from counsel to the Adviser, and to the
opinion delivered on [Date] in
15
connection
with the secondary public offering of Common Shares, in the case of the opinion
from counsel to the Fund, and to such further effect as counsel to the Placement
Agent may reasonably request. As to matters of Maryland law, ▇▇▇▇▇▇
Price P.C., may rely on the opinion of ▇▇▇▇▇▇▇ LLP.
(ii) Opinion
of Counsel for the Placement Agent. At the Closing Time, the
Placement Agent shall have received the favorable opinion, dated as of Closing
Time, from [Law Firm], counsel for the Placement Agent, which opinion shall
be
in form and substance satisfactory to the Placement Agent.
(c) Officers’
Certificates. At the 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 or the General Disclosure Package, 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 Placement Agent 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 1(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 Placement Agent shall have received from Ernst & Young LLP
(“E&Y”) a letter dated such date, in form and substance satisfactory to the
Placement Agent, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to the Placement Agent with respect
to the financial statements and certain financial information contained in
the
Registration Statement, the General Disclosure Package and the
Prospectus.
(e) Bring-Down
Comfort Letter. At the Closing Time, the Placement Agent
shall have received from E&Y a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter famished 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) Maintenance
of Rating. Since the execution of this Agreement, there
shall not have been any decrease in the rating of any of the Fund’s securities
by any “nationally recognized statistical rating organization” (as defined for
purposes of Rule 436(g) under the 1933
16
Act)
or
any notice given of any intended or potential decrease in any such rating or
of
a possible change in any such rating that does not indicate the direction of
the
possible change.
(h) Additional
Documents. At the Closing Time counsel for the Placement
Agent 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 to the Investors 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 to the
Investors as contemplated herein and under any Purchase Agreements, shall be
reasonably satisfactory in form and substance to the Placement Agent and counsel
for the Placement Agent.
(i) Termination
of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Placement Agent by notice to the Fund at
any
time at or prior to Closing Time, 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 12 shall survive any such termination and
remain in full force and effect.
Section
6. Indemnification.
(a) Indemnification
of the Placement Agent. The Fund and the Adviser agree,
jointly and severally, to indemnify and hold harmless the Placement Agent and
each person, if any, who controls the Placement Agent 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) relating
to the offering, issuance or sale of the Shares, including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement
of
a material fact included in any preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(e) below) any such settlement is effected with the written
consent of the Fund; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Placement Agent), reasonably incurred
in
17
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 the Placement Agent expressly for use
in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification
of Fund, Adviser, Directors and Officers. The Placement
Agent 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, 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
the
Placement Agent 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) [Intentionally
Omitted].
(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 the
Placement Agent, 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
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
18
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.
(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 Adviser on the one hand and
the
Placement Agent on the other hand from the issuance and sale of the Shares
to
the Investors pursuant to this Agreement and any Purchase 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 Placement Agent on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative benefits received by the Fund and the Adviser on the one hand and
the
Placement Agent on the other hand in connection with the issuance and sale
of
the Shares to the Investors pursuant to this Agreement and any Purchase
Agreements 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 placement agent fees
received by the Placement Agent (whether from the Fund or otherwise), in each
case as set forth on the cover of the Prospectus, bear to the aggregate 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 Placement
Agent 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 Placement
19
Agent
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 Placement Agent agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata
allocation 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, the Placement Agent shall not be required
to
contribute any amount in excess of the amount of placement agent fees actually
received by the Placement Agent pursuant to the terms of this
Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) 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 the Placement
Agent 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 Placement Agent, and
each
director of the Fund and each director 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.
Any
contribution by the Fund shall be subject to the requirements and limitations
of
Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section
8. Representations
and Warranties To Survive Delivery. All representations,
warranties and agreements contained in this Agreement or in certificates of
officers of the Fund or the Adviser submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made
by
or on behalf of the Placement Agent or a controlling person, or by or on behalf
of the Fund or the Adviser, and shall survive delivery of the Shares to the
Placement Agent.
Section
9. Termination
of Agreement.
(a) Termination;
General. The Placement Agent 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 or General Disclosure
Package, 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
20
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 Placement
Agent, 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 American Stock Exchange or in the NASDAQ Global 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, FINRA 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
Kansas 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 12 shall
survive such termination and remain in full force and effect.
Section
10. 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 Placement Agent shall be directed
to [Placement Agent] at [Address], attention of [Name], [Position]; and notices
to the Fund or the Adviser shall be directed, as appropriate, to the office
of
the Adviser, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
attention of Management Committee.
Section
11. No
Advisory or Fiduciary Relationship. The Fund acknowledges
and agrees that (a) the issuance and sale of the Shares pursuant to the Purchase
Agreements, including the determination of the price per share of the Shares
and
any related discounts and commissions and placement agent fees, will be an
arm’s-length commercial transaction between the Fund, on the one hand, and the
Investors, on the other hand, (b) in connection with the issuance and sale
of
the Shares to the Investors contemplated hereby and the process leading to
such
transaction the Placement Agent is not a fiduciary of the Fund nor the agent
or
fiduciary of any of the stockholders, creditors or employees of the Fund or
any
other party, (c) the Placement Agent has not assumed nor will it assume an
advisory or fiduciary responsibility in favor of the Fund with respect to the
issuance and sale of Shares to the Investors contemplated hereby or the process
leading thereto (irrespective of whether the Placement Agent has advised or
is
currently advising the Fund on other matters) and the Placement Agent has no
obligation to the Fund with respect to the issuance and sale of Shares to the
Investors contemplated hereby except for any obligations which are expressly
set
forth in this Agreement, (d) the Placement Agent and its affiliates maybe
engaged in abroad range of transactions that involve interests that differ
from
those of the Fund, and (e) the Placement Agent has not provided legal,
accounting, regulatory or tax advice with respect to the issuance and sale
of
Shares to the Investors as contemplated hereby and under any Purchase Agreements
and the Fund has consulted its own respective legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
Section
12. Parties. This
Agreement shall each inure to the benefit of and be binding upon the Placement
Agent, the Fund, the Adviser and their respective partners and
successors.
21
Nothing
expressed or mentioned in this Agreement is intended or shall be construed
to
give any person, firm or corporation, other than the Placement Agent, 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 Placement Agent, 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 investor shall be
deemed to be a successor by reason merely by reason of its purchase of Shares
from the Fund.
Section
13. Governing
Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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.
22
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 Placement Agent, the
Fund and the Adviser in accordance with its terms.
| Very truly yours, | |||
|
|
By:
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| Name | |||
| Title | |||
|
TORTOISE
CAPITAL ADVISORS, LLC
|
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|
|
By:
|
||
| Name | |||
| Title | |||
|
CONFIRMED
AND ACCEPTED, as of the date first above written:
|
|||
|
[PLACEMENT
AGENT]
|
|||
|
By:
|
|||
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Authorized
Signatory
|
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23
SCHEDULE
A
Price
Per
Share = $____
24