$25,000,000
ENERGY INCOME AND GROWTH FUND
SERIES B ENERGY NOTES, DUE , 2046
UNDERWRITING AGREEMENT
March [ ], 2006
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
[ ]
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sir or Madam:
The undersigned, Energy Income and Growth Fund, a Massachusetts
business trust (the "Fund"), First Trust Advisors L.P., an Illinois limited
partnership (the "Adviser"), and Fiduciary Asset Management, LLC, a Missouri
limited liability company (the "Sub-Adviser") address you as Underwriters and as
the Representatives (the "Representatives") of each of the other persons, firms
and corporations, if any, listed in Schedule I hereto (herein collectively
called "Underwriters"). The Fund proposes to issue and sell $25,000,000
aggregate principal amount of Series B Energy Notes (the "Energy Notes") to the
several Underwriters. The Energy Notes will be issued pursuant to the provisions
of an indenture (the "Original Indenture") dated January 15, 2005, between the
Fund and Deutsche Bank National Trust Company, as trustee (the "Trustee"), a
supplemental indenture between the Fund and the Trustee, dated as of January 28,
2005, (the "First Supplemental Indenture") and a supplemental indenture between
the Fund and the Trustee to be dated March [ ], 2006 (the "Second Supplemental
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Indenture," and together with the First Supplemental Indenture and the Original
Indenture, the "Indenture").
The Fund, the Adviser and the Sub-Adviser wish to confirm as follows
their agreements with you and the other several Underwriters on whose behalf you
are acting in connection with the purchase of the Energy Notes by the
Underwriters.
The Fund has entered into an investment management agreement with the
Adviser dated June 24, 2004 (the "Advisory Agreement"), a Custodian Services
Agreement with PFPC Trust Company ("Custodian") dated May 25, 2004 (the
"Custodian Contract"), a Transfer Agency Agreement with PFPC Inc. dated May 25,
2004 (the "Transfer Agency Agreement"), an Administration and Accounting
Services Agreement with PFPC Inc. dated May 25, 2004 (the "Administration
Agreement"), an Auction Agency Agreement, including the form of Broker-Dealer
Agreement, with Deutsche Bank Trust Company Americas dated January 27, 2005 (the
"Auction Agreement"). Collectively, the Advisory Agreement, the Custodian
Contract, the Transfer Agency Agreement, the Administration Agreement and the
Auction Agreement are herein referred to as the "Fund Agreements." The Adviser
has entered into the Advisory Agreement, a Sub-Advisory Agreement with the
Sub-Adviser dated June 24, 2004, and a Corporate Finance Services and Consulting
Agreement with ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. dated June 29, 2004 (the "Corporate
Finance Services and Consulting Agreement")(collectively, the "Adviser
Agreements"). The Sub-Adviser has entered into the Sub-Advisory Agreement and
this Agreement (collectively, the "Sub-Adviser Agreements"). This Underwriting
Agreement is herein referred to as the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), the Investment Company Act of 1940, as amended (the
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"1940 Act"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Rules and Regulations", the Trust Indenture
Act (the "1939 Act Rules and Regulations") and the 1940 Act (the "1940
Act Rules and Regulations," and together with the 1933 Act Rules and
Regulations and the 1939 Act Rules and Regulations, the "Rules and
Regulations") a registration statement on Form N-2 (File No. 333-131771
under the 1933 Act) (the "registration statement"), including a
prospectus and statement of additional information relating to the
Energy Notes, and a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A (File No. 811-21549
under the 1940 Act, the "1940 Act Notification"), and may pursuant to
the Rules and Regulations prepare and file an additional registration
statement relating to a portion of the Energy Notes pursuant to Rule
462(b) of the 1933 Act Rules and Regulations (a "Rule 462 registration
statement"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933
Act or, if the registration statement became effective under the 1933
Act prior to the execution of this Agreement, as amended or supplemented
thereto, prior to the execution of this Agreement and includes any
information deemed to be included by Rule 430A under the 1933 Act Rules
and Regulations. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the registration statement
will be filed under the 1933 Act and must be declared effective before
the offering of the Energy Notes may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as
amended by said post-effective amendment. If the Fund has filed a Rule
462 registration statement, then the reference herein to the term
"Registration Statement" shall include such Rule 462 registration
statement. The term "Prospectus" as used in this Agreement means the
prospectus and statement of additional information in the forms included
in the Registration Statement or, if the prospectus and statement of
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additional information included in the Registration Statement omit
information in reliance on Rule 430A under the 1933 Act Rules and
Regulations and such information is included in a prospectus and
statement of additional information filed with the Commission pursuant
to Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus and
statement of additional information in the forms included in the
Registration Statement as supplemented by the addition of the
information contained in the prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule
497(h). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus and statement of additional information subject to
completion in the form included in the registration statement at the
time of the initial filing of the registration statement with the
Commission and as such prospectus and statement of additional
information shall have been amended from time to time prior to the date
of the Prospectus, together with any other prospectus (including any
other statement of additional information) relating to the Fund other
than the Prospectus. The terms "Registration Statement," "Prospectus"
and "Prepricing Prospectus" shall also include any financial statements
and other information included or incorporated by reference therein.
The Fund has furnished the Representatives with copies of such
Registration Statement, each amendment to such Registration Statement
filed with the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to all
the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund, the Adviser and the Sub-Adviser herein contained
and subject to all of the other terms and conditions set forth herein,
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each Underwriter agrees, severally and not jointly, to purchase from the
Fund at a purchase price of $[ ] per Energy Note (the "Price per Note"),
the amount of Energy Notes set forth opposite the name of such
Underwriter in Schedule I hereto.
3. Terms of Public Offering. The Fund and the Adviser have been advised by
you that the Underwriters propose to make a public offering of their
respective portions of the Energy Notes as soon after the Registration
Statement and this Agreement have become effective as in your judgment
is advisable and initially to offer the Energy Notes upon the terms set
forth in the Prospectus.
4. Delivery of Energy Notes and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Energy Notes and compensation of the Underwriters with respect
thereto shall be made at the offices of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ at [ ]
central time on March [ ], 2006 (the "Closing Date"). The place of
closing for the Energy Notes and the Closing Date may be varied by
agreement between ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., as managing
representative (the "Managing Representative") of the
Representatives, and the Fund.
(b) The Energy Notes shall be issued in definitive registered form and
shall be registered in such names and in such denominations as the
Underwriters shall request prior to 1:00 P.M., New York City time
(or such other time as the parties agree), on the first business
day preceding the Closing Date.
5. Agreements of the Fund, the Adviser and the Sub-Adviser. The Fund, the
Adviser, and (with respect to subsections (b), (k), (n), (o) and (p)
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below only, and only as they relate to the Sub-Adviser) the Sub-Adviser,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the 1933 Act
before the offering of the Energy Notes may commence, the Fund will
use its best efforts to cause the Registration Statement or such
post-effective amendment to become effective under the 1933 Act as
soon as possible. If the Registration Statement has become
effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A of
the 1933 Act Rules and Regulations, the Fund will file a prospectus
including such information pursuant to Rule 497(h) of the 1933 Act
Rules and Regulations, as promptly as practicable, but no later
than the second business day following the earlier of the date of
the determination of the offering price of the Energy Notes or the
date the Prospectus is first used after the effective date of the
Registration Statement. If the Registration Statement has become
effective and the Prospectus contained therein does not so omit
such information, the Fund will file a Prospectus or certification
pursuant to Rule 497(c) or (j), as the case may be, of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than
the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of
the public offering of the Energy Notes after the effective date of
the Registration Statement. The Fund will advise you promptly and,
if requested by you, will confirm such advice in writing (i) when
the Registration Statement or such post-effective amendment has
become effective, (ii) when the Prospectus has been timely filed
pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
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Regulations or (iii) when the certification permitted pursuant to
Rule 497(j) of the 1933 Act Rules and Regulations has been timely
filed, whichever is applicable.
(b) The Fund, and, in the case of (iii)(B) and (iv) below (with respect
to communications received by or developments relating to the
Adviser or the Sub-Adviser, respectively) the Adviser or the
Sub-Adviser, will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration
Statement, the Prospectus or any Prepricing Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined), of any
notice pursuant to Section 8(e) of the 1940 Act of the suspension
of qualification of the Energy Notes for offering or sale in any
jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by (A) the Fund
or attorney of the Fund referenced on the facing page of the
Registration Statement of any other material communication from
the Commission, or (B) the Fund, the Adviser or the Sub-Adviser
or attorney of the Fund or the general counsel of the Adviser
or the Sub-Adviser of any other material communication from the
Commission, the NASD, any state securities commission, any national
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securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency
or any official relating, in the case of either clause (A) or (B),
to the Fund (if such communication relating to the Fund is received
by such person within three years after the date of this
Agreement), the Registration Statement, the 1940 Act Notification,
the Prospectus, any Prepricing Prospectus, any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) or this Agreement or any of the Fund Agreements and (iv)
within the period of time referred to in paragraph (f) below, of
any material, adverse change in the condition (financial or other),
general affairs, business, prospects, properties, net assets or
results of operations of the Fund or any event which should
reasonably be expected to have a material adverse effect on the
ability of the Adviser or the Sub-Adviser to perform its
obligations under this Agreement or any of the Adviser Agreements
or the Sub-Adviser Agreements, respectively (other than as a result
of changes in market conditions generally), or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus
or any sales material (or any amendment or supplement to any of the
foregoing) untrue or which requires the making of any additions to
or changes in the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales material (or any amendment or
supplement to any of the foregoing) in order to state a material
fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus or any sales
material, in light of the circumstances under which they were made)
not misleading or of the necessity to amend or supplement the
Registration Statement, the Prospectus, any Prepricing Prospectus
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or any sales material (or any amendment or supplement to any of the
foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory
body. If at any time the Commission shall issue any order
suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus or any sales
material (or any amendment or supplement to any of the foregoing)
or suspending the qualification of the Energy Notes for offering or
sale in any jurisdiction, the Fund and the Adviser will use their
best efforts to obtain the withdrawal of such order at the earliest
possible time. If at any time the NASD, any national securities
exchange, any state securities commission, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or
administrative agency or any official shall issue any order
suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus or any sales
material (or any amendment or supplement to any of the foregoing)
or suspending the qualification of the Energy Notes for offering or
sale in any jurisdiction, the Fund and the Adviser will use their
respective best efforts to obtain the withdrawal of such order at
the earliest possible time. In the case of any event set forth in
the preceding two sentences, the Sub-Adviser shall, at the request
of the Fund or the Adviser, cooperate with the Fund and the
Adviser, as the case may be, in connection with reasonable requests
made by either of them to effectuate the purposes of such sentences
provided that the Fund or the Advisor shall reimburse any
reasonable out-of-pocket expenses incurred by the Sub-Adviser.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
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including financial statements and all exhibits thereto and will
also furnish to you, without charge, such number of conformed
copies of the registration statement as originally filed and of
each amendment thereto, with or without exhibits, as you may
reasonably request.
(d) The Fund will not (i) file any amendment to the registration
statement or the Registration Statement or make any amendment or
supplement to the Prospectus, any Prepricing Prospectus or any
sales material (or any amendment or supplement to any of the
foregoing) of which you shall not previously have been advised or
to which you shall reasonably object within a reasonable time after
being so advised or (ii) so long as, in the opinion of counsel for
the Underwriters, a Prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the 1933 Act, the
Trust Indenture Act, the 1940 Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), without delivering a copy of
such information, documents or reports to you, as Representatives
of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund has
delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing
Prospectus. The Fund consents to the use, in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky laws
of the jurisdictions in which the Energy Notes are offered by the
several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in
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the opinion of counsel for the Underwriters a prospectus is
required by the 1933 Act to be delivered in connection with sales
of Energy Notes by any Underwriter or dealer, the Fund will
expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. The Fund
consents to the use of the Prospectus (and of any amendments or
supplements thereto) in accordance with the provisions of the 1933
Act and with the securities or Blue Sky laws of the jurisdictions
in which the Energy Notes are offered by the several Underwriters
and by all dealers to whom Energy Notes may be sold, both in
connection with the offering or sale of the Energy Notes and for
such period of time thereafter as the Prospectus is required by law
to be delivered in connection with sales of Energy Notes by any
Underwriter or dealer. If during such period of time any event
shall occur that in the judgment of the Fund or in the opinion of
counsel for the Underwriters is required to be set forth in the
Registration Statement or the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading or if it
is necessary to supplement or amend the Registration Statement or
the Prospectus to comply with the 1933 Act, the Trust Indenture
Act, the 1940 Act, the Rules and Regulations or any other law, rule
or regulation, the Fund will forthwith notify you of such event,
prepare and, subject to the provisions of paragraph (d) above,
promptly file with the Commission an appropriate amendment or
supplement thereto and will expeditiously furnish to the
Underwriters and dealers, without charge, such number of copies
thereof as they may reasonably request. In the event that the
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Registration Statement or the Prospectus is to be amended or
supplemented, the Fund, if reasonably requested by you, will
promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification
of the Energy Notes for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws
of such jurisdictions as you may designate and will file such
consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification;
provided that in no event shall the Fund be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or
to take any action which subjects it to service of process in
suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now subject.
(h) As soon as practicable, but in no event later than the last day of
the 18th full calendar month following the calendar quarter in
which the effective date of the Registration Statement falls, the
Fund will make generally available to its security holders an
earnings statement, which need not be audited, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 of the 1933 Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of three years hereafter, the Fund will furnish
or will have furnished to you (i) as soon as available, a copy of
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each report of the Fund mailed to shareholders or filed with the
Commission or furnished to the AMEX (except as may be publicly
available on the Commission's internet website) and (ii) from time
to time such other information concerning the Fund as you may
reasonably request.
(k) If this Agreement shall terminate or be terminated after execution
pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 11 hereof or by notice given by you
terminating this Agreement pursuant to Section 12 hereof) or if
this Agreement shall be terminated by the Underwriters because of
(i) any failure or refusal on the part of the Fund, the Adviser or
the Sub-Adviser to comply with any term or fulfill any of the
conditions of this Agreement required to be complied with or
fulfilled by them or (ii) the non-occurrence of any other condition
set forth in this Agreement required to occur in connection with
the sale by the Fund of the Energy Notes, the Fund, the Adviser and
the Sub-Adviser, jointly and severally, agree to reimburse the
Representatives for all out-of-pocket expenses not to exceed the
amounts set forth in Section 13 of this Agreement (including
reasonable fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Energy Notes (i) in accordance with the description
set forth in the Prospectus; (ii) in such a manner as to comply
with the investment objective, policies and restrictions of the
Fund as described in the Prospectus; and (iii) in a manner
consistent with the Indenture and the Rating Agency Guidelines,
established by each of ▇▇▇▇▇'▇ Investor Services, Inc. ("Moody's")
and Fitch Ratings ("Fitch") in connection with its rating of the
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Shares, to maintain its rating of the Shares of "Aaa" by Moody's
and "AAA" by Fitch.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule
497(h) of the 1933 Act Rules and Regulations, whichever is
applicable or, if applicable, will file in a timely fashion the
certification permitted by Rule 497(j) of the 1933 Act Rules and
Regulations and will advise you of the time and manner of such
filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund, none of the Fund, the Adviser, the
Sub-Adviser or their respective officers, trustees or directors
will sell, contract to sell or otherwise dispose of any senior
securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or any
securities convertible into or exercisable or exchangeable for
senior securities of the Fund or grant any options or warrants to
purchase senior securities of the Fund for a period of 180 days
after the date of the Prospectus, without the prior written consent
of the Representatives (it being understood that the Sub-Adviser
shall have no obligation or liability under this subsection with
respect to the acts or omissions of the Fund and the Adviser, and
their respective officers, trustees or directors).
(o) Except as stated in this Agreement and in the Prospectus, none of
the Fund, the Adviser or the Sub-Adviser will take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Energy Notes (it being understood that the Sub-Adviser
shall have no obligation or liability under this subsection with
respect to the acts or omissions of the Fund and the Adviser).
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(p) In the event that the Fund becomes eligible to qualify as a
"regulated investment company" for federal income tax purposes and
makes such an election, the Fund will direct the investment of the
proceeds of the offering of the Energy Notes so as to comply with
the requirements of Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), to qualify as a regulated investment
company under the Code.
6. Representations and Warranties of the Fund, the Adviser and the
Sub-Adviser. The Fund, the Adviser, and (with respect to subsections (b)
and (w) below only) the Sub-Adviser jointly and severally, represent and
warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or
supplement thereto or filed pursuant to Rule 497 of the 1933 Act
Rules and Regulations complied when so filed in all material
respects with the provisions of the 1933 Act, the Trust Indenture
Act, the 1940 Act and the Rules and Regulations and the Commission
has not issued any order preventing or suspending the use of the
Prepricing Prospectus.
(b) The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, the
Prospectus and any amendment or supplement thereto when filed with
the Commission under Rule 497 of the 1933 Act Rules and Regulations
and the 1940 Act Notification when originally filed with the
Commission and any amendment or supplement thereto when filed with
the Commission complied or will comply in all material respects
with the provisions of the 1933 Act, the Trust Indenture Act, the
1940 Act and the Rules and Regulations, and each of the
Registration Statement and the Prospectus (or any supplement or
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amendment to either of them) did not or will not at any such times
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading;
except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding shares of capital stock of the Fund have been
duly authorized and validly issued, are fully paid and (except as
described in the Prospectus under "Certain Provisions in the
Declaration of Trust") nonassessable and are free of any preemptive
or similar rights. No other shares of capital stock are issued or
outstanding and the capitalization of the Fund conforms in all
respects to the description thereof in the Registration Statement
and the Prospectus (or any amendment or supplement to either of
them). The Energy Notes have been duly authorized and, when issued,
authenticated and delivered against payment therefor in accordance
with this Agreement and the Indenture, will constitute valid and
binding obligations of the Fund; and the Energy Notes will conform
in all respects to the description thereof in the Registration
Statement and the Prospectus (or any amendment or supplement to
either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and
operate its properties and to conduct its business as described in
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the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified
to conduct business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where
the failure so to register or to qualify, either alone or in the
aggregate, does not have or would not reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), business, properties, business prospects, net assets or
results of operations, whether or not occurring in the ordinary
course of business (a "Material Adverse Effect") of the Fund. The
Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened against the Fund or to which the
Fund or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus (and any
amendment or supplement to either of them) but are not described as
required and there are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required
by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust
("Declaration of Trust"), bylaws or other organizational documents
or any law, ordinance, administrative or governmental rule or
regulation applicable to the Fund or of any decree of the
Commission, the NASD, any state securities commission, any national
Page 17
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency
or any other agency or any body or official having jurisdiction
over the Fund or in breach or default in the performance of any of
the Fund Agreements, the Indenture or any other obligation,
agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which the Fund is a party or by which
it or any of its properties may be bound, except for such violation
or such breach or default that, either alone or in the aggregate,
does not have or would not reasonably be expected to have a
Material Adverse Effect on the Fund.
(g) Neither the issuance and sale of the Energy Notes, the execution,
delivery or performance of this Agreement, the Indenture or any of
the Fund Agreements by the Fund, nor the consummation by the Fund
of the transactions contemplated hereby or thereby (i) requires any
consent, approval, authorization or order of or registration or
filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any
court, regulatory, body, administrative agency or other
governmental body, agency or official having jurisdiction over the
Fund (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the
filing requirements of the NASD Division of Corporate Finance) or
conflicts or will conflict with or constitutes or will constitute a
breach of the Declaration of Trust, bylaws, or other organizational
documents of the Fund or (ii) (A) conflicts or will conflict with
or constitutes or will constitute a breach of or a default under
any of the Fund Agreements, the Indenture or any other agreement,
indenture, lease or other instrument to which the Fund is a party
Page 18
or by which it or any of its properties may be bound or (B)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any
of its properties or will result in the creation or imposition of
any lien, charge or encumbrance upon (collectively, a "lien") any
property or assets of the Fund pursuant to the terms of any
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, except for such conflict, breach, default, violation or
lien that, either alone or in the aggregate, does not have or would
not reasonably be expected to have a Material Adverse Effect on the
Fund. As of the date hereof, the Fund is not subject to any order
of any court or of any arbitrator, governmental authority or
administrative agency.
(h) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to
either of them), except as otherwise stated therein, (i) there has
been no material, adverse change in the condition (financial or
other), business, properties, net assets or results of operations
of the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund, whether or
not arising in the ordinary course of business, (ii) there have
been no transactions entered into by the Fund other than those in
the ordinary course of its business as described in the Prospectus
(and any amendment or supplement thereto) and (iii) there has been
no dividend or distribution of any kind declared, paid or made by
the Fund on any class of its common stock.
(i) The accountants, Deloitte & Touche LLP, who have audited the
financial statements included in, and whose report appears in, the
Page 19
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), are an independent public accounting
firm as required by the 1933 Act, the 1940 Act and the Rules and
Regulations.
(j) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) present fairly the financial position of the Fund
on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as
disclosed therein; and the other financial and statistical
information and data included in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) are accurately
derived from such financial statements and the books and records of
the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the 1933 Act Rules and Regulations, has taken all required
action under the 1933 Act, the 1940 Act, the Trust Indenture Act
and the Rules and Regulations to make the public offering and
consummate the sale of the Energy Notes as contemplated by this
Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement, the Indenture and the Fund
Agreements have been duly and validly authorized by the Fund and
this Agreement, the Indenture and each of the Fund Agreements have
been duly executed and delivered by the Fund and each constitutes
the valid and legally binding agreement of the Fund, enforceable
Page 20
against the Fund in accordance with its terms, except as rights to
indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(m) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them), subsequent to the respective dates as of which
such information is given in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), the
Fund has not incurred any material liability or obligation, direct
or contingent, or entered into any transaction, not in the ordinary
course of business, and there has not been any change in the
capital stock or any change or any development involving or which
should reasonably be expected to involve a Material Adverse Effect
on the Fund or its capitalization, or the incurrence of any debt
by, the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Energy Notes, will not distribute to the public any offering
material in connection with the offering and sale of the Energy
Notes other than the Registration Statement, the Prepricing
Prospectus included in Pre-Effective Amendment No. [ ] to the
registration statement, the Prospectus and the investor sales
material (as hereinafter defined) filed with the NASD.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary
Page 21
to own its property and to conduct its business in the manner
described in the Prospectus (and any amendment or supplement
thereto); the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred
which allows or, after notice or lapse of time, would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Fund under any such permit, subject
in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except
as described in the Prospectus (and any amendment or supplement
thereto), none of such permits contains any restriction that is
materially burdensome to the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with the Board of
Trustees' general or specific authorization and with the investment
policies and restrictions of the Fund and the applicable
requirements of the 1940 Act and the 1940 Act Rules and Regulations
and in the event that the Fund is eligible to elect to qualify as a
"regulated investment company" for federal income tax purposes and
makes such an election, the Code, and regulations thereunder; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles, to calculate net asset value and fee
accruals, to maintain accountability for assets and to maintain
compliance with the books and records requirements under the 1940
Act and the 1940 Act Rules and Regulations; (iii) access to assets
is permitted only in accordance with the Board of Trustees' general
or specific authorization; and (iv) the recorded account for assets
Page 22
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service marks
or trade names which it does not own, possess or license or
sub-license.
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will
not take, directly or indirectly, any action designed to or which
could cause or result in or which will constitute stabilization or
manipulation of the price of the Energy Notes in violation of
federal securities laws and no such action has been, or will be,
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act and the Rules and
Regulations as a closed-end, non-diversified management investment
company and the 1940 Act Notification has been duly filed with the
Commission and, at the time of filing thereof and at all times
through the date hereof the 1940 Act Notification conformed in all
material respects with all applicable provisions of the 1940 Act
and the Rules and Regulations; no order of suspension or revocation
of such registration under the 1940 Act and the Rules and
Regulations has been issued or proceedings therefor initiated or
threatened by the Commission. The provisions of the Declaration of
Trust, the Indenture and the investment policies and restrictions
described in each of the Registration Statement and the Prospectus,
comply in all material respects with the requirements of the 1940
Act and the Rules and Regulations.
(t) All advertising, sales literature or other promotional material
(including "prospecting letters" and "prospectus wrappers"
Page 23
(collectively, "investor sales material") and "broker kits," "road
show slides," "road show scripts," "broker post-cards" and "broker
reference cards" (collectively, "broker sales material") authorized
in writing by or prepared by the Fund or the Adviser for use in
connection with the offering and sale of the Energy Notes (investor
sales material and broker sales material are collectively referred
to as "sales material" which term, for purposes of this Agreement,
shall not include information included in the investor sales
material or the broker sales material that relates to market
indices or other market information and is specifically designated
as being prepared by the Managing Representative) complied and will
comply in all material respects with the applicable requirements of
the 1933 Act, the 1933 Act Rules and Regulations and, if required
to be filed with the NASD under the NASD's conduct rules, were so
filed and complied and will comply in all material respects with
the applicable rules and interpretations of the NASD and no such
sales material, when read together with the Prospectus, contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act,
the 1940 Act, the Rules and Regulations, 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") and the Indenture
complies in all material respects with the applicable provisions of
the Trust Indenture Act.
Page 24
(v) No holder of any security of the Fund has any right to require
registration of any Energy Notes, capital stock or any other
security of the Fund because of the filing of the registration
statement or consummation of the transactions contemplated by this
Agreement.
(w) In the event that the Fund, the Adviser or the Sub-Adviser makes
available any promotional materials intended for use only by
qualified broker-dealers and registered representatives thereof by
means of an Internet web site or similar electronic means, the
Fund, the Adviser or the Sub-Adviser, as applicable, will install
and maintain pre-qualification and password-protection or similar
procedures which are reasonably designed to effectively prohibit
access to such promotional materials by persons other than
qualified broker-dealers and registered representatives thereof (it
being understood that the Sub-Adviser makes no representation under
this subsection with respect to the acts or omissions of the Fund
and the Adviser).
(x) The Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus or the Prospectus.
(y) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no
trustee of the Fund is an "interested person" (as defined in the
▇▇▇▇ ▇▇▇) of the Fund or an "affiliated person" (as defined in the
▇▇▇▇ ▇▇▇) of any Underwriter listed in Schedule I hereto.
7. Representations and Warranties of the Adviser. The Adviser represents
and warrants to each Underwriter as follows:
Page 25
(a) The Adviser is a limited partnership duly organized and validly
existing in good standing under the laws of the State of Illinois,
with full power and authority to own, lease and operate its
properties and to conduct its business as described in each of the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) and is duly registered and qualified
to conduct business and is in good standing in each jurisdiction or
place where the nature of its properties or conduct of its business
requires such registration or qualification, except where the
failure so to register or to qualify would not have a material
adverse effect on the condition (financial or other), general
affairs, business, properties, net assets or results of operations
of the Adviser or the Fund.
(b) The Adviser is duly registered with the Commission as an investment
adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations
or the 1940 Act Rules and Regulations from acting under the
Advisory Agreement for the Fund as contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them). There does not exist any proceeding which could
have a Material Adverse Effect on the registration of the Adviser
with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Adviser, threatened against the Adviser that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but
are not described as required or that could result in any Material
Adverse Effect on the Adviser or that may have a material, adverse
effect on the ability of the Adviser to perform its obligations
under this Agreement or any of the Adviser Agreements.
Page 26
(d) Neither the execution, delivery or performance of this Agreement or
the Advisory Agreement by the Adviser, nor the consummation by the
Adviser of the transactions contemplated hereby or thereby (i)
requires the Adviser to obtain any consent, approval, authorization
or other order of, or registration or filing with, the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or
official having jurisdiction over the Adviser or conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, the partnership agreement or bylaws or other
organizational documents of the Adviser or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any agreement, indenture, lease or other instrument
to which the Adviser is a party or by which the Adviser or any of
its properties may be bound, or violates or will violate any
statute, law, regulation or judgment, injunction, order or decree
applicable to the Adviser or any of its properties or will result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Adviser pursuant to the terms of
any 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
Adviser is subject, except in any case under clause (ii) for such
conflict, breach, default, violation or lien that, either alone or
in the aggregate, does not have or would not reasonably be expected
to have a Material Adverse Effect on the Adviser or on the ability
of the Adviser to perform its obligations under this Agreement or
any of the Adviser Agreements. The Adviser is not subject to any
order of any court or of any arbitrator, regulatory body,
administrative agency or other governmental body, agency or
official.
Page 27
(e) The Adviser has full power and authority to enter into this
Agreement and each of the Adviser Agreements; the execution and
delivery of, and the performance by the Adviser of its obligations
under, this Agreement and each of the Adviser Agreements have been
duly and validly authorized by the Adviser; and this Agreement and
each of the Adviser Agreements have been duly executed and
delivered by the Adviser and constitute the valid and legally
binding agreements of the Adviser, enforceable against the Adviser
in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to
or affecting creditors' rights generally and by general equitable
principles whether enforcement is considered in a proceeding in
equity or at law.
(f) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) or under this Agreement and each of
the Adviser Agreements.
(g) The description of the Adviser and its business, and the statements
attributable to the Adviser, in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them)
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 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
Page 28
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading.
(h) Since the date as of which information is given in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them), except as otherwise stated therein, (i) there has
been no material adverse change in the condition (financial or
other), business, properties, net assets or results of operations
or business prospects of the Adviser, whether or not arising from
the ordinary course of business, and (ii) there have been no
transactions entered into by the Adviser which are material to the
Adviser other than those in the ordinary course of its business as
described in the Prospectus.
(i) The Adviser has such permits as are necessary to own its property
and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); and the
Adviser has fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the
rights of the Adviser under any such permit.
(j) None of this Agreement nor any of the Adviser Agreements violate
any applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the
foregoing), the Adviser has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably be
Page 29
expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Energy Notes or
of any securities issued by the Fund to facilitate the sale or
resale of the Energy Notes, in each case, in violation of federal
securities laws and the Adviser is not aware of any such action
taken or to be taken by any affiliates of the Adviser.
8. Representations and Warranties of the Sub-Adviser. The Sub-Adviser
represents and warrants to each Underwriter as follows:
(a) The Sub-Adviser is a limited liability company duly organized and
validly existing in good standing under the laws of the State of
Missouri, with full limited liability company power and authority
to conduct its business as described in each of the Registration
Statement and the Prospectus (or any amendment or supplement to
either of them) and is duly registered and qualified to conduct
business and is in good standing in each jurisdiction or place
where the nature of its properties or conduct of its business
requires such registration or qualification, except where the
failure so to register or to qualify would not have a material
adverse effect on the condition (financial or other), general
affairs, business, properties, net assets or results of operations
of the Sub-Adviser or the Fund.
(b) The Sub-Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by
the Advisers Act, the 1940 Act, the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under
the Sub-Advisory Agreement for the Fund as contemplated by the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them). There does not exist any proceeding
Page 30
which could have a Material Adverse Effect on the registration of
the Sub-Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Sub-Adviser, threatened against the Sub-Adviser
that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them)
but are not described as required or that could result in any
Material Adverse Effect on the Sub-Adviser or that may have a
material, adverse effect on the ability of the Sub-Adviser to
perform its obligations under this Agreement or the Sub-Advisory
Agreement.
(d) Neither the execution, delivery or performance of this Agreement or
the Sub-Advisory Agreement by the Sub-Adviser, nor the consummation
by the Adviser of the transactions contemplated hereby or thereby
(i) requires the Sub-Adviser to obtain any consent, approval,
authorization or other order of, or registration or filing with,
the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory
body, administrative agency or other governmental body, agency or
official having jurisdiction over the Sub-Adviser or conflicts or
will conflict with or constitutes or will constitute a breach of or
a default under, the limited liability company agreement or bylaws
of the Sub-Adviser or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the
Sub-Adviser is a party or by which the Sub-Adviser or any of its
properties may be bound, or violates or will violate any statute,
law, regulation or judgment, injunction, order or decree applicable
to the Sub-Adviser or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Sub-Adviser pursuant to the terms of any
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
Page 31
Sub-Adviser is subject, except in any case under clause (ii) for
such conflict, breach, default, violation or lien that, either
alone or in the aggregate, does not have or would not reasonably be
expected to have a Material Adverse Effect on the Sub-Adviser or on
the ability of the Sub-Adviser to perform its obligations under
this Agreement or the Sub-Advisory Agreement. The Sub-Adviser is
not subject to any order of any court or of any arbitrator,
regulatory body, administrative agency or other governmental body,
agency or official.
(e) The Sub-Adviser has full power and authority to enter into this
Agreement and the Sub-Advisory Agreement; the execution and
delivery of, and the performance by the Sub-Adviser of its
obligations under, this Agreement and the Sub-Advisory Agreement
have been duly and validly authorized by the Sub-Adviser; and this
Agreement and the Sub-Advisory Agreement have been duly executed
and delivered by the Sub-Adviser and constitute the valid and
legally binding agreements of the Sub-Adviser, enforceable against
the Sub-Adviser in accordance with their terms, except as rights to
indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Sub-Adviser's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to
or affecting creditors' rights generally and by general equitable
principles whether enforcement is considered in a proceeding in
equity or at law.
(f) The Sub-Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Page 32
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) or under this Agreement and the
Sub-Advisory Agreement.
(g) The description of the Sub-Adviser and its business, and the
statements attributable to the Adviser, in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) complied and comply in all material respects with
the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the
Trust Indenture Act, the Rules and Regulations and the Advisers Act
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 (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them), except as otherwise stated therein, (i) there has
been no material adverse change in the condition (financial or
other), business, properties, net assets or results of operations
or business prospects of the Sub-Adviser, whether or not arising
from the ordinary course of business, and (ii) there have been no
transactions entered into by the Sub-Adviser which are material to
the Sub-Adviser other than those in the ordinary course of its
business as described in the Prospectus.
(i) The Sub-Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); and the
Sub-Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred
Page 33
which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
impairment of the rights of the Adviser under any such permit.
(j) None of this Agreement nor the Sub-Advisory Agreement violates any
applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the
foregoing), the Sub-Adviser has not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the Energy
Notes or of any securities issued by the Fund to facilitate the
sale or resale of the Energy Notes, in each case, in violation of
federal securities laws and the Sub-Adviser is not aware of any
such action taken or to be taken by any affiliates of the
Sub-Adviser.
9. Indemnification and Contribution.
(a) The Fund, the Adviser and the Sub-Adviser, jointly and severally,
agree to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all losses, claims, damages,
liabilities and expenses, joint or several (including reasonable
costs of investigation), arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement, the Prospectus, any Prepricing
Page 34
Prospectus, any sales material (as defined in Section 6(t) of this
Agreement) (or any amendment or supplement to any of the foregoing)
or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were
made) not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any
untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to
such Underwriters furnished in writing to the Fund by or on behalf
of any Underwriter through you expressly for use in connection
therewith; provided, however, that the foregoing indemnification
contained in this paragraph (a) with respect to the Prepricing
Prospectus contained in Pre-Effective Amendment No. [ ] to the
Registration Statement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Energy Notes by such
Underwriter to any person if it is shown that a copy of the
Prospectus (which term as used in this proviso shall not include
any statement of additional information) was not delivered or sent
to such person within the time required by the 1933 Act and the
1933 Act Rules and Regulations and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Fund has delivered the Prospectus to
the several Underwriters in requisite quantity on a timely basis to
permit proper delivery or sending. The foregoing indemnity
Page 35
agreement shall be in addition to any liability which the Fund, the
Adviser or the Sub-Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Fund, the Adviser, or the
Sub-Adviser, such Underwriter or such controlling person shall
promptly notify in writing the Fund, the Adviser, or the
Sub-Adviser and the Fund, the Adviser or the Sub-Adviser shall
assume the defense thereof, including the employment of counsel and
the payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i)
the Fund, the Adviser or the Sub-Adviser have agreed in writing to
pay such fees and expenses, (ii) the Fund, the Adviser or the
Sub-Adviser have failed within a reasonable time to assume the
defense and employ counsel or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and the
Fund, the Adviser or the Sub-Adviser and such Underwriter or such
controlling person shall have been advised by its counsel that
representation of such indemnified party and the Fund, the Adviser
or the Sub-Adviser by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual
or potential differing interests between them (in which case the
Fund, the Adviser and the Sub-Adviser shall not have the right to
assume the defense of such action, suit or proceeding on behalf of
such Underwriter or such controlling person). It is understood,
however, that the Fund, the Adviser and the Sub-Adviser shall, in
Page 36
connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings
in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any
local counsel if there is any action, suit or proceeding in more
than one jurisdiction) at any time for all such Underwriters and
controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be
designated in writing by the Representatives and that, subject to
the requirements of 1940 Act Release No. 11330, all such fees and
expenses shall be reimbursed promptly as they are incurred. The
Fund, the Adviser and the Sub-Adviser shall not be liable for any
settlement of any such action, suit or proceeding effected without
the written consent of the Fund, the Adviser or the Sub-Adviser,
but if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or proceeding,
the Fund, the Adviser and the Sub-Adviser agree to indemnify and
hold harmless any Underwriter, to the extent provided in the
preceding paragraph and any such controlling person from and
against any loss, liability, damage or expense by reason by such
settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund, the Adviser and the Sub-Adviser, their
trustees, directors, partners, members or managers, any officers of
the Fund who sign the Registration Statement and any person who
controls the Fund, the Adviser or the Sub-Adviser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, to the same extent as the foregoing indemnity from the Fund,
the Adviser and the Sub-Adviser to each Underwriter, but only with
respect to information relating to such Underwriter furnished in
Page 37
writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or the
Prepricing Prospectus contained in Pre-Effective Amendment No. [ ]
to the Registration Statement. If any action, suit or proceeding
shall be brought against the Fund, the Adviser or the Sub-Adviser,
any of their trustees, directors, partners, members or managers,
any such officer or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus
(or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties
given to each of the Fund, the Adviser and the Sub-Adviser by
paragraph (b) above (except that if the Fund, the Adviser or the
Sub-Adviser shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense)
and the Fund, the Adviser and the Sub-Adviser, their trustees,
directors, partners, managers or members, any such officer and any
such controlling person shall have the rights and duties given to
the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then an indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such
Page 38
proportion as is appropriate to reflect the relative benefits
received by the Fund, the Adviser and the Sub-Adviser on the one
hand (treated jointly for this purpose as one person) and the
Underwriters on the other from the offering of the Energy Notes or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Fund, the Adviser and the
Sub-Adviser on the one hand (treated jointly for this purpose as
one person) and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the
Fund, the Adviser and the Sub-Adviser on the one hand (treated
jointly for this purpose as one person) and the Underwriters on the
other shall be deemed to be in the same proportion that the total
net proceeds from the offering (before deducting expenses) received
by the Fund bear to the total underwriting discounts and
commissions received by the Underwriters, in each case, as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Fund, the Adviser and the Sub-Adviser on the
one hand (treated jointly for this purpose as one person) and of
the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund, the
Adviser and the Sub-Adviser on the one hand (treated jointly for
this purpose as one person) or by the Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Page 39
(e) The Fund, the Adviser, the Sub-Adviser and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount
by which the total price of the Energy Notes underwritten by it and
distributed to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to the
respective amount of Energy Notes set forth opposite their names in
Schedule I (or such amount of Energy Notes increased as set forth
in Section 11 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
Page 40
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
party from all liability from claimants on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution
under this Section 9 shall, subject to the requirements of Release
No. 11330, be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of each of
the Fund, the Adviser and the Sub-Adviser set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Fund,
the Adviser, the Sub-Adviser or their trustees, directors,
partners, managers, members, officers or any person controlling the
Fund, the Adviser or the Sub-Adviser, (ii) acceptance of any Energy
Notes and payment therefor hereunder and (iii) any termination of
this Agreement. A successor to any Underwriter or to the Fund, the
Adviser or the Sub-Adviser or their trustees, directors, partners,
managers, members, officers or any person controlling the Fund, the
Adviser or the Sub-Adviser shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in
this Section 9.
(h) The Fund, the Adviser and the Sub-Adviser each acknowledge that the
statements with respect to (1) the public offering price of the
Energy Notes as set forth on the cover page of the Prospectus and
(2) as set forth under the caption "Underwriting" in the Prospectus
Page 41
(i) the names of the Underwriters, (ii) the amount of Energy Notes
set forth opposite the name of each Underwriter, (iii) the amount
of the selling concessions and reallowances of selling concessions
set forth in the first sentence of the fourth paragraph, (iv) the
penultimate paragraph and (v) the final paragraph constitute the
only information furnished in writing to the Fund by the
Underwriters expressly for use in such document. The Underwriters
severally confirm that these statements are correct in all material
respects and were so furnished by or on behalf of the Underwriters
severally for use in the Prospectus.
10. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Energy Notes hereunder are subject to the
accuracy of and compliance with the representations, warranties and
agreements of and by each of the Fund, the Adviser and the Sub-Adviser
contained herein on and as of the date on which the Registration
Statement becomes or became effective, the date of the Prospectus (and
of any amendment or supplement thereto) and the Closing Date; to the
accuracy and completeness of all statements made by the Fund, the
Adviser, the Sub-Adviser or any of their respective officers in any
certificate delivered to the Representatives or their counsel pursuant
to this Agreement; and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of
the Energy Notes may commence, the Registration Statement or such
post-effective amendment shall have become effective not later than
5:30 p.m., New York City time, on the date hereof or at such later
date and time as shall be consented to in writing by you and all
filings, if any, required by Rules 497 and 430A under the 1933 Act
and the 1933 Act Rules and Regulations shall have been timely made;
Page 42
no stop order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act shall
have been issued and no proceeding for that purpose shall have been
instituted or, to the knowledge of the Fund, the Adviser or any
Underwriter, threatened by the Commission and any request of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or
otherwise), business, properties, business prospects, net assets or
results of operations, whether or not occurring in the ordinary
course of business, of the Fund, the Adviser or the Sub-Adviser not
contemplated by the Prospectus which, in your opinion, would
materially adversely affect the market for the Energy Notes, or
(ii) any event or development relating to or involving the Fund,
the Adviser, the Sub-Adviser or any officer, trustee, director,
manager or member of the Fund, the Adviser or the Sub-Adviser which
makes any statement made in the Prospectus (or any amendment or
supplement thereto) untrue or which, in the opinion of the Fund and
its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus (or any
amendment or supplement thereto) in order to state a material fact
required by the 1933 Act, the 1940 Act or the Rules and Regulations
or any other law 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, if amending or supplementing the
Prospectus (or any previous amendment or supplement thereto) to
Page 43
reflect such event or development would, in your opinion,
materially adversely affect the market for the Energy Notes.
(c) That you shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Fund, dated the
Closing Date and addressed to you, as the Representatives of the
several Underwriters, in substantially the form attached hereto as
Exhibit A. In rendering its opinion, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP may
rely, as to matters of Massachusetts law, upon the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP dated as of the date thereof.
(d) That you shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Fund, dated the
Closing Date and addressed to you, as the Representatives of the
several Underwriters, in substantially the form attached hereto as
Exhibit B.
(e) That you shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Adviser, dated the
Closing Date and addressed to you, as Representatives of the
several Underwriters, in substantially the form attached hereto as
Exhibit C.
(f) That you shall have received on the Closing Date an opinion of
Jenner & Block LLP, special counsel for the Sub-Adviser, dated the
Closing Date and addressed to you, as Representatives of the
several Underwriters, in substantially the form attached hereto as
Exhibit D.
(g) That you shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date
and addressed to you, as the Representatives of the several
Underwriters, with respect to such matters as you may require and
the Fund, the Adviser, the Sub-Adviser and their respective counsel
Page 44
shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(h) That you shall have received letters addressed to you, as the
Representatives of the several Underwriters and dated each of the
date hereof and the Closing Date from Deloitte & Touche LLP,
independent certified public accountants, substantially in the form
attached hereto as Exhibit F.
(i) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus
(or any amendment or supplement to any of the foregoing) or any
Prepricing Prospectus or any sales material shall have been issued
and no proceedings for such purpose or for the purpose of
commencing an enforcement action against the Fund, the Adviser or
the Sub-Adviser or, with respect to the transactions contemplated
by the Prospectus (or any amendment or supplement thereto) and this
Agreement, may be pending before or, to the knowledge of the Fund,
the Adviser, the Sub-Adviser or any Underwriter or in the
reasonable view of counsel to the Underwriters, shall be threatened
or contemplated by the Commission at or prior to the Closing Date
and that any request for additional information on the part of the
Commission (to be included in the Registration Statement, the
Prospectus or otherwise) be complied with to the satisfaction of
the Representatives, (ii) there shall not have been any change in
the capital stock of the Fund nor any increase in debt of the Fund
from that set forth in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) and the Fund
shall not have sustained any material liabilities or obligations,
direct or contingent, other than those reflected in or contemplated
by the Registration Statement or the Prospectus (or any amendment
Page 45
or supplement to either of them), (iii) since the date of the
Prospectus there shall not have been any material, adverse change
in the condition (financial or otherwise), business, properties,
business prospects, net assets or results of operations, whether or
not occurring in the ordinary course of business, of the Fund, the
Adviser or the Sub-Adviser, (iv) none of the Fund, the Adviser or
the Sub-Adviser shall have sustained any material loss or
interference with their businesses from any court or from
legislative or other governmental action, order or decree or from
any other occurrence not described in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them)
and (v) all of the representations and warranties of each of the
Fund, the Adviser and the Sub-Adviser contained in this Agreement
shall be true and correct on and as of the date hereof and as of
the Closing Date as if made on and as of the Closing Date.
(j) That none of the Fund, the Adviser or the Sub-Adviser shall have
failed at performing or complying with, or prior to the Closing
Date to have performed or complied with, any of the agreements
herein contained and required to be performed or complied with by
them at or prior to the Closing Date.
(k) The Energy Notes shall have been accorded a rating of "Aaa" by
▇▇▇▇▇'▇ and "AAA" by Fitch, and letters and/or press releases to
such effect, dated on or before the Closing Date, shall have been
delivered to the Representatives.
(l) As of the Closing Date, and assuming receipt of the net proceeds
from the sale of Shares, the 1940 Act Energy Notes Asset Coverage
and the Energy Notes Basic Maintenance Amount (each as defined in
the Prospectus) each will be met.
Page 46
(m) That you shall have received on the Closing Date a certificate,
dated such date, of each of the chief executive officer and chief
financial officer of each of the Fund and the Adviser and of the
president and chief operating officer of the Sub-Adviser certifying
that (i) the signers have carefully examined the Registration
Statement, the Prospectus (and any amendments or supplements to
either of them) and this Agreement, (ii) the representations and
warranties of the Fund (with respect to the certificates from such
Fund officers) the representations and warranties of the Adviser
(with respect to the certificates from such officers of the
Adviser) and the representations and warranties of the Sub-Adviser
(with respect to the certificates from such officers of the
Sub-Adviser) in this Agreement are true and correct on and as of
the date of the certificate as if made on such date, (iii) since
the date of the Prospectus (and any amendment or supplement
thereto), there has not been any material, adverse change in the
condition (financial or otherwise), business, properties, business
prospects, net assets or results of operations, whether or not
occurring in the ordinary course of business, of the Fund (with
respect to the certificates from such Fund officers) or the Adviser
(with respect to the certificates from such officers of the
Adviser) or the Sub-Adviser (with respect to the certificates from
such officers of the Sub-Adviser), (iv) to the knowledge of such
officers after reasonable investigation, no order suspending the
effectiveness of the Registration Statement or prohibiting the sale
of any of the Energy Notes or having a material, adverse effect on
the Fund (with respect to the certificates from such Fund officers)
or the Adviser (with respect to the certificates from such officers
of the Adviser) or the Sub-Adviser (with respect to the
certificates from such officers of the Sub-Adviser) has been issued
and no proceedings for any such purpose are pending before or
Page 47
threatened by the Commission or any court or other regulatory body,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any
official, (v) each of the Fund (with respect to certificates from
such Fund officers), the Adviser (with respect to certificates from
such officers of the Adviser) and the Sub-Adviser (with respect to
the certificates from such officers of the Sub-Adviser) has
performed and complied with all agreements that this Agreement
requires it to perform by such Closing Date, (vi) none of the Fund
(with respect to the certificate from such officers of the Fund),
the Adviser (with respect to the certificate from such officers of
the Adviser) or the Sub-Adviser (with respect to the certificate
from such officers of the Sub-Adviser) has sustained any material
loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from
any other occurrence not described in the Registration Statement or
the Prospectus and any amendment or supplement to either of them
and (vii) with respect to the certificate from such officers of the
Fund, there has not been any change in the capital stock of the
Fund nor any increase in the debt of the Fund from that set forth
in the Prospectus (or any amendment or supplement thereto) and the
Fund has not sustained any material liabilities or obligations,
direct or contingent, other than those reflected in the Prospectus
(or any amendment or supplement thereto).
(n) That the Fund, the Adviser and the Sub-Adviser shall have furnished
to you such further letters, certificates and documents as you
shall reasonably request (including certificates of officers of the
Fund, the Adviser and the Sub-Adviser).
Page 48
All such certificates, letters and other documents will be in
compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel
acting in good faith.
Any certificate or document signed by any officer of the Fund,
the Adviser or the Sub-Adviser and delivered to you, as the
Representatives of the Underwriters or to Underwriters'
counsel, shall be deemed a representation and warranty by the
Fund, the Adviser or the Sub-Adviser to each Underwriter as to
the statements made therein.
11. Effective Date of Agreement. This Agreement shall become effective: (i)
upon the execution and delivery hereof by the parties hereto; or (ii)
if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Energy Notes
may commence, when the Registration Statement or such post-effective
amendment has become effective. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying
you, or by you by notifying the Fund (which shall, in turn, notify the
Adviser and the Sub-Adviser; provided, however, that any failure by the
Fund so to notify the effect of such termination notice by you to the
Fund).
If any one or more of the Underwriters shall fail or refuse to
purchase Energy Notes which it or they have agreed to purchase
hereunder and the aggregate amount of Energy Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of the
Energy Notes, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate amount of Energy Notes
set forth opposite its name in Schedule I hereby bears to the aggregate
amount of Energy Notes set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may
Page 49
specify in accordance with Section 7 of the Master Agreement Among
Underwriters, to purchase Energy Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase.
If any Underwriter or Underwriters shall fail or refuse to purchase
Energy Notes and the aggregate amount of Energy Notes with respect to
which such default occurs is more than one-tenth of the aggregate
amount of Energy Notes and arrangements satisfactory to you and the
Fund for the purchase of such Energy Notes by one or more
non-defaulting Underwriters or other party or parties approved by you
and the Fund are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not
result in termination of this Agreement, either you or the Fund shall
have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect
to any such default of any such Underwriter under this Agreement. The
term "Underwriter" as used in this Agreement includes, for all purposes
of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Energy Notes
which a defaulting Underwriter agreed, but failed or refused, to
purchase.
Any notice under this Section 11 may be made by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to termination
in your absolute discretion without liability on the part of any
Underwriter to the Fund or the Adviser by notice to the Fund or the
Adviser if prior to the Closing Date (i) trading in securities generally
on the New York Stock Exchange, American Stock Exchange, Nasdaq National
Page 50
Market shall have been suspended or limited or minimum prices shall have
been established, (ii) additional governmental restrictions not in force
on the date of this Agreement have been imposed upon trading in
securities generally or a general moratorium on commercial banking
activities shall have been declared by Federal or any state's
authorities or (iii) any outbreak or material escalation of hostilities
or other international or domestic calamity, crisis or change in
political, financial, economic, legal or regulatory conditions, occurs,
the effect of which is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the
Energy Notes at the offering price to the public set forth on the cover
page of the Prospectus or to enforce contracts for the resale of the
Energy Notes by the Underwriters. Notice of such termination may be
given to the Fund, the Adviser or the Sub-Adviser by telegram, telecopy
or telephone but shall be subsequently confirmed by letter.
13. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of
its obligations hereunder: (a) the preparation, printing or
reproduction, filing (including, without limitation, the filing or
registration fees prescribed by the 1933 Act, the 1934 Act, the 1940 Act
and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or
supplements to any of them, (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
the Prospectus, each Prepricing Prospectus, any sales material (and all
amendments or supplements to any of them) as may be reasonably requested
for use in connection with the offering and sale of the Energy Notes,
(c) the preparation, issuance and delivery of certificates (if any) for
the Energy Notes, including stock or other transfer taxes and any stamp
Page 51
or other duties payable upon the sale, issuance or delivery of the
Energy Notes to the Underwriters, (d) the registrations or
qualifications of the Energy Notes for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section
5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification) not to exceed $3,000,
(e) the fees and expenses of the Fund's independent accountants, counsel
for the Fund and of the transfer agent, (f) the expenses of delivery to
the Underwriters and dealers (including postage, air freight and the
cost of counting and packaging) of copies of the Prospectus, the
Prepricing Prospectus, any sales material and all amendments or
supplements to the Prospectus as may be requested for use in connection
with the offering and sale of the Energy Notes, (g) the printing (or
reproduction) and delivery of this Agreement, any dealer agreements, the
preliminary and supplemental Blue Sky Memoranda and all other
company-authorized agreements or other documents printed (or reproduced)
and delivered in connection with the offering of the Energy Notes, (h)
the filing fees and the fees and expenses of counsel for the
Underwriters in connection with filings, if any, required to be made
with the NASD and incurred with respect to the review of the offering of
the Energy Notes and use of the sales materials by the NASD, (i) the
transportation, lodging, graphics and other expenses related to the
Fund's preparation for and participation in the roadshow, (j) fees
charged by the securities rating agencies rating the Energy Notes, (k)
the fees and expenses charged by the Depository Trust Company and its
nominee and (k) the fees and expenses charged by Deutsche Bank National
Trust Company, as Auction Agent with respect to the Shares.
Page 52
Notwithstanding the foregoing, in the event that the sale of
the Energy Notes is not consummated pursuant to this Agreement, the
Adviser or the Sub-Adviser will pay the costs and expenses of the Fund
set forth above in this Section 13(a) through (i), and reimbursements
of Underwriter expenses in connection with the offering shall be made
in accordance with Section 5(l) hereof.
14. Miscellaneous. Except as otherwise provided in Sections 5, 11 and 12
hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (a) if to the Fund or the Adviser,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: W.
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., (b) if to the Sub-Adviser, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
and (c) if to you, as Representatives of the Underwriters, at the office
of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Fund, the Adviser, the Sub-Adviser, their
trustees, directors, partners, officers, managers, members and the
other controlling persons referred to in Section 9 hereof and their
respective successors and assigns, to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Energy Notes in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Page 53
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least
one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
16. Limitation of Liability. The Fund's Declaration of Trust is on file with
the Secretary of The Commonwealth of Massachusetts. This Agreement is
executed on behalf of the Fund by the Fund's officers as officers and
not individually and the obligations imposed upon the Fund by this
Agreement are not binding upon any of the Fund's shareholders
individually but are binding only upon the assets and property of the
Fund.
Page 54
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Adviser, the Sub-Adviser and the several Underwriters.
Very truly yours,
ENERGY INCOME AND GROWTH FUND
By:_______________________
Title:
FIRST TRUST ADVISORS L.P.
By:_______________________
Title:
FIDUCIARY ASSET MANAGEMENT, LLC
By:_______________________
Title:
Page 55
Confirmed as of the date
first above written on
behalf of themselves and the
other several Under-
writers named in Schedule
I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: _________________________________
Title:
Page 56
SCHEDULE I
Underwriter Amount of Energy Notes
--------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
Total
Page 57
EXHIBIT A
FORM OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ LLP OPINION REGARDING THE FUND
i. The Registration Statement and all post-effective amendments thereto, if any,
are effective under the Act and no stop order with respect thereto has been
issued and no proceeding for that purpose has been instituted or, to the best of
our knowledge, is threatened by the Commission. Any filing of the Prospectus or
any supplements thereto required under Rule 497 under the Act prior to the date
hereof have been made in the manner and within the time required by such rule.
ii. The Fund is duly licensed and qualified to do business and in good standing
in each jurisdiction in which its ownership or leasing of property or its
conducting of business as described in the Registration Statement and Prospectus
(and any amendment or supplement thereto) requires such qualification; and the
Fund owns, possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business as described in the
Prospectus, except where the failure to obtain such licenses, permits, consents,
orders, approvals and other authorizations, either alone or in the aggregate,
would not have a material adverse effect on the Fund. The Fund has no
subsidiaries.
iii. The capitalization of the Fund conforms in all material respects to the
description of them in the Prospectus under the caption "Capitalization" in the
Prospectus.
iv. The Energy Notes have been duly authorized and, when issued, authenticated
and delivered against payment therefor in accordance with this Agreement and the
Indenture, will constitute valid and binding obligations of the Fund; and the
Energy Notes conform in all material respects to the statements concerning them
contained in the Prospectus and there are no restrictions upon the transfer of
any of the Energy Notes pursuant to the Fund's Declaration of Trust or by-laws
or any agreement or other instrument known to such counsel, except for the
restrictions on transfer on the Energy Notes contained in the Auction Agreement;
v. The Fund is duly registered with the Commission under the Investment Company
Act as a non-diversified, closed-end management investment company and all
Page 58
action under the Act and the Investment Company Act, as the case may be,
necessary to make the public offering and consummate the sale of the Energy
Notes as provided in the Underwriting Agreement has or will have been taken by
the Fund.
vi. The Fund has full power to enter into each of this Underwriting Agreement,
the Advisory Agreement, the Custody Agreement, the Transfer Agency Agreement and
the Auction Agreement (collectively, the "Fund Agreements") and the Indenture,
and to perform all of the terms and provisions thereof to be carried out by it
and (A) each Fund Agreement and the Indenture has been duly and validly
authorized, executed and delivered by the Fund, (B) each Fund Agreement complies
in all material respects with all applicable provisions of the Investment
Company Act and the Advisers Act, as the case may be, and the Indenture complies
in all material respects with all applicable provisions of the Trust Indenture
Act and (C) assuming due authorization, execution and delivery by the other
parties thereto, each Fund Agreement and the Indenture constitutes the legal,
valid and binding obligation of the Fund enforceable against the Fund in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
vii. None of (A) the execution and delivery by the Fund of the Fund Agreements
or the Indenture, (B) the issue, sale and delivery by the Fund of the Energy
Notes as contemplated by the Underwriting Agreement and the Indenture and (C)
the performance by the Fund of its obligations under the Fund Agreements or the
Indenture or consummation by the Fund of the other transactions contemplated by
the Fund Agreements or the Indenture result in the creation or imposition of any
lien, charge or encumbrance upon the assets of the Fund, conflicts with or will
conflict with, or results or will result in a breach or violation of the
Declaration of Trust or the By-laws of the Fund or any agreement or instrument
to which the Fund is a party or by which the Fund is bound that is filed as an
exhibit to the Registration Statement, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, specifically naming the Fund and known to us, except that
Page 59
we express no opinion as to the securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Energy Notes by the
Underwriters pursuant to the Underwriting Agreement.
viii. No consent, approval, authorization or order of any court (to our
knowledge) or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation by the
Fund of the transactions to be performed by the Fund or the performance by the
Fund of all the terms and provisions to be performed by or on behalf of it in
each case as contemplated in the Fund Agreements and the Indenture, except such
as (A) have been obtained under the federal securities laws and (B) may be
required under state securities or "blue sky" laws in connection with the
purchase and distribution of the Energy Notes by the Underwriters pursuant to
the Underwriting Agreement.
ix. The Fund is not (i) in violation of its Declaration of Trust or by-laws,
(ii) in default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject or
(iii) in violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of clauses (ii) and (iii),
such defaults, events, violations or failures that either alone or in the
aggregate, would not have a material adverse effect on the Fund.
x. There are no contracts or other documents which are required to be described
in the Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the 1940 Act, the Trust Indenture
Act or by the Rules and Regulations which have not been described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement;
Page 60
xi. There are no legal or governmental proceeding pending or, to our knowledge,
threatened against the Fund.
xii. The section in the Prospectus entitled "Certain Federal Income Tax Matters"
and the section in the Statement of Additional Information entitled "Certain
Federal Income Tax Matters" is a fair and accurate summary of the principal
United States federal income tax rules currently in effect applicable to the
Fund and to the purchase, ownership and disposition of the Energy Notes, subject
to the qualifications therein.
xiii. The Registration Statement (except the financial statements and schedules
including the notes and schedules thereto, and other financial or accounting
data included therein or omitted therefrom, as to which we express no view), at
the time it became effective, the Prospectus (except as aforesaid), as of the
date thereof, the Fund Agreements and the Indenture complied as to form in all
material respects to the requirements of the Act, the Investment Company Act and
the Trust Indenture Act.
While we have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus, except to the limited extent set forth in paragraph (xiii)
above, in the course of our review of the contents of the Registration Statement
and the Prospectus with certain officers and employees of the Fund and the
Fund's independent accountants, no facts have come to our attention that cause
us to believe that the Registration Statement, at the time it became effective
(but after giving effect to any changes incorporated pursuant to Rule 430A under
the Act), contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (except that we express no such view with
Page 61
respect to the financial statements, including notes and schedules thereto, or
any other financial or accounting data included therein), or that the
Prospectus, as of the date it was filed with the Commission pursuant to Rule 497
under the Act and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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 (except that we express
no such view with respect to the financial statements, including notes and
schedules thereto, or any other financial or accounting data included therein).
Page 62
EXHIBIT B
FORM OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP OPINION REGARDING THE FUND
i. The Fund has been formed under its Declaration of Trust and is validly
existing under the laws of The Commonwealth of Massachusetts as a voluntary
association with transferable shares of beneficial interest commonly referred to
as a "Massachusetts business trust", is in good standing with the office of the
Secretary of the Commonwealth of Massachusetts and has full power to conduct all
the activities conducted by it, to own or lease all assets owned (or to be
owned) or leased (or to be leased) by it and to conduct its business, all as
described in the Registration Statement and Prospectus.
ii. The Fund has an authorized capitalization as set forth in the Registration
Statement and the Prospectus (or any amendment or supplement thereto through the
date of the opinion). The Energy Notes to be issued and delivered to and paid
for by the Underwriters in accordance with the Underwriting Agreement against
payment therefor as provided by the Underwriting Agreement have been duly
authorized.
iii. Except as described in the Prospectus under the heading "Certain Provisions
in the Declaration of Trust" no person is entitled to any preemptive or other
similar rights with respect to the Energy Notes under the Declaration of Trust
or By-Laws of the Fund or Massachusetts law or, to counsel's knowledge,
otherwise; except for the restrictions on transfer of the Energy Notes contained
in the Auction Agreement.
Page 63
EXHIBIT C
FORM OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ LLP OPINION REGARDING THE ADVISER
i. The Adviser has been duly formed and is validly existing as a limited
partnership under the laws of its jurisdiction of incorporation with full power
and authority to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Underwriting Agreement,
the Advisory Agreement and the Sub-Advisory Agreement (collectively, the
"Adviser Agreements).
ii. The Adviser is duly registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the Investment Company Act from
acting as investment adviser for the Fund as contemplated by the Advisory
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the Adviser
Agreements and to carry out all the terms and provisions thereof to be carried
out by it, and each of the Adviser Agreements has been duly and validly
authorized, executed and delivered by the Adviser; each Adviser Agreement
complies in all material respects with all provisions of the Investment Company
Act and the Advisers Act; and assuming due authorization, execution and delivery
by the other parties thereto, each Adviser Agreement constitutes a legal, valid
and binding obligation of the Adviser, enforceable against the Adviser in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of any Adviser
Agreement nor (B) the consummation by the Adviser of the transactions
contemplated by, or the performance of its obligations under any Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the organizational documents or by-laws of the Adviser or any agreement or
instrument to which the Adviser is a party or by which the Adviser is bound, or
any federal or Illinois law, rule or regulation, or order of any court,
Page 64
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to us,
except in each case for such conflicts or breaches which do not, either alone or
in the aggregate, have a material adverse effect on the Adviser's ability to
perform its obligations under the Adviser Agreements.
v. No consent, approval, authorization or order of any court (to our knowledge),
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Adviser of its obligations under, any
Adviser Agreement, except (i) such as have been obtained under the federal
securities laws and (ii) may be required under state securities or "blue sky"
laws, in connection with the purchase and distribution of the Energy Notes by
the Underwriters pursuant to the Underwriting Agreement.
vii. To our knowledge, there is no legal or governmental proceeding pending or
threatened against the Adviser that is either (i) required to be described in
the Registration Statement or Prospectus that is not already described or (ii)
which would, under Section 9 of the Investment Company Act, make the Adviser
ineligible to act as the Fund's investment adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Adviser at which the contents of the Registration Statements and Prospectus were
discussed. No facts have come to our attention that cause us to believe that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that we express no such view with respect to the
financial statements, including notes and schedules thereto, or any other
financial or accounting data included therein), or that the description of the
Adviser and its business, and the statements attributable to the Adviser, in the
Page 65
Prospectus, as of the date it was filed with the Commission pursuant to Rule 497
under the Act and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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 (except that we express
no such view with respect to the financial statements, including notes and
schedules thereto, or any other financial or accounting data included therein).
Page 66
EXHIBIT D
FORM OF OPINION OF JENNER & BLOCK REGARDING THE SUB-ADVISER
(1) The Company is validly existing and in good standing as a limited liability
company under the laws of its jurisdiction of organization with full limited
liability company power and authority to conduct its business on behalf of the
Fund as described in the Registration Statement and to enter into and perform
its obligations under the Underwriting Agreement and the Sub-Advisory Agreement.
(2) The Company is registered as an investment adviser under the Advisers Act
and is not prohibited by the Advisers Act or the Investment Company Act from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
(3) The Company has full power and authority to enter into each of the
Underwriting Agreement and the Sub-Advisory Agreement (collectively, the
"Sub-Adviser Agreements") and to carry out all the terms and provisions thereof
to be carried out by it. Each of the Sub-Adviser Agreements has been duly and
validly authorized, executed and delivered by the Sub-Adviser; complies in all
material respects with the applicable provisions of the Investment Company Act
and the Advisers Act; and, assuming due authorization, execution and delivery by
the other parties thereto, the Sub-Adviser Agreements each constitute a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms. The opinions regarding enforceability in this
Paragraph (3) are qualified by any limitations imposed by any applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium or other similar laws
affecting the validity or enforcement of creditors rights generally and the
effect of general principles of equity and public policy (regardless of whether
considered in a proceeding in equity or at law) and, without limiting the
foregoing, to the extent that rights to indemnity under such agreements may be
limited by federal or state securities laws.
(4) Neither (A) the execution and delivery by the Company of the Underwriting
Agreement or the Sub-Advisory Agreement nor (B) the consummation by the Company
of the transactions contemplated by, or the performance of its obligations under
the Underwriting Agreement or the Sub-Advisory Agreement conflicts or ▇▇▇▇
▇▇▇▇ 67
conflict with, or results or will result in a breach of, the Amended and
Restated Limited Liability Company Agreement of the Company or any the specified
agreements or instruments that are specifically identified in Exhibit D to the
Support Certificate attached hereto in Annex I (which are specifically
identified as those agreements or instruments to which the Company is a party or
by which the Company is bound that are material to the Company in its ability to
perform its obligations under the Sub-Adviser Agreements), or any federal or
Illinois law, or rule or regulation covered by this opinion, or any of the
specified orders of any court, governmental instrumentality, securities exchange
or association or arbitrator, whether foreign or domestic, binding upon the
Company specifically identified in Exhibit E to the Support Certificate attached
hereto as Annex I (which are specifically identified as those orders to which
the Company is named party or by which the Company is bound that are material to
the Company in its ability to perform its obligations under the Sub-Advisor
Agreements).
(5) No consent, approval, authorization or order of any court, governmental
agency or body or securities exchange or association, whether foreign or
domestic, is required to be obtained by the Company for the consummation by the
Company of the transactions contemplated in, or the performance by the Company
of its obligations under, the Underwriting Agreement and the Sub-Advisory
Agreement.
(6) To our knowledge, there is no legal or governmental proceeding pending or
threatened against the Company that is either (i) required to be described in
the Registration Statement or Prospectus that is not already described or such
that without such description the Registration Statement or Prospectus contains
an untrue statement of material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in any material respect or (ii) which would, under Section 9 of the Investment
Company Act, make the Company ineligible to act as the Fund's investment
adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Company at which the contents of the Registration Statements and Prospectus were
Page 68
discussed. No facts have come to our attention that cause us to believe that the
description of the Company and its business, and the statements attributable to
the Company, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that we express no such view with respect to the
financial statements, including notes and schedules thereto, or any other
financial or accounting data included therein), or that the description of the
Company and its business, and the statements attributable to the Company, in the
Prospectus, as of the date it was filed with the Commission pursuant to Rule 497
under the Act and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits 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 (except that we express
no such view with respect to the financial statements, including notes and
schedules thereto, or any other financial or accounting data included therein).
Page 69