AUCTION RATE SENIOR NOTES
EXHIBIT
h.3
AUCTION
RATE SENIOR NOTES
$__________ SERIES
__, DUE _________
($25,000
DENOMINATIONS)
[Date]
[Underwriters]
As
Representative of the several
Underwriters
named in Schedule I
[Address]
Ladies
and Gentlemen:
Tortoise
Energy Infrastructure Corporation, a Maryland corporation (the “Company”),
proposes to, subject to the terms and conditions stated herein, issue and sell
to the Underwriters named in Schedule I hereto (each an “Underwriter” and,
together the “Underwriters”) for whom you are acting as representative (the
“Representative”) $_________ aggregate principal amount of auction rate senior
notes Series __, due ____, ____ (the “Tortoise Notes”). The
Tortoise Notes will be issued pursuant to the provisions of an indenture (the
“Base Indenture”) dated as of _______________ between the Company and [Trustee],
as trustee (the “Trustee”), and a supplemental indenture between the Company and
the Trustee, dated ___________ (the “Supplemental Indenture,” and together
with the Base Indenture, the “Indenture”). The Company and the
Company’s investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited
liability company (the “Investment Adviser”), each wishes to confirm its
agreement concerning the purchase of the Tortoise Notes from the Company by
the
Underwriters.
The
Company has entered into an Investment Advisory Agreement with the Investment
Adviser dated _____________________ (the “Advisory Agreement”); a Custody
Agreement with [Custodian], dated __________________ (“Custody Agreement”);
a Stock Transfer Agency Agreement with [Stock Transfer Agent],
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dated ________________
(“Transfer Agency Agreement”); a Fund Administration Servicing Agreement with
[Fund Administrator], dated ________________ (“Administration Agreement”); a
Fund Accounting Servicing Agreement with [Fund Administrator], dated
________________ (“Accounting Agreement”); and an Auction Agency Agreement,
including the form of Broker-Dealer Agreement, with [Auction Agent], dated
________________ (the “Auction Agreement”). Collectively, the
Advisory Agreement, the Custody Agreement, the Transfer Agency Agreement, the
Administration Agreement, the Accounting Agreement and the Auction Agreement
(but excluding the Broker-Dealer Agreement) are referred to herein as the
“Company Agreements.” This Underwriting Agreement is herein referred
to as the “Agreement.”
Section
1. Representations,
Warranties and Agreements of the Company and the Investment
Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A
registration statement on Form N-2 (File Nos. 333-_______ and 811-_______,
as
amended by ________________________________ thereto) with respect to the
Tortoise Notes has (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”),
the Investment Company Act of 1940, as amended (the “1940 Act”), the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and
regulations of the United States Securities and Exchange Commission (the
“Commission”) promulgated under the Securities Act (the “1933 Act Rules and
Regulations”) and promulgated under the 1940 Act (the “1940 Act Rules and
Regulations”), (ii) been filed with the Commission under the Securities Act and
the 1940 Act and (iii) become effective under the Securities Act. If
any post-effective amendment to such registration statement has been filed
with
the Commission prior to execution and delivery of this Agreement, the most
recent such amendment has become effective under the Securities
Act. Copies of such registration statement and each of the amendments
thereto have been delivered by the Company to you. As used in this
Agreement, the following terms have the specified meanings:
“Applicable
Time” means ____ [a.m.] [p.m.] (New York City time) on the date of
this Agreement;
“Base
Prospectus” means the base prospectus and related statement of additional
information filed as part of the Registration Statement, in the form in which
it
has most recently been amended on or prior to the date hereof, relating to
the
Tortoise Notes;
“Disclosure
Package” means, as of the Applicable Time, the Preliminary Prospectus, together
with the Final Term Sheet;
“Effective
Date” means any date as of which any part of the Registration Statement or any
post-effective amendment thereto relating to the Tortoise Notes
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became,
or is deemed to have become, effective under the Securities Act in accordance
with the 1933 Act Rules and Regulations;
“Final
Term Sheet” means the term sheet prepared pursuant to Section 8 of the
Agreement and contained in Schedule II hereto;
“Preliminary
Prospectus” means the preliminary prospectus and related statement of additional
information relating to the Tortoise Notes, including the Base Prospectus and
the preliminary prospectus supplement dated May 22, 2007, included in the
Registration Statement or as filed with the Commission pursuant to Rule 497(a)
and/or Rule 497(c) of the 1933 Act Rules and Regulations and provided to the
Representative for use by the Underwriters;
“Prospectus”
means the final prospectus and related statement of additional information
relating to the Tortoise Notes, including the Base Prospectus and the final
prospectus supplement thereto relating to the Tortoise Notes, as filed with
the
Commission pursuant to Rule 497(c) and/or Rule 497(h) of the 1933 Act Rules
and
Regulations and provided to the Representative for use by the Underwriters;
and
“Registration
Statement” means, collectively, the various parts of the above-referenced
registration statement, each as amended as of the Effective Date for such part,
including the Preliminary Prospectus or the Prospectus and all exhibits to
such
registration statement.
For
purposes of this Agreement, all references to the Registration Statement, the
Preliminary Prospectus, the Prospectus, the Base Prospectus or any amendment
or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system (“▇▇▇▇▇”). Any reference to the “Preliminary
Prospectus” will be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule 497(c) and/or
Rule 497(h) of the 1933 Act Rules and Regulations prior to or on the date hereof
(including, for purposes of this Agreement, any documents incorporated by
reference therein prior to or on the date of this Agreement). Any
reference to the Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any documents incorporated by reference therein pursuant
to
Form N-2 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be.
(b) The
Commission has not issued any order preventing or suspending the effectiveness
of the Registration Statement or preventing or suspending the use of the
Preliminary Prospectus or the Prospectus.
(c) The
Company is duly registered under the 1940 Act as a closed-end, non-diversified,
management investment company. A notification of registration of the
Company as an investment company under the 1940 Act on Form N-8A (the “1940 Act
Notification”) has been prepared by the Company in conformity with the 1940
Act
3
and
has
been filed with the Commission and, at the time of filing thereof and at the
time of filing any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act Rules
and Regulations. The Company has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940
Act
Notification or the Registration Statement (or any amendment or supplement
to
either of them).
(d) To
the knowledge of the Company and the Investment Adviser, 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 1940 Act Rules and
Regulations and the Investment Advisers Act of 1940, as amended (the “Investment
Advisers Act”) and the rules and regulations adopted by the Commission under the
Investment Advisers Act (the “Investment Advisers Act Rules and
Regulations”).
(e) The
Registration Statement and the 1940 Act Notification conformed on the Effective
Date and conform, and any amendment thereto filed after the date hereof will
conform, in all material respects to the requirements of the Securities Act,
the
1940 Act, the Trust Indenture Act, the 1933 Act Rules and Regulations and the
1940 Act Rules and Regulations. The Preliminary Prospectus conforms
on the date thereof, and the Prospectus, and any amendments or supplements
thereto will conform as of its date and as of the Delivery Date (as defined
in
Section 5 below), in all material respects to the requirements of the Securities
Act, the 1940 Act, the Trust Indenture Act and the Rules and
Regulations. The documents incorporated by reference in the
Preliminary Prospectus or the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act, the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”), and the rules and regulations of the
Commission promulgated under the Exchange Act (the “1934 Act Rules and
Regulations,” and together with the 1933 Act Rules and Regulations and the 1940
Act Rules and Regulations, the “Rules and Regulations”), the Trust Indenture
Act, the 1940 Act, as applicable, the 1933 Act Rules and Regulations and the
1940 Act Rules and Regulations, and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the
Commission, as the case may be, will conform, in all material respects to the
requirements of the Securities Act, the 1940 Act, the Trust Indenture Act or
the
Exchange Act, as applicable, and the Rules and Regulations; and no such
documents have been filed with the Commission since the close of business of
the
Commission on the business day immediately prior to the date
hereof.
(f) The
Registration Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein not misleading;
provided, however, that no representation or warranty is made
as to information contained in or omitted from the Registration Statement in
reliance upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein.
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(g) The
1940 Act Notification, and any amendment or supplement thereto, will not, as
of
its date and on the Delivery Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that no representation or warranty is made as to information contained in or
omitted from the 1940 Act Notification in reliance upon and in conformity with
written information furnished to the Company through the Representative by
or on
behalf of any Underwriter specifically for inclusion therein.
(h) The
Disclosure Package did not, as of the Applicable Time, contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided,
however, that no representation or warranty is made as to information
contained in or omitted from the Disclosure Package in reliance upon and in
conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein.
(i) The
Prospectus, and any amendment or supplement thereto, will not, as of its date
and on the Delivery Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, however, that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein.
(j) The
documents incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
requirements of the Exchange Act, the 1934 Act Rules and Regulations and the
1940 Act Rules and Regulations and, when read together with the other
information in the Prospectus, (a) at the time the Registration Statement became
effective, (b) at the Applicable Time and (c) at the Delivery Date, did not
and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(k) The
Company has been duly incorporated and is existing as a corporation in good
standing under the laws of the State of Maryland, is duly qualified to do
business and is in good standing in each jurisdiction in which its ownership
or
lease of property or the conduct of its business as described in the Preliminary
Prospectus and the Prospectus requires such qualification, and has all power
and
authority necessary to own or hold property and to conduct the business as
described in the Preliminary Prospectus and the Prospectus, except where the
failure to so qualify or to be in good standing would not reasonably be expected
to have a material adverse effect on the condition (financial or
5
other),
business, prospects, management, shareholders’ equity or results of operations
of the Company (a “Material Adverse Effect”). The Company has no
subsidiaries.
(l) The
Company has an authorized capitalization as set forth in the Preliminary
Prospectus and the Prospectus. All of the issued shares of common
stock and preferred stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Preliminary Prospectus
and
the Prospectus.
(m) The
Tortoise Notes to be issued and sold by the Company to the Underwriters
hereunder 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 Company entitled
to the benefits of the Indenture; and the Tortoise Notes will conform in all
material respects to the description thereof contained in the Indenture, the
Disclosure Package and the Prospectus.
(n) This
Agreement, the Indenture and each of the Company Agreements have been duly
authorized, executed and delivered by the Company and constitute valid and
legally binding agreements of the Company, enforceable against the Company
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 Company’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.
(o) The
Company is not (i) in violation of its Articles of Incorporation, as amended
or
supplemented (the “Charter”), 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 in the aggregate would not reasonably be expected to have
a
Material Adverse Effect.
(p) None
of the execution, delivery and performance of this Agreement or the Indenture
by
the Company, the performance of the Company Agreements or the consummation
of
the transactions contemplated hereby and thereby (i) conflict with, result
in
the creation or imposition of any lien, charge or encumbrance upon the assets
of
the Company under the terms or provisions of, or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the
6
Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) result in any violation of the provisions of the Charter or by-laws of the Company or (iii) result in the violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets, except in the case of clauses (i) and (iii), such conflicts, breaches or violations that in the aggregate would not reasonably be expected to have a Material Adverse Effect; and except for the registration of the Tortoise Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the 1940 Act, the Exchange Act, and applicable state securities laws in connection with the purchase and distribution of the Tortoise Notes by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Indenture by the Company, the performance of the Company Agreements by the Company or the consummation of the transactions contemplated hereby and thereby by the Company.
(q) There
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company
to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities
Act. There are no outstanding options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or
ownership interests in the Company.
(r) The
Company has not sustained, since the respective dates as of which information
is
given in the Preliminary Prospectus and the Prospectus, any material loss or
interference with its business that has had, or could reasonably be expected
to
have, a Material Adverse Effect, and since such date, there has not been any
change in the capital stock or long-term debt of the Company or any change,
or
any development involving a prospective change, in or affecting the general
affairs, management, consolidated financial position, shareholders’ equity,
results of operations, business or prospects of the Company that has had or
could reasonably be expected to have a Material Adverse Effect, other than
as
set forth or contemplated in the Preliminary Prospectus and the
Prospectus.
(s) The
financial statements and the notes thereto included or incorporated by reference
in the Preliminary Prospectus and the Prospectus present fairly the financial
condition and results of operations of the Company, at the dates and for the
periods indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved; and the supporting schedules included or incorporated by reference
in
the Preliminary Prospectus
and the Prospectus present fairly in all material respects the information
required to be stated therein.
7
(t) [Independent
Auditors], who has reviewed the financial statements of the Company, whose
report appears in the Registration Statement and who has delivered the letters
referred to in Sections 9(f) and (g) hereof, has represented to the Company
that
it is an independent registered public accounting firm as required by the
Securities Act, the 1940 Act, the 1933 Act Rules and Regulations and the 1940
Act Rules and Regulations and the rules and regulations of the Public Company
Accounting Oversight Board.
(u) The
Company carries, or is covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of its business and the value of its
property and as is customary for companies engaged in similar businesses in
similar industries.
(v) There
are no legal or governmental proceedings pending to which the Company is a
party
or of which any property or assets of the Company is the subject which are
reasonably likely to be determined adversely to the Company and, if determined
adversely to the Company, would be reasonably likely to have a Material Adverse
Effect; and to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(w) There
are no contracts or other documents which are required to be described in the
Registration Statement, the Preliminary Prospectus or the Prospectus or filed
as
exhibits to the Registration Statement or to a document incorporated by
reference into the Registration Statement, the Preliminary Prospectus or the
Prospectus by the Securities Act, the Exchange Act, the 1940 Act, the Trust
Indenture Act or by the Rules and Regulations which have not been described
or
filed as required.
(x) The
Company has filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company which has
had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, might have) a Material Adverse
Effect.
(y) The
Company has not made and will not make an election under Section 851(b) of
the
Internal Revenue Code of 1986, as amended (the “Code”), or any successor
provisions thereto, to be treated as a regulated investment company for federal
income tax purposes.
(z) Since
the respective dates as of which information is given in the Preliminary
Prospectus and the Prospectus, and except as may otherwise be disclosed in
the
Preliminary Prospectus and the Prospectus, the Company has not (i) issued or
granted any securities other than shares of common stock of the Company, (ii)
incurred any liability or obligation, direct or contingent, other than
non-material liabilities and obligations
which were incurred in the ordinary course of business, or (iii) entered into
any transaction not in the ordinary course of business.
8
(aa) The
Company or its designee (i) makes and keeps accurate books and records and
(ii)
maintains internal accounting controls which provide reasonable assurance that
(A) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (B) access
to its assets is permitted only in accordance with management’s authorization
and (C) the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(bb) There
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or the
Underwriters for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
(cc) The
statistical, market-related and industry data included in the Preliminary
Prospectus and the Prospectus are based on or derived from sources which the
Company believes to be reliable and accurate.
(dd) The
Company, subject to the filing of the Prospectus under Rule 497 under the 1933
Act Rules and Regulations, has taken all required action under the Securities
Act, the 1940 Act, the Trust Indenture Act, the 1933 Act Rules and Regulations
and the 1940 Act Rules and Regulations to make the public offering and
consummate the sale of the Tortoise Notes as contemplated by this
Agreement.
(ee) Except
as stated in this Agreement and in the Preliminary Prospectus and the
Prospectus, the Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which constituted
or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Tortoise Notes to facilitate the sale or resale
of the Tortoise Notes.
(ff) Other
than the Disclosure Package and the Prospectus, neither the Company nor the
Investment Adviser has provided or prepared any marketing materials in
connection with the offering and sale of the Tortoise Notes.
(gg) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Investment Advisers Act and the Investment Advisers Act Rules
and Regulations and the Indenture complies in all material respects with the
applicable provisions of the Trust Indenture Act.
(hh) Except
as disclosed in the Preliminary Prospectus and the Prospectus, 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
Underwriters.
Section
2. Representations,
Warranties and Agreements of the Investment Adviser. The
Investment Adviser represents, warrants and agrees that:
(a) The
Investment Adviser has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of
9
Delaware,
is duly qualified to do business and is in good standing in each jurisdiction
in
which its ownership or lease of property or the conduct of its business as
described in the Preliminary Prospectus and the Prospectus requires such
qualification (except where the failure to so qualify or to be in good standing
would not reasonably be expected to have a Material Adverse Effect), and has
the
power and authority to own or hold its properties and to conduct its business
as
described in the Preliminary Prospectus and the Prospectus.
(b) The
Investment Adviser is duly registered as an investment adviser under the
Investment Advisers Act and there does not exist any proceeding or any facts
or
circumstances the existence of which could lead to any proceeding which could
affect adversely the registration or good standing of the Investment Adviser
with the Commission. The Investment Adviser is not prohibited by the
Investment Advisers Act, the 1940 Act, the Investment Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under the Advisory
Agreement as contemplated by the Preliminary Prospectus and the
Prospectus.
(c) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute valid and legally
binding agreements of the Investment Adviser, enforceable against the Investment
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 Investment Adviser’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.
(d) None
of the execution, delivery and performance of this Agreement, the performance
of
the Advisory Agreement or the consummation of the transactions contemplated
hereby and thereby (i) conflict with, result in the creation or imposition
of
any lien, charge or encumbrance upon the assets of the Company under the terms
or provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Investment
Adviser is a party or by which the Investment Adviser is bound or to which
any
of the property or assets of the Investment Adviser is subject, (ii) result
in
any violation of the provisions of the limited liability company operating
agreement or other organizational documents of the Investment Adviser or (iii)
result in the violation of any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Investment
Adviser or any of its properties or assets, except in the case of clauses (i)
and (iii), such conflicts, breaches or violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect; and except for
the
registration of the Tortoise Notes under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Tortoise Notes by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with,
any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Investment Adviser, the
performance
10
of
the
Advisory Agreement by the Investment Adviser or the consummation of the
transactions contemplated hereby and thereby by the Investment
Adviser.
(e) The
Investment Adviser has the financial resources available to it necessary for
the
performance of its services and obligations as contemplated in the Preliminary
Prospectus and the Prospectus and under this Agreement and the Advisory
Agreement.
(f) The
Investment Adviser carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its business and the
value
of its property and as is customary for companies engaged in similar businesses
in similar industries.
(g) The
description of the Investment Adviser and its business in the Preliminary
Prospectus and the Prospectus conformed as of the date hereof and as of the
Delivery Date (as defined herein) will conform in all material respects with
the
provisions of the Securities Act, the 1940 Act, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations and such description did
not
as of the date hereof and will not as of the Delivery Date (as defined herein)
contain an untrue statement of a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(h) There
are no legal or governmental proceedings pending to which the Investment Adviser
is a party or of which any property or assets of the Investment Adviser is
the
subject which is reasonably likely to be determined adversely to the Investment
Adviser and, if determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse Effect; and to the best of the
Investment Adviser’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) Since
the respective dates as of which information is given in the Preliminary
Prospectus and the Prospectus, and except as may otherwise be disclosed in
the
Preliminary Prospectus and the Prospectus, there have been no transactions
entered into by the Investment Adviser which are material to the Investment
Adviser other than in the ordinary course of its business.
(j) This
Agreement and the Advisory Agreement comply in all material respects with all
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations,
the
Investment Advisers Act and the Investment Advisers Act Rules and
Regulations.
(k) Except
as stated in this Agreement and in the Preliminary Prospectus and the
Prospectus, the Investment Adviser has not taken and shall not take, directly
or
indirectly, any action designed to cause or result in, or which constituted
or
which
might reasonably be expected to constitute, the stabilization or manipulation
of
the price of the Tortoise Notes to facilitate the sale or resale of the Tortoise
Notes.
11
(l) The
Investment Adviser is not (i) in violation of its limited liability company
operating agreement or other organizational documents, (ii) in default in any
material respect, 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 in the aggregate
would
not reasonably be expected to have a Material Adverse Effect.
(m) Neither
the Investment Adviser, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Investment Adviser, has (i)
used any funds of the Company or the Investment Adviser for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from any funds of the
Company or the Investment Adviser, (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(n) Neither
the Investment Advisor nor any employee or agent of the Investment Adviser
has
made any payment of funds of the Company or the Investment Adviser or received
or retained any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Registration Statement, the
Preliminary Prospectus or the Prospectus which is not so disclosed.
(o) There
are no contracts, agreements or understandings between the Investment Adviser
and any person that would reasonably be expected to give rise to a valid claim
against the Company or the Underwriters for a brokerage commission, finder’s fee
or other like payment in connection with this offering.
Section
3. Purchase
of the Tortoise Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the
principal amount of Tortoise Notes set forth opposite such Underwriter’s name in
Schedule I hereto.
The
Company shall not be obligated to deliver any of the Tortoise Notes on the
Delivery Date (as hereinafter defined), except upon payment for all the Tortoise
Notes to be purchased on the Delivery Date as provided herein.
12
Section
4. Offering
of Tortoise Notes by the Underwriters. The Underwriters propose
to offer the Tortoise Notes for sale upon the terms and conditions set forth
in
the Prospectus.
Section
5. Delivery
of and Payment for the Tortoise Notes. Delivery of and payment
for the Tortoise Notes shall be made at the offices of _______________________,
[Address] or through the facilities of The Depository Trust Company or another
mutually agreeable facility, at 10:00 A.M., New York City time, on __________
or
at such other date or place as shall be determined by agreement between the
Underwriters and the Company (the “Delivery Date”). On the Delivery
Date, the Company shall deliver or cause to be delivered the Tortoise Notes
to
the Underwriters through the facilities of The Depository Trust Company against
payment to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of the Underwriters
hereunder.
Section
6. Further
Agreements of the Company and the Investment Adviser. The Company
and the Investment Adviser covenant and agree:
(a) To
prepare the Prospectus in a form approved by the Representative and file the
Prospectus with the Commission pursuant to Rule 497(c) or Rule 497(h) of the
1933 Act Rules and Regulations as promptly as possible, not later than the
Commission’s close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus except as
permitted herein; to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment or supplement to the Registration
Statement, the Preliminary Prospectus or the Prospectus has been filed and
to
furnish the Underwriters with copies thereof; to prepare the Final Term Sheet,
as approved by the Representative; to advise the Underwriters, promptly after
it
receives notice thereof, of the issuance by the Commission of any stop order
or
of any order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of the Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Tortoise Notes for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus for
additional information; and, in the event of the issuance of any stop order
or
of any order preventing or suspending the use of the Preliminary Prospectus
or
the Prospectus
or suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To
deliver promptly to the Underwriters such number of the following documents
as
it shall reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in each
case
excluding exhibits) and (ii) the Preliminary Prospectus, the Final Term Sheet
and the Prospectus and all amendments or supplements to any of such documents
(including any document filed under the Exchange Act and deemed to be
13
incorporated
by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus); during the period in which the Prospectus relating to the Tortoise
Notes is required to be delivered under the Securities Act, to comply with
all
requirements of the Securities Act and the Rules and Regulations, as from time
to time in force, so far as is necessary to permit the continuance of sales
of
or dealings in the Tortoise Notes as contemplated by the provisions of this
Agreement and by the Prospectus; and, if during such period any event occurs
as
a result of which the Disclosure Package or the Prospectus as then amended
or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light
of
the circumstances then existing, not misleading, or if during such period it
is
necessary to amend the Registration Statement or amend or supplement the
Disclosure Package or the Prospectus or file any document to comply with the
Securities Act, to promptly notify the Representative and, subject to
Section 6(a) hereof, to amend the Registration Statement, amend or
supplement the Disclosure Package or the Prospectus, as the case may be, or
file
any document (in each case, at the expense of the Company) so as to correct
such
statement or omission or to effect such compliance, and to furnish without
charge to each Underwriter as many written and electronic copies of any such
amendment or supplement as the Representative may from time to time reasonably
request;
(c) To
file promptly with the Commission any amendment to the Registration Statement
or
the Prospectus or any supplement to the Prospectus that may, in the judgment
of
the Company or the Underwriters, be required by the Securities Act or requested
by the Commission;
(d) Prior
to filing with the Commission any amendment to the Registration Statement or
supplement to the Prospectus or any Prospectus pursuant to Rule 497 of the
1933
Act Rules and Regulations, to furnish a copy thereof to the Underwriters and
their counsel and obtain the consent of the Underwriters to the filing, which
consent shall not be unreasonably withheld;
(e) During
the period when the Prospectus is required to be delivered under the Securities
Act or the Exchange Act, to file all documents required to be filed with the
Commission pursuant to the 1940 Act and the Exchange Act within the time periods
required by the 1940 Act and the 1940 Act Rules and Regulations and the Exchange
Act and the 1934 Act Rules and Regulations, respectively;
(f) To
make generally available to the Company’s security holders and to deliver to the
Underwriters an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the applicable Rules
and
Regulations (including, at the option of the Company, Rule 158) covering a
twelve-month period commencing after the Effective Date and ending not later
than 15 months thereafter;
(g) For
a period of three years following the Effective Date, to furnish to the
Underwriters, to the extent such information is not freely available on the
Internet, copies of all materials furnished by the Company to its shareholders
and all public reports
14
and
all
reports and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly
from time to time, to take such action as the Underwriters may reasonably
request to qualify the Tortoise Notes for offering and sale under the securities
laws of such jurisdictions as the Underwriters may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
the Tortoise Notes; provided that in connection therewith the Company shall
not
be required to qualify as a foreign corporation or to file a general consent
to
service of process in any jurisdiction;
(i) For
a period of 180 days from the date of the Prospectus, not to, without the prior
written consent of the Representative, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any Tortoise Notes or securities
convertible into or exchangeable for Tortoise Notes, or sell or grant options,
rights or warrants with respect to any Tortoise Notes or securities convertible
into or exchangeable for Tortoise Notes, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of
the economic benefits or risks of ownership of such Tortoise Notes, whether
any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Tortoise Notes or other securities, in cash or
otherwise;
(j) To
apply the net proceeds from the sale of the Tortoise Notes in a manner
consistent with the investment objectives, policies and restrictions of the
Company as set forth in the Prospectus; and
(k) Without
the prior consent of the Representative, not to use any marketing materials
in
connection with any public offering of the Tortoise Notes.
Section
7. Expenses.
The Company agrees to pay (a) the costs incident to the authorization, issuance,
sale and delivery of the Tortoise Notes and any taxes payable in connection
therewith; (b) the costs incident to the preparation, printing and filing under
the Securities Act and the 1940 Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus, and the 1940 Act Notification and any
amendments or supplements and exhibits thereto; (c) the costs of distributing
the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), the Preliminary Prospectus and
the
Prospectus and any amendment or supplements thereto, all as provided in this
Agreement; (d) the costs of producing and distributing this Agreement, and
any
other related documents in connection with the offering, purchase, sale and
delivery of the Tortoise Notes; (e) the preparation, issuance and delivery
of
the certificates for the Tortoise Notes, if any, to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon
the
sale, issuance or delivery of the Tortoise Notes to the Underwriters, (f) any
applicable listing or other fees including the fees paid to the rating agencies
in connection with the rating of the Tortoise Notes; (g) the fees and expenses
of qualifying
15
the
Tortoise Notes under the securities laws of the several jurisdictions as
provided in Section 6(h) and of preparing, printing and distributing a Blue
Sky
Memorandum (including related fees and expenses of counsel to the Underwriters),
if applicable; (h) all costs and reasonable expenses of the Underwriters, other
than the fees and disbursements of counsel to the Underwriters; (i) the fees
and
expenses of the Company’s accountants and the fees and expenses of counsel for
the Company, of the transfer agent and the auction agent as set forth in the
Auction Agreement; and (j) all other costs and reasonable expenses incident
to
the performance of the obligations of the Company under this
Agreement.
Section
8. Final
Term Sheet. The Company represents and warrants to, and agrees
with, each Underwriter that (i) the Final Term Sheet will not, as of its issue
date and through the time the Tortoise Notes are delivered pursuant to Section
5
hereof, include any information that conflicts with the information contained
in
the Registration Statement, the Preliminary Prospectus and the Prospectus;
and
(ii) the Final Term Sheet, when considered together with the information
contained in the Preliminary Prospectus, did not, as of the Applicable Time,
does not, as of the date hereof, and will not, as of the Delivery Date, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading.
Section
9. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters
hereunder are subject to the accuracy, when made and on the Delivery Date,
of
the representations and warranties of the Company and the Investment Adviser
contained herein, to the performance by the Company and the Investment Adviser
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a); all filings required by Rule 497 of the 1933 Act Rules and
Regulations shall have been made within the time periods prescribed by such
rules, and no such filings will have been made without the consent of the
Representative (which consent shall not be unreasonably withheld); no stop
order
suspending the effectiveness of the Registration Statement or any amendment
or
supplement thereto, preventing or suspending the use of the Preliminary
Prospectus or the Prospectus, or suspending the qualification of the Tortoise
Notes for offering or sale in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission;
and any request of the Commission for inclusion of additional information in
the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(b) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Indenture, the Auction Agreement,
the
Tortoise Notes, the Registration Statement, the Preliminary Prospectus and
the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel
16
all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) The
Company shall have furnished to the Underwriters, in form and substance
reasonably satisfactory to the Underwriters, the written opinion of Vedder,
Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., dated the Delivery Date, to the effect of
paragraphs (i) through (xvii) below:
(i) The
Company is a corporation duly incorporated and existing under and by virtue
of
the laws of the State of Maryland and is in good standing with the Department
of
Assessments and Taxation of Maryland;
(ii) The
Company has the corporate power to own, lease and operate its property or assets
and to conduct its business in all material respects as described in the
Preliminary Prospectus and the Prospectus under the caption “The
Company.”
(iii) The
authorized stock of the Company conforms as to legal matters in all material
respects to the description thereof in the Preliminary Prospectus and the
Prospectus under the caption “Description of Securities.” The
Tortoise Notes being delivered on the Delivery Date to the Underwriters
hereunder have been duly authorized and, when authenticated, issued and
delivered in accordance with the terms of this Agreement, the Indenture and
resolutions adopted by the Board of Directors and the Executive Committee
thereof will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) The
Tortoise Notes conform in all material respects to the statements concerning
them contained in the Preliminary Prospectus, the Prospectus and the Indenture
and there are no restrictions upon the transfer of any of the Tortoise Notes
pursuant to the Company’s Charter or by-laws or any Material Contract (as
defined below); except for the restrictions on transfer of the Tortoise Notes
contained in the Auction Agreement;
(v) To
such counsel’s knowledge, the Company is not (i) in violation of its Charter 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 listed
on
Schedule I to such counsel’s opinion (each a “Material Contract”) 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 in the aggregate would not
reasonably be expected to have a Material Adverse Effect;
17
(vi) To
such
counsel’s knowledge, and other than as set forth in the Preliminary Prospectus
and the Prospectus, there are no legal or governmental proceedings pending
to
which the Company is a party or of which any property or assets of the Company
is the subject which is reasonably likely to be determined adversely to the
Company and, if determined adversely to the Company, would be reasonably likely
to have a Material Adverse Effect; and, to the best of such counsel’s knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vii) The
Registration Statement was declared effective under the Securities Act as of
the
date and time specified in such opinion, the Prospectus was filed with the
Commission pursuant to Rule 497(c) and (h) of the 1933 Act Rules and Regulations
on the date specified in such opinion and no stop order suspending the
effectiveness of the Registration Statement or preventing or suspending the
use
of the Preliminary Prospectus has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by the
Commission;
(viii) The
Registration Statement, as of the Effective Date, the 1940 Act Notification,
as
of its date, and the Prospectus, as of its date and as of the Delivery Date,
(except for the financial statements and other financial and statistical data
contained therein, as to which such counsel need express no opinion) comply
as
to form in all material respects with the requirements of the Securities Act,
the 1940 Act, the Trust Indenture Act, the 1933 Act Rules and Regulations and
the 1940 Act Rules and Regulations;
(ix) The
statements contained in the Preliminary Prospectus and the Prospectus (and
any
amendment or supplement thereto through the date of the opinion) under the
captions “The Auction,” “Description of Tortoise Notes,” “Description of
Securities” and “Certain Federal Income Tax Matters,” insofar as they purport to
summarize provisions of the Indenture, the Company’s Charter and by-laws,
contracts, agreements or other legal documents referred to therein, tax laws,
legal conclusions, doctrines or practices of the United States, constitute
accurate summaries of the terms of such documents, laws, legal conclusions,
doctrines or practices in all material respects;
(x) To
such
counsel’s knowledge, 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 1933 Act Rules and Regulations or the
1940 Act Rules and Regulations which have not been described in the Registration
Statement and the Prospectus or filed as exhibits to the Registration
Statement;
(xi) The
execution and delivery of the Indenture has been duly authorized, and the
Indenture has been executed and, so far as known to such counsel, delivered,
has
been duly qualified under the Trust Indenture Act, and
18
constitutes
a legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws relating
to or
affecting creditors’ rights generally and by general equitable
principles);
(xii) The
global certificate representing the Tortoise Notes has been duly
executed;
(xiii) This
Agreement and each of the Company Agreements has been duly authorized, executed,
and, so far as known to such counsel, delivered by the Company and each of
the
Company Agreements constitutes the valid and legally binding agreement of the
Company, and is enforceable against the Company 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 Company’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;
(xiv) None
of the issuance and sale of the Tortoise Notes being delivered on the Delivery
Date by the Company pursuant to this Agreement, the execution, delivery and
performance by the Company of this Agreement or the Indenture, the performance
by the Company of each of the Company Agreements or the consummation of the
transactions contemplated hereby and thereby (i) result in the creation or
imposition of any lien, charge or encumbrance upon the assets of the Company
under the terms of provisions of, or result in a breach or violation of any
of
the terms or provisions of, or constitute a default under, any Material
Contract, (ii) result in any violation of the provisions of the Charter or
by-laws of the Company or (iii) result in the violation of any Maryland or
Federal law or regulation or any order of any Maryland or Federal governmental
authority known to such counsel, except in the case of clauses (i) and (iii),
such breaches or violations that in the aggregate would not reasonably be
expected to have a Material Adverse Effect; and, except for the registration
of
the Tortoise Notes under the Securities Act, the 1940 Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and
distribution of the Tortoise Notes by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such governmental
authority is required for the execution, delivery and performance of this
Agreement or the Indenture, the performance of the Company Agreements by the
Company or the consummation of the transactions contemplated hereby, except
for
such consents, approvals, authorizations, orders, filings or registrations
as
have been obtained or made;
(xv) This
Agreement and each of the Company Agreements complies in all material respects
with all applicable provisions of the 1940 Act, the Investment Advisers Act,
the
1940 Act Rules and Regulations and the
19
Investment
Advisers Act Rules and Regulations and the Indenture complies in all material
respects with the applicable provisions of the Trust Indenture Act;
(xvi) To
such counsel’s knowledge, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the
Company to include any securities in the securities registered pursuant to
the
Registration Statement; and
(xvii) The
Company is duly registered under the 1940 Act 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 the time of
filing any amendment or supplement thereto, complied as to form in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act Rules
and Regulations and, to the best of such counsel’s knowledge after reasonable
inquiry, the Company has not received any notice from the Commission pursuant
to
Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement (or any amendment or supplement to either of
them).
In
rendering such opinions, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America and the
laws of the State of Maryland. To the extent such counsel deems
proper and to the extent specified in such opinion, such counsel may rely,
as to
matters involving the application of laws of the State of Maryland upon the
opinion of ▇▇▇▇▇▇▇ LLP or other counsel of good standing whom such counsel
believes to be reliable and who are satisfactory to the Underwriters, provided
that (x) such reliance is expressly authorized by the opinion so relied upon
and
a copy of each such opinion is delivered to the Underwriters and is, in form
and
substance, satisfactory to the Underwriters and their counsel and (y) such
counsel states in their opinion that they believe that they and the Underwriters
are justified in relying thereon.
Such
counsel shall also state that it has participated in conferences with officers
and employees of the Company and the Investment Adviser, representatives of
the
independent auditors for the Company, Maryland counsel to the Company, the
Underwriters and counsel for the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel
is not passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus, except to the limited
extent otherwise covered by paragraphs (viii) and (ix) hereof and have made
no
independent check or verification thereof, on the basis of the foregoing, no
facts have come to such counsel's attention that would have led such counsel
to
believe that (a) the Registration Statement (except the financial statements
and
other financial and statistical data contained therein, as to which such counsel
expresses no opinion), as of the Effective Date, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements contained therein not misleading;
(b) as of the Applicable Time, the Disclosure Package (except the financial
statements and other
20
financial
and statistical data contained therein, as to which such counsel expresses
no
opinion), including in each case any document incorporated by reference therein,
contained any untrue statement or a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; or (c) the Prospectus (except the financial statements and
other
financial and statistical data contained therein, as to which such counsel
expresses no opinion), as of its date and as of the Delivery Date, 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
contained therein, in light of the circumstances under which they were made,
not
misleading.
(d) ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Investment Adviser, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The
Investment Adviser has been formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
is
duly qualified to do business as a foreign limited liability company and is
in
good standing in the States of Missouri and Kansas; and has the limited
liability company power and authority to own or hold its properties and to
conduct its business as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus;
(ii) The
Investment Adviser is duly registered as an investment adviser under the
Investment Advisers Act and is not prohibited by the Investment Advisers Act,
the 1940 Act, the Investment Advisers Act Rules and Regulations or the 1940
Act
Rules and Regulations from acting under the Advisory Agreement as contemplated
by the Registration Statement, the Preliminary Prospectus and the
Prospectus;
(iii) This
Agreement and the Advisory Agreement have each been duly authorized, executed
and delivered by the Investment Adviser, and constitute the valid and legally
binding agreements of the Investment Adviser, and,
this
Agreement is enforceable against the Investment Adviser in accordance with
its
terms;
(iv) None
of the execution, delivery and performance of this Agreement by the Investment
Adviser, the performance of the Advisory Agreement or the consummation of the
transactions contemplated by this Agreement or the Advisory Agreement by the
Company (i) conflict with, result in the creation or imposition of any lien,
charge or encumbrance upon the assets of the Investment Adviser under the terms
or provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement listed on Exhibit
A
attached to such opinion (ii) result in any violation of the provisions of
the
limited liability company operating agreement or other organizational documents
of the Investment Adviser or (iii) result in any violation
21
of
any
statute or any order, rule or regulation known to such counsel of any court
or
governmental agency or body having jurisdiction over the Investment Adviser
or
any of its properties or assets, except in the case of clauses (i) and (iii),
such conflicts, breaches and violations that in the aggregate would not
reasonably be expected to have a Material Adverse Effect; and except for the
registration of the Tortoise Notes under the Securities Act and the 1940 Act,
and such consents, approvals, authorizations, registrations or qualifications
as
may be required under the Exchange Act and applicable state securities laws
(as
to which such counsel need not express an opinion), no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the performance of the Advisory Agreement or
the
consummation of the transactions contemplated by this Agreement or the Advisory
Agreement by the Investment Adviser;
(v) To
such counsel’s knowledge and other than as set forth in the Preliminary
Prospectus and the Prospectus, there are no legal or governmental proceedings
pending to which the Investment Adviser is a party or to which any property
or
assets of the Investment Adviser is the subject which is reasonably likely
to be
determined adversely to the Investment Adviser and, if determined adversely
to
the Investment Adviser, would be reasonably likely to have a Material Adverse
Effect; and, to such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
and
(vi) The
description of the Investment Adviser and its business in the Registration
Statement, the Preliminary Prospectus and the Prospectus complied and comply
in
all material respects with the requirements of the Securities Act, the 1940
Act,
the Investment Advisers Act, the Rules and Regulations and the Investment
Advisers Act Rules and Regulations.
In
rendering such opinion, such counsel may state that their opinion is limited
to
matters governed by the Federal laws of the United States of America, the
General Corporation Law of the State of Delaware, and the laws of the State
of
Missouri.
(e) The
Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to
the Underwriters, such opinion or opinions, dated the Delivery Date, with
respect to the issuance and sale of the Tortoise Notes, the Indenture, the
Registration Statement, the Preliminary Prospectus, the Prospectus and other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(f) At
the time of execution of this Agreement, the Underwriters shall have received
from [Independent Auditor] a letter or letters, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the
22
Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission
and (ii) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Preliminary Prospectus, as of a date
not
more than five days prior to the date hereof), the conclusions and findings
of
such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings.
(g) With
respect to the letter or letters of [Independent Auditor] referred to
in the preceding paragraph and delivered to the Underwriters concurrently with
the execution of this Agreement (the “Initial Letter”), the Company shall have
furnished to the Underwriters a letter (the “Bring-Down Letter”) of such
accountants, addressed to the Underwriters and dated the Delivery Date (i)
confirming that they are independent public accountants within the meaning
of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Commission, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus,
as
of a date not more than five days prior to the date of the Bring-Down Letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the Initial Letter and (iii) confirming
in all material respects the conclusions and findings set forth in the Initial
Letter.
(h) The
Company shall have furnished to the Underwriters on the Delivery Date a
certificate, dated the Delivery Date, of its Chairman of the Board of Directors,
its Chief Executive Officer or President and its Chief Financial Officer or
Treasurer or an Assistant Treasurer stating that:
(i) The
representations, warranties and agreements of the Company contained herein
and
in the Auction Agreement are true and correct as of the date hereof and as
of
the Delivery Date; the Company has complied with all its agreements contained
herein prior to or on the Delivery Date; and the conditions set forth in Section
9 have been fulfilled;
(ii) Since
the respective dates as of which information is given in the Preliminary
Prospectus and the Prospectus, other than as set forth in or contemplated by
the
Preliminary Prospectus and the Prospectus, (A) there has not occurred any change
or any development that might reasonably be expected to have a Material Adverse
Effect, (B) there has not been any change in the capital stock, short-term
debt
or long-term debt of the Company that might reasonably be expected to have
a
Material Adverse Effect, (C) the Company has not incurred any material liability
or obligation, direct or contingent, (D) there has not occurred a material
loss
or interference with the Company’s business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree and (E) the Company has not
declared or paid any dividend on its shares of common stock,
23
except
for dividends declared in the ordinary course of business, and, except as set
forth in or contemplated by the Preliminary Prospectus and the Prospectus,
the
Company has not entered into any transaction (other than purchases and sales
of
portfolio transactions) or agreement (other than investment-related agreements)
material to the Company; and
(iii) They
carefully have examined the Registration Statement, the 1940 Act Notification,
the Disclosure Package and the Prospectus, and any amendments or supplements
thereto (including any documents incorporated or deemed to be incorporated
by
reference into the Preliminary Prospectus and the Prospectus), and, in their
opinion (and in forming such opinion each officer may rely on information
provided by the other parties to this Agreement) (A) the Registration Statement,
as of the Effective Date, the 1940 Act Notification, as of its date, the
Disclosure Package, as of the Applicable Time, and the Prospectus, as of its
date, did not and, on the Delivery Date, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (B)
since the initial Effective Date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to, or amendment
of,
the Registration Statement, the Preliminary Prospectus or the Prospectus which
has not been so set forth.
(i) The
Investment Adviser shall have furnished to the Underwriters on the Delivery
Date
a certificate, dated the Delivery Date, of a member of its Board of Managers,
dated the Delivery Date, stating that:
(i) The
representations, warranties and agreements of the Investment Adviser contained
herein are true and correct as of the date hereof and as of the Delivery Date;
the Investment Adviser has complied with all its agreements contained herein
prior to or on the Delivery Date; and the conditions set forth in Section 9
of
this Agreement have been fulfilled; and
(ii) They
have examined the Registration Statement, the Disclosure Package and the
Prospectus, and any amendments or supplements thereto (including any documents
incorporated or deemed to be incorporated by reference
into the Preliminary Prospectus and the Prospectus), and, in their opinion
(and
in forming such opinion each officer may rely on information provided by the
other parties to this Agreement) (A) the Registration Statement, as of the
Effective Date, the Disclosure Package, as of the Applicable Time, and the
Prospectus, as of its date, did not and, on the Delivery Date, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (B) since the initial Effective Date of the Registration
Statement, no event has occurred which should have been set forth in a
supplement to, or amendment of, the Registration Statement, the Preliminary
Prospectus or the Prospectus which has not been so set forth and there has
been
no document required to be filed under the Securities Act, the 1940 Act, the
Trust Indenture Act or by the Rules
24
and
Regulations or the Exchange Act and the rules and regulations thereunder that
upon such filing would be deemed incorporated by reference into the Registration
Statement, the Preliminary Prospectus or the Prospectus that has not be so
filed.
(j) The
Company shall not have sustained since the date of the latest audited financial
statements included in the Preliminary Prospectus and the Prospectus (A) any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, or (B) since such date, there
shall not have been any change in the capital stock, short-term debt or
long-term debt of the Company or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, prospects, shareholders’ equity or results of operations of the
Company, otherwise than as described or contemplated in the Preliminary
Prospectus or the Prospectus, the effect of which, in any such case described
in
clause (A) or (B), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Tortoise Notes being delivered on the Delivery
Date on the terms and in the manner contemplated in the Preliminary Prospectus,
the Prospectus and in this Agreement.
(k) The
Company shall have furnished to the Underwriters a report showing compliance
with the asset coverage requirements of the 1940 Act and the 1940 Act Tortoise
Notes Asset Coverage (as defined in the Registration Statement), each dated
as
of the Delivery Date and in form and substance satisfactory to the
Underwriters. Each such report shall assume the receipt of the net
proceeds from the sale of the Tortoise Notes and may use portfolio holdings
and
valuations as of the close of business of any day not more than six business
days preceding the Delivery Date, provided, however, that the Company represents
in such report that its total net assets as of the Delivery Date have not
declined by 5% or more from such valuation date.
(l) The
Company shall have delivered and the Underwriters shall have received evidence
satisfactory to it that the Tortoise Notes are rated at least “Aaa” by ▇▇▇▇▇’▇
Investors Service, Inc. and “AAA” by Fitch, Inc., a division of the McGraw Hill
Companies, as of the Delivery Date, and subsequent to the execution and delivery
of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the Tortoise
Notes
by any “nationally recognized statistical rating organization” as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act Rules
and Regulations and (ii) no such organization shall have publicly announced
that
is has under surveillance or review, with possible negative implications, its
rating of the Tortoise Notes.
(m) Neither
the Company nor the Investment Adviser shall have failed at or prior to the
Delivery Date to have performed or complied with any of the agreements contained
herein and required to be performed or complied with by them at or prior to
the
Delivery Date.
25
(n) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market,
or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited or
the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such), including, without limitation,
as a
result of terrorist activities after the date hereof, or any other calamity
or
crisis as to make it, in the judgment of the Representative, impracticable
or
inadvisable to proceed with the public offering or delivery of the Tortoise
Notes being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(o) The
Underwriters shall not have discovered and disclosed to the Company on or prior
to the Delivery Date that the Registration Statement, any Prospectus Supplement
or the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the reasonable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, is material or omits to state a fact which,
in the reasonable opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(p) The
Company and the Investment Adviser shall have furnished to the Underwriters
such
further certificates, documents and opinions of counsel as the Underwriters
shall reasonably request (including certificates of officers of the Company
and
the Investment Adviser).
All
opinions,
letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only
if
they are in form and substance reasonably satisfactory to counsel for the
Underwriters.
Section
10.
Indemnification and Contribution.
(a) The
Company and the Investment Adviser shall jointly and severally indemnify and
hold harmless each Underwriter, its directors, officers and employees and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Tortoise Notes), to which such Underwriter, director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action
26
arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in the 1940 Act Notification, or (B) in the
Registration Statement, the Preliminary Prospectus, the Prospectus, the
Disclosure Package, any amendment or supplement thereto including information
deemed to be part of the Registration Statement pursuant to Rule 430B, or any
“issuer information” filed or required to be filed pursuant to the 1933 Act
Rules and Regulations (ii) the omission or alleged omission to state in the
Registration Statement as amended or supplemented, the Preliminary Prospectus,
the Prospectus, the Disclosure Package, or any such issuer information, a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act
or
failure to act by such Underwriter in connection with, or relating in any manner
to, the Tortoise Notes or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that neither the Company nor the Investment Adviser shall be liable
under Section 10(a) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability
or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its willful misfeasance, bad
faith or gross negligence in the performance of its duties or reckless disregard
of applicable obligations and duties), and shall reimburse such Underwriter
and
each such director, officer, employee or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by such Underwriter,
director, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Company nor the Investment Adviser shall be liable in any
such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement
or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company or the Investment Adviser by or
on
behalf of the Underwriters through the Representative specifically for inclusion
therein which information consists solely of the information specified in
Section 14. The foregoing indemnity agreement is in addition to any
liability which the Company or the Investment Adviser may otherwise have
to
any Underwriter or to any director, officer, employee or controlling person
of
that Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, its officers and employees, each of its directors, and each person,
if
any, who controls the Company within the meaning of the Securities Act, from
and
against any loss, claim, damage or liability, joint or several, or any action
in
respect thereof, to which the Company or any such director, officer, employee
or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Disclosure Package, the Registration Statement as amended or
supplemented, or (ii) the omission or alleged omission to state in the
Registration Statement, the Preliminary Prospectus, the Prospectus, the
Disclosure Package, or the Registration Statement as amended or supplemented,
any material fact
27
required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of
the Underwriters specifically for inclusion therein, which information is
limited to the information set forth in Section 14, and shall reimburse the
Company and any such director, officer, employee or controlling person for
any
legal or other expenses reasonably incurred by the Company or any such director,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which the Underwriters may otherwise
have to the Company or any such director, officer, employee or controlling
person.
(c) Promptly
after receipt by an indemnified party under this Section 10 of notice of any
claim or the commencement of any action, the indemnified party shall, if a
claim
in respect thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify
the
indemnifying party shall not relieve it from any liability which it may have
under this Section 10 except to the extent it has been materially prejudiced
by
such failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, the indemnifying party shall not
be
liable to the indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the
defense thereof other than reasonable costs of investigation; provided, however,
that the indemnified party shall have the right to employ separate counsel
to
represent the indemnified party, and its respective
directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
under this Section 10 if, the named parties to any such action, suit or
proceeding (including any impleaded parties) include both an indemnified party
(and/or its officers, employees, directors and each person who controls the
indemnified party within the meaning of the Securities Act) and the indemnifying
party and the indemnified party shall have been advised by its counsel that
representation of both the indemnified party (and/or its officers, employees,
directors and each person who controls the indemnified party within the meaning
of the Securities Act) and the indemnifying party would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) and in the reasonable judgment of the
indemnified party, it is advisable for the indemnified party and its directors,
officers, employees and controlling persons to be jointly represented by
separate counsel, then in that event the fees and expenses of one such separate
counsel shall be paid by the indemnifying party. No indemnifying
party shall (i) without the prior written consent of the indemnified
28
parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there is a final
judgment of the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment.
(d) If
the indemnification provided for in this Section 10 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under
Section 10(a) or 10(b) in respect of any loss, claim, damage or liability,
or
any action in respect thereof, referred to therein, then each indemnifying
party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
and the Investment Adviser (treated jointly as one person for this purpose)
on
the one hand and the Underwriters on the other from the offering of the Tortoise
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 Company and the Investment Adviser (treated jointly as one person for this
purpose) on the one hand and the Underwriters on the other with respect to
the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Investment Adviser (treated jointly as one person for this purpose) on the
one
hand and the Underwriters on the other with respect to such offering shall
be
deemed to be in the same proportion as the total net proceeds from the offering
of the Tortoise Notes purchased
under this Agreement (before deducting expenses) received by the Company, on
the
one hand, and the total underwriting discounts and commissions received by
the
Underwriters with respect to the Tortoise Notes purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of the
Tortoise Notes under this Agreement, in each case as set forth in the table
on
the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the 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 or the Investment Adviser, on the one
hand, or the Underwriters, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or
prevent such statement or omission. The Company, the Investment
Adviser and the Underwriters agree that it would not be just and equitable
if
contributions pursuant to this Section were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect
29
thereof,
referred to above in this Section shall be deemed to include, for purposes
of
this Section 10(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 10(d), the
Underwriters shall not be required to contribute any amount in excess of the
total underwriting discounts and commissions received by such
Underwriter. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section
11. Defaulting
Underwriters. If, on the Delivery Date, any Underwriter defaults
in the performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Tortoise Notes
which the defaulting Underwriter agreed but failed to purchase on the Delivery
Date in the respective proportions which the aggregate principal amount of
Tortoise Notes set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I hereto bears to the total aggregate principal amount
of Tortoise Notes set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule I hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
amount of the Tortoise Notes on the Delivery Date if the aggregate principal
amount of Tortoise Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the aggregate principal
amount of Tortoise Notes to be purchased on the Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110%
of
the aggregate principal amount of Tortoise Notes which it agreed to purchase
on
the Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, the total aggregate principal
amount of Tortoise Notes to be purchased on such Delivery Date. If
the remaining Underwriters do not elect to purchase the Tortoise Notes which
the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
Delivery Date, this Agreement shall terminate without liability on the part
of
any non-defaulting Underwriter or
the
Company, except that the Company will continue to be liable for the payment
of
expenses to the extent set forth in Sections 7 and 13. As used in
this Agreement, the term “Underwriter” includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule I hereto who, pursuant to this Section 11, purchases Tortoise Notes
which a defaulting Underwriter agreed but failed to purchase.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it
may
have to the Company for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Tortoise Notes of a
defaulting or withdrawing Underwriter, either the non-defaulting Underwriters
or
the Company may postpone the Delivery Date for up to seven full business days
in
order to effect any changes that in the opinion of counsel for the Company
or
counsel for the Underwriters may be necessary in the Registration Statement,
the
Prospectus or in any other document or arrangement.
Section
12. Termination. The
obligations of the Underwriters hereunder may be terminated by the
Representative on behalf of the Underwriters by notice given to and
30
received
by the Company prior to delivery of and payment for the Tortoise Notes if,
prior
to that time, any of the events described in Sections 9(j) or 9(n), shall have
occurred or if the Underwriters shall decline to purchase the Tortoise Notes
for
any reason permitted under this Agreement.
Section
13. Reimbursement
of Underwriters’ Expenses. If (a) the Company shall fail to
tender the Tortoise Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters’ obligations hereunder required to be fulfilled by the Company is
not fulfilled or (b) the Underwriters decline to purchase the Tortoise Notes
because of a failure by the Company or the Investment Adviser to perform their
respective obligations under this Agreement, the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Tortoise Notes, and upon demand
the
Company shall pay the full amount thereof to the Underwriters.
Section
14. Information
Furnished by Underwriters. The Underwriters severally confirm
that the information appearing in the list of names of each of the Underwriters
under the caption “Underwriting” in the Preliminary Prospectus and the
Prospectus and the statements in the fourth, sixth, ninth and tenth paragraphs
under the caption “Underwriting” in the Preliminary Prospectus and the
Prospectus, constitute the only written information furnished to the Company
by
the Representative on behalf of the Underwriters, referred to in Sections 1(f),
1(g), 1(h), 1(i), 10(a) and 10(b) of this Agreement.
Section
15. Notices,
Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to [Underwriters], [Address], Attention: _____________________
(Fax: __________), with a copy to the General Counsel at the same address;
and
with a copy to [Underwriter's counsel], [Address],
Attention: ______________ (Fax: ___________; Telephone
___________);
(b) if
to the Company, shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇); with a copy to Vedder,
Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇);
and
(c) if
to the Investment Adviser, shall be delivered or sent by mail, telex or
facsimile transmission to Tortoise Capital Advisors, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇
▇▇▇▇▇; Attention: ▇▇▇▇ ▇. Short, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone
▇▇▇-▇▇▇-▇▇▇▇).
31
Any
such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters.
Section
16. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Company, the Investment
Adviser, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements
of
the Company and the Investment Adviser contained in this Agreement shall also
be
deemed to be for the benefit of the directors, officers and the person or
persons, if any, who control the Underwriters within the meaning of Section
15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 10(b) of this Agreement shall be deemed to be for the
benefit of the Board of Directors of the Company, officers and employees of
the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 16, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section
17. Survival.
The respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall survive the delivery
of
and payment for the Tortoise Notes and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
Section
18. Definition
of the Term “Business Day”. For purposes of this Agreement,
“business day” means each Monday, Tuesday, Wednesday, Thursday or Friday which
is not a day on which banking institutions in New York are generally authorized
or obligated by law or executive order to close.
Section
19. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
Section
20. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be
an
original but all such counterparts shall together constitute one and the same
instrument.
Section
21. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
Section
22. Limitation of
Liability. A copy of the Charter of the Company is on file with
the Secretary of State of the State of Maryland. This Agreement has
been executed on behalf of the Company by an officer of the Company in such
capacity and
32
not
individually and the obligations of the Company under this Agreement are not
binding upon such officer or any of the directors or the shareholders of the
Company individually but are binding only upon the assets and property of the
Company.
Section
23. No Fiduciary
Duty. The Company and the Investment Adviser acknowledge and
agree that in connection with this offering, sale of the Tortoise Notes or
any
other services the Underwriters may be deemed to be providing hereunder,
notwithstanding any preexisting relationship, advisory or otherwise, between
the
parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the
Company, the Investment Adviser and any other person, on the one hand, and
the
Underwriters, on the other, exists; (ii) the Underwriters are not acting as
advisors, expert or otherwise, to either the Company or the Investment Adviser,
including, without limitation, with respect to the determination of the public
offering price of the Tortoise Notes, and such relationship between the Company
and the Investment Adviser, on the one hand, and the Underwriters, on the other,
is entirely and solely commercial, based on arms-length negotiations; (iii)
any
duties and obligations that the Underwriters may have to the Company or the
Investment Adviser shall be limited to those duties and obligations specifically
stated herein; and (iv) the Underwriters and their respective affiliates may
have interests that differ from those of the Company and the Investment
Adviser. The Company and the Investment Adviser hereby waive any
claims that the Company or the Investment Adviser may have against the
Underwriters with respect to any breach of fiduciary duty in connection with
this offering.
33
If
the
foregoing correctly sets forth the agreement among the Company, the Investment
Adviser and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
|
Very
truly yours,
By:_____________________________________
Name:
Title:
|
|
|
TORTOISE
CAPITAL ADVISORS LLC
By:_____________________________________
Name:
Title:
|
|
|
Accepted:
[Underwriter]
For itself and as the Representative
of the several Underwriters named on Schedule I hereto.
By: [Underwriter]
By:_____________________________________
Name:
Authorized
Representative
|
SCHEDULE
I
|
Name
of Underwriter
|
Principal
Amount of Tortoise Notes, Series __
|
Purchase
Price Paid by Underwriters
|
||||||
|
|
$ |
|
$ |
|
||||
|
|
|
|
||||||
|
|
|
|
||||||
|
|
|
|
||||||
|
|
|
|
||||||
|
|
|
|
||||||
|
Total
|
$ |
|
$ |
|
||||
SCHEDULE
II
Auction
Rate Senior Notes
$_____________
Series __, due ___________
($25,000
denominations)
Final
Term Sheet