AUCTION RATE SENIOR NOTES
$[50,000,000] SERIES A, DUE _____ __, 2045
($25,000 DENOMINATIONS)
TORTOISE NORTH AMERICAN ENERGY CORPORATION
UNDERWRITING AGREEMENT
______ __, 2005
▇▇▇▇▇▇ BROTHERS INC.
RBC CAPITAL MARKETS CORPORATION
As Representatives of the several
Underwriters named in Schedule I
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tortoise North American Energy 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") $[50,000,000] aggregate
principal amount of auction rate senior notes Series A, due ______ __, 2045 (the
"Tortoise Notes"). The Tortoise Notes will be issued pursuant to the provisions
of an indenture (the "Base Indenture") to be dated as of ______ __, 2005 between
the Company and The Bank of New York Trust Company, N.A., as trustee (the
"Trustee") and a supplemental indenture between the Company and the Trustee, to
be dated ______ __, 2005 (the "Supplemental Indenture," and together with the
Base Indenture, the "Indenture"). The Company and the Company's investment
adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the "Investment Adviser"), each wishes to confirm its agreement concerning the
purchase of the Tortoise Notes from the Company by the Underwriters.
The Company has entered into an Investment Advisory Agreement with the
Investment Adviser dated ______ __, 2005 (the "Advisory Agreement"); a Custody
Agreement with U.S. Bank National Association, dated _____ __, 2005 ("Custody
Agreement"); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated _____ __, 2005 ("Transfer Agency Agreement"); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC, dated
______ __, 2005 ("Administration Agreement"); a Fund Accounting Servicing
Agreement with U.S. Bancorp Fund Services, LLC, dated ______ __, 2005
("Accounting Agreement"); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with The Bank of New York, dated _____ __, 2005 (the
"Auction Agreement"). Collectively, the Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement, the Administration Agreement, the
Accounting Agreement and the Auction Agreement are referred to herein as the
"Company Agreements." This Underwriting Agreement is herein referred to as the
"Agreement."
Section 1. Representations, Warranties and Agreements of the Company and
the Investment Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A registration statement on Form N-2 (File Nos. 333-_____ and
811-21700), as amended by Pre-Effective Amendment No. 1 [and Pre-Effective
Amendment No. 2] with respect to the Tortoise Notes, has (i) been prepared by
the Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), the Investment Company Act of 1940, as
amended (the "1940 Act"), the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules and regulations of the United States
Securities and Exchange Commission (the "Commission") promulgated under the
Securities Act (the "1933 Act Rules and Regulations") and 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 Tortoise Notes pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration
Statement. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus.
(b) The Company is duly registered under the 1940 Act as a closed-end,
non-diversified, management investment company. A notification of registration
of the Company as an investment company under the 1940 Act on Form N-8A (the
"1940 Act Notification") has been prepared by the Company in conformity with the
1940 Act and has been filed with the Commission and, at the time of filing
thereof and at the time of filing any amendment or supplement thereto, conformed
in all material respects with all applicable provisions of the 1940 Act and the
1940 Act Rules and Regulations. 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, the Trust Indenture Act and the Rules and
Regulations and do not and will not, as of the applicable effective date (as to
the Registration Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and the 1940 Act Notification and any
amendment or supplement thereto) contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Registration
Statement, the 1940 Act Notification or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Underwriters or on the Underwriters' behalf specifically for inclusion therein.
(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 description thereof contained in the Registration
Statement and the Prospectus (and any amendment or supplement to either).
(g) The Tortoise Notes to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued, authenticated
and delivered against payment therefor in accordance with this Agreement and the
Indenture, will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture; and the Tortoise Notes will conform in all
material respects to the description thereof contained in the Indenture, the
Registration Statement and the Prospectus (and any amendment or supplement to
either).
(h) This Agreement, the Indenture and each of the Company Agreements
have been duly authorized, executed and delivered by the Company and constitute
valid and legally binding agreements of the Company, enforceable against the
Company in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws and
subject to the qualification that the enforceability of the Company's
obligations hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(i) None of the execution, delivery and performance of this Agreement
or the Indenture by the Company, the performance of the Company Agreements or
the consummation of the transactions contemplated hereby and thereby (i)
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon the assets of the Company under the terms or provisions of, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the 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 Tortoise Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
1940 Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and applicable state securities laws in connection with the purchase and
distribution of the Tortoise Notes by the Underwriters, no consent, approval,
authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the Indenture by the
Company, the performance of the Company Agreements by the Company or the
consummation of the transactions contemplated hereby and thereby.
(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 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 is reasonably likely to be determined adversely to the Company
and, if determined adversely to the Company, would be reasonably likely to have
a Material Adverse Effect;
and to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(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, the Trust
Indenture 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.
(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.
(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, the Trust Indenture Act and the Rules
and Regulations to make the public offering and consummate the sale of the
Tortoise Notes 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 Tortoise Notes to facilitate
the sale or resale of the Tortoise Notes.
(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 Tortoise
Notes (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 and the Indenture complies in all material respects
with the applicable provisions of the Trust Indenture Act.
(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).
(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 Tortoise Notes under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of the Tortoise
Notes by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
performance of the Advisory Agreement or the consummation of the transactions
contemplated hereby and thereby.
(e) The Investment Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Advisory Agreement.
(f) The Investment Adviser carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of its
businesses and the value of its property and as is customary for companies
engaged in similar businesses in similar industries.
(g) The description of the Investment Adviser and its business 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 Tortoise Notes to facilitate the sale or resale
of the Tortoise Notes.
(l) The Investment Adviser is not (i) in violation of its limited
liability company operating agreement or other organizational documents, (ii) in
default in any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its properties or
assets is subject or (iii) in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in the case
of clauses (ii) and (iii), such defaults, events, violations or failures that in
the aggregate would not reasonably be expected to have a Material Adverse
Effect.
(m) Neither the Investment Adviser, nor any director, officer, agent,
employee or other person associated with or acting on behalf of the Investment
Adviser, has (i) used any funds of the Company or the Investment Adviser for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from any funds of the
Company or the Investment Adviser, (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(n) Neither the Investment Advisor nor any employee or agent of the
Investment Adviser has made any payment of funds of the Company or the
Investment Adviser or received or retained any funds, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus
or the Registration Statement which is not so disclosed.
(o) There are no contracts, agreements or understandings between the
Investment Adviser and any person that would give rise to a valid claim against
the Company or the Underwriters for a brokerage commission, finder's fee or
other like payment in connection with this offering.
Section 3. Purchase of the Tortoise Notes by the Underwriters. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the
principal amount of Tortoise Notes set forth opposite such Underwriter's name on
Schedule I hereto.
The price that the Underwriters shall pay for the Tortoise Notes shall be
$______ per note ($25,000 liquidation preference per note less an underwriting
fee of $______ per note).
The Company shall not be obligated to deliver any of the Tortoise Notes on
the Delivery Date (as hereinafter defined), except upon payment for all the
Tortoise Notes to be purchased on the Delivery Date as provided herein.
Section 4. Offering of Tortoise Notes by the Underwriters. The Underwriters
propose to offer the Tortoise Notes for sale upon the terms and conditions set
forth in the Prospectus.
Section 5. Delivery of and Payment for the Tortoise Notes. Delivery of and
payment for the Tortoise Notes shall be made at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through
the facilities of the Depository Trust Company or another mutually agreeable
facility, at 10:00 A.M., New York City time, on ______ __, 2005 or at such other
date or place as shall be determined by agreement between the Underwriters and
the Company (the "Delivery Date"). On the Delivery Date, the Company shall
deliver or cause to be delivered the Tortoise Notes to the Underwriters through
the facilities of the Depository Trust Company against payment to or upon the
order of the Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of the Underwriters hereunder.
Section 6. Further Agreements of the Company and the Investment Adviser.
The Company and the Investment Adviser covenant and agree that:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to become effective under the Securities Act before the offering of the Tortoise
Notes may commence, to use its reasonable best efforts to cause the Registration
Statement or such post-effective amendment to become effective under the
Securities Act as soon as possible; if the Registration Statement has become
effective and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A of the 1933 Act Rules and
Regulations, to file a Prospectus with the Commission pursuant to Rule 497(h) of
the 1933 Act Rules and Regulations as promptly as possible, not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement; if the Registration Statement does not
so omit such information, the Company will file a Prospectus pursuant to Rule
497(c) or (h) of the 1933 Act Rules and Regulations as promptly as possible, not
later than the fifth business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Tortoise Notes for offering or sale in any jurisdiction, of
the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To deliver promptly to the Underwriters such number of the
following documents as it shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if
the delivery of a prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Tortoise Notes or any other
securities relating thereto and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Underwriters and, upon their request, to file such document and to prepare
and furnish without charge to the Underwriters and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(c) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by the
Securities Act or requested by the Commission;
(d) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 497 of the 1933 Act Rules and Regulations, to furnish a copy
thereof to the Underwriters and their counsel and obtain the consent of the
Underwriters to the filing, which consent shall not be unreasonably withheld;
(e) To make generally available to the Company's security holders and
to deliver to the Underwriters an earnings statement of the Company (which need
not 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 Tortoise Notes for offering
and sale under the securities laws of such jurisdictions as the Underwriters may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Tortoise Notes; provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(h) For a period of 180 days from the date of the Prospectus, not to,
without the prior written consent of the Underwriters, directly or indirectly,
(1) offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any Tortoise Notes
or securities convertible into or exchangeable for Tortoise Notes, or sell or
grant options, rights or warrants with respect to any Tortoise Notes or
securities convertible into or exchangeable for Tortoise Notes, or (2) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of such
Tortoise Notes, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Tortoise Notes or other securities, in
cash or otherwise; and
(i) To apply the net proceeds from the sale of the Tortoise Notes in a
manner consistent with the investment objectives, policies and restrictions of
the Company as set forth in the Prospectus.
Section 7. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Tortoise Notes and any
taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act and the 1940 Act of
the Registration Statement, the Prospectus, and the 1940 Act Notification and
any amendments or supplements and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement, and any other related documents in
connection with the offering, purchase, sale and delivery of the Tortoise Notes;
(e) the preparation, issuance and delivery of the certificates for the Tortoise
Notes, if any, to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Tortoise Notes to the Underwriters, (f) any applicable listing or other fees
including the fees paid to the rating agencies in connection with the rating of
the Tortoise Notes; (g) the fees and expenses of qualifying the Tortoise Notes
under the securities laws of the several jurisdictions as provided in Section
6(g) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h) all
costs and reasonable expenses of the
Underwriters, other than the fees and disbursements of counsel to the
Underwriters; (i) the fees and expenses of the Company's accountants and the
fees and expenses of counsel for the Company, of the transfer agent and the
auction agent as set forth in the Auction Agreement; and (j) all other costs and
reasonable expenses incident to the performance of the obligations of the
Company under this Agreement.
Section 8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Investment Adviser contained herein, to the performance by the Company and the
Investment Adviser of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the Auction
Agreement, the Tortoise Notes, the Registration Statement and the Prospectus,
and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(c) The Company shall have furnished to the Underwriters, in form and
substance reasonably satisfactory to the Underwriters, the written opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, dated the Delivery Date, to the effect of
paragraphs (i) through (xx) 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 caption "Description of Stock."
(iv) The sale and issuance of the Tortoise Notes have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, the Indenture and the resolutions adopted by the
Board of Directors of the Company, or a duly authorized committee
thereof, the Tortoise Notes will be validly issued.
(v) When authenticated and delivered in accordance with the terms
of this Agreement, the Indenture and resolutions adopted by the
Company's Board of Directors, or a duly authorized committee thereof,
the Tortoise Notes will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
(vi) The Tortoise Notes conform in all material respects to the
statements concerning them contained in the Prospectus and the
Indenture and there are no restrictions upon the transfer of any of
the Tortoise Notes pursuant to the Company's Charter or by-laws or any
Company Agreement; except for the restrictions on transfer of the
Tortoise Notes contained in the Auction Agreement;
(vii) 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;
(viii) 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;
(ix) 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;
(x) 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,
the Trust Indenture Act and the Rules and Regulations;
(xi) The statements contained in the Registration Statement and
the Prospectus under the captions "The Auction," "Description of
Tortoise Notes," "Description of 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
Indenture, the Company's Charter and by-laws, contracts, agreements or
other legal documents referred to therein, tax laws, legal
conclusions, doctrines or practices of the United States, constitute
accurate summaries of the terms of such documents, laws, legal
conclusions, doctrines or practices in all material respects;
(xii) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Registration
Statement and the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act, the 1940 Act, the Trust Indenture Act
or by the Rules and Regulations which have not been described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement;
(xiii) The execution and delivery of the Indenture has been duly
authorized, by the Company. The Indenture has been duly executed and,
so far as known to counsel to the Company, delivered by the Company;
(xiv) The Indenture has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms;
(xv) 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.
(xvi) The Underwriting Agreement constitutes the valid and
legally binding agreement of the Company, and is enforceable against
the Company in accordance with its terms.
(xvii) None of the sale and issuance of the Tortoise Notes by the
Company pursuant to this Agreement, the execution, delivery and
performance by the Company of this Agreement or the Indenture, the
performance by the Company of each of the Company Agreements or the
consummation of the transactions contemplated 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 Tortoise Notes
under the Securities Act, the 1940 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws (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 or the Indenture, the
performance of the Company Agreements by the Company or the
consummation of the transactions contemplated hereby, except for such
consents, approvals, authorizations, orders, filings or registrations
as have been obtained or made, if any;
(xviii) None of (a) the sale and issuance of the Tortoise Notes
by the Company pursuant to this Agreement, (b) the execution, delivery
and performance by the Company of this Agreement or the Indenture, 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 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).
(xix) 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 the
Indenture complies in all material respects with the applicable
provisions of the Trust Indenture Act;
(xx) 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), (vi) and (ix) hereof
and have made no independent check or verification thereof, on the basis of the
foregoing, no facts have come to such counsel's attention that would have led
such counsel to believe that (a) the Registration Statement (except the
financial statements and other financial and statistical data contained therein,
as to which such counsel expresses no opinion), at the time it became effective,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
contained therein not misleading or (b) the Prospectus (except the financial
statements and other financial and statistical data contained therein, as to
which such counsel expresses no opinion), as of its issue date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(d) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Investment
Adviser, shall have furnished to the Underwriters their written opinion,
addressed to the Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Investment Adviser has been 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 Tortoise Notes under the Securities
Act and the 1940 Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws (as to which such counsel
need not express an opinion), no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, the performance of the Advisory
Agreement or the consummation of the transactions contemplated by this
Agreement or the Advisory Agreement by the Investment Adviser;
(v) To such counsel's knowledge, 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 Tortoise Notes, the Indenture, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(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 Agreement are true and correct as
of the date hereof and as of the Delivery Date; the Company has
complied with all its agreements contained herein prior to or on the
Delivery Date; and the conditions set forth in Section 8 have been
fulfilled;
(ii) Since the respective dates as of which information is given
in the Prospectus, other than as set forth in or contemplated by the
Prospectus, (A) there has not occurred any change or any development
that might have a Material Adverse Effect, (B) there has not been any
change in the capital stock, short-term debt or long-term debt of the
Company that might have a Material Adverse Effect, (C) the Company has
not incurred any material liability or obligation, direct or
contingent, (D) there has not occurred a material loss or interference
with the Company's business from fire, explosion, flood or other
calamity, whether or not 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.
(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 Tortoise Notes being delivered on the
Delivery Date on the terms and in the manner contemplated in the Prospectus and
in this Agreement.
(k) The Company shall have furnished to the Underwriters a report
showing compliance with the asset coverage requirements of the 1940 Act and the
1940 Act Tortoise Notes Asset Coverage (as defined in the Registration
Statement), each dated the Delivery Date and in form and substance satisfactory
to the Underwriters. Each such report shall assume the receipt of the net
proceeds from the sale of the Tortoise Notes and may use portfolio holdings and
valuations as of the close of business of any day not more than six business
days preceding the Delivery Date, provided, however, that the Company represents
in such report that its total net assets as of the Delivery Date have not
declined by 5% or more from such valuation date.
(l) The Company shall have delivered and the Underwriters shall have
received evidence satisfactory to it that the Tortoise Notes are rated at least
"[AAA]" by ▇▇▇▇▇'▇ Investors Service, Inc. and "[AAA]" by Fitch, Inc., a
division of the McGraw Hill Companies, as of the Delivery Date, and subsequent
to the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Tortoise Notes by any "nationally recognized
statistical rating organization" as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Rules and Regulations and (ii) no
such organization shall have publicly announced that is has under surveillance
or review, with possible negative implications, its rating of the Tortoise
Notes.
(m) Neither the Company nor the Investment Adviser shall have failed
at or prior to the Delivery Date to have performed or complied with any of the
agreements contained herein and required to be performed or complied with by
them at or prior to the Delivery Date.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such), including, without
limitation, as a result of terrorist activities after the date hereof, or any
other calamity or crisis as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery of
the Tortoise Notes being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the reasonable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, is material or omits to state a fact which, in the
reasonable opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(p) The Company and the Investment Adviser shall have furnished to the
Underwriters such further certificates, documents and opinions of counsel as the
Underwriters shall reasonably request (including certificates of officers of the
Company and the Investment Adviser).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
Section 9. Indemnification and Contribution.
(a) The Company and the Investment Adviser shall jointly and severally
indemnify and hold harmless each Underwriter, its directors, officers and
employees and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Tortoise Notes), to which such Underwriter, director,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in the 1940 Act Notification, (B) in
any Preliminary Prospectus, the Prospectus, the Registration Statement or in any
amendment or supplement thereto including information deemed to be a part of the
Registration Statement pursuant to Rule 430A of the Rules and Regulations, if
applicable, or (C) in any Marketing Materials, (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Marketing
Materials, any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by such Underwriter in connection with, or
relating in any manner to, the Tortoise Notes or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that neither the Company nor the Investment
Adviser shall be liable under Section 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 Tortoise Notes to the person
alleging such loss, claim, damage, liability or action without sending or
giving, at or prior to the written confirmation of such sale, a copy of the
Prospectus (as then amended or supplemented), (B) within a reasonable amount of
time prior to such sale or such confirmation, the Company had furnished to such
Underwriter copies of the corrected Prospectus which, if delivered, would have
cured the defect giving rise to such loss, claim, damage, liability or action,
and (C) the Underwriter failed to deliver such corrected Prospectus. The
foregoing indemnity agreement is in addition to any liability which the Company
or the Investment Adviser may otherwise have to any Underwriter or to any
director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors,
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer, 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 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 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 Tortoise Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Investment Adviser
(treated jointly as one person for this purpose) on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Investment Adviser (treated jointly as one
person for this purpose) on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Tortoise Notes purchased under this
Agreement (before deducting expenses) received by the Company, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the Tortoise Notes purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of the
Tortoise Notes under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Investment Adviser, on one hand, or the
Underwriters, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Investment Adviser and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for purposes of
this Section 9(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 9(d), the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Tortoise Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The Underwriters severally confirm and the Company and the
Investment Adviser acknowledge that the statements set forth in the last
sentence on the front cover page, its name and paragraphs four, 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
Tortoise Notes which the defaulting Underwriter agreed but failed to purchase on
the Delivery Date in the respective proportions which the aggregate principal
amount of Tortoise Notes set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule I hereto bears to the total aggregate
principal amount of Tortoise Notes set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule I hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any amount of the Tortoise Notes on the Delivery Date if the aggregate
principal amount of Tortoise Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
aggregate principal amount of Tortoise Notes to be purchased on the Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the aggregate principal amount of Tortoise Notes
which it agreed to purchase on the Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, the total aggregate principal
amount of Tortoise Notes to be purchased on such Delivery Date. If the remaining
Underwriters do not elect to purchase the Tortoise Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Delivery Date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses to the extent set forth in Sections 7
and 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 Tortoise
Notes which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Tortoise Notes of a
defaulting or withdrawing Underwriter, either the non-defaulting Underwriters or
the Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
Section 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 Tortoise Notes if, prior to that time,
any of the events described in Sections 8(j) or 8(n), shall have occurred or if
the Underwriters shall decline to purchase the Tortoise Notes for any reason
permitted under this Agreement.
Section 12. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Tortoise Notes for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled by
the Company is not fulfilled or (b) the Underwriters
decline to purchase the Tortoise Notes because of a failure by the Company or
the Investment Adviser to perform their respective obligations under this
Agreement, the Company shall reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Tortoise Notes, and upon demand the Company shall pay the full amount
thereof to the Underwriters.
Section 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 RBC Capital
Markets Corporation, 5700 ▇▇▇▇▇▇▇▇ Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Fax: 713-________), 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, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Tortoise Notes and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
Section 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. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 18. 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 19. 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 20. 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 21. No Fiduciary Duty. The Company and the Investment Adviser
acknowledge and agree that in connection with this offering, sale of the
Tortoise Notes or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (i) no fiduciary or agency
relationship between the Company, the Investment Adviser and any other person,
on the one hand, and the Underwriters, on the other, exists; (ii) the
Underwriters are not acting as advisors, expert or otherwise, to either the
Company or the Investment Adviser, including, without limitation, with respect
to the determination of the public offering price of the Tortoise Notes, and
such relationship between the Company and the Investment Adviser, on the one
hand, and the
Underwriters, on the other, is entirely and solely commercial, based on
arms-length negotiations; (iii) any duties and obligations that the Underwriters
may have to the Company or the Investment Adviser shall be limited to those
duties and obligations specifically stated herein; and (iv) the Underwriters and
their respective affiliates may have interests that differ from those of the
Company and the Investment Adviser. The Company and the Investment Adviser
hereby waive any claims that the Company or the Investment Adviser may have
against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
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 NORTH AMERICAN ENERGY CORPORATION
By:
----------------------------------------
Name:
Title:
TORTOISE CAPITAL ADVISORS LLC
By:
----------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
RBC CAPITAL MARKETS CORPORATION
As Representatives of the several Underwriters named in Schedule I
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
--------------------------------------
Name:
Authorized Representative
SCHEDULE I
---------------------|---------------------------|------------------------------
Name of Underwriter | Principal Amount of | Purchase Price Paid by
| Tortoise Notes | Underwriters
---------------------|---------------------------|------------------------------
| Series A | Series A
---------------------|---------------------------|------------------------------
▇▇▇▇▇▇ Brothers | $[________] | $[________]
Inc. | |
---------------------|---------------------------|------------------------------
RBC Capital | $[________] | $[________]
Markets Corporation | |
---------------------|---------------------------|------------------------------
[Insert other | $[________] | $[________]
Underwriters] | |
---------------------|---------------------------|------------------------------
Total | $[50,000,000] | $[________]
---------------------|---------------------------|------------------------------