EXHIBIT H
MONEY MARKET CUMULATIVE PREFERRED (MMP(R)) SHARES
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
UNDERWRITING AGREEMENT
AUGUST __, 2004
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the
"Company"), proposes to, subject to the terms and conditions stated herein,
issue and sell to ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated (each an "Underwriter" and, together the "Underwriters") [_____]
shares of its Money Market Cumulative Preferred (MMP(R)) Shares, $25,000
liquidation preference per share (the "MMP Shares"). The Company and the
Company's investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited
liability company (the "Investment Adviser"), each wishes to confirm its
agreement concerning the purchase of the MMP Shares from the Company by the
Underwriters.
The Company has entered into an Investment Advisory Agreement with the
Investment Adviser dated December 12, 2003 (the "Advisory Agreement"); a Custody
Agreement with U.S. Bank National Association, dated December 12, 2003 ("Custody
Agreement"); a Stock Transfer Agency Agreement with Computershare Investor
Services, LLC, dated December 12, 2003 ("Transfer Agency Agreement"); a Fund
Administration Servicing Agreement with U.S. Bancorp Fund Services, LLC, dated
December 12, 2003 ("Administration Agreement"); a Fund Accounting Servicing
Agreement with U.S. Bancorp Fund Services, LLC, dated December 12, 2003
("Accounting Agreement"); and an Auction Agency Agreement, including the form of
Broker-Dealer Agreement, with The Bank of New York, dated July 13, 2004 (the
"Auction Agreement"). Collectively, the Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement, the Administration Agreement, the
Accounting Agreement and the Auction Agreement are referred to herein as the
"Company Agreements." This Underwriting Agreement is herein referred to as the
"Agreement."
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Section 1. Representations, Warranties and Agreements of the Company
and the Investment Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A registration statement on Form N-2 (File Nos. 333-114808
and 811-21462), as amended by Pre-Effective Amendment No. 1 with
respect to the MMP Shares, has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the United
States Securities and Exchange Commission (the "Commission")
promulgated under the Securities Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations,"
and, together with the 1933 Act Rules and Regulations, the "Rules and
Regulations"), (ii) been filed with the Commission under the Securities
Act and the 1940 Act and (iii) become effective under the Securities
Act. If any post-effective amendment to such registration statement has
been filed with the Commission prior to execution and delivery of this
Agreement, the most recent such amendment has become effective under
the Securities Act. Copies of such registration statement and each of
the amendments thereto have been delivered by the Company to you. As
used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, has become effective under the Securities
Act; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus and related statement of
additional information included in such registration statement, or
amendments thereof, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company with the
Underwriters' consent pursuant to Rule 497(a) of the 1933 Act Rules and
Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
contained in the final prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497
of the 1933 Act Rules and Regulations and deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule 430A
of the Rules and Regulations; and "Prospectus" means the prospectus and
the statement of additional information filed with the Commission
pursuant to Rule 497(h) of the Securities Act. If the Company has filed
a registration statement to register additional MMP Shares pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus.
(b) The Company is duly registered under the 1940 Act as a
closed-end, non-diversified, management investment company. A
notification of registration of the Company as an investment company
under the 1940 Act on Form N-8A (the "1940 Act Notification") has been
prepared by the Company in conformity with the 1940 Act and has been
filed with the Commission and, at the time of filing thereof and at the
time 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
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the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement (or any amendment or supplement to either of
them).
(c) To the knowledge of the Company and the Investment
Adviser, no person is serving or acting as an officer, director or
investment adviser of the Company except in accordance with the
provisions of the 1940 Act and the 1940 Act Rules and Regulations and
the Investment Advisers Act of 1940, as amended (the "Investment
Adviser's Act") and the rules and regulations adopted by the Commission
under the Investment Adviser's Act (the "Investment Adviser's Act Rules
and Regulations").
(d) The Registration Statement and the 1940 Act Notification
conform, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, conform
in all respects to the requirements of the Securities Act, the 1940 Act
and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and the 1940 Act Notification and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein 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 - (unaudited)." 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 MMP Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and
delivered
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against payment therefor in accordance with this Agreement, will be
validly issued, fully paid and non-assessable; and the MMP Shares will
conform in all material respects to the description thereof contained
in the Registration Statement and the Prospectus (and any amendment or
supplement to either) and will be free and clear of all liens,
encumbrances, equities, preemptive rights, subscription rights, or any
other claim of any third party.
(h) This Agreement and each of the Company Agreements have
been duly authorized, executed and delivered by the Company and
constitute valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their terms, except
as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that
the enforceability of the Company's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(i) None of the execution, delivery and performance of this
Agreement by the Company, the performance of the Company Agreements or
the consummation of the transactions contemplated hereby and thereby
(i) conflict with, result in the creation or imposition of any lien,
charge or encumbrance upon the assets of the Company under the terms or
provisions of, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, (ii) result in any violation of the provisions of the Articles
of Incorporation (the "Articles") or by-laws of the Company or (iii)
result in the violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets, except in the case of
clauses (i) and (iii), such conflicts, breaches or violations that in
the aggregate would not reasonably be expected to have a Material
Adverse Effect; and except for the registration of the MMP Shares under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1940 Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and applicable state securities laws in connection with the purchase
and distribution of the MMP Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company,
the performance of the Company Agreements 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
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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) Ernst & 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 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
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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 and auction rate senior notes of the Company, (ii)
incurred any liability or obligation, direct or contingent, other than
non-material liabilities and obligations which were incurred in the
ordinary course of business, or (iii) entered into any transaction not
in the ordinary course of business.
(t) The Company 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 Articles or
by-laws, (ii) in default, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (iii) in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise
or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except, in
the case of clauses (ii) and (iii), such defaults, events, violations
or failures that in the aggregate would not reasonably be expected to
have a Material Adverse Effect.
(v) 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
6
Securities Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the MMP Shares as
contemplated by this Agreement.
(y) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Company has not taken
and shall not take, directly or indirectly, any action designed to
cause or result in, or which constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price
of the MMP Shares to facilitate the sale or resale of the MMP Shares.
(z) All advertising, sales literature, promotional materials
or any other materials or information (including "prospectus wrappers,"
"broker kits" and any roadshow or investor presentations), whether in
oral, printed or electronic form, authorized, provided or prepared by
the Company or the Investment Adviser in connection with the offering
and sale of the MMP Shares (collectively, the "Marketing Materials")
complied and comply in all material respects with the applicable
requirements of the Securities Act, the 1933 Act Rules and Regulations
and the rules and interpretations of the National Association of
Securities Dealers, Inc. No Marketing Materials contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(aa) This Agreement and each of the Company Agreements
complies in all material respects with all applicable provisions of the
1940 Act, the 1940 Act Rules and Regulations, the Investment Adviser's
Act and the Investment Adviser's Act Rules and Regulations.
(bb) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no
director of the Company is an "interested person" (as defined in the
▇▇▇▇ ▇▇▇) of the Company or an "affiliated person" (as defined in the
▇▇▇▇ ▇▇▇) of the Underwriters.
Section 2. Representations, Warranties and Agreements of the Investment
Adviser. The Investment Adviser represents, warrants and agrees that:
(a) The Investment Adviser has been duly formed and is validly
existing as a limited liability company in good standing under the laws
of the State of 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
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or circumstances the existence of which could lead to any proceeding
which could affect adversely the registration or good standing of the
Investment Adviser with the Commission. The Investment Adviser is not
prohibited by the Investment Adviser's Act, the 1940 Act, the
Investment Adviser's Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Advisory Agreement as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) This Agreement and the Advisory Agreement have each been
duly authorized, executed and delivered by the Investment Adviser, and
constitute valid and legally binding agreements of the Investment
Adviser, enforceable against the Investment Adviser in accordance with
their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Investment Adviser's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles.
(d) None of the execution, delivery and performance of this
Agreement, the performance of the Advisory Agreement or the
consummation of the transactions contemplated hereby and thereby (i)
conflict with, result in the creation or imposition of any lien, charge
or encumbrance upon the assets of the Company under the terms or
provisions of, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Investment Adviser is a party or by which the
Investment Adviser is bound or to which any of the property or assets
of the Investment Adviser is subject, (ii) result in any violation of
the provisions of the limited liability company operating agreement or
other organizational documents of the Investment Adviser or (iii)
result in the violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Investment Adviser or any of its properties or assets, except in
the case of clauses (i) and (iii), such conflicts, breaches or
violations that in the aggregate would not reasonably be expected to
have a Material Adverse Effect; and except for the registration of the
MMP Shares under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the MMP Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, 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
8
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 and 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 and will not contain an
untrue statement of a material fact necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading.
(h) There are no legal or governmental proceedings pending to
which the Investment Adviser is a party or of which any property or
assets of the Investment Adviser is the subject which is reasonably
likely to be determined adversely to the Investment Adviser and, if
determined adversely to the Investment Adviser, would be reasonably
likely to have a Material Adverse Effect; and to the best of the
Investment Adviser's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(i) Since the date as of which information is given in the
Registration Statement and the Prospectus through the date hereof, and
except as may otherwise be disclosed in the Prospectus, there have been
no transactions entered into by the Investment Adviser which are
material to the Investment Adviser other than in the ordinary course of
its business.
(j) This Agreement and the Advisory Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Investment Adviser's Act and the
Investment Adviser's Act Rules and Regulations.
(k) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Investment Adviser has
not taken and shall not take, directly or indirectly, any action
designed to cause or result in, or which constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of the MMP Shares to facilitate the sale or resale of the
MMP Shares.
(l) The Investment Adviser is not (i) in violation of its
limited liability company operating agreement or other organizational
documents, (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan 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
9
defaults, events, violations or failures that in the aggregate would
not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Investment Adviser, nor any director, officer,
agent, employee or other person associated with or acting on behalf of
the Investment Adviser, has (i) used any funds of the Company or the
Investment Adviser for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity, (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from any funds of the Company or the
Investment Adviser, (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(n) Neither the Investment Advisor nor any employee or agent
of the Investment Adviser has made any payment of funds of the Company
or the Investment Adviser or received or retained any funds, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus or the Registration Statement which is not
so disclosed.
(o) There are no contracts, agreements or understandings
between the Investment Adviser and any person that would give rise to a
valid claim against the Company or the Underwriters for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
Section 3. Purchase of the MMP Shares by the Underwriters. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the number
of MMP Shares set forth opposite such Underwriter's name on Schedule I hereto.
The price of the MMP Shares shall be $[______] per share.
The Company shall not be obligated to deliver any of the MMP Shares on
the Delivery Date (as hereinafter defined), except upon payment for all the MMP
Shares to be purchased on the Delivery Date as provided herein.
Section 4. Offering of MMP Shares by the Underwriters. The Underwriters
propose to offer the MMP Shares for sale upon the terms and conditions set forth
in the Prospectus.
Section 5. Delivery of and Payment for the MMP Shares. Delivery of and
payment for the MMP Shares shall be made at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at 10:00 A.M., New York City time, on [__________, 2004] or at such
other date or place as shall be determined by agreement between the Underwriters
and the Company (the "Delivery Date"). On the Delivery Date, the Company shall
deliver or cause to be delivered the MMP Shares to the Underwriters through the
facilities of the Depository Trust Company
10
against payment to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriters hereunder.
Section 6. Further Agreements of the Company and the Investment
Adviser. The Company and the Investment Adviser covenant and agree that:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to become effective under the Securities Act before
the offering of the MMP Shares may commence, to use its reasonable best
efforts to cause the Registration Statement or such post-effective
amendment to become effective under the Securities Act as soon as
possible; if the Registration Statement has become effective and the
Prospectus contained therein omits certain information at the time of
effectiveness pursuant to Rule 430A of the 1933 Act Rules and
Regulations, to file a Prospectus with the Commission pursuant to Rule
497(h) of the 1933 Act Rules and Regulations as promptly as possible,
not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; if
the Registration Statement does not so omit such information, the
Company will file a Prospectus pursuant to Rule 497(c) or (h) of the
1933 Act Rules and Regulations as promptly as possible, not later than
the fifth business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein;
to advise the Underwriters, promptly after it receives notice thereof,
of the time when the Registration Statement or any amendment thereto
has been filed or becomes effective or any supplement to the Prospectus
or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the MMP Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To deliver promptly to the Underwriters such number of the
following documents as it shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits)
and (ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the
offering or sale of the MMP Shares or any other securities relating
thereto and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
11
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Underwriters and, upon their request,
to file such document and to prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance;
(c) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Underwriters, be required by the Securities Act or requested by the
Commission;
(d) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations,
to furnish a copy thereof to the Underwriters and their counsel and
obtain the consent of the Underwriters to the filing, which consent
shall not be unreasonably withheld;
(e) To make generally available to the Company's security
holders and to deliver to the Underwriters an earnings statement of the
Company (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158) covering a twelve-month period commencing
after the Effective Date and ending not later than 15 months
thereafter;
(f) For a period of three years following the Effective Date,
to furnish to the Underwriters, to the extent such information is not
freely available on the Internet, copies of all materials furnished by
the Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(g) Promptly from time to time, to take such action as the
Underwriters may reasonably request to qualify the MMP Shares for
offering and sale under the securities laws of such jurisdictions as
the Underwriters may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the MMP Shares; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(h) For a period of 180 days from the date of the Prospectus,
not to, without the prior written consent of the Underwriters, directly
or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device which is designed to, or could
be expected to, result in the disposition by any person at any time in
the future of) any MMP Shares or securities convertible into or
exchangeable for MMP Shares, or sell or grant options, rights or
warrants with respect to any MMP Shares or
12
securities convertible into or exchangeable for MMP Shares, or (2)
enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of such MMP Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of MMP Shares or
other securities, in cash or otherwise; and
(i) To apply the net proceeds from the sale of the MMP Shares
in a manner consistent with the investment objectives, policies and
restrictions of the Company as set forth in the Prospectus.
Section 7. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the MMP Shares and any
taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act and the 1940 Act of
the Registration Statement, the Prospectus, and the 1940 Act Notification and
any amendments or supplements and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement, and any other related documents in
connection with the offering, purchase, sale and delivery of the MMP Shares; (e)
the preparation, issuance and delivery of the certificates for the MMP Shares,
if any, to the Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the MMP
Shares to the Underwriters, (f) any applicable listing or other fees including
the fees paid to the rating agencies in connection with the rating of the MMP
Shares; (g) the fees and expenses of qualifying the MMP Shares under the
securities laws of the several jurisdictions as provided in Section 6(g) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) all costs and reasonable
expenses of the Underwriters, other than the fees and disbursements of counsel;
(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
13
of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Auction
Agreement, the MMP Shares, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the
Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(c) The Company shall have furnished to the Underwriters, in
form and substance reasonably satisfactory to the Underwriters, the
written opinion of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., dated the
Delivery Date, to the effect of paragraphs (i) through (xviii) below:
(i) The Company is a corporation duly incorporated
and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the Department of
Assessments and Taxation of Maryland;
(ii) The Company has the corporate power to own,
lease and operate its property or assets and to conduct its
business in all material respects as described in the
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". The MMP Shares being delivered on the Delivery Date to
the Underwriters hereunder have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non
assessable;
(iv) The MMP Shares conform in all material respects
to the statements concerning them contained in the Prospectus
and there are no restrictions upon the voting or transfer of
any of the MMP Shares pursuant to the Company's Articles or
by-laws or any Material Contract (as defined below); except
for the restrictions on transfer on the MMP Shares contained
in the Auction Agreement;
(v) To such counsel's knowledge, the Company is not
(i) in violation of its Articles or by-laws, (ii) in default,
and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement listed on Schedule I to such
counsel's opinion (each a "Material Contract") or (iii) in
violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be
subject or has failed to obtain any
14
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 Company is a
party or of which any property or assets of the Company is the
subject which is reasonably likely to be determined adversely
to the Company and, if determined adversely to the Company,
would be reasonably likely to have a Material Adverse Effect;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) The Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus was filed with the
Commission pursuant to Rule 497 of the 1933 Act Rules and
Regulations on the date specified in such opinion and no stop
order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(viii) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by the
Company prior to the Delivery Date (except for the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act,
the 1940 Act and the Rules and Regulations;
(ix) The statements contained in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto through the date of the opinion) under the captions
"The Auction" "Description of Money Market Cumulative
Preferred Shares" "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 Company's Articles and by-laws,
contracts, agreements or other legal documents referred to
therein, tax laws, legal conclusions, doctrines or practices
of the United States, constitute accurate summaries of the
terms of such documents, laws, legal conclusions, doctrines or
practices in all material respects;
(x) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Registration Statement and the Prospectus or
filed as exhibits to the Registration Statement by the
Securities Act, the 1940 Act or by the Rules and Regulations
which have not been
15
described in the Registration Statement and the Prospectus or
filed as exhibits to the Registration Statement;
(xi) This Agreement and each of the Company
Agreements has been duly authorized, executed and so far as
known to such counsel, delivered by the Company and each of
the Company Agreements constitute the valid and legally
binding agreements of the Company, and are enforceable against
the Company in accordance with their terms, except as rights
to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the
qualification that the enforceability of the Company's
obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles;
(xii) None of the issue and sale of the MMP Shares
being delivered on the Delivery Date by the Company pursuant
to this Agreement, the execution, delivery and performance by
the Company of this Agreement, the performance by the Company
of each of the Company Agreements or the consummation of the
transactions contemplated hereby and thereby (i) 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 Material
Contract, (ii) result in any violation of the provisions of
the Articles or by-laws of the Company or (iii) result in the
violation of any Maryland or Federal law or regulation or any
order of any Maryland or Federal governmental authority known
to such counsel, except in the case of clauses (i) and (iii),
such breaches or violations that in the aggregate would not
reasonably be expected to have a Material Adverse Effect; and,
except for the registration of the MMP Shares under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the MMP
Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such governmental authority is required for the execution,
delivery and performance of this Agreement, the performance of
the Company Agreements by the Company or the consummation of
the transactions contemplated hereby, except for such
consents, approvals, authorizations, orders, filings or
registrations as have been obtained or made;
(xiii) 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;
(xiv) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement; and
16
(xv) The Company is duly registered under the 1940
Act as a closed-end, non-diversified, management investment
company and the 1940 Act Notification has been duly filed with
the Commission, and, at the time of filing thereof and at the
time of filing any amendment or supplement thereto, complied
as to form in all material respects with all applicable
provisions of the 1940 Act and the 1940 Act Rules and
Regulations and, to the best of such counsel's knowledge after
reasonable inquiry, the Company has not received any notice
from the Commission pursuant to Section 8(e) of the 1940 Act
with respect to the 1940 Act Notification or the Registration
Statement (or any amendment or supplement to either of them).
In rendering such opinions, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States of
America and the laws of the State of Maryland. To the extent such counsel deems
proper and to the extent specified in such opinion, such counsel may rely, as to
matters involving the application of laws of the State of Maryland upon the
opinion of ▇▇▇▇▇▇▇ LLP or other counsel of good standing whom such counsel
believes to be reliable and who are satisfactory to the Underwriters; provided
that (x) such reliance is expressly authorized by the opinion so relied upon and
a copy of each such opinion is delivered to the Underwriters and is, in form and
substance, satisfactory to the Underwriters and their counsel and (y) such
counsel states in their opinion that they believe that they and the Underwriters
are justified in relying thereon.
Such counsel shall also state that it has participated in conferences
with officers and employees of the Company and the 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 VIII and IX hereof and have made no
independent check or verification thereof, on the basis of the foregoing, no
facts have come to such counsel's attention that would have led such counsel to
believe that (a) the Registration Statement (except the financial statements and
other financial and statistical data contained therein, as to which such counsel
expresses no opinion), 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
17
Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Investment Adviser has been duly 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);
(ii) The Investment Adviser is duly registered as an
investment adviser under the Investment Adviser's Act and is
not prohibited by the Investment Adviser's Act, the 1940 Act,
the Investment Adviser's Act Rules and Regulations or the 1940
Act Rules and Regulations from acting under the Advisory
Agreement as contemplated by the Registration Statement and
the Prospectus (or any amendment or supplement thereto);
(iii) This Agreement and the Advisory Agreement have
each been duly authorized, executed and delivered by the
Investment Adviser, and constitute the valid and legally
binding agreements of the Investment Adviser, and, with
respect to this Agreement is enforceable against the
Investment Adviser in accordance with its terms, except as
rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the
qualification that the enforceability of the Investment
Adviser's obligations hereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equitable principles;
(iv) None of the execution, delivery and performance
of this Agreement by the Investment Adviser, the performance
of the Advisory Agreement or the consummation of the
transactions contemplated hereby and thereby (i) conflict
with, result in the creation or imposition of any lien, charge
or encumbrance upon the assets of the Investment Adviser under
the terms or provisions of, or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to
which the Investment Adviser is a party or by which the
Investment Adviser is bound or to which any of the property or
assets of the Investment Adviser is subject, (ii) result in
any violation of the provisions of the limited liability
company operating agreement or other organizational documents
of the Investment Adviser or (iii) result in any violation of
any statute known to such counsel 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,
18
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 MMP Shares under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the MMP
Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the
performance of the Advisory Agreement or the consummation of
the transactions contemplated hereby and thereby;
(v) To such counsel's knowledge, the Investment
Adviser is not (i) in violation of its limited liability
company operating agreement or other organizational documents,
(ii) in default, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its
properties or assets is subject or (iii) in violation of any
law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (ii) and (iii),
such defaults, events, violations or failures that in the
aggregate would not reasonably be expected to have a Material
Adverse Effect;
(vi) To such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Investment
Adviser is a party or of which any property or assets of the
Investment Adviser is the subject which is reasonably likely
to be determined adversely to the Investment Adviser and, if
determined adversely to the Investment Adviser, would be
reasonably likely to have a Material Adverse Effect; and, to
such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others; and
(vii) The description of the Investment Adviser and
its business in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) 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 Kansas.
19
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, such opinion or opinions,
dated the Delivery Date, with respect to the issuance and sale of the
MMP Shares, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably require, and the
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 Ernst & Young LLP
referred to in the preceding paragraph and delivered to the
Underwriters concurrently with the execution of this Agreement (the
"Initial Letter"), the Company shall have furnished to the Underwriters
a letter (the "Bring-down Letter") of such accountants, addressed to
the Underwriters and dated the Delivery Date (i) confirming that they
are independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the initial letters and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letters.
(h) The Company shall have furnished to the Underwriters on
the Delivery Date a certificate, dated the Delivery Date, of its
Chairman of the Board of Directors, its Chief Executive Officer or
President and its Chief Financial Officer or Treasurer or an Assistant
Treasurer stating that:
(i) The representations, warranties and agreements of
the Company contained herein and in the Auction Agreement are
true and correct as of the date hereof and as of the Delivery
Date; the Company has complied with all its agreements
contained herein prior to or on the Delivery Date; and the
conditions set forth in Section 8 have been fulfilled;
20
(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 not misleading, (B) as of its date
and the Delivery Date, the Prospectus did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (C) since the
Effective Date, no event has occurred which should have been
set forth in a supplement to, or amendment of, the Prospectus
which has not been set forth in such a supplement or
amendment.
(i) The Investment Adviser shall have furnished to the
Underwriters on the Delivery Date a certificate, dated the Delivery
Date, of the Chairman of its Board of Directors, President or a Vice
President and its Chief Financial Officer, Treasurer or an Assistant
Treasurer, dated the Delivery Date, stating that:
(i) The representations, warranties and agreements of
the Investment Adviser contained herein are true and correct
as of the date hereof and as of the Delivery Date; the
Investment Adviser has complied with all its agreements
contained herein prior to or on the Delivery Date; and the
conditions set forth in Section 8 of have been fulfilled; and
(ii) They have examined the Registration Statement
and the Prospectus and, in their opinion (and in forming such
opinion each officer may rely on information provided by the
other parties to this Agreement) (A) as of the Effective Date,
the Registration Statement did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, (B) as of its date and the
Delivery Date, the Prospectus did not contain any untrue
statement of a material
21
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 MMP Shares being delivered on the Delivery Date on the terms and in
the manner contemplated in the Prospectus and in this Agreement.
(k) The Company shall have furnished to the Underwriters a
report showing compliance with the asset coverage requirements of the
1940 Act and the 1940 Act Shares Asset Coverage (as defined in the
Registration Statement), each dated the Delivery Date and in form and
substance satisfactory to the Underwriters. Each such report shall
assume the receipt of the net proceeds from the sale of the MMP Shares
and may use portfolio holdings and valuations as of the close of
business of any day not more than six business days preceding the
Delivery Date, provided, however, that the Company represents in such
report that its total net assets as of the Delivery Date have not
declined by 5% or more from such valuation date.
(l) The Company shall have delivered and the Underwriters
shall have received evidence satisfactory to it that the MMP Shares are
rated at least "AA" by ▇▇▇▇▇'▇ Investors Service, Inc. and "AA" by
Fitch, Inc., a division of the McGraw Hill Companies, as of the
Delivery Date, and subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded the MMP Shares by any "nationally recognized statistical
rating organization" as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Rules and Regulations and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the MMP Shares.
(m) Neither the Company nor the Investment Adviser shall have
failed at or prior to the Delivery Date to have performed or complied
with any of the agreements contained herein and required to be
performed or complied with by them at or prior to the Delivery Date.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the
22
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 MMP Shares being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(o) The Underwriters shall not have discovered and disclosed
to the Company on or prior to the Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the reasonable opinion
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, is material
or omits to state a fact which, in the reasonable opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(p) The Company and the Investment Adviser shall have
furnished to the Underwriters such further certificates, documents and
opinions of counsel as the Underwriters shall reasonably request
(including certificates of officers of the Company and the Investment
Adviser).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
Section 9. Indemnification and Contribution.
(a) The Company and the Investment Adviser shall jointly and
severally indemnify and hold harmless each Underwriter, its directors,
officers and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of MMP
Shares), to which such Underwriter, director, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the 1940 Act
Notification, (B) in any Preliminary
23
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 MMP Shares or the offering
contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided that neither
the Company nor the Investment Adviser shall be liable under this
clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct), and shall reimburse such
Underwriter and each such director, officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by such Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither
the Company nor the Investment Adviser shall be liable in any such case
to the extent that any such loss, claim, damage, liability or action
(i) arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or the
Investment Adviser by or on behalf of the Underwriters specifically for
inclusion therein which information consists solely of the information
specified in Section 9(e); or (ii) results solely from an untrue
statement of material fact contained in, or the omission of a material
fact from, a Preliminary Prospectus, which untrue statement or omission
was corrected in the Prospectus (as then amended or supplemented) if
(A) an Underwriter sold MMP Shares to the person alleging such loss,
claim, damage, liability or action without sending or giving, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (as then amended or supplemented), (B) within a reasonable
amount of time prior to such sale or such confirmation, the Company had
furnished to such Underwriter copies of the corrected Prospectus which,
if delivered, would have cured the defect giving rise to such loss,
claim, damage, liability or action, and (C) the Underwriter failed to
deliver such corrected Prospectus. The foregoing indemnity agreement is
in addition to any liability which the Company or the Investment
Adviser may otherwise have to any Underwriter or to any director,
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees,
each of its directors, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may
24
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 or controlling person for any legal or
other expenses reasonably incurred by the Company or any such trustee,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 9 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 9. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have
the right to employ separate counsel to represent the indemnified
party, and its respective directors, officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought under this Section 9
if, the named parties to any such action, suit or proceeding (including
any impleaded parties) include both an indemnified party (and/or its
officers, employees, directors and each person who controls the
indemnified party within the meaning of the Securities Act) and the
indemnifying party and the indemnified party shall have been advised by
its counsel that representation of both the indemnified party (and/or
its officers, employees, directors and each person who controls the
indemnified party within the meaning of the Securities Act) and the
indemnifying party would be inappropriate
25
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 MMP Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company and the
Investment Adviser (treated jointly as one person for this purpose) on
the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Investment Adviser (treated jointly as one person for this
purpose) on the one hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the MMP Shares purchased under
this Agreement (before deducting expenses) received by the Company, on
the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the MMP Shares purchased
under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the MMP Shares under this Agreement, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Investment Adviser, on one
hand, or the Underwriters, on the other hand, the intent of the parties
and their relative knowledge, access to
26
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 MMP Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The Underwriters severally confirm and the Company and the
Investment Adviser acknowledge that the statements set forth in the
last sentence on the front cover page, its name and paragraphs four and
six under the section "Underwriting," in the Prospectus are correct and
constitute the only information concerning the Underwriters furnished
in writing to the Company specifically for inclusion in the
Registration Statement and the Prospectus.
Section 10. 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 1 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 1 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
27
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 1 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 MMP Shares if, prior to that
time, any of the events described in Sections 8(j) or 8(n), shall have occurred
or if the Underwriters shall decline to purchase the MMP Shares for any reason
permitted under this Agreement.
Section 12. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the MMP Shares for delivery to the Underwriters by reason
of any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled or (b) the Underwriters decline to purchase the MMP Shares because
of a failure by the Company or the Investment Adviser to perform their
respective obligations under this Agreement, the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the MMP Shares, and upon demand the
Company shall pay the full amount thereof to the Underwriters.
Section 13. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Department
(Fax: ▇▇▇-▇▇▇-▇▇▇▇) and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Capital Markets
(Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to
Section 9(c) the Director of Litigation, Office of the General Counsel,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; and with a
copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇;
Telephone ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth
in the ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇); with a copy to
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇); and
(c) if to the Investment Adviser, shall be delivered or sent
by mail, telex or facsimile transmission to Tortoise Capital Advisors,
LLC, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ , ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇ ▇. Short, Esq. (Fax:
▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇).
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 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 on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the MMP Shares and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
Section 16. Definition of the Term "Business Day". For purposes of this
Agreement, "business day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
Section 17. Trademarks. ▇▇▇▇▇▇ Brothers Inc. hereby licenses the
Company, on a non-exclusive basis, to use its trademarks "Money Market
Cumulative Preferred" and "MMP" in connection with the MMP Shares. The Company
agrees that, other that in connection with and in reference to the MMP Shares,
it will make no use of such trademarks without the prior written consent of
▇▇▇▇▇▇ Brothers Inc.. The provisions of
29
this Section 16 shall survive the delivery of the MMP Shares and shall remain in
full force and effect.
Section 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
Section 21. Limitation of Liability. A copy of the Articles of the
Company is on file with the Secretary of State of the State of Maryland. This
Agreement has been executed on behalf of the Company by an officer of the
Company in such capacity and not individually and the obligations of the Company
under this Agreement are not binding upon such officer or any of the directors
or the shareholders of the Company individually but are binding only upon the
assets and property of the Company.
30
If the foregoing correctly sets forth the agreement among the Company,
the Investment Adviser and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
By:
-----------------------------------------------
Name:
Title:
TORTOISE CAPITAL ADVISORS LLC
By:
-----------------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------------------
Name:
Authorized Representative
31
SCHEDULE I
Number of MMP Shares
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
Total
32