TORTOISE ENERGY INFRASTRUCTURE CORPORATION (a Maryland Corporation) __________ Shares of Common Stock Par Value $_____ Per Share UNDERWRITING AGREEMENT
EXHIBIT
h.1
(a
Maryland Corporation)
__________
Shares of Common Stock
Par
Value
$_____ Per Share
__________,
____
Ladies
and Gentlemen:
Tortoise
Energy Infrastructure Corporation, a Maryland corporation (the “FUND”), and the
Fund’s investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited
liability company (the “ADVISER”), each confirms its agreement with
_______________, ____________ and each of the other Underwriters named in
Schedule A hereto (collectively, the “UNDERWRITERS”), for
whom ____________ and ___________ are acting as representatives (in
such capacity, the “REPRESENTATIVES”), with respect to the issue and sale by the
Fund and the purchase by the Underwriters, acting severally and not jointly,
of
the respective number of shares of common stock, par value $____ per share,
of
the Fund (“COMMON SHARES”) set forth in Schedule A hereof (collectively,
the “PRIMARY SHARES”), and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of _______ additional
Common Shares to cover over-allotments, if any (the “OPTION SHARES”). The
Primary Shares and the Option Shares are collectively referred to as the
“SHARES.”
The
Fund
understands that the Underwriters propose to make a public offering of the
Shares as soon as the Representatives deem advisable after this Agreement
has
been executed and delivered.
The
Fund
has filed with the Securities and Exchange Commission (the “COMMISSION”) a
registration statement on Form N-2 (File Nos. 333-131204 and 811-21462) which
became effective on __________, ____ and a related preliminary prospectus
supplement, covering the registration of the Shares under the Securities
Act of
1933, as amended (the “1933 ACT”), and a notification on Form N-8A of
registration of the Fund as an investment company under the Investment Company
Act of 1940, as amended (the “1940 ACT”), and the rules and regulations of the
Commission under the 1933 Act and the 1940 Act (the “RULES AND REGULATIONS”).
Promptly after execution and delivery of this Agreement, the Fund will prepare
and file a post-effective amendment and a prospectus supplement in accordance
with the provisions of Rule 430A (“RULE 430A”) and paragraph (c) and/or (h) of
Rule 497
(“RULE
497”) of the Rules and Regulations. The information included in any such
prospectus that was omitted from such registration statement at the time
it
became effective but that is deemed to be part of such registration statement
at
the time it became effective pursuant to paragraph (b) of Rule 430A is referred
to as “RULE 430A INFORMATION.” Each prospectus used before such registration
statement became effective, and any prospectus that omitted the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, including in each case any statement of
additional information incorporated therein by reference, is herein called
a
“PRELIMINARY PROSPECTUS.” Such registration statement, including the amendments
thereto, the exhibits and schedules thereto at the time it became effective
and
including the Rule 430A Information and any statement of additional information
incorporated therein by reference, is herein called the “REGISTRATION
STATEMENT.” Any registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations is herein referred to as the “RULE 462(B) REGISTRATION
STATEMENT,” and the term “REGISTRATION STATEMENT” shall include any Rule 462(b)
Registration Statement that shall have been filed. The final prospectus in
the
form first furnished to the Underwriters for use in connection with the offering
of the Shares, including the statement of additional information incorporated
therein by reference, is herein called the “PROSPECTUS.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
(“▇▇▇▇▇”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references
of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which are incorporated by reference in
the
Registration Statement, any preliminary prospectus or the Prospectus, as
the
case may be.
Section
1. Representations
and Warranties.
(a) Representations
and Warranties by the Fund and the Adviser.
The
Fund and the Adviser represent and warrant to each Underwriter as of the
date
hereof, as of the Applicable Time (as defined below), as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agree with each Underwriter,
as follows:
(i) Compliance
With Registration Requirements.
Each of
the Registration Statement and any Rule 462(b) Registration Statement has
become
effective under the 1933 Act and no stop order suspending the effectiveness
of
the Registration Statement or any Rule 462(b) Registration Statement has
been
issued under the 1933 Act, or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act, and no proceedings for any such
purpose, have been instituted or are pending or, to the knowledge of the
Fund or
the Adviser, are contemplated by the Commission, and any request on the part
of
the Commission for additional information has been complied with.
At
the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto (filed before the Closing
Time) became effective and at the Closing Time, as hereinafter defined (and,
if
any Option Shares are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement, the notification of Form
N-8A
and all amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act, the 1940 Act and
the
Rules and Regulations and did not and will not 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. Neither the Prospectus
nor any amendment or supplement thereto, at the
2
time
the
Prospectus or any such amendment or supplement was issued and at the Closing
Time (and, if any Option Shares are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or
will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with written information
furnished to the Fund by or on behalf of any Underwriter for use in the
Registration Statement or Prospectus.
As
of the
Applicable Time (as defined below), the Rule 482 Statement (as defined below)
issued at or prior to the Applicable Time, if any, the Statutory Prospectus
(as
defined below) and the information included on Schedule C hereto, all
considered together (collectively, the “GENERAL DISCLOSURE PACKAGE”), did not
include any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 5:30 p.m. (Eastern time) on __________, ____ or such other time
as agreed by the Fund and the Representatives.
“Rule
482
Statement” means a document prepared in accordance with the provisions of Rule
482 of the 1933 Act in connection with the offering of the Shares and which
is
set forth on Schedule D hereto.
“Statutory
Prospectus” as of any time means the prospectus relating to the Shares that is
included in the Registration Statement immediately prior to that time, including
any document incorporated by reference therein.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 497 under the 1933 Act, complied when so filed in all material
respects with the Rules and Regulations and each preliminary prospectus and
the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
If
a Rule
462(b) Registration Statement is required in connection with the offering
and
sale of the Shares, the Fund has complied or will comply with the requirements
of Rule 111 under the 1933 Act Regulations relating to the payment of filing
fees thereof.
At
the
time of filing the Registration Statement, any 462(b) Registration Statement
and
any post-effective amendments thereto and at the date hereof, the Fund was
not
and is not an “ineligible issuer,” as defined in Rule 405 of the Rules and
Regulations.
(ii) Incorporation
of Documents by Reference.
The
documents incorporated in the Registration Statement, the Prospectus and
the
Statutory Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
under the 1934 Act, the 1940 Act and the Rules and Regulations and, when
read
together with the other information in the Prospectus, (a) at the time the
Registration Statement became effective, (b) at the time the Prospectus was
issued and (c) at the Closing Time, did not
3
and
will
not 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.
(iii) Independent
Accountants.
The
accountants who certified the statement of assets and liabilities included
in
the Registration Statement have confirmed to the Fund their status as
independent public accountants as required by the 1933 Act and the Rules
and
Regulations and the Fund and the Adviser have no reason to believe that they
are
not independent public accountants.
(iv) Financial
Statements.
The
statement of assets and liabilities included in the Registration Statement,
the
General Disclosure Package and the Prospectus, together with the related
notes,
presents fairly in accordance with generally accepted accounting principles
(“GAAP”) in all material respects the financial position of the Fund at the date
indicated and has been prepared in conformity with GAAP. The supporting
schedules, if any, present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of audited
financial statements included in the Registration Statement.
(v) Expense
Summary.
The
information set forth in the Prospectus in the fee table contained in the
section of the Prospectus entitled “Summary of Company Expenses” has been
prepared in all material respects in accordance with the requirements of
Form
N-2, and interpretations thereunder, and to the extent estimated or projected,
such estimates or projections are reasonably believed to be attainable and
reasonably based.
(vi) No
Material Adverse Change.
Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or
business prospects of the Fund, whether or not arising in the ordinary course
of
business (other than as a result of changes in market conditions generally)
(a
“MATERIAL ADVERSE EFFECT”), (B) there have been no transactions entered
into by the Fund, other than those in the ordinary course of business, which
are
material with respect to the Fund, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class
of its
capital stock.
(vii) Good
Standing of the Fund.
The
Fund has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Maryland and has the corporate power
and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Fund is duly qualified as a foreign corporation
to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing
of
property or the conduct of business, except where the failure so to qualify
or
to be in good standing would not result in a Material Adverse
Effect.
(viii) No
Subsidiaries.
The
Fund has no subsidiaries.
(ix) Investment
Company Status.
The
Fund is duly registered with the Commission under the 1940 Act as a
nondiversified, closed end management investment company, and no order of
suspension or revocation of such registration has been issued or proceedings
therefor initiated or, to the Fund’s knowledge, threatened by the
Commission.
4
(x) Officers
and Directors.
No
person is serving or acting as an officer, director or investment adviser
of the
Fund except in accordance with the provisions of the 1940 Act and the Rules
and
Regulations and the Investment Advisers Act of 1940, as amended (the “ADVISERS
ACT”), and the rules and regulations of the Commission promulgated under the
Advisers Act (the “ADVISERS ACT RULES AND REGULATIONS”). Except as disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus,
to the Fund’s knowledge after due inquiry, no director of the Fund is an
“Interested Person” (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or an “Affiliated
Person” (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter that serves as a
Representative.
(xi) Capitalization.
The
authorized, issued and outstanding capital stock of the Fund is as set forth
in
the General Disclosure Package and the Prospectus as of the date thereof
under
the captions “The Company” and “Description of Securities.” All issued and
outstanding Common Shares of the Fund and all issued and outstanding Money
Market Cumulative Preferred Shares of the Fund (the “PREFERRED SHARES”) have
been duly authorized and validly issued and are fully paid and non-assessable,
and have been offered and sold or exchanged by the Fund in compliance with
all
applicable laws (including, without limitation, federal and state securities
laws). None of the outstanding Common Shares or Preferred Shares of the Fund
was
issued in violation of the preemptive or other similar rights of any
securityholder of the Fund.
(xii) Authorization
and Description of Shares.
The
Shares to be purchased by the Underwriters from the Fund have been duly
authorized for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Fund pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued, fully
paid and non-assessable. The Common Shares conform to all statements relating
thereto contained in the General Disclosure Package and the Prospectus and
such
description conforms in all material respects to the rights set forth in
the
instruments defining the same; and the issuance of the Shares is not subject
to
the preemptive or other similar rights of any securityholder of the
Fund.
(xiii) Absence
of Defaults and Conflicts.
The
Fund is not in violation of its charter or by-laws, or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, deed of trust, loan
or
credit agreement, note, lease or other agreement or instrument to which it
is a
party or by which it may be bound, or to which any of the property or assets
of
the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such
violations or defaults that would not result in a Material Adverse Effect;
and
the execution, delivery and performance of this Agreement, the Investment
Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement,
the Fund Administration Servicing Agreement and the Fund Accounting Servicing
Agreement referred to in the Registration Statement (as used herein,
individually the “Investment Advisory Agreement,” the “Custody Agreement,” the
“Stock Transfer Agency Agreement,” the “Fund Administration Servicing
Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and
collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions
contemplated in the Offering Agreements and in the Registration Statement
(including the issuance and sale of the Shares and the use of the proceeds
from
the sale of the Shares as described in the General Disclosure Package and
the
Prospectus under the caption “Use of Proceeds”) and compliance by the Fund with
its obligations thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice
or
passage of time or both, conflict with or constitute a breach of, or default
or
Repayment Event (as defined below) under, or result
5
in
the
creation or imposition of any lien, charge or encumbrance upon any property
or
assets of the Fund pursuant to, the Agreements and Instruments (except for
such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Fund or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of
any government, government instrumentality or court, domestic or foreign,
having
jurisdiction over the Fund or any of its assets, properties or operations
(except for such violations that would not result in a Material Adverse Effect).
As used herein, a “REPAYMENT EVENT” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Fund.
(xiv) Absence
of Proceedings.
There
is no action, suit, proceeding, inquiry or investigation before or brought
by
any court or governmental agency or body, domestic or foreign, now pending,
or,
to the knowledge of the Fund or the Adviser, threatened, against or affecting
the Fund, which is required to be disclosed in the Registration Statement
(other
than as disclosed therein), or which could reasonably be expected to result
in a
Material Adverse Effect, or which could reasonably be expected to materially
and
adversely affect the properties or assets of the Fund or the consummation
of the
transactions contemplated in this Agreement or the performance by the Fund
of
its obligations hereunder. The aggregate of all pending legal or governmental
proceedings to which the Fund is a party or of which any of its property
or
assets is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) Accuracy
of Exhibits.
There
are no contracts or documents which are required to be described in the
Registration Statement or the Prospectus (or the documents incorporated by
reference therein) or to be filed as exhibits thereto by the 1933 Act, the
1940
Act or by the Rules and Regulations which have not been so described and
filed
as required.
(xvi) Possession
of Intellectual Property; Fund Name.
The
Fund owns or possesses, or can acquire on reasonable terms, adequate licenses,
copyrights, know-how (including trade secrets or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “INTELLECTUAL PROPERTY”) necessary to carry
on the business now operated by the Fund, and the Fund has not received any
notice or is not otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any
facts or circumstances which would render any Intellectual Property invalid
or
inadequate to protect the interest of the Fund therein.
(xvii) Absence
of Further Requirements.
No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is
necessary or required for the performance by the Fund of its obligations
hereunder, in connection with the offering, issuance or sale of the Shares
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be required
under
the 1933 Act, the 1940 Act, the Securities Exchange Act of 1934, as amended
(the
“1934 ACT”), or under the rules of the New York Stock Exchange (“NYSE”) or the
NASD, Inc. (“NASD”) or state securities laws. In furtherance of the foregoing,
the Fund represents and warrants that it has previously filed, in consultation
with the Underwriters, with the NASD all Rule 482 Statements which are required
to be filed with the NASD.
6
(xviii) Possession
of Licenses and Permits.
The
Fund possesses such permits, licenses, approvals, consents and other
authorizations (collectively, “GOVERNMENTAL LICENSES”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary
to
operate its properties and to conduct the business as contemplated in the
Prospectus. The Fund is in compliance with the terms and conditions of all
such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except when the invalidity
of
such Governmental Licenses or the failure of such Governmental Licenses to
be in
full force and effect would not have a Material Adverse Effect. The Fund
has not
received any notice of proceedings relating to the revocation or modification
of
any such Governmental Licenses.
(xix) Advertisements.
Any
advertising, sales literature or other promotional material (including
“prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts”
and “electronic road show presentations”), including, without limitation, the
“investor guide” prepared by the Fund and dated __________ ____ entitled
“Add-On Offering of Common Stock (NYSE: TYG),” authorized in writing by or
prepared by the Fund or the Adviser used in connection with the public offering
of the Shares (collectively, “SALES MATERIAL”) does not contain an untrue
statement of a material fact or omit to state a material fact required to
be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading. Moreover, all Sales
Material complied and will comply in all material respects with the applicable
requirements of the 1933 Act, the 1940 Act, the Rules and Regulations and
the
rules and interpretations of the NASD (except that this representation and
warranty does not apply to statements in or omissions from the Sales Material
made in reliance upon and in conformity with written information relating
to any
Underwriter furnished to the Fund by or on behalf of any Underwriter through
you
expressly for use therein), including any requirement to file any Rule 482
Statement.
(xx) Subchapter
M.
The
Fund 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.
(xxi) Distribution
of Offering Materials.
The
Fund has not distributed and, prior to the later of (A) the Closing Time
and (B) completion of the distribution of the Shares, will not distribute
any offering material to the public in connection with the offering and sale
of
the Shares other than the Registration Statement, the Statutory Prospectus,
the
Rule 482 Statement and the Prospectus.
(xxii) Accounting
Controls and Disclosure Controls.
The
Fund maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization and with the applicable
requirements of the 1940 Act, the Rules and Regulations, the NASD and the
Code;
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets and to maintain compliance with
the
books and records requirements under the 1940 Act and the Rules and Regulations;
(C) access to assets is permitted only in accordance with the management’s
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Fund has developed and
maintains disclosure controls and procedures (as such term is defined in
Rule
30a-3 of the ▇▇▇▇ ▇▇▇) that are effective in ensuring that
information
7
required
to be disclosed by the Fund in the reports that it files or submits under
the
1940 Act is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information required
to be disclosed by the Fund in the reports that it files or submits under
the
1940 Act is accumulated and communicated to the Fund’s management, including its
principal executive officer or officers and its principal financial officer
or
officers, as appropriate to allow timely decisions regarding required
disclosure.
(xxiii) Absence
of Undisclosed Payments.
Neither
the Fund nor, to the Fund’s Knowledge, any employee or agent of the Fund, has
made any payment of funds of the Fund or received or retained any funds,
which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus and which payment has not been so
disclosed.
(xxiv) Material
Agreements.
The
Offering Agreements have each been duly authorized by all requisite action
on
the part of the Fund and executed and delivered by the Fund, as of the dates
noted therein, and each complies with all applicable provisions of the 1940
Act
in all material respects. Assuming due authorization, execution and delivery
by
the other parties thereto with respect to this Agreement and the other Offering
Agreements, each Offering Agreement constitutes a valid and binding agreement
of
the Fund, enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and
other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law)
and an implied covenant of good faith and fair dealing and except as rights
to
indemnification or contribution thereunder may be limited by federal or state
laws.
(xxv) Registration
Rights.
There
are no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Fund under the 1933 Act.
(xxvi) NYSE
Listing.
The
Shares have been duly authorized for listing, upon notice of issuance, on
the
NYSE and the Fund’s registration statement on Form 8-A under the 1934 Act has
become effective.
(xxvii) Payment
of Taxes.
All
United States federal income tax returns of the Fund required by law to be
filed
have been filed and all taxes shown by such returns or otherwise assessed,
which
are due and payable, have been paid, except assessments that are being contested
in good faith and as to which adequate reserves have been provided. The United
States federal income tax returns of the Fund through the fiscal year ended
__________, ____ have been settled and no assessment in connection therewith
has
been made against the Fund. The Fund has filed all other tax returns that
are
required to have been filed by them pursuant to applicable foreign, state,
local
or other law except insofar as the failure to file such returns would not
result
in a Material Adverse Effect, and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Fund, except for such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books
of
the Fund in respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or re-assessments
for additional tax for any years not finally determined, except to the extent
of
any inadequacy that would not result in a Material Adverse Effect. All material
taxes which the Fund is required by law to withhold or to collect for payment
have been duly withheld and collected and have been paid to the appropriate
governmental authority or agency or have been accrued, reserved against and
entered on the books of the Fund.
8
(xxviii) Insurance.
The
Fund carries on or is entitled to the benefits of insurance, with financially
sound and reputable insurers, in such amounts and covering such risks as
are
generally maintained by companies of established repute engaged in the same
or
similar business, and all such insurance is in full force and effect. The
Fund
has no reason to believe that it will not be able to (A) renew its existing
insurance coverage as and when such policies expire or (B) obtain
comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result
in
a Material Adverse Effect.
(xxix) Statistical
and Market-Related Data.
Any
statistical and market-related data included in the Registration Statement,
the
General Disclosure Package and the Prospectus are based on or derived from
sources that the Fund believes to be reliable and accurate, and the Fund
has
obtained written consent to the use of such data from such sources.
(b) Representations
and Warranties by the Adviser.
The
Adviser represents and warrants to each Underwriter as of the date hereof,
as of
the Applicable Time, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof as follows:
(i) Good
Standing of the Adviser.
The
Adviser has been duly organized and is validly existing and in good standing
as
a limited liability company under the laws of the State of Delaware with
full
power and authority to own, lease and operate its properties and to conduct
its
business as described in the General Disclosure Package and the Prospectus
and
is duly qualified as a foreign entity to transact business and is in good
standing in each other jurisdiction in which such qualification is required
except as would not, individually or in the aggregate, result in a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of such Adviser, whether or not arising
in the ordinary course of business (an “ADVISER MATERIAL ADVERSE
EFFECT”).
(ii) Investment
Adviser Status.
The
Adviser is duly registered and in good standing with the Commission as an
investment adviser under the Advisers Act, and is not prohibited by the Advisers
Act, the 1940 Act, or the rules and regulations under such acts, from acting
under the Investment Advisory Agreement for the Fund as contemplated by the
Prospectus.
(iii) Description
of Adviser.
The
description of the Adviser in the Registration Statement, the General Disclosure
Package and the Prospectus (including any amendment or supplement thereto)
complied and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations and is true and correct and does not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not
misleading.
(iv) Capitalization.
The
Adviser has the financial resources available to it necessary for the
performance of its services and obligations as contemplated in the General
Disclosure Package, Prospectus and in the Offering Agreements.
(v) Authorization
of Offering Agreements; Absence of Defaults and Conflicts.
This
Agreement and the Investment Advisory Agreement have each been duly authorized,
executed and delivered by the Adviser, and (assuming the due authorization,
execution and delivery of each other party thereto) each such Agreement
constitutes a valid and binding obligation of the Adviser, enforceable in
accordance with its terms, except as affected by
9
bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or state
laws; and neither the execution and delivery of this Agreement or the Investment
Advisory Agreement nor the performance by the Adviser of its obligations
hereunder or thereunder will conflict with, or result in a breach of any
of the
terms and provisions of, or constitute, with or without the giving of notice
or
lapse of time or both, a default under, (i) any agreement or instrument to
which the Adviser is a party or by which it is bound, (ii) the limited
liability company operating agreement and other organizational documents
of the
Adviser, or (iii) to the Adviser’s knowledge, by any law, order, decree,
rule or regulation applicable to it of any jurisdiction, court, federal or
state
regulatory body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the Adviser or
its
properties or operations other than any conflict, breach or default that
would
not, individually or in the aggregate, reasonably be expected to result in
an
Adviser Material Adverse Effect; and no consent, approval, authorization
or
order of any court or governmental authority or agency is required for the
consummation by the Adviser of the transactions contemplated by this Agreement
or the Investment Advisory Agreement, except as have been obtained or will
be
obtained prior to the Closing Time or may be required under the 1933 Act,
the
1940 Act, the 1934 Act or state securities laws.
(vi) No
Material Adverse Change.
Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, there has not
occurred any event which could reasonably be expected to have a material
adverse
effect on the ability of the Adviser to perform its respective obligations
under
this Agreement and the Investment Advisory Agreement.
(vii) Absence
of Proceedings.
There
is no action, suit, proceeding, inquiry or investigation before or brought
by
any court or governmental agency or body, domestic or foreign, now pending,
or,
to the knowledge of the Adviser, threatened against or affecting the Adviser
or
any “affiliated person” of the Adviser (as such term is defined in the ▇▇▇▇ ▇▇▇)
or any partners, directors, officers or employees of the foregoing, whether
or
not arising in the ordinary course of business, which could reasonably be
expected to result in Adviser Material Adverse Effect or, materially and
adversely affect the ability of the Adviser to function as an investment
adviser
with respect to the Fund or perform its obligations under this Agreement
or the
Investment Advisory Agreement, or which is required to be disclosed in the
Registration Statement and the Prospectus.
(viii) Absence
of Violation or Default.
The
Adviser is not in violation of its limited liability company operating agreement
or other organizational documents or in default under any agreement, indenture
or instrument, except for such violations or defaults that have not and could
not result in an Adviser Material Adverse Effect.
(c) Officer’s
Certificates.
Any
certificate signed by any officer of the Fund or the Adviser delivered to
the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Fund or the Adviser, as the case may be,
to
each Underwriter as to the matters covered thereby.
Section
2. Sale
and Delivery to Underwriters; Closing.
(a) Primary
Shares.
On the
basis of the representations, warranties and covenants contained herein and
subject to the terms and conditions set forth herein, the Fund agrees to
sell to
each
10
Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Fund, at the price per share set forth in
Schedule B, the number of Primary Shares set forth in Schedule A
opposite the name of such Underwriter, plus any additional number of Primary
Shares which such Underwriter may become obligated to purchase pursuant to
the
provisions of Section 10 hereof.
(b) Option
Shares.
In
addition, on the basis of the representations and warranties contained herein
and subject to the terms and conditions set forth herein, the Fund hereby
grants
an option to the Underwriters, severally and not jointly, to purchase up
to an
additional _______ Common Shares in the aggregate at the price per share
set
forth in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Fund and payable on the Primary Shares but
not
payable on the Option Shares. The option hereby granted will expire 45 days
after the date hereof and may be exercised in whole or in part from time
to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Primary Shares upon notice by the
Representatives to the Fund setting forth the number of Option Shares as
to
which the several Underwriters are then exercising the option and the time
and
date of payment and delivery for such Option Shares. Any such time and date
of
delivery (a “DATE OF DELIVERY”) shall be determined by the Representatives, but
shall not be later than seven (7) full business days and no earlier than
three
(3) full business days after the exercise of said option, nor in any event
prior
to the Closing Time. If the option is exercised as to all or any portion
of the
Option Shares, each of the Underwriters, acting severally and not jointly,
will
purchase that proportion of the total number of Option Shares then being
purchased which the number of Primary Shares set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Primary
Shares, subject in each case to such adjustments as ______________ in its
discretion shall make to eliminate any sales or purchases of a fractional
number
of Option Shares plus any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(c) Payment.
Payment
of the purchase price for, and delivery of certificates for, the Primary
Shares
shall be made at the offices of ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇ or at such other place as shall be agreed upon by the Representatives
and the Fund, at 10:00 A.M. (Eastern time) on the third business day after
the
date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten (10) business days after
such date as shall be agreed upon by the Representatives and the Fund (such
time
and date of payment and delivery being herein called “CLOSING TIME”). In
addition, in the event that any or all of the Option Shares are purchased
by the
Underwriters, payment of the purchase price for such Option Shares shall
be made
at the above-mentioned offices, or at such other place as shall be agreed
upon
by the Representatives and the Fund, on each Date of Delivery as specified
in
the notice from the Representatives to the Fund.
Payment
shall be made to the Fund by wire transfer of immediately available funds
to a
bank account designated by the Fund, against delivery to the Representatives
for
the respective accounts of the Underwriters of the Shares to be purchased
by
them. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of
the
purchase price for, the Primary Shares and the Option Shares, if any, which
it
has agreed to purchase. ______________, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of
the
purchase price for the Primary Shares or the Option Shares, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations;
Registration.
Certificates for the Primary Shares and the Option Shares, if any, shall
be in
such denominations and registered in such names as the Representatives may
request in writing at least three (3) full business days before the Closing
Time
or the relevant Date of
11
Delivery,
as the case may be. The certificates for the Primary Shares and the Option
Shares, if the Fund determines to issue any such certificates, will be made
available for examination and packaging by the Representatives in the City
of
New York not later than 10:00 A.M. (Eastern time) on the business day prior
to
the Closing Time or the relevant Date of Delivery, as the case may be. The
Primary Shares and the Option Shares to be purchased hereunder shall be
delivered to you at the Closing Time or the relevant Date of Delivery, as
the
case may be, through the facilities of the Depository Trust Company or another
mutually agreeable facility, against payment of the purchase price therefor
in
immediately available funds to the order of the Fund.
Section
3. Covenants.
(a) The
Fund
and Adviser covenant with each Underwriter as follows:
(i) Compliance
With Securities Regulations and Commission Requests.
The
Fund, subject to Section 3(a)(ii), will comply with the requirements of
Rule 430A or Rule 430C, as applicable, and will notify the Representatives
as
soon as practicable, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have
been
filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (or
any
document incorporated by reference therein) or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the
qualification of the Shares for offering or sale in any jurisdiction, or
of the
initiation or threatening of any proceedings for any of such purposes or
of any
examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement, and (v) if the Fund becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering
of the Shares. The Fund will promptly effect the necessary post-effective
amendment and the filings required pursuant to Rule 497 and will take such
steps
as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 497 was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus.
The
Fund will make every reasonable effort to prevent the issuance of any stop
order, or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act, and, if any such stop order or order of
suspension or revocation of registration is issued, to obtain the lifting
thereof at the earliest possible moment.
(ii) Filing
of Amendments and Exchange Act Documents.
The
Fund will give the Representatives notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the
Prospectus, and will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as
the case may be, and will not file or use any such documents to which the
Representatives or counsel for the Underwriters shall reasonably object.
The
Fund has given the Representatives notice of any filings made pursuant to
the
1934 Act or the rules and regulations of the Commission under the 1934 Act
(the
“1934 ACT REGULATIONS”) within 48 hours prior to the Applicable Time; the Fund
will give the Representatives notice of its intention to make any such filing
from the Applicable Time to the Closing Time and will furnish the
Representatives with copies of any such documents a reasonable amount of
time
prior to such proposed filing, or as the case may be, and will not file or
use
any such document to which the Representatives or counsel for the Underwriters
shall object; provided, however that this covenant shall not apply to any
post-
12
effective
amendment required by Rule 8b-16 of the 1940 Act which is filed with the
Commission after the later of (x) one year from the date of this Agreement
or (y) the date on which the distribution of the Shares is
completed.
(iii) Delivery
of Registration Statements.
The
Fund has furnished or will deliver to the Representatives and counsel for
the
Underwriters, without charge, signed copies of the Registration Statement
as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment (except any post-effective amendment required by Rule 8b-16 of
the
1940 Act which is filed with the Commission after the later of (x) one year
from the date of this Agreement or (y) the date on which the distribution
of the Shares is completed) thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(iv) Delivery
of Prospectuses.
The
Fund has delivered to each Underwriter, without charge, as many copies of
each
preliminary prospectus as such Underwriter reasonably requested, and the
Fund
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Fund will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the
1934 Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments
or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(v) Continued
Compliance With Securities Laws.
If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares, any event shall occur or condition shall
exist as a result of which it is necessary, in the reasonable opinion of
counsel
for the Underwriters or for the Fund, to amend the Registration Statement
or
amend or supplement the Prospectus in order that the Prospectus will not
include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light
of
the circumstances existing at the time it is delivered to a purchaser, or
if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order
to
comply with the requirements of the 1933 Act or the Rules and Regulations,
the
Fund will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement
or the
Prospectus comply with such requirements, and the Fund will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request. If at any time following issuance of
a Rule
482 Statement, there occurred or occurs an event or development as a result
of
which such Rule 482 Statement conflicted with or would conflict with the
information contained in the Registration Statement (or any other registration
statement relating to the Shares) or the Statutory Prospectus or any preliminary
prospectus, or such Rule 482 Statement included or would include an untrue
statement of a material fact or omitted or would omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances, prevailing at the subsequent time, not misleading, the Fund
will
promptly notify the Representatives and will promptly amend or
13
supplement,
at its own expense, such Rule 482 Statement to eliminate or correct such
conflict, untrue statement or omission.
(vi) Blue
Sky Qualifications.
The
Fund will use its best efforts, in cooperation with the Underwriters, to
qualify
the Shares for offering and sale under the applicable securities laws of
such
states and other jurisdictions of the United States as the Representatives
may
designate and to maintain such qualifications in effect so long as required
for
the distribution of the Shares; provided, however, that the foregoing shall
not
apply to the extent that the Shares are “covered securities” that are exempt
from state regulation of securities offerings pursuant to Section 18 of the
1933 Act; and provided, further, that the Fund shall not be obligated to
file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(vii) Rule
158.
The
Fund will timely file such reports pursuant to the 1934 Act as are necessary
in
order to make generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(viii) Use
of Proceeds.
The
Fund will use the net proceeds received by it from the sale of the Shares
in the
manner specified in the General Disclosure Package and the Prospectus under
“Use
of Proceeds.”
(ix) Listing.
The
Fund will use its best efforts to effect the listing of the Shares on the
NYSE,
subject to notice of issuance.
(x) Restriction
on Sale of Shares.
During
a period of 90 days from the date of the Prospectus, the Fund will not, without
the prior written consent of ______________, (A) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase or otherwise transfer or dispose of Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or file
any
registration statement under the 1933 Act with respect to any of the foregoing
or (B) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Shares, whether any such swap or transaction
described in clause (A) or (B) above is to be settled by delivery of Common
Shares or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the Shares to be sold hereunder or the Common Shares issued
pursuant to any dividend reinvestment plan.
(xi) Reporting
Requirements.
The
Fund, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, will file all documents required to be filed
with
the Commission pursuant to the 1940 Act and the 1934 Act within the time
periods
required by the 1940 Act and the Rules and Regulations and the 1934 Act and
the
rules and regulations of the Commission thereunder, respectively.
(xii) No
Manipulation of Market for Shares.
Except
for the authorization of actions permitted to be taken by the Underwriters
as
contemplated herein, in the General Disclosure Package or in the Prospectus,
the
Fund will not (a) take, directly or indirectly, any action designed to
cause or to result in, or that might reasonably be expected to constitute,
the
stabilization or manipulation of the price of any security of the Fund to
facilitate the sale or resale of the Shares in violation of federal or state
securities laws, and (b) until the Closing Time, or the Date of Delivery,
if any, (i) except for Share repurchases permitted in accordance with
applicable
14
laws
and
issuances of Shares or purchases of Shares in the open market pursuant to
the
Fund’s dividend reinvestment plan, sell, bid for or purchase the Shares or pay
any person any compensation for soliciting purchases of the Shares or
(ii) pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Fund.
(xiii) Rule
462(b) Registration Statement.
If the
Fund elects to rely upon Rule 462(b), the Fund shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by
10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the
Fund
shall at the time of filing either pay to the Commission the filing fee for
the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(xiv) Sales
Materials.
The
Fund represents and agrees that, unless it obtains the prior consent of the
Representatives, it will not use any Sales Materials in connection with any
public offering of any Shares.
Section
4. Payment
of Expenses.
(a) Expenses.
The
Fund will pay all expenses incident to the performance of its obligations
under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any agreement
among
Underwriters and such other documents as may be required in connection with
the
offering, purchase, sale, issuance or delivery of the Shares, (iii) the
preparation, issuance and delivery of the certificates for the Shares 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 Shares to the
Underwriters, (iv) the fees and disbursements of the Fund’s counsel,
accountants and other advisers, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Rule 482 Statement
and of the Prospectus and any amendments or supplements thereto and any costs
associated with electronic delivery of any of the foregoing by the Underwriters
to investors, (vi) the fees and expenses of any transfer agent or registrar
for the Shares, (vii) the filing fees incident to, and the reasonable fees
and disbursements of counsel to the Underwriters in connection with, the
review
by the NASD of the terms of the sale of the Shares, (viii) the fees and
expenses incurred in connection with the listing of the Shares on the NYSE,
(ix) the printing of any Sales Material and (x) the fees and expenses
(including, without limitation, any damages or other amounts payable in
connection with legal or contractual liability) associated with the reforming
of
any contracts for sale of the Shares made by the Underwriters caused by a
breach
of the representation contained in the third paragraph of Section 1(a)(i)
hereof.
(b) Termination
of Agreement.
If this
Agreement is terminated by the Representatives in accordance with the provisions
of Section 5 or Section 9(a)(i) hereof, the Fund or the Adviser shall
reimburse, or arrange for an affiliate to reimburse, the Underwriters for
all of
their out of pocket expenses, including reasonable fees and disbursements
of
counsel for the Underwriters. If this Agreement is terminated for any reason
other than by the Representatives in accordance with the provisions of
Section 5 or Section 9(a)(i) hereof, the Fund or the Adviser shall
reimburse, or arrange for an affiliate to reimburse, the Underwriters for
all of
their out of pocket expenses, including reasonable fees and disbursements
of
counsel for the Underwriters up to a maximum reimbursement of
$________.
Section
5. Conditions
of Underwriters’ Obligations.
The
obligations of the several Underwriters hereunder are subject to the accuracy
of
the representations and warranties of the Fund and the Adviser contained
in
Section 1 hereof or in certificates of any officer of the Fund or the
Adviser delivered pursuant to the provisions hereof, to the performance by
the
Fund and the Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
15
(a) Effectiveness
of Registration Statement.
The
Registration Statement, including any Rule 462(b) Registration Statement,
has
become effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act,
no
notice or order pursuant to Section 8(e) of the 1940 Act shall have been
issued, and no proceedings with respect to either shall have been initiated
or,
to the Fund’s knowledge, threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied
with
to the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 497 (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with
the
requirements of Rule 430A).
(b) Opinions
of Counsel.
(i) Opinion
of Counsel for the Fund and the Adviser.
At
Closing Time, the Representatives shall have received the favorable opinions,
dated as of Closing Time, from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel
for
the Fund and Advisor and Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C.,
special counsel for the Fund, together with signed and reproduced copies
of such
letters for each of the other Underwriters, which opinions shall be
substantially similar to those opinions delivered on February 27, 2004, in
connection with the initial public offering of the Fund, and to such further
effect as counsel to the Underwriters may reasonably request. As to matters
of
Maryland law, Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C. may rely on the
opinion of ▇▇▇▇▇▇▇ LLP.
(ii) Opinion
of Counsel for the Underwriters.
At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, from ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
together with signed and reproduced copies of such letters for each of the
other
Underwriters, which opinion shall be in form and substance satisfactory to
the
Representatives.
(c) Officers’
Certificates.
At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Fund, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of a
duly
authorized officer of the Fund and of the chief financial or chief accounting
officer of the Fund and of the President or a Vice President or Managing
Director of the Adviser, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Sections 1(a) and (b) hereof are
true and correct with the same force and effect as though expressly made
at and
as of Closing Time, (iii) the Fund or the Adviser, as applicable, has
complied with all agreements and satisfied all conditions on its part to
be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement, or order of
suspension or revocation of registration pursuant to Section 8(e) of the
1940 Act, has been issued and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Fund or the Adviser,
contemplated by the Commission.
(d) Accountant’s
Comfort Letter.
At the
time of the execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP (“E&Y”) a letter dated such date, in form
and substance satisfactory to the Representatives, containing statements
and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
16
(e) Bring-Down
Comfort Letter.
At
Closing Time, the Representatives shall have received from E&Y a letter,
dated as of Closing Time, to the effect that they reaffirm the statements
made
in the letter furnished pursuant to subsection (d) of this Section, except
that
the specified date referred to shall be a date not more than three (3) business
days prior to Closing Time.
(f) Approval
of Listing.
At
Closing Time, the Shares shall have been approved for listing on the NYSE,
subject only to official notice of issuance.
(g) No
Objection.
[INTENTIONALLY RESERVED].
(h) Conditions
to Purchase of Option Shares.
In the
event that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Shares, the representations
and warranties of the Fund contained herein and the statements in any
certificates furnished by the Fund hereunder shall be true and correct as
of
each Date of Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(i) Officers’
Certificates.
Certificates, dated such Date of Delivery, of a duly authorized officer of
the
Fund and of the chief financial or chief accounting officer of the Fund and
of
the President or a Vice President or Managing Director of the Adviser confirming
that the information contained in the certificate delivered by each of them
at
the Closing Time pursuant to Section 5(c) hereof remains true and correct
as of such Date of Delivery.
(ii) Opinions
of Counsel.
a) Opinions
of Counsel for the Fund and the Adviser.
The
favorable opinions of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the
Fund
and the Adviser and Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., special
counsel for the Fund, dated such Date of Delivery, relating to the Option
Shares
to be purchased on such Date of Delivery and otherwise to the same effect
as the
opinion required by Section 5(b)(i) hereof, including reliance by Vedder,
Price, ▇▇▇▇▇▇▇ & Kammholz, P.C. on ▇▇▇▇▇▇▇ LLP as to matters of
Maryland law.
b) Opinion
of Counsel for the Underwriters.
The
favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated
such
Date of Delivery, relating to the Option Shares to be purchased on such Date
of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b)(ii) hereof.
(iii) Bring-Down
Comfort Letter.
A
letter from E&Y, in form and substance satisfactory to the Representatives
and dated such Date of Delivery, substantially in the same form and substance
as
the letter furnished to the Representatives pursuant to Section 5(e)
hereof, except that the “specified date” in the letter furnished pursuant to
this paragraph shall be a date not more than five (5) days prior to such
Date of
Delivery.
(i) Maintenance
of Rating.
Since
the execution of this Agreement, there shall not have been any decrease in
the
rating of any of the Fund’s securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇)
or any notice given of any intended or potential decrease in any such rating
or
of a possible change in any such rating that does not indicate the direction
of
the possible change.
(j) Additional
Documents.
At
Closing Time and at each Date of Delivery, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of
the Shares as herein
17
contemplated,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions herein contained;
and
all proceedings taken by the Fund and the Adviser in connection with the
organization and registration of the Fund under the 1940 Act and the issuance
and sale of the Shares as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(k) Termination
of Agreement.
If any
condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement, or, in the case of any condition
to
the purchase of Option Shares, on a Date of Delivery which is after the Closing
Time, the obligations of the several Underwriters to purchase the relevant
Option Shares, may be terminated by the Representatives by notice to the
Fund at
any time at or prior to Closing Time or such Date of Delivery, as the case
may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6,
7, 8 and 13 shall survive any such termination and remain in full force and
effect.
Section
6. Indemnification.
(a) Indemnification
of Underwriters.
The
Fund and the Adviser agree, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, and any director, officer, employee or affiliate thereof as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make
the statements therein not misleading or arising out of any untrue statement
or
alleged untrue statement of a material fact included in any preliminary
prospectus, any Rule 482 Statement or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(e) below) any such settlement is effected with the
written consent of the Fund; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by ______________), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, to the extent
that
any such expense is not paid under (i) or (ii) above; provided, however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission
or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Fund or the Adviser by any Underwriter
through ______________ expressly for use in the Registration Statement (or
any
amendment thereto), including the Rule 430A Information, or any preliminary
prospectus, any Rule 482 Statement or the Prospectus (or any amendment or
supplement thereto).
18
(b) Indemnification
of Fund, Adviser, Directors and Officers.
Each
Underwriter severally agrees to indemnify and hold harmless the Fund and
the
Adviser, their respective directors, each of the Fund’s officers who signed the
Registration Statement, and each person, if any, who controls the Fund or
the
Adviser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Fund
or the Adviser by such Underwriter through ______________ expressly for use
in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Indemnification
for Marketing Materials.
In
addition to the foregoing indemnification, the Fund and the Adviser also
agree,
jointly and severally, to indemnify and hold harmless each Underwriter and
each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 6(a), as limited by the proviso set forth therein,
with respect to any Sales Material in the form approved by the Fund, the
Adviser
and the Representatives for use by the Underwriters and securities firms
to whom
the Fund or the Adviser shall have disseminated materials in connection with
the
public offering of the Shares.
(d) Actions
Against Parties; Notification.
Each
indemnified party shall give notice as promptly as reasonably practicable
to
each indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any
event
shall not relieve it from any liability which it may have otherwise than
on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected
by ______________, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by
the Fund and the Adviser. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel
to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or
any claim whatsoever in respect of which indemnification or contribution
could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf
of
any indemnified party.
(e) Settlement
Without Consent if Failure to Reimburse.
If at
any time an indemnified party shall have requested an indemnifying party
to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
19
indemnifying
party shall have received notice of the terms of such settlement at least
30
days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(f) Limitations
on Indemnification.
Any
indemnification by the Fund shall be subject to the requirements and limitations
of Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section
7. Contribution.
If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of
such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Adviser on the one hand and
the
Underwriters on the other hand from the offering of the Shares pursuant to
this
Agreement or (ii) if the allocation provided by clause (i) 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 Fund and the Adviser on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative benefits received by the Fund and the Adviser on the one hand and
the
Underwriters on the other hand in connection with the offering of the Shares
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Fund and the
total
underwriting discount received by the Underwriters (whether from the Fund
or
otherwise), in each case as set forth on the cover of the Prospectus, bear
to
the aggregate public offering price of the Shares as set forth on such
cover.
The
relative fault of the Fund and the Adviser on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Adviser or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
The
Fund,
the Adviser and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or
any
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which
the Shares underwritten by it and distributed to the public were offered
to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement
or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
20
For
purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Fund and each director of the
Adviser, respectively, each officer of the Fund who signed the Registration
Statement, and each person, if any, who controls the Fund or the Adviser,
within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Fund and the Adviser,
respectively. The Underwriters’ respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Primary Shares
set forth opposite their respective names in Schedule A hereto and not
joint.
Any
contribution by the Fund shall be subject to the requirements and limitations
of
Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section
8. Representations
and Warranties To Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or
in
certificates of officers of the Fund or the Adviser submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person,
or
by or on behalf of the Fund or the Adviser, and shall survive delivery of
the
Shares to the Underwriters.
Section
9. Termination
of Agreement.
(a) Termination;
General.
The
Representatives may terminate this Agreement, by notice to the Fund, at any
time
at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or General Disclosure Package, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund or the Adviser,
whether or not arising in the ordinary course of business, or (ii) if there
has occurred any material adverse change in the financial markets in the
United
States or the international financial markets, any material outbreak of
hostilities or material escalation thereof or other calamity or crisis or
any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Shares or to enforce contracts
for
the sale of the Shares, or (iii) if trading in the Common Shares of the
Fund has been suspended or materially limited by the Commission or the NYSE,
or
if trading generally on the American Stock Exchange or in the NASDAQ National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required,
by
any of said exchanges or by such system or by order of the Commission, the
NASD
or any other governmental authority, or a material disruption has occurred
in
commercial banking or securities settlement or clearance services in the
United
States, or (iv) if a banking moratorium has been declared by either Federal
or Kansas authorities.
(b) Liabilities.
If this
Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13
shall survive such termination and remain in full force and effect.
Section
10. Default
by One or More of the Underwriters.
If one
or more of the Underwriters shall fail at Closing Time or any Date of Delivery
to purchase the Shares which it or they are obligated to purchase under this
Agreement (the “DEFAULTED SHARES”), the Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all,
but not
less than all, of the Defaulted
21
Shares
in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if
the
number of Defaulted Shares does not exceed 10% of the number of Shares to
be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the
proportions that their respective underwriting obligations hereunder bear
to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if
the
number of Defaulted Shares exceeds 10% of the number of Shares to be purchased
on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase
and of the Fund to sell the Option Shares to be purchased and sold on such
Date
of Delivery, shall terminate without liability on the part of any non-defaulting
Underwriter.
No
action
taken pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In
the
event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing
Time,
which does not result in a termination of the obligation of the Underwriters
to
purchase and the Fund to sell the relevant Option Shares, as the case may
be,
either the Representatives or the Fund shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven (7) days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section 10.
Section
11. Notices.
All
notices and other communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o _______________________________, attention of
__________________, Managing Director; and notices to the Fund or the Adviser
shall be directed, as appropriate, to the office of the Adviser, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention of Management
Committee.
Section
12. No
Advisory or Fiduciary Relationship.
The
Fund acknowledges and agrees that (a) the purchase and sale of the Shares
pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Fund, on the one hand, and the
several Underwriters, on the other hand, (b) in connection with the
offering contemplated hereby and the process leading to such transaction
each
Underwriter is and has been acting solely as a principal and is not the agent
or
fiduciary of the Fund, or any of its stockholders, creditors or employees
or any
other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Fund with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Fund on other matters)
and
no Underwriter has any obligation to the Fund with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ
from
those of the Fund, and (e) the Underwriters have not provided legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Fund has consulted its own respective legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
22
Section
13. Parties.
This
Agreement shall each inure to the benefit of and be binding upon the
Underwriters, the Fund, the Adviser and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended
or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Adviser and their respective successors and the
controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Fund, the
Adviser and their respective partners and successors, and said controlling
persons and officers, directors and their heirs and legal representatives,
and
for the benefit of no other person, firm or corporation. No purchaser of
Shares
from any Underwriter shall be deemed to be a successor by reason merely of
such
purchase.
Section
14. Governing
Law and Time.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER
TO
CENTRAL STANDARD TIME.
Section
15. Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
23
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us a counterpart hereof, whereupon this instrument, along with
all
counterparts, will become a binding agreement among the Underwriters, the
Fund
and the Adviser in accordance with its terms.
| Very truly yours, | ||
|
|
||
| By: |
| Name: | ||
| Title: |
|
TORTOISE
CAPITAL ADVISORS, LLC
|
||
| By: |
| Name: | ||
| Title: |
| CONFIRMED
AND ACCEPTED,
as
of the date first above written:
______________________________________________
|
|
|
| By: |
|
|
______________________________________________
|
|
|
| By: |
|
Each
for
itself and collectively as Representatives
of the other
Underwriters
named in Schedule A
hereto.
24
SCHEDULE A
|
Name
of Underwriter
|
Number
of Primary Shares
|
|
|
|
|
TOTAL
|
|
25
SCHEDULE B
__________
Common Shares
1 The
public offering price per share for the Shares, determined as provided in
said
Section 2, shall be $______.
2 The
purchase price per share for the Shares to be paid by the several Underwriters
shall be $______, being an amount equal to the public offering price set
forth
above less $____ per share; provided that the purchase price per share for
any
Option Shares purchased upon the exercise of the over-allotment option described
in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Fund and payable on the Primary
Shares but not payable on the Option Shares.
26
SCHEDULE C
Price
Per
Share = $_____
27
SCHEDULE D
The
Investor Guide dated __________ ____ entitled “Add-On Offering of Common
Stock (NYSE: TYG)”
28