EXHIBIT H.
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
FORM OF UNDERWRITING AGREEMENT
JUNE __, 2004
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INC.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Inc.
(each an "Underwriter" and, together the "Underwriters") $110,000,000 aggregate
principal amount of Auction Rate Senior Notes (the "Tortoise Notes"). The
Tortoise Notes will be issued without coupons in denominations of $25,000 and
any integral multiple thereof. 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 December 12, 2003 (the "Advisory Agreement"); a Custody
Agreement with U.S. Bank National Association, dated December 12, 2003 ("Custody
Agreement"); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated December 12, 2003 ("Transfer Agency Agreement"); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC, dated
December 12, 2003 ("Administration Agreement"); a Fund Accounting Servicing
Agreement with U.S. Bancorp Fund Services, LLC, dated December 12, 2003
("Accounting Agreement"); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with [__________________________________________] dated
June __, 2004 (the "Auction Agreement"). Collectively, the Advisory Agreement,
the Custody Agreement, the Transfer Agency Agreement, the Administration
Agreement, the Accounting Agreement and the Auction 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. 333-114808
and 811-21462) as amended by Pre-Effective Amendment No. 1 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"), 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 the 1940 Act (the "1940 Act Rules and Regulations,"
and, together with the 1933 Act Rules and Regulations, the "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 been declared effective
by the Commission. Copies of such registration statement and each of
the amendments thereto have been delivered by the Company to you. As
used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus and related statement of additional
information included in such registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the
Underwriters' consent pursuant to Rule 497(a) of the 1933 Act Rules and
Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
contained in the final prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497
of the 1933 Act Rules and Regulations and deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule 430A
of the Rules and Regulations; and "Prospectus" means the prospectus and
the statement of additional information filed with the Commission
pursuant to Rule 497(h) of the Securities Act. If the Company has filed
a registration statement to register additional Tortoise Notes pursuant
to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus.
(b) 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 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. No person is serving or acting as
an officer, director or investment adviser of the Company
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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 Adviser's Act") and the rules and regulations
adopted by the Commission under the Investment Adviser's Act (the
"Investment Adviser's 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).
(c) The Registration Statement and the 1940 Act Notification
conform, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, conform
in all respects to the requirements of the Securities Act, the 1940 Act
and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and the 1940 Act Notification and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from the Registration Statement, the 1940 Act Notification or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Underwriters or on the
Underwriters' behalf specifically for inclusion therein.
(d) The Company has been duly formed and is validly existing
as a corporation in good standing under the laws of the State of
Maryland, is duly registered and 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
Registration Statement and the Prospectus (and any amendment or
supplement to either) requires such qualification, and has all power
and authority necessary to own or hold property and to conduct the
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement to either), 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 other), business, prospects, management, shareholders' equity or
results of operations of the Company (a "Material Adverse Effect"). The
Company has no subsidiaries.
(e) The Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus. All of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained in the Registration Statement and the
Prospectus (and any amendment or supplement to either).
(f) The Tortoise Notes to be issued and sold by the Company to
the Underwriters hereunder have been duly authorized and, when issued
and delivered against payment therefor in accordance with this
Agreement, will be validly issued, fully paid and non-assessable; and
the Tortoise Notes will conform to the description thereof contained in
the Registration Statement and the Prospectus (and any amendment or
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supplement to either) and will be free and clear of all liens,
encumbrances, equities, preemptive rights, subscription rights, or any
other claim of any third party.
(g) This Agreement 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.
(h) None of the execution, delivery and performance of this
Agreement 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 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 Articles
of Incorporation (the "Articles") 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 Securities Exchange Act of 1934, as amended (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 Company,
the performance of the Company Agreements or the consummation of the
transactions contemplated hereby and thereby.
(i) 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.
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(j) The Company has not sustained, since the date of the
latest audited financial statements included in the Prospectus, any
material loss or interference with its business that has had, or could
reasonably be expected to have, a Material Adverse Effect, whether 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, 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
Prospectus.
(k) The financial statements (including the related notes)
filed as part of the Registration Statement or included in 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.
(l) Ernst & Young LLP, who have certified the financial
statements of the Company, whose report appears in the Prospectus and
who have delivered the letters referred to in Sections 8(f) and (g)
hereof, have represented to the Company that they are independent
public accountants as required by the Securities Act, the 1940 Act and
the Rules and Regulations.
(m) 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.
(n) 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 the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(o) There are no contracts or other documents which are
required to be described in the Registration Statement or the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act, the 1940 Act or by the Rules and Regulations which have
not been described in the Registration Statement or the Prospectus or
filed as exhibits to the Registration Statement.
(p) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
shareholders, suppliers or service providers of the Company on the
other hand, which is required to be described in the Registration
Statement or the Prospectus which is not so described.
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(q) 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.
(r) 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.
(s) Since the date as of which information is given in the
Registration Statement and the Prospectus through the date hereof, and
except as may otherwise be disclosed in 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.
(t) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization and with the investment policies and
restrictions of the Company and the applicable requirements of the 1940
Act, the 1940 Act Rules and Regulations and the Code, (B) transactions
are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(u) The Company is not (i) in violation of its Articles 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.
(v) Neither the Company nor any director, officer, agent,
employee or other person associated with or acting on behalf of the
Company, has (i) used any funds of the Company 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
6
Company, (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.
(w) Neither the Company nor any employee or agent of the
Company has made any payment of funds of the Company or received or
retained any funds, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus or the
Registration Statement which is not so disclosed.
(x) 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.
(y) The statistical, market-related and industry data included
in the Prospectus and the Registration Statement are based on or
derived from sources which the Company believes to be reliable and
accurate.
(z) 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 and the Rules
and Regulations to make the public offering and consummate the sale of
the Tortoise Notes as contemplated by this Agreement.
(aa) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), 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.
(bb) All advertising, sales literature, promotional materials
or any other materials or information (including "prospectus wrappers,"
"broker kits" and any roadshow or investor presentations), whether in
oral, printed or electronic form, authorized, provided or prepared by
the Company or the Investment Adviser in connection with the offering
and sale of the Tortoise Notes (collectively, the "Marketing
Materials") complied and comply in all material respects with the
applicable requirements of the Securities Act, the 1933 Act Rules and
Regulations and the rules and interpretations of the National
Association of Securities Dealers, Inc. ("NASD") and if required to be
filed with the NASD under the NASD's conduct rules were so filed. No
Marketing Materials contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(cc) 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 Adviser's
Act and the Investment Adviser's Act Rules and Regulations.
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(dd) The Company is in compliance with and will continue to
comply with all applicable securities and other applicable laws, rules
and regulations, including, without limitation, the 1940 Act, the
Securities Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated thereunder.
(ee) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no
trustee 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 organized 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 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
Registration Statement and the Prospectus (and any amendment or
supplement to either) 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 Registration Statement and the Prospectus (and any
amendment or supplement to either).
(b) The Investment Adviser is duly registered as an investment
adviser under the Investment Adviser's 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 Adviser's Act,
the 1940 Act, the Investment Adviser's Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Advisory Agreement
as contemplated by the Registration Statement and the Prospectus (or
any amendment or supplement thereto).
(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
8
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, the performance of the Advisory Agreement or the
consummation of the transactions contemplated hereby and thereby.
(e) The Investment Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) 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 businesses 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, and the statements attributable to the Investment Adviser, in
the Registration Statement and the Prospectus (and any amendment or
supplement to either) complied and comply in all material respects with
the provisions of the Securities Act, the 1940 Act, and the Rules and
Regulations and did not and will not contain an untrue statement of a
material fact necessary to make the statements therein (in the case of
a prospectus, 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 date as of which information is given in the
Registration Statement and the Prospectus through the date hereof, and
except as may otherwise be
9
disclosed in 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 Adviser's Act and the
Investment Adviser's Act Rules and Regulations.
(k) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), 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.
(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 Prospectus or the Registration Statement which is not
so disclosed.
(o) There are no contracts, agreements or understandings
between the Investment Adviser and any person that would give rise to a
valid claim against the
10
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
[_______] Tortoise Notes.
The Tortoise Notes shall be sold in denominations of $25,000 or any
integral multiple thereof.
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.
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 ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through
the facilities of the Depository Trust Company or another mutually agreeable
facility, at 10:00 A.M., New York City time, on [__________, 2004] 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 that:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the Securities Act
before the offering of the Tortoise Notes may commence, to use its
reasonable best efforts to cause the Registration Statement or such
post-effective amendment to become effective under the Securities Act
as soon as possible; if the Registration Statement has become effective
and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A of the 1933 Act Rules and
Regulations, to file a Prospectus with the Commission pursuant to 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; if
the Registration Statement does not so omit such information, the
Company will file a Prospectus pursuant to Rule 497(c) or (h) of the
1933 Act Rules and Regulations as promptly as possible, not later than
the fifth
11
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 the Registration Statement or any amendment thereto has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriters with
copies thereof; to advise the Underwriters, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any 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 or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any 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) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the
offering or sale of the Tortoise Notes or any other securities relating
thereto and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Underwriters and, upon their request,
to file such document and to prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance;
(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) 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
12
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158) covering a twelve-month period commencing after the Effective
Date;
(f) 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 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;
(g) 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;
(h) For a period of 180 days from the date of the Prospectus,
not to, without the prior written consent of the Underwriters, 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; and
(i) 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.
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 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), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, 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
13
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 the Tortoise Notes under the securities laws of the several
jurisdictions as provided in Section 6(g) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) all costs and reasonable expenses of the
Underwriters, other than the fees and disbursements of counsel; (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. 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); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
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 Auction
Agreement, the Tortoise Notes, the Registration Statement 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 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 (xvi) below:
(i) The Company is duly incorporated and 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 Registration Statement and the
Prospectus (and any amendment or supplement to either)
requires such qualification;
14
(ii) The Company has an authorized capitalization as
set forth in the Registration Statement and the Prospectus.
All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof
contained in the Registration Statement and the Prospectus.
The Tortoise Notes being delivered on the Delivery Date to the
Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefore, will
be duly and validly issued, fully paid and non-assessable;
(iii) The Tortoise Notes conform in all material
respects to the statements concerning them contained in the
Prospectus and there are no restrictions upon the voting or
transfer of any of the Tortoise Notes pursuant to the
Company's Articles or by-laws or any agreement or other
instrument known to such counsel; except for the restrictions
on transfer on the Tortoise Notes contained in the Auction
Agreement;
(iv) The Company is not (i) in violation of its
Articles 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 known to such counsel 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;
(v) To such counsel's knowledge and other than as set
forth in 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;
(vi) 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 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 any part thereof has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
15
(vii) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by the
Company prior to the Delivery Date (except for the financial
statements and related schedules 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 and the Rules and Regulations;
(viii) The statements contained in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto through the date of the opinion), insofar as they
purport to summarize provisions of the Company's Articles and
by-laws, contracts, agreements or other legal documents
referred to therein, constitute accurate summaries of the
terms of such documents in all material respects;
(ix) 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 or by the Rules and Regulations
which have not been described in the Registration Statement
and the Prospectus or filed as exhibits to the Registration
Statement;
(x) This Agreement and each of the Company Agreements
has been duly authorized, executed and delivered by the
Company and constitute the valid and legally binding
agreements of the Company, and each of the Company Agreements,
are 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;
(xi) None of the issue 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, the performance by the Company
of each 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
of 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 known to such counsel to which the
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 Articles
or by-laws of the Company or (iii) result in the violation 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 Company or any of their properties or
assets, except
16
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, 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;
(xii) This Agreement and the Company Agreements
comply in all material respects with all applicable provisions
of the 1940 Act, the Investment Adviser's Act, the 1940 Act
Rules and Regulations and the Investment Adviser's Act Rules
and Regulations;
(xiii) 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 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;
(xiv) 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, conformed
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);
(xv) All required action has been taken by the
Company under the Securities Act, the Exchange Act and the
1940 Act to make the public offering and consummate the sale
of the Tortoise Notes pursuant to this Agreement; the
provisions of the Articles and by-laws of the Company comply
as to form in all material respects with the requirements of
the 1940 Act; the provisions of the Articles and by-laws of
the Company and the investment policies and restrictions
described in the Prospectus under the heading "The Company's
Investments" comply in all material respects with the
requirements of the 1940 Act; and
17
(xvi) The statements made in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto through the date of the opinion) under the caption
["Federal Income Tax Matters"] to the extent they describe or
summarize tax laws, legal conclusions, doctrines or practices
of the United States, are materially correct.
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 Illinois. 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 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 or the Prospectus, except to the limited
extent otherwise covered by paragraphs _____, ______ and _____ 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), at the time it became effective,
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 or (b) 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 issue date and as of the
Closing 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 duly 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 and is in good standing in each
18
jurisdiction in which its ownership or lease of property or
the conduct of its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement
to either) 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 Registration
Statement and the Prospectus (and any amendment or supplement
to either);
(ii) The Investment Adviser is duly registered as an
investment adviser under the Investment Adviser's Act and is
not prohibited by the Investment Adviser's Act, the 1940 Act,
the Investment Adviser's Act Rules and Regulations or the 1940
Act Rules and Regulations from acting under the Advisory
Agreement as contemplated by the Registration Statement and
the Prospectus (or any amendment or supplement thereto);
(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, with
respect to the Advisory Agreement is 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;
(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 hereby and thereby (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 indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel 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 any violation of
any statute or any order known to such counsel or 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 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 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
19
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, the performance of the Advisory
Agreement or the consummation of the transactions contemplated
hereby and thereby;
(v) To such counsel's knowledge, the Investment
Adviser is not (i) in violation of its limited liability
company operating agreement or other organizational documents,
(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;
(vi) To such counsel's knowledge and other than as
set forth in the Prospectus, 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
such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others; and
(vii) The description of the Investment Adviser and
its business, and the statements attributable to the
Investment Adviser, in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) complied
and comply in all material respects with the provisions of the
Securities Act, the 1940 Act, the Investment Adviser's Act,
the Rules and Regulations and the Investment Adviser's 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 Kansas.
(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 Registration Statement, 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.
20
(f) At the time of execution of this Agreement, the
Underwriters shall have received from Ernst & Young LLP 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
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 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 Ernst & Young LLP
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 letters and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letters.
(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 8 have been fulfilled;
(ii) Since the respective dates as of which
information is given in the Prospectus, other than as set
forth in or contemplated by the Prospectus, (A) there has not
occurred any change or any development that might 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 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
21
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, except for dividends declared in the ordinary course of
business, and, except as set forth in or contemplated by 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 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) as of the
Effective Date, the Registration Statement did 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, (B) as of its date
and the Delivery Date, the Prospectus did 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 (C) since the
Effective Date, no event has occurred which should have been
set forth in a supplement to, or amendment of, the Prospectus
which has not been set forth in such a supplement or
amendment.
(i) The Investment Adviser shall have furnished to the
Underwriters on the Delivery Date a certificate, dated the Delivery
Date, of the Chairman of its Board of Directors, President or a Vice
President and its Chief Financial Officer, Treasurer or an Assistant
Treasurer, 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 8 of have been fulfilled; and
(ii) They have examined the Registration Statement
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) as of the Effective Date,
the Registration Statement did 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, (B) as of its date and the
Delivery Date, the Prospectus did 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 (C) since the Effective
Date, no event has occurred which should have been set forth
in a supplement to, or amendment of, the Prospectus which has
not been set forth in such a supplement or amendment.
(j) The Company shall not have sustained since the date of the
latest audited financial statements included in the Prospectus (A) any
loss or interference with
22
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 Prospectus, the effect of which, in any such case
described in clause (A) or (B), is, in the judgment of the
Underwriters, 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 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 Shares Asset Coverage (as defined in the
Registration Statement), each dated 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 "AA" by ▇▇▇▇▇'▇ Investors Service, Inc. and "AA" 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.
(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
23
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 Underwriters,
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 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 9. 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
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, (B) in any Preliminary Prospectus, the Prospectus, the
Registration Statement or in any amendment or supplement thereto
including information deemed to be a part of the Registration Statement
pursuant to Rule 430A of the Rules and Regulations, if applicable, or
(C) in any Marketing Materials, (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any
Marketing Materials, any 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,
24
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 this
clause (iii) 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
gross negligence or willful misconduct), 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
(i) arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or the
Investment Adviser by or on behalf of the Underwriters specifically for
inclusion therein which information consists solely of the information
specified in Section 9(e); or (ii) results solely from an untrue
statement of material fact contained in, or the omission of a material
fact from, a Preliminary Prospectus, which untrue statement or omission
was corrected in the Prospectus (as then amended or supplemented) if
(A) an Underwriter sold Tortoise Notes to the person alleging such
loss, claim, damage, liability or action without sending or giving, at
or prior to the written confirmation of such sale, a copy of the
Prospectus (as then amended or supplemented), (B) within a reasonable
amount of time prior to such sale or such confirmation, the Company had
furnished to such Underwriter copies of the corrected Prospectus which,
if delivered, would have cured the defect giving rise to such loss,
claim, damage, liability or action, and (C) the Underwriter failed to
deliver such corrected Prospectus. 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 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 any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
any material fact 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
25
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 9(e),
and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Company or any such trustee, officer 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 9 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 9, 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 9 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 9. 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 9 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 9
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 Company or
the Investment Adviser. No indemnifying party shall (i) without the
prior written consent of the indemnified 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
26
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 be 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 9
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 9(a) or 9(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 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 thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 9(d),
any legal or other expenses reasonably incurred by such indemnified
party
27
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), the Underwriters
shall not be required to contribute any amount in excess of the amount
by which the total price at which the Tortoise Notes underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The Underwriters severally confirm and the Company and the
Investment Adviser acknowledge that the statements set forth in the
last sentence on the front cover page, its name and paragraphs four and
six under the section "Underwriting," in the Prospectus are correct and
constitute the only information concerning the Underwriters furnished
in writing to the Company specifically for inclusion in the
Registration Statement and the Prospectus.
Section 10. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and 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 8(j) or 8(n), shall have
occurred or if the Underwriters shall decline to purchase the Tortoise Notes for
any reason permitted under this Agreement.
Section 11. 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 12. 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 ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Department
(Fax: ▇▇▇-▇▇▇-▇▇▇▇) and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Capital Markets (Fax:
___-___-____), with a copy, in the case of any notice pursuant to
Section 9(c) the Director of Litigation, Office of the General Counsel,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; and with a
copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇;
Telephone ▇▇▇-▇▇▇-▇▇▇▇);
28
(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 Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., ▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ,▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇).
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 13. 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 9(b) of this Agreement shall be deemed to be for the
benefit of the Board of Directors of the Company, officers 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 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
Section 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on 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 15. 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.
29
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 17. 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 18. 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 19. Limitation of Liability. A copy of the Articles 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 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.
30
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,
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
By:
-----------------------------------------------
Name:
Title:
TORTOISE CAPITAL ADVISORS LLC
By:
-----------------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
--------------------------------------------------------
Name:
Authorized Representative
31