Exhibit h.1
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TORTOISE GAS AND OIL CORPORATION
(a Maryland corporation)
100 Common Shares
PURCHASE AGREEMENT
Dated: July 17, 2007
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TORTOISE GAS AND OIL CORPORATION
(a Maryland corporation)
100 Common Shares
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
July 17, 2007
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tortoise Gas and Oil Corporation, a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
in a private placement 100 shares of common stock, par value $.001 per share
(the "Common Shares"), of the Company to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company Incorporated
(the "Purchaser") under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon an exemption from registration pursuant to Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933 Act (the "1933
Act Regulations") by the Securities and Exchange Commission (the "Commission"),
by means of and on the terms and in the manner set forth herein and in the Final
Offering Memorandum (as defined below). The term "Preliminary Offering
Memorandum" as used herein means the preliminary offering dated June 13, 2007 as
supplemented by the supplement to preliminary offering memorandum dated July 13,
2007 (collectively, the "Preliminary Offering Memorandum"), and the term "Final
Offering Memorandum" means the final Offering Memorandum, dated July 16, 2007.
The 100 Common Shares to be sold by the Company to the Purchaser hereunder are
hereinafter called the "Securities."
The Securities are being offered and sold by the Company to the Purchaser
without being registered under the 1933 Act, in reliance upon exemptions
therefrom, and any subsequent purchasers ("Subsequent Purchasers") that acquire
Securities may only resell or otherwise transfer such Securities if such
Securities are hereafter registered under the 1933 Act or if an exemption from
the registration requirements of the 1933 Act is available (including the
exemption afforded by Rule 144A).
The Company has prepared and delivered to the Purchaser copies of the
Preliminary Offering Memorandum and the Final Offering Memorandum, setting forth
information concerning the Company and the Securities.
The Company has entered into an Investment Advisory Agreement, dated as of
June 8, 2007 (the "Investment Advisory Agreement"), with Tortoise Capital
Advisors, L.L.C., a Delaware limited liability company registered as an
investment adviser (the "Advisor"), under the Investment Advisers Act of 1940,
as amended, and the rules and regulations thereunder (collectively, the
"Advisers Act").
The Company will enter into a Registration Rights Agreement, to be dated as
of July 17, 2007 (the "Registration Rights Agreement") with the Purchaser
relating to the subsequent registration of the Securities under the 1933 Act.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company and the
Advisor, jointly and severally, represent and warrant to the Purchaser as of the
date hereof, the Applicable Time referred to in Section 1(a)(i) and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with the Purchaser,
as follows:
(i) Offering Memorandum. The Final Offering Memorandum does not, and
at the Closing Time will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and
agreement shall not apply to statements in or omissions from the Final
Offering Memorandum made in reliance upon and in conformity with
information furnished in writing to the Company by the Purchaser expressly
for use in the Final Offering Memorandum, with the parties hereto
confirming that no such information has been furnished.
As of the Applicable Time (as defined below), the Preliminary Offering
Memorandum distributed to investors did not, and as of the Closing Time,
will not, include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. As
used in this subsection and elsewhere in this Agreement: "Applicable Time"
means __:__ _.m. (Eastern Time) on July 17, 2007 or such other time as
agreed by the Company and the Purchaser.
(ii) Independent Accountants. The accountants who certified the
statement of assets and liabilities and the statement of operations, and
the related notes, included in the Final Offering Memorandum are (A)
independent public accountants as defined by the 1933 Act and the 1933 Act
Regulations, (B) in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 under Regulation S-X and
(C) a registered public accounting firm as defined by the Public Company
Accounting Oversight Board ("PCAOB"), whose registration has not been
suspended or revoked and who has not requested such registration to be
withdrawn.
(iii) Financial Statements. The audited statement of assets and
liabilities and the audited statement of operations included in the Final
Offering Memorandum, together with the related notes, present fairly the
financial position of the Company as of the date indicated; there are no
financial statements that are required to be included in the Final Offering
Memorandum that are not included as required; said financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States ("GAAP") applied on a consistent basis
throughout the periods involved. The financial data set forth in the Final
Offering Memorandum under the caption "Capitalization and Dilution" fairly
presents the information set forth therein on a basis consistent with that
of the audited financial statements and related notes thereto contained in
the Final Offering Memorandum.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Offering
Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company, other than
those in the ordinary course of business, which are material with respect
to the Company, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
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(v) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Maryland and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Preliminary Offering Memorandum and the Final Offering Memorandum and to
enter into and perform its obligations under this Agreement, the Investment
Advisory Agreement and the Registration Rights Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not be reasonably likely to result in a Material
Adverse Effect.
(vi) Subsidiaries. The Company has no subsidiaries. The Company does
not own, directly or indirectly, any shares of stock or any other equity or
debt securities of any corporation or have any equity or debt interest in
any firm, partnership, joint venture, association or other entity.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Preliminary Offering Memorandum
and the Final Offering Memorandum under the caption "Description of Capital
Stock". The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of preemptive or other similar rights of
any securityholder of the Company.
(viii) Authorization of Agreements. This Agreement and the Investment
Advisory Agreement have each been, and the Registration Rights Agreement
will be as of the Closing Time, duly authorized, executed and delivered by
the Company and are, and will be as of the Closing Time, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or thereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(ix) Authorization and Description of Securities. The Securities have
been duly authorized for issuance and sale by the Company to the Purchaser
pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth
herein, will be validly issued and fully paid and non-assessable; the
Common Shares conform to all statements relating thereto contained in the
Preliminary Offering Memorandum and the Final Offering Memorandum and such
descriptions conform to the rights set forth in the instruments defining
the same; no holder of the Securities will be subject to personal liability
by reason of being such a holder; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder of
the Company.
(x) Absence of Defaults and Conflicts. The Company is not in violation
of its articles or by-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company is a
party or by which it may be bound, or to which any of the property or
assets of the Company is subject (collectively, "Agreements and
Instruments") except for such defaults that would not be reasonably likely
to result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Registration Rights Agreement and the
Investment Advisory Agreement
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and the consummation of the transactions contemplated herein and therein
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Preliminary
Offering Memorandum and the Final Offering Memorandum under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments, nor will such action result in
any violation of the provisions of the articles or by-laws of the Company,
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its assets,
properties or operations.
(xi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company, which is
required to be disclosed in the Preliminary Offering Memorandum and the
Final Offering Memorandum (other than as disclosed therein), or that is
reasonably likely to result in a Material Adverse Effect, or that is
reasonably likely to materially and adversely affect the properties or
assets of the Company or the consummation of the transactions contemplated
in this Agreement, the Registration Rights Agreement or the Investment
Advisory Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or governmental
proceedings to which the Company is a party or of which any of its
properties or assets is the subject which are not described in the
Preliminary Offering Memorandum and the Final Offering Memorandum,
including ordinary routine litigation incidental to the business, is not
reasonably likely to result in a Material Adverse Effect.
(xii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement or the Investment Advisory Agreement, except
such as have been already obtained.
(xiii) Possession of Licenses and Permits. The Company possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it or proposed to be operated by it
immediately following the offering of the Securities as described in the
Preliminary Offering Memorandum and the Final Offering Memorandum, except
where the failure so to possess is not reasonably likely to, singly or in
the aggregate, result in a Material Adverse Effect; the Company is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply is not reasonably likely to, singly
or in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect is not reasonably
likely to, singly or in the aggregate, result in a Material Adverse Effect;
and the Company has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
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(xiv) Registration Rights. Other than as set forth in the Registration
Rights Agreement, there are no persons with registration rights or other
similar rights requiring the Company to register any securities as a result
of the Offering.
(xv) Related Party Transactions. There are no business relationships
or related party transactions involving the Company or any other person
required to be described in the Preliminary Offering Memorandum and the
Final Offering Memorandum which have not been described as required.
(xvi) Investment Advisory Agreement. (A) The terms of the Investment
Advisory Agreement, including compensation terms, comply in all material
respects with all applicable provisions of the Investment Company Act of
1940, as amended (the "1940 Act") and the Advisers Act and (B) the
approvals by the board of directors and the stockholders of the Company of
the Investment Advisory Agreement have been made in accordance with the
requirements of Section 15 of the 1940 Act.
(xvii) Interested Persons. Except as disclosed in the Preliminary
Offering Memorandum and the Final Offering Memorandum, (A) no person is
serving or acting as an officer, director or investment adviser of the
Company, except in accordance with the provisions of the 1940 Act and the
Advisers Act, and (B) to the knowledge of the Company, no director of the
Company is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the
Company or an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of the
Purchaser.
(xviii) Employees and Executives. The Company is not aware that (A)
any executive officer, key employee or significant group of employees of
the Advisor plans to terminate employment with the Advisor or (B) any such
executive officer or key employee is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or similar
arrangement that would be violated by the present or proposed business
activities of the Company or the Advisor.
(xix) Similar Offerings. Except for the placement by the Company of
Common Shares as set forth in the Final Offering Memorandum, none of the
Company or any of its respective affiliates, as such term is defined in
Rule 501(b) under the 1933 Act (each, an "Affiliate"), has, directly or
indirectly, solicited any offer to buy, sold or offered to sell or
otherwise negotiated in respect of, or will, directly or indirectly,
solicit any offer to buy, sell or offer to sell or otherwise negotiate in
respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Securities in a manner that would require the Securities to be registered
under the ▇▇▇▇ ▇▇▇.
(xx) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A under of the 1933 Act.
(xxi) No 1933 Act Registration Required. (A) Subject to compliance by
the Purchaser with the representations and warranties set forth in Section
2 hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities by the Company to the Purchaser in the manner
contemplated by this Agreement and the Final Offering Memorandum to
register the Securities under the 1933 Act and (B) it is not necessary in
connection with the placement of Common Shares by the Company to the
initial investors as reflected in the Final Offering Memorandum to register
such securities under the 1933 Act.
(xxii) Accounting Controls. The Company has established and maintains
a system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions will
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be executed in accordance with management's authorization; (B) transactions
will be recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain accountability for assets; (C)
access to assets will be permitted only in accordance with management's
authorization; (D) the recorded accountability for assets will be compared
with the existing assets at reasonable intervals and appropriate action
will be taken with respect to any differences; (E) material information
relating to the Company and the assets managed by the Advisor will be
promptly made known to the officers responsible for establishing and
maintaining the system of internal accounting controls; and (F) any
significant deficiencies or weaknesses in the design or operation of
internal accounting controls which could adversely affect the Company's
ability to record, process, summarize and report financial data, and any
fraud whether or not material that involves management or other employees
who have a significant role in internal controls, will be adequately and
promptly disclosed to the Company's independent auditors and the audit
committee of the Company's board of directors.
(xxiii) No Extension of Credit. The Company has not, directly or
indirectly, extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director
or executive officer of the Company, or to or for any family member or
affiliate of any director or executive officer of the Company.
(b) Representations and Warranties of the Advisor. The Advisor represents
to the Purchaser as of the date hereof and, as of the Closing Time referred in
Section 2(b) hereof, and agrees with the Purchaser as follows:
(i) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Preliminary Offering Memorandum,
except as otherwise stated therein, there has been no material adverse
change in the condition, financial or otherwise, or in the business
affairs, business prospects or regulatory status of the Advisor, whether or
not arising in the ordinary course of business, or that would otherwise
prevent the Advisor from carrying out its respective obligations under the
Investment Advisory Agreement (an "Advisor's Material Adverse Effect").
(ii) Good Standing. The Advisor has been duly organized and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware, and has limited liability company power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and to enter into and
perform its obligations under this Agreement; the Advisor also has limited
liability company power and authority to execute and deliver and perform
its obligations under the Investment Advisory Agreement; the Advisor is
duly qualified to transact business as a foreign entity and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of its property or the
conduct of business, except where the failure to qualify or be in good
standing would not be reasonably likely to result in an Advisor's Material
Adverse Effect.
(iii) Registration Under Advisers Act. The Advisor 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 or the applicable
published rules and regulations thereunder from acting under the Investment
Advisory Agreement for the Company as contemplated by the Preliminary
Offering Memorandum and the Final Offering Memorandum. There does not exist
any proceeding or, to the Advisor's knowledge, any facts or circumstances
the existence of which could lead to any proceeding which might adversely
affect the registration of the Advisor with the Commission.
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(iv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Advisor, threatened, against or affecting the Advisor, which is
required to be disclosed in the Preliminary Offering Memorandum and the
Final Offering Memorandum (other than as disclosed therein), or which might
result in a Material Adverse Effect or an Advisor's Material Adverse
Effect, or which might materially and adversely affect the properties or
assets of the Advisor or the consummation of the transactions contemplated
in this Agreement or the Investment Advisory Agreement, or the performance
by the Advisor of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Advisor is a
party or of which any of its property or assets is the subject which are
not described in the Preliminary Offering Memorandum or the Final Offering
Memorandum, including ordinary routine litigation incidental to its
business, could not result in an Advisor's Material Adverse Effect.
(v) Absence of Defaults and Conflicts. The Advisor is not in violation
of its limited liability company agreement or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Advisor is a party or by which it may be bound, or to which any of the
properties or assets of the Advisor is subject (collectively, the "Advisor
Agreements and Instruments"), or in violation of any law, statute, rule,
regulation, judgment, order or decree except for such violations or
defaults that would not be reasonably likely to result in a Material
Adverse Effect or an Advisor's Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the Investment Advisory
Agreement, and the consummation of the transactions contemplated herein and
therein (including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the
Preliminary Offering Memorandum and the Final Offering Memorandum under the
caption "Use of Proceeds") and compliance by the Advisor with its
obligations hereunder and under the Investment Advisory Agreement have been
duly authorized by all necessary limited liability company action and do
not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Advisor Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Advisor pursuant to, the Advisor Agreements and Instruments,
nor will such action result in any violation of the provisions of the
limited liability company agreement of the Advisor, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Advisor or any of its assets, properties or
operations. As used herein, an "Advisor Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Advisor.
(vi) Authorization of Agreements. This Agreement and the Investment
Advisory Agreement have been duly authorized, executed and delivered by the
Advisor. This Agreement and the Investment Advisory Agreement are valid and
binding obligations of the Advisor, as applicable, enforceable against it
in accordance with their terms, except as the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or thereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(vii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental
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authority or agency is necessary or required for the performance by the
Advisor of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or the Investment Advisory
Agreement, except such as have already been made or obtained.
(viii) Description of Advisor. The descriptions of the Advisor
contained in the Preliminary Offering Memorandum and the Final Offering
Memorandum do not, and prior to the time of purchase will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(ix) Financial Resources. The Advisor has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Preliminary Offering Memorandum and the
Final Offering Memorandum and under this Agreement and the Investment
Advisory Agreement.
(x) Possession of Licenses and Permits. The Advisor possesses such
Governmental Licenses issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, except where the failure so to possess would not, singly or
in the aggregate, result in a Material Adverse Effect or an Advisor's
Material Adverse Effect; the Advisor is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, result in a Material
Adverse Effect or an Advisor's Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or
in the aggregate, result in a Material Adverse Effect or an Advisor's
Material Adverse Effect; and the Advisor has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect or an Advisor's Material Adverse Effect.
(xi) Employment Status. The Advisor is not aware that (A) any
executive, key employee or significant group of employees of the Advisor
plans to terminate employment with the Advisor (B) any such executive
officer or key employee is subject to any non-compete, nondisclosure,
confidentiality, employment, consulting or similar agreement that would be
violated by the present or proposed business activities of the Company or
the Advisor except where such termination or violation would not constitute
a Material Adverse Effect or an Advisor's Material Adverse Effect.
(xii) Internal Controls. The Advisor operates a system of internal
controls sufficient to provide reasonable assurance that (A) transactions
effectuated by it under the Investment Advisory Agreement are executed in
accordance with its management's general or specific authorization; and (B)
access to the Company's assets is permitted only in accordance with its
management's general or specific authorization.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or the Advisor delivered to the Purchaser or to counsel for the
Purchaser shall be deemed a representation and warranty by the Company or the
Advisor, respectively, to the Purchaser as to the matters covered thereby.
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SECTION 2. Sale and Delivery to the Purchaser; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Purchaser, at a price per share of $14.025, all of the
Securities.
(b) Payment. At ___:00 _.m. (Eastern time) on the date of this Agreement,
or such other time not later than ten business days after such date as shall be
agreed upon by the Purchaser and the Company (such time and date of payment and
delivery being herein called "Closing Time"), payment shall be made to the
Company from the Purchaser, by wire transfer of immediately available funds to a
bank account designated by the Company, against delivery to the Purchaser of the
Securities to be purchased by the Purchaser.
SECTION 3. Covenants of the Company and the Advisor. The Company and the
Advisor, jointly and severally, covenant with the Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will furnish
to the Purchaser, without charge, such number of copies of the Preliminary
Offering Memorandum and the Final Offering Memorandum and any amendments and
supplements thereto as the Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Company will promptly notify
the Purchaser, and confirm such notice in writing, of any filing made by the
Company of information relating to the offering of the Securities with any
securities exchange or any other regulatory body in the United States or any
other jurisdiction, which (i) make any statement in the Preliminary Offering
Memorandum and the Final Offering Memorandum false or misleading or (ii) are not
disclosed in the Preliminary Offering Memorandum and the Final Offering
Memorandum. In such event or if during such time any event shall occur as a
result of which it is necessary, in the reasonable opinion of any of the
Company, its counsel, the Purchaser or counsel for the Purchaser, to amend or
supplement the Preliminary Offering Memorandum and the Final Offering Memorandum
in order that the Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Preliminary
Offering Memorandum and the Final Offering Memorandum by preparing and
furnishing to the Purchaser an amendment or amendments of, or a supplement or
supplements to, the Preliminary Offering Memorandum and the Final Offering
Memorandum (in form and substance satisfactory in the reasonable opinion of
counsel for the Purchaser) so that, as so amended or supplemented, the
Preliminary Offering Memorandum and the Final Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a Purchaser, not
misleading.
(c) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Final Offering
Memorandum under "Use of Proceeds."
(d) Qualification of Securities for Offer and Sale. The Company will use
its best efforts, in cooperation with the Purchaser, to qualify the offered
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Purchaser may designate and to maintain
such qualifications in effect as long as required for the sale of the
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
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(e) Amendment to Final Offering Memorandum and Supplements. The Company
will advise the Purchaser promptly of any proposal to amend or supplement the
Final Offering Memorandum and will not effect such amendment or supplement if
the Purchaser or counsel to the Purchaser shall reasonably object. Neither the
consent of the Purchaser, nor the delivery by the Purchaser of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof or waiver of termination rights.
(f) PORTAL Designation. The Company will use its commercially reasonable
efforts to permit the Securities to be designated PORTAL securities in
accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL Market.
(g) DTC. The Company will cooperate with the Purchaser and use its best
efforts to permit the offered Securities to be eligible for clearance and
settlement through the facilities of the Depository Trust Company ("DTC").
(h) Provision of Information. Unless the Company furnishes information to
the Commission pursuant to Section 13 or 15(d) of the 1934 Act, the Company
agrees that, prior to any public offering of its Common Shares, it will make
available on the Advisor's website, or, at its option mail to all holders of its
Securities, including any subsequent holders of its Securities, any information
that it files under the 1940 Act and quarterly and annual reports with respect
to the Company.
(i) Accounting Controls. The Company will establish and maintain a system
of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
authorization; (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; (E) material information relating to the Company and
the assets managed by the Advisor is promptly made known to the officers
responsible for establishing and maintaining the system of internal accounting
controls; and (F) any significant deficiencies or weaknesses in the design or
operation of internal accounting controls which could adversely affect the
Company's ability to record, process, summarize and report financial data, and
any fraud whether or not material that involves management or other employees
who have a significant role in internal controls, are adequately and promptly
disclosed to the Company's independent auditors and the audit committee of the
Company's board of directors.
(j) Disclosure Controls. The Company will use its commercially reasonable
efforts to establish and employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in
the reports that it prepares for its shareholders is accumulated and
communicated to the Company's management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate
to allow timely decisions regarding disclosure and at such time as it registers
its Common Shares under the Securities Exchange Act of 1934 ("1934 Act"), the
reports that it files or submits under the 1934 Act are recorded, processed,
summarized and reported, within the time periods specified in the Commission's
rules and forms.
(k) Rule 144A Information. The Company agrees that, in order to render the
Securities eligible for resale pursuant to Rule 144A under the 1933 Act, while
any of the Securities remain outstanding and while the securities remain
Registrable Securities under the Registration Rights Agreement, it will make
available, upon request, to any holder of Securities or prospective purchasers
of
11
Securities the information specified in Rule 144A(d)(4), unless the Company
furnishes information to the Commission pursuant to Section 13 or 15(d) of the
1934 Act.
(l) Filings. The Company will file all reports and general consents to
service of process in jurisdictions required by applicable federal and state
securities laws with regard to sales of the Securities and the use of the
proceeds therefrom; provided, however, that the Purchaser provide all relevant
information to the Company in writing as to the Purchaser required for such
filings.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation and
printing of the Preliminary Offering Memorandum and the Final Offering
Memorandum (including financial statements and exhibits) and of each amendment
or supplement thereto, (ii) the preparation, printing and delivery to the
Purchaser of this Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, and the Registration Rights Agreement, (iii) the preparation,
issuance and delivery of the stock certificate for the Securities to the
Purchaser, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Purchaser, (iv) the fees and disbursements of the Company's and the Advisor's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Purchaser in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery
to the Purchaser of copies of each Preliminary Offering Memorandum and of the
Final Offering Memorandum and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Purchaser of copies of the Blue Sky
Survey and any supplement thereto and (viii) the fees and expenses of any
transfer agent or registrar for the Securities. The Purchaser and the Company
will each pay fees, costs and expenses of their respective counsel, other than
those contemplated by Sections 4(a)(v) and 4(a)(vii), which shall be paid by the
Company.
(b) Termination of Agreement. If this Agreement is terminated by the
Purchaser in accordance with the provisions of Section 5 or Section 10(a)(i)
hereof, the Company and the Advisor, jointly and severally, shall reimburse the
Purchaser for all of its out-of-pocket expenses incurred, including the
reasonable fees and disbursements of counsel for the Purchaser.
SECTION 5. Conditions of Purchaser's Obligations. The obligations of the
Purchaser hereunder are subject to the accuracy of the representations and
warranties of the Company and the Advisor contained in Section 1 hereof or in
certificates of any officer of the Company or the Advisor, to the performance by
the Company and the Advisor of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Opinions of Counsel for Company. At Closing Time, the Purchaser shall
have received the favorable opinions, dated as of Closing Time, of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇▇▇ LLP, special Maryland counsel
for the Company, in each case in form and substance satisfactory to counsel for
the Purchaser, to such effect as counsel to the Purchaser may reasonably
request. In giving such opinions, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
Missouri and the federal law of the United States, on an assumption that the law
of such other jurisdiction is identical to the law of Missouri. Such counsel may
also state that, insofar as such opinions involve factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and certificates of public officials.
12
(b) Opinion of Counsel for the Purchaser. At Closing Time, the Purchaser
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
▇▇▇▇▇ LLP, counsel for the Purchaser, with respect to the matters as the
Purchaser may reasonably request. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Purchaser, including counsel of the
Company. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and certificates of public officials.
(c) Officers' Certificates. (i) At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Preliminary Offering Memorandum, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, and the Purchaser shall have received a certificate of the
president of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, and (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time.
(ii) At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Preliminary
Offering Memorandum, any material adverse change in the condition, financial or
otherwise, or in the business affairs or business prospects of the Advisor,
whether or not arising in the ordinary course of business, and the Purchaser
shall have received a certificate of the president of the Advisor and of the
chief financial or chief accounting officer of the Advisor, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) and 1(b) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, and (iii) the Advisor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time.
(d) [Reserved]
(e) Accountant's Comfort Letter. At the Closing Time of the execution of
this Agreement, the Purchaser shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the Purchaser,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to initial purchasers with respect to the
financial statements and certain financial information contained in the Final
Offering Memorandum.
(f) PORTAL. At the Closing Time, the Securities shall have been designated
for trading on PORTAL.
(g) Additional Documents. At Closing Time, counsel for the Purchaser shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Advisor in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Purchaser and counsel for the
Purchaser.
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(h) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Purchaser by notice to the Company at any
time at or prior to Closing Time and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 7, 8 and 9 shall survive any such termination and remain in full
force and effect.
SECTION 6. Qualified Institutional Buyer. The Purchaser represents and
warrants to, and agrees with, the Company that it is a "qualified institutional
buyer within the meaning of Rule 144A under the 1933 Act.
SECTION 7. Indemnification.
(a) Indemnification of the Purchaser. The Company and the Advisor, jointly
and severally, agree to indemnify and hold harmless the Purchaser, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an
"Affiliate"), its selling agents, officers, directors and employees and each
person, if any, who controls the Purchaser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, related to or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum and the Final Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company;
(iii) against any and all loss, liability, claim, damage and expense
whatsover, as incurred, related to or arising out of any breach of a
representation, warranty or covenant by the Company or the Advisor set
forth in this Agreement; and
(iv) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Purchaser),
reasonably incurred in investigating, preparing, conducting or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser expressly for use in the Preliminary Offering Memorandum and the Final
Offering Memorandum (or any amendment or supplement thereto), with the parties
hereto confirming that no such information has been furnished.
14
(b) Indemnification of Company, Directors, Officers and Advisor. The
Purchaser agrees to indemnify and hold harmless the Company and the Advisor and
each person, if any, who controls the Company or the Advisor within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Preliminary Offering Memorandum and the Final Offering Memorandum, in reliance
upon and in conformity with information furnished in writing or electronic mail
to the Company by the Purchaser expressly for use in the Preliminary Offering
Memorandum and the Final Offering Memorandum, with the parties hereto confirming
that no such information has been furnished.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder (an "Action"), but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the extent
it is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section
7(a) above, counsel to the indemnified parties shall be selected by the
Purchaser, and, in the case of parties indemnified pursuant to Section 7(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
Action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one Action or separate but similar or related Actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Advisor on the one hand and the Purchaser on the other hand from the offering of
the Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not
15
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Advisor on the one hand and of the Purchaser on the
other hand in connection with the statements or omissions, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Advisor on the one
hand and the Purchaser on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Purchaser, in
each case as set forth on the cover of the Final Offering Memorandum, bear to
the aggregate initial offering price of the Securities as set forth on the cover
of the Final Offering Memorandum.
The relative fault of the Company and the Advisor on the one hand and the
Purchaser on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company and the Advisor or by the Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Advisor and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls a
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act and the Purchaser's Affiliates and selling agents shall have the same
rights to contribution as the Purchaser, and each executive officer or director
of the Company and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
SECTION 9. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company and the Advisor submitted pursuant
hereto, shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of any the Purchaser or its Affiliates or
selling agents, any person controlling the Purchaser, its officers or directors
or any person controlling the Company and (ii) delivery of and payment for the
Securities.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Purchaser may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this
16
Agreement or since the respective dates as of which information is given in the
Preliminary Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company or the Advisor, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Purchaser,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ Select Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (v) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 7,
8 and 9 shall survive such termination and remain in full force and effect.
SECTION 11. [Reserved]
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this
Agreement, from the commencement of discussions with respect to the transactions
contemplated hereby, the Company (and each employee, representative or other
agent of the Company) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations
promulgated thereunder) of the transactions contemplated by this Agreement and
all materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
SECTION 13. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Purchaser
shall be directed to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III, with a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.; and notices to the Company and the Advisor shall be
directed to them at Tortoise Capital Resources Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇,
with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges
and agrees that (i) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the offering price of the Securities
and any related discounts and commissions, is an arm's-length commercial
transaction between the Company, on the one hand, and the Purchaser, on the
other hand, (ii) the Purchaser has not assumed and will not assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether the
Purchaser has advised or is currently advising the Company on other matters),
and the Purchaser has no obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iii) the Purchaser and its affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Company, and (iv) the
17
Purchaser has not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and the Company has consulted its
own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
SECTION 15. Parties. This Agreement shall inure to the benefit of and be
binding upon the Purchaser and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Purchaser, the
Company and the Advisor and their respective successors and the controlling
persons and officers and directors referred to in Sections 7 and 8 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Purchaser, the Company and the Advisor and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from the Purchaser
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[SIGNATURE PAGE FOLLOWS]
18
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Purchaser, the Company and the Advisor in accordance with its terms.
Very truly yours,
COMPANY:
TORTOISE GAS AND OIL CORPORATION
By _____________________________________
Name:
Title:
ADVISOR:
TORTOISE CAPITAL ADVISORS, L.L.C.
By _____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By _____________________________________
Authorized Signatory
19