SERIES I MONEY MARKET CUMULATIVE PREFERRED (MMP(R)) SHARES
TORTOISE ENERGY CAPITAL CORPORATION
UNDERWRITING AGREEMENT
______ __, 2006
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
As Representatives of the several
Underwriters named in Schedule I
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tortoise Energy Capital Corporation, a Maryland corporation (the
"Company"), proposes to, subject to the terms and conditions stated herein,
issue and sell to the Underwriters named in Schedule I hereto (each an
"Underwriter" and, together the "Underwriters") ______ shares of its Series I
Money Market Cumulative Preferred (MMP(R)) Shares, $25,000 liquidation
preference per share (the "MMP Shares"). 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 MMP Shares from the Company by the Underwriters.
The Company has entered into an Investment Advisory Agreement with the
Investment Adviser dated May 1, 2005 (the "Advisory Agreement"); a Custody
Agreement with U.S. Bank National Association, dated May 31, 2005 ("Custody
Agreement"); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated May 10, 2005 ("Transfer Agency Agreement"); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC, dated
May 31, 2005 ("Administration Agreement"); a Fund Accounting Servicing Agreement
with U.S. Bancorp Fund Services, LLC, dated May 31, 2005 ("Accounting
Agreement"); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with The Bank of New York, dated ______ __, 2006 (the
"Auction Agency Agreement"). Collectively, the Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement, the Administration Agreement, the
Accounting Agreement and the Auction Agency Agreement (but excluding the
Broker-Dealer Agreement) are referred to herein
as the "Company Agreements." This Underwriting Agreement is herein referred to
as the "Agreement."
Section 1. Representations, Warranties and Agreements of the Company and
the Investment Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A registration statement on Form N-2 (File Nos. 333-129878 and
811-21725), as amended by Pre-Effective Amendment No. 1 [and Pre-Effective
Amendment No. 2] with respect to the MMP Shares, 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 become effective under the Securities Act. Copies of such
registration statement and each of the amendments thereto have been
delivered by the Company to you. As used in this Agreement, "Effective
Time" means the date and the time as of which such registration statement,
or the most recent post-effective amendment thereto, if any, has become
effective under the Securities Act; "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 MMP Shares 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
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of filing any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act
Rules and Regulations. The Company has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(c) To the knowledge of the Company and the Investment Adviser, no
person is serving or acting as an officer, director or investment adviser
of the Company except in accordance with the provisions of the 1940 Act and
the 1940 Act Rules and Regulations and the Investment Advisers Act of 1940,
as amended (the "Investment 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").
(d) 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, in the case
of the Prospectus, in light of the circumstances under which they were
made, 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.
(e) The Company has been duly incorporated and is existing as a
corporation in good standing under the laws of the State of Maryland, is
duly qualified to do business and is in good standing in each jurisdiction
in which its ownership or lease of property or the conduct of its business
as described in the 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.
(f) The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus under the caption
"Capitalization." All of the issued shares of common stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
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description thereof contained in the Registration Statement and the
Prospectus (and any amendment or supplement to either).
(g) The MMP Shares 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 MMP Shares will
conform in all material respects to the description thereof contained in
the Registration Statement and the Prospectus (and any amendment or
supplement to either) and will be free and clear of all preemptive rights
or any other claim of any third party.
(h) 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.
(i) 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 charter (the "Charter") or by-laws of the Company or
(iii) result in the violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties or assets, except in the case of
clauses (i) and (iii), such conflicts, breaches or violations that in the
aggregate would not reasonably be expected to have a Material Adverse
Effect; and except for the registration of the MMP Shares 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 MMP
Shares 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 by the
Company or the consummation of the transactions contemplated hereby and
thereby by the Company.
(j) 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
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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.
(k) The Company has not sustained, since the date of the latest
unaudited financial highlights 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, 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.
(l) The financial statements (including the related notes) filed as
part of the Registration Statement 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.
(m) ▇▇▇▇▇ & Young LLP, who have reviewed the financial statements of
the Company, whose report appears in the Registration Statement 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.
(n) 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.
(o) There are no legal or governmental proceedings pending to which
the Company is a party or of which any property or assets of the Company is
the subject which are reasonably likely to be determined adversely to the
Company and, if determined adversely to the Company, would be reasonably
likely to have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(p) 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.
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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 pursuant to the Company's dividend reinvestment plan, (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 or its designee (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (B) access to its assets is permitted only
in accordance with management's authorization and (C) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(u) The Company is not (i) in violation of its Charter or by-laws,
(ii) in default, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement 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) 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.
(w) 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.
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(x) 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 MMP Shares as
contemplated by this Agreement.
(y) 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 MMP Shares to facilitate
the sale or resale of the MMP Shares.
(z) 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 MMP
Shares (collectively, the "Marketing Materials") complied as of the date
hereof and will comply as of the Delivery Date (as defined herein) 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. 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.
(aa) 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.
(bb) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no director
of the Company is an "interested person" (as defined in the 1940 Act) of
the Company or an "affiliated person" (as defined in the 1940 Act) of the
Underwriters.
Section 2. Representations, Warranties and Agreements of the Investment
Adviser. The Investment Adviser represents, warrants and agrees that:
(a) The Investment Adviser has been duly formed and is validly
existing as a limited liability company in good standing under the laws of
the State of 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).
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(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 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 MMP Shares 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 MMP Shares by
the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement
by the Investment Adviser, the performance of the Advisory Agreement by the
Investment Adviser, or the consummation of the transactions contemplated
hereby and thereby by the Investment Adviser.
(e) The Investment Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the
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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 in the
Registration Statement and the Prospectus (and any amendment or supplement
to either) conformed as of the date hereof and as of the Delivery Date (as
defined herein) will conform in all material respects with the provisions
of the Securities Act, the 1940 Act, and the Rules and Regulations and such
description did not as of the date hereof and will not as of the Delivery
Date (as defined herein) contain an untrue statement of a material fact
necessary to make the statements therein (in 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 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 MMP
Shares to facilitate the sale or resale of the MMP Shares.
(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
9
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 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 MMP Shares by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the number
of MMP Shares set forth opposite such Underwriter's name on Schedule I hereto.
The price that the Underwriters shall pay for the MMP Shares shall be
$______ per share ($25,000 liquidation preference per share less an underwriting
fee of $______ per share).
The Company shall not be obligated to deliver any of the MMP Shares on the
Delivery Date (as hereinafter defined), except upon payment for all the MMP
Shares to be purchased on the Delivery Date as provided herein.
Section 4. Offering of MMP Shares by the Underwriters. The Underwriters
propose to offer the MMP Shares for sale upon the terms and conditions set forth
in the Prospectus.
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Section 5. Delivery of and Payment for the MMP Shares. Delivery of and
payment for the MMP Shares 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 ______ __, 2006 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 MMP Shares 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 become effective under the Securities Act before the offering of
the MMP Shares 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 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 MMP Shares 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
11
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 MMP
Shares 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 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 and
ending not later than 15 months thereafter;
(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 MMP Shares 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 MMP Shares;
provided that in connection therewith the Company shall not be required to
12
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 MMP Shares or securities convertible into or exchangeable
for MMP Shares, or sell or grant options, rights or warrants with respect
to any MMP Shares or securities convertible into or exchangeable for MMP
Shares, 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 MMP Shares, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of MMP
Shares or other securities, in cash or otherwise; and
(i) To apply the net proceeds from the sale of the MMP Shares 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 MMP Shares 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 MMP Shares; (e) the
preparation, issuance and delivery of the certificates for the MMP Shares, if
any, to the Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the MMP
Shares 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 MMP
Shares; (g) the fees and expenses of qualifying the MMP Shares 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
to the Underwriters; (i) the fees and expenses of the Company's accountants and
the fees and expenses of counsel for the Company, of the transfer agent and the
auction agent as set forth in the Auction Agency 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
13
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 Agency
Agreement, the MMP Shares, 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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, dated the Delivery Date, to the
effect of paragraphs (i) through (xvii) below:
(i) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation of
the State of Maryland;
(ii) The Company has the corporate power to own, lease and
operate its property or assets and to conduct its business in all
material respects as substantially described in the Registration
Statement and the Prospectus under the caption "The Company."
(iii) The authorized stock of the Company conforms as to legal
matters in all material respects to the description thereof in the
Prospectus under the captions "Description of Money Market Cumulative
Preferred Shares" and "Description of Common Stock".
(iv) The sale and issuance of the MMP Shares have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement and the resolutions adopted by the Board of
Directors of the Company, or a duly authorized committee thereof, the
MMP Shares will be validly issued, fully paid and non assessable;
(v) The MMP Shares 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 MMP Shares
pursuant to the
14
Company's Charter or by-laws or any Company Agreement; except for the
restrictions on transfer of the MMP Shares contained in the Auction
Agency Agreement;
(vi) To such counsel's knowledge, the Company is not (i) in
violation of its Charter or by-laws, (ii) in default, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any Company Agreement or (iii) in
violation of any law, 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;
(vii) 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 to 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
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(viii) The Registration Statement was declared effective under
the Securities Act, the Prospectus was filed with the Commission
within the time period required by Rule 497(b) and (c) 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 such counsel's knowledge,
no proceeding for that purpose is pending or threatened by the
Commission;
(ix) The Registration Statement and the Prospectus (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;
(x) The statements contained in the Registration Statement and
the Prospectus under the captions "The Auction," "Description of Money
Market Cumulative Preferred Shares," "Description of Common Stock" and
"Federal Income Tax Matters," and the statements contained in the
Statement of Additional Information under the caption "Additional
Information Concerning the Auction" insofar as they purport to
summarize provisions of the Company's Charter and by-laws, contracts,
agreements or other legal documents referred to therein, tax laws,
legal conclusions, doctrines or practices of the United States,
constitute
15
accurate summaries of the terms of such documents, laws, legal
conclusions, doctrines or practices in all material respects;
(xi) 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;
(xii) The execution and delivery of this Agreement has been duly
authorized, by the Company. This Agreement has been duly executed,
and, so far as known to counsel to the Company, delivered by the
Company.
(xiii) The Underwriting Agreement constitutes the valid and
legally binding agreement of the Company, and is enforceable against
the Company in accordance with its terms;
(xiv) None of the sale and issuance of the MMP Shares 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 by this Agreement and the Company Agreements
will (i) result in the creation or imposition of any lien, charge or
encumbrance upon the assets of the Company under the terms of
provisions of, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under any Company Agreement
(ii) result in any violation of the provisions of the Charter or
by-laws of the Company or (iii) result in the violation of any Federal
law or regulation or any order of any Federal governmental authority
known to such counsel, except in the case of clauses (i) and (iii),
such breaches or violations that in the aggregate would not reasonably
be expected to have a Material Adverse Effect; and, except for the
registration of the MMP Shares under the Securities Act, the 1940 Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws (as to which counsel to the Company
need not express an opinion), no consent, approval, authorization or
order of, or filing or registration with, any such governmental
authority is required for the execution, delivery and performance of
this Agreement, 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, if any;
(xv) None of (a) the sale and issuance of the MMP Shares by the
Company pursuant to this Agreement, (b) the execution, delivery and
performance by the Company of this Agreement, or (c) the performance
by the Company of each of the Company Agreements or the consummation
of the transactions contemplated by this Agreement and the Company
Agreements will
16
result in the violation of any Maryland law or regulation or any order
of any Maryland governmental authority known to us, except for such
violations that in the aggregate would not reasonably be expected to
have a Material Adverse Effect (and except for any law, regulation or
order in connection with the securities laws of the State of Maryland,
as to which no opinion need be expressed).
(xvi) This Agreement and each of the Company Agreements complies
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; and
(xvii) The Company is duly registered under the 1940 Act as a
closed-end, non-diversified, management investment company and the
1940 Act Notification has been duly filed with the Commission, and, at
the time of filing thereof and at the time of filing any amendment or
supplement thereto, complied as to form in all material respects with
all applicable provisions of the 1940 Act and the 1940 Act Rules and
Regulations and, to such counsel's knowledge, the Company has not
received any notice from the Commission pursuant to Section 8(e) of
the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement (or any amendment or supplement to either of
them).
In rendering such opinions, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of Maryland and the laws of the State of Missouri. To the
extent such counsel deems proper and to the extent specified in such opinion,
such counsel may rely, as to matters involving the application of laws of the
State of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP or other counsel of good
standing whom such counsel believes to be reliable and who are satisfactory to
the Underwriters; provided that (x) such reliance is expressly authorized by the
opinion so relied upon and a copy of each such opinion is delivered to the
Underwriters and is, in form and substance, satisfactory to the Underwriters and
their counsel and (y) such counsel states in their opinion that they believe
that they and the Underwriters are justified in relying thereon.
Such counsel shall also state that it has participated in conferences with
officers and employees of the Company and the Investment Adviser,
representatives of the independent auditors for the Company, Maryland counsel to
the Company, the Underwriters and counsel for the Underwriters at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, except to
the limited extent otherwise covered by paragraphs (iii), (v) and (x) 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
17
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 formed and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, is duly qualified to do business and is
in good standing in the States of Missouri and Kansas; and has the
limited liability company power and authority to own or hold its
properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(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;
(iii) This Agreement and the Advisory Agreement have each been
duly authorized, executed and delivered by the Investment Adviser, and
constitute the valid and legally binding agreements of the Investment
Adviser, and, this Agreement is enforceable against the Investment
Adviser in accordance with its terms;
(iv) None of the execution, delivery and performance of this
Agreement by the Investment Adviser, the performance of the Advisory
Agreement or the consummation of the transactions contemplated by this
Agreement or the Advisory Agreement (i) conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon the
assets of the Investment Adviser under the terms or provisions of, or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any agreement listed on Exhibit A
attached to such opinion, (ii) result in any violation of the
provisions of the limited liability company operating agreement or
other organizational documents of the Investment Adviser or (iii)
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Investment Adviser or any of its
properties or assets, except in the case of clauses (i) and (iii),
such conflicts, breaches and violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect; and
except for the registration of the
18
MMP Shares under the Securities Act and the 1940 Act, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws (as to which such counsel need not express an
opinion), no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the performance of the Advisory Agreement or the
consummation of the transactions contemplated by this Agreement or the
Advisory Agreement by the Investment Adviser;
(v) To such counsel's knowledge, 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
agreement listed on Exhibit A attached to such opinion or (iii) in
violation of any law, 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 to which any property or
assets of the Investment Adviser is the subject which is reasonably
likely to be determined adversely to the Investment Adviser and, if
determined adversely to the Investment Adviser, would be reasonably
likely to have a Material Adverse Effect; and, to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(vii) The description of the Investment Adviser and its business
in the Registration Statement and the Prospectus complied and comply
in all material respects with the requirements 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 Missouri.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to the Underwriters, such opinion or opinions, dated the Delivery
Date, with respect to the issuance and sale of the MMP Shares, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the
19
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from 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 ▇▇▇▇▇ & 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 Letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(h) The Company shall have furnished to the Underwriters on the
Delivery Date a certificate, dated the Delivery Date, of its Chairman of
the Board of Directors, its Chief Executive Officer or President and its
Chief Financial Officer or Treasurer or an Assistant Treasurer stating
that:
(i) The representations, warranties and agreements of the Company
contained herein and in the Auction Agency 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,
20
(C) the Company has not incurred any material liability or obligation,
direct or contingent, (D) there has not occurred a material loss or
interference with the Company's business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree and (E)
the Company has not declared or paid any dividend on its shares of
common stock, 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, in light of the circumstances under which
they were made, 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 a member of
its Board of Managers, dated the Delivery Date, stating that:
(i) The representations, warranties and agreements of the
Investment Adviser contained herein are true and correct as of the
date hereof and as of the Delivery Date; the Investment Adviser has
complied with all its agreements contained herein prior to or on the
Delivery Date; and the conditions set forth in Section 8 of this
Agreement 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, in light of the circumstances under which
they were made, 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.
21
(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 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 MMP Shares 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 MMP Shares
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 MMP Shares are
rated at least "Aa2" 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 MMP Shares 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 MMP Shares.
(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
22
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such), including, without limitation, as a result of terrorist
activities after the date hereof, or any other calamity or crisis as
to make it, in the judgment of the Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the MMP
Shares 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 MMP Shares), 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
23
therein or necessary to make the statements therein not misleading or (iii)
any act or failure to act or any alleged act or failure to act by such
Underwriter in connection with, or relating in any manner to, the MMP
Shares or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided
that neither the Company nor the Investment Adviser shall be liable under
Section 9(a) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken
or omitted to be taken by such Underwriter through its willful misfeasance,
bad faith, gross negligence in the performance of its duties or reckless
disregard of applicable obligations and duties), and shall reimburse such
Underwriter and each such director, officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
such Underwriter, director, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Company nor the Investment
Adviser shall be liable in any such case to the extent that any such loss,
claim, damage, liability or action (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
MMP Shares 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, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in 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
24
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 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, employee or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director,
trustee, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
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
25
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 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 MMP Shares 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 MMP Shares 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 MMP Shares purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the MMP Shares 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
26
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 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 MMP Shares 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, six, seven
and ten 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. Defaulting Underwriters. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the MMP
Shares which the defaulting Underwriter agreed but failed to purchase on the
Delivery Date in the respective proportions which the number of MMP Shares set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
I hereto bears to the total number of MMP Shares set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule I hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any number of the MMP Shares on the Delivery Date if the number of
MMP Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the number of MMP Shares to be purchased
on the Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of MMP Shares which it agreed
to purchase on the Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, the total number of MMP Shares to
be purchased on such Delivery Date. If the remaining Underwriters do not elect
to purchase the MMP Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Delivery Date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Sections 7 and 12. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule I hereto
who, pursuant to this Section 10, purchases MMP Shares which a defaulting
Underwriter agreed but failed to purchase.
27
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
Underwriters are obligated or agree to purchase the MMP Shares of a defaulting
or withdrawing Underwriter, either the non-defaulting Underwriters or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
Section 11. 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 MMP Shares 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 MMP Shares for any reason permitted
under this Agreement.
Section 12. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the MMP Shares 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 MMP Shares 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 MMP Shares, and upon demand the
Company shall pay the full amount thereof to the Underwriters.
Section 13. 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, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇
▇▇▇▇▇, 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 ▇▇▇-▇▇▇-▇▇▇▇);
(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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (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, 10801
Mastin
28
Boulevard, Overland Park, KS 66210, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy
to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇. ▇▇▇▇▇, ▇▇
▇▇▇▇▇; Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (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 14. 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 and employees of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
Section 15. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the MMP Shares 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 16. Definition of the Term "Business Day". For purposes of this
Agreement, "business day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
Section 17. Trademarks. ▇▇▇▇▇▇ Brothers Inc. hereby licenses the Company,
on a non-exclusive basis, to use its trademarks "Money Market Cumulative
Preferred" and "MMP" in connection with the MMP Shares. The Company agrees that,
other that in connection with and in reference to the MMP Shares, it will make
no use of such trademarks without the prior written consent of ▇▇▇▇▇▇ Brothers
Inc.. The provisions of this Section 16 shall survive the delivery of the MMP
Shares and shall remain in full force and effect.
Section 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
29
Section 19. 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 20. 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 21. Limitation of Liability. A copy of the Charter of the Company
is on file with the Secretary of State of the State of Maryland. This Agreement
has been executed on behalf of the Company by an officer of the Company in such
capacity and not individually and the obligations of the Company under this
Agreement are not binding upon such officer or any of the directors or the
shareholders of the Company individually but are binding only upon the assets
and property of the Company.
Section 22. No Fiduciary Duty. The Company acknowledges and agrees that in
connection with this offering, sale of the MMP Shares or any other services the
Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and
any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the
public offering price of the MMP Shares, and such relationship between the
Company, on the one hand, and the Underwriters, on the other, is entirely and
solely commercial, based on arms-length negotiations; (iii) any duties and
obligations that the Underwriters may have to the Company shall be limited to
those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ from
those of the Company. The Company hereby waives any claims that the Company may
have against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
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 CAPITAL CORPORATION
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
TORTOISE CAPITAL ADVISORS LLC
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
As Representatives of the several Underwriters named in Schedule I
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------------------------
Name:
Authorized Representative
31
SCHEDULE I
Number of MMP Shares
▇▇▇▇▇▇ Brothers Inc. [______]
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated [______]
[Insert other underwriters] [______]
Total [______]
32