TORTOISE ENERGY CAPITAL CORPORATION
(a Maryland Corporation)
____________ Shares of Common Stock
Par Value $.001 Per Share
UNDERWRITING AGREEMENT
___________, 200_
Ladies and Gentlemen:
Tortoise Energy Captial Corporation, a Maryland corporation (the "FUND"), and
the Fund's investment adviser, Tortoise Capital Advisors, LLC, a __________
limited liability company (the "ADVISER"), each confirms its agreement with
____________________ ____________________ and each of the other Underwriters
named in Schedule A hereto (collectively, the "UNDERWRITERS"), for whom
____________________ are acting as representatives (in such capacity, the
"REPRESENTATIVES"), with respect to the issue and sale by the Fund and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares of common stock, par value $.001 per share, of the
Fund ("COMMON SHARES") set forth in Schedule A hereof (collectively, the
"PRIMARY SHARES"), and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of _________ additional Common
Shares to cover over-allotments, if any (the "OPTION SHARES"). The Primary
shares and Option Shares are collectively referred to as the "SHARES." The Fund
understands that the Underwriters propose to make a public offering of the
Shares as soon as the Representatives deem advisable after this Agreement has
been executed and delivered. The Fund has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form N-2 (File Nos.
333-______ and 811-__________) covering the registration of the Shares under the
Securities Act of 1933, as amended (the "1933 ACT"), including the related
preliminary prospectus or prospectuses, and a notification on Form N-8A of
registration of the Fund as an investment company under the Investment Company
Act of 1940, as amended (the "1940 ACT"), and the rules and regulations of the
Commission under the 1933 Act and the 1940 Act (the "RULES AND REGULATIONS").
Promptly after execution and delivery of this Agreement, the Fund will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") and/or Rule 430C ("RULE 430C") and paragraph (c) or (h) of Rule
497 ("RULE 497") of the Rules and Regulations or (ii) if the Fund has elected to
rely upon Rule 434 ("RULE 434") of the Rules and Regulations, prepare and file a
term sheet (a "TERM SHEET") in accordance with the provisions of Rule 434 and
Rule 497. The information included in any such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective, if
applicable, (a) pursuant to paragraph (b) of Rule 430A is referred to as "RULE
430A INFORMATION" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"RULE 434 INFORMATION." Each prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, including in each
case any statement of additional information incorporated therein by reference,
is herein called a "PRELIMINARY PROSPECTUS." Such registration statement,
including the exhibits and schedules thereto at the time it became effective and
including the Rule 430A Information or the Rule 434 Information, as applicable,
is herein called the "REGISTRATION STATEMENT." Any registration statement filed
pursuant to Rule 462(b) of the Rules and Regulations is herein referred to as
the "RULE 462(b) REGISTRATION STATEMENT," and the term "REGISTRATION STATEMENT"
shall include any Rule 462(b) Registration Statement that shall have been filed.
The final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Shares, including the statement of
additional information incorporated therein by reference, is herein called the
"PROSPECTUS." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus
dated _________, 200_, including the statement of additional information
incorporated therein by reference, together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX"). All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement, any
preliminary prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which are incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser.
The Fund and the Adviser represent and warrant to each Underwriter as of the
date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agree
with each Underwriter, as follows:
(i) Compliance With Registration Requirements. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act, or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act, and no proceedings for any such purpose, have been
instituted or are pending or, to the knowledge of the Fund or the Adviser, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto (filed before
the Closing Time) became effective and at the Closing Time, as hereinafter
defined (and, if any Option Shares are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement, the notification
of Form N-8A and all amendments and supplements thereto complied and will comply
in all material respects with the requirements of the 1933 Act, the 1940 Act and
the Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendment or supplement thereto, at the time the Prospectus
or any such amendment or supplement was issued and at the Closing Time (and, if
any Option Shares are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If Rule 434 is
used, the Fund will comply with the requirements of Rule 434 and the Prospectus
shall not be "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Fund by or
on behalf of any Underwriter for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 497 under the 1933 Act, complied when so filed in all
material respects with the Rules and Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Shares, the Fund has complied or will comply with
the requirements of Rule 111 under the 1933 Act Regulations relating to the
payment of filing fees thereof.
(ii) Independent Accountants. The accountants who certified the
statement of assets and liabilities included in the Registration Statement have
confirmed to the Fund their status as independent public accountants as required
by the 1933 Act and the Rules and Regulations and the Fund and the Adviser have
no reason to believe that they are not independent public accountants.
(iii) Financial Statements. The statement of assets and liabilities
included in the Registration Statement and the Prospectus, together with the
related notes, presents fairly in accordance with generally accepted accounting
principles ("GAAP") in all material respects the financial position of the Fund
at the date indicated and has been prepared in conformity in all material
respects with GAAP.
(iv) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business (other than as a result of changes in market conditions generally) (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Fund, other than those in the ordinary course of business, which are
material with respect to the Fund, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class of its
capital stock.
(v) Good Standing of the Fund. The Fund has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Maryland and has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Fund is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(vi) No Subsidiaries. The Fund has no subsidiaries.
(vii) Investment Company Status. The Fund is duly registered with the
Commission under the 1940 Act as a nondiversified, closed-end management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the Fund's
knowledge, threatened by the Commission.
(viii) Officers and Directors. No person is serving or acting as an
officer, director or investment adviser of the Fund except in accordance with
the provisions of the 1940 Act and the Rules and Regulations and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and the rules and
regulations of the Commission promulgated under the Advisers Act (the "Advisers
Act Rules and Regulations"). Except as disclosed in the Registration Statement
or Prospectus, to the Fund's knowledge after due inquiry, no director of the
Fund is an "Interested Person" (as defined in the 0000 Xxx) of the Fund or an
"Affiliated Person" (as defined in the 0000 Xxx) of any Underwriter that serves
as a Representative.
(ix) Capitalization. The authorized, issued and outstanding capital
stock of the Fund is as set forth in the Prospectus as of the date thereof under
the caption "Description of Common Shares." All issued and outstanding Common
Shares of the Fund have been duly authorized and validly issued and are fully
paid and non-assessable, and have been offered and sold or exchanged by the Fund
in compliance with all applicable laws (including, without limitation, federal
and state securities laws). None of the outstanding Common Shares of the Fund
was issued in violation of the preemptive or other similar rights of any
securityholder of the Fund. No shares of preferred stock of the Fund have been
designated, offered, sold or issued and none of such shares of preferred stock
are currently outstanding, and the Fund has no present intention to do so.
(x) Authorization and Description of Shares. The Shares to be purchased
by the Underwriters from the Fund have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Fund pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued, fully paid and
non-assessable. The Common Shares conform to all statements relating thereto
contained in the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the same; and the
issuance of the Shares is not subject to the preemptive or other similar rights
of any securityholder of the Fund.
(xi) Absence of Defaults and Conflicts. The Fund is not in violation of
its charter or by-laws, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be
bound, or to which any of the property or assets of the Fund is subject
(collectively, "Agreements and Instruments") except for such violations or
defaults that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Investment Advisory Agreement,
the Custody Agreement, the Stock Transfer Agency Agreement, the Fund
Administration Servicing Agreement and the Fund Accounting Servicing Agreement
referred to in the Registration Statement (as used herein, individually the
"Investment Advisory Agreement," the "Custody Agreement" and the "Stock Transfer
Agency Agreement," the "Fund Administration Servicing Agreement," and the "Fund
Accounting Servicing Agreement," respectively and collectively the "Offering
Agreements") and the consummation of the transactions contemplated in the
Offering Agreements and in the Registration Statement (including the issuance
and sale of the Shares and the use of the proceeds from the sale of the Shares
as described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Fund with its obligations thereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Fund pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Fund or any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Fund or any of its assets, properties or
operations (except for such violations that would not result in a Material
Adverse Effect). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Fund.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Fund or
the Adviser, threatened, against or affecting the Fund, which is required to be
disclosed in the Registration Statement (other than as disclosed therein), or
which could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect the
properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of its obligations
hereunder. The aggregate of all pending legal or governmental proceedings to
which the Fund is a party or of which any of its property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits thereto by the 1933 Act, the 1940 Act or by the Rules
and Regulations which have not been so described and filed as required.
(xiv) Possession of Intellectual Property; Fund Name. The Fund owns or
possesses, or can acquire on reasonable terms, adequate licenses, copyrights,
know-how (including trade secrets or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by the Fund, and the Fund has not received any notice or
is not otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Fund therein.
(xv) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Fund of its obligations hereunder, in connection with the
offering, issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act, the 1940 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or under the rules of the New
York Stock Exchange ("NYSE") or the NASD, Inc ("NASD") or state securities laws.
(xvi) Possession of Licenses and Permits. The Fund possesses such
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to operate its properties and to
conduct the business as contemplated in the Prospectus. The Fund is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect. The Fund has not received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses.
(xvii) Advertisements. Any advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker kits," "road show
slides" and "road show scripts" and "electronic road show presentations")
authorized in writing by or prepared by the Fund or the Adviser used in
connection with the public offering of the Shares (collectively, "Sales
Material") does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading. Moreover, all Sales Material complied and will comply in all
material respects with the applicable requirements of the 1933 Act, the 1940
Act, the Rules and Regulations and the rules and interpretations of the NASD
(except that this representation and warranty does not apply to statements in or
omissions from the Sales Material made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Fund by or on behalf of
any Underwriter through you expressly for use therein).
(xviii) Subchapter M. The Fund has not made and will not make an
election under Section 851(b) of the Internal Revenue Code of 1986, as amended
(the "Code") (or any successor provisions thereto), to be treated as a regulated
investment company for federal income tax purposes.
(xix) Distribution of Offering Materials. The Fund has not distributed
and, prior to the later of (A) the Closing Time and (B) completion of the
distribution of the Shares, will not distribute any offering material to the
public in connection with the offering and sale of the Shares other than the
Registration Statement and the Prospectus.
(xx) Accounting Controls. The Fund maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or specific
authorization and with the applicable requirements of the 1940 Act, the Rules
and Regulations, the NASD and the Code; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets and to maintain compliance with the books and records requirements under
the 1940 Act and the Rules and Regulations; (C) access to assets is permitted
only in accordance with the management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxi) Absence of Undisclosed Payments. Neither the Fund nor, to the
Fund's Knowledge, any employee or agent of the Fund, has made any payment of
funds of the Fund or received or retained any funds, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus.
(xxii) Material Agreements. The Offering Agreements have each been duly
authorized by all requisite action on the part of the Fund and executed and
delivered by the Fund, as of the dates noted therein, and each complies with all
applicable provisions of the 1940 Act in all material respects. Assuming due
authorization, execution and delivery by the other parties thereto with respect
to this Agreement and the other Offering Agreements, each Offering Agreement
constitutes a valid and binding agreement of the Fund, enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing and except as rights to indemnification or contribution
thereunder may be limited by federal or state laws.
(xxiii) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Fund under the 1933 Act.
(xxiv) NYSE Listing. The Shares have been duly authorized for listing,
upon notice of issuance, on the NYSE and the Fund's registration statement on
Form 8-A under the 1934 Act has become effective.
(b) Representations and Warranties By the Adviser. The Adviser
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof as follows:
(i) Good Standing of the Adviser. The Adviser has been duly organized
and is validly existing and in good standing as a limited liability company
under the laws of the State of Delaware with full power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign entity to transact business and is
in good standing in each other jurisdiction in which such qualification is
required except as would not, individually or in the aggregate, result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospectus of such Adviser, whether or
not arising in the ordinary course of business (an "Adviser Material Adverse
Effect").
(ii) Investment Adviser Status. The Adviser is duly registered and in
good standing with the Commission as an investment adviser under the Advisers
Act, and is not prohibited by the Advisers Act, the 1940 Act, or the rules and
regulations under such acts, from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus.
(iii) Description of Adviser. The description of the Adviser in the
Registration Statement and the Prospectus (including any amendment or supplement
thereto) complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and is true and correct and does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) Capitalization. The Adviser has the financial resources available
to it necessary for the performance of its services and obligations as
contemplated in the Prospectus and in the Offering Agreements.
(v) Authorization of Offering Agreements; Absence of Defaults and
Conflicts. This Agreement and the Investment Advisory Agreement have each been
duly authorized, executed and delivered by the Adviser, and (assuming the due
authorization, execution and delivery of each other party thereto) such
Agreements each constitutes a valid and binding obligation of the Adviser,
enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law) or an implied covenant of good faith and fair dealing and
except as rights to indemnification or contribution thereunder may be limited by
federal or state laws; and neither the execution and delivery of this Agreement
or the Investment Advisory Agreement nor the performance by the Adviser of its
obligations hereunder or thereunder will conflict with, or result in a breach of
any of the terms and provisions of, or constitute, with or without the giving of
notice or lapse of time or both, a default under, (i) any agreement or
instrument to which the Adviser is a party or by which it is bound, (ii) the
limited liability company operating agreement and other organizational documents
of the Adviser, or (iii) to the Adviser's knowledge, by any law, order, decree,
rule or regulation applicable to it of any jurisdiction, court, federal or state
regulatory body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the Adviser or its
properties or operations other than any conflict, breach or default that would
not, individually or in the aggregate, reasonably be expected to result in an
Adviser Material Adverse Effect; and no consent, approval, authorization or
order of any court or governmental authority or agency is required for the
consummation by the Adviser of the transactions contemplated by this Agreement
or the Investment Advisory Agreement, except as have been obtained or will be
obtained prior to the Closing Time or may be required under the 1933 Act, the
1940 Act, the 1934 Act or state securities laws.
(vi) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not occurred any event which could reasonably be expected to have a material
adverse effect on the ability of the Adviser to perform its respective
obligations under this Agreement and the Investment Advisory Agreement.
(vii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Adviser,
threatened against or affecting the Adviser or any "affiliated person" of the
Adviser (as such term is defined in the 0000 Xxx) or any partners, directors,
officers or employees of the foregoing, whether or not arising in the ordinary
course of business, which could reasonably be expected to result in Adviser
Material Adverse Effect or, materially and adversely affect the ability of the
Adviser to function as an investment adviser with respect to the Fund or perform
its obligations under this Agreement or the Investment Advisory Agreement, or
which is required to be disclosed in the Registration Statement and the
Prospectus.
(viii) Absence of Violation or Default. The Adviser is not in violation
of its limited liability company operating agreement or other organizational
documents or in default under any agreement, indenture or instrument, except for
such violations or defaults that have not and could not result in an Adviser
Material Adverse Effect.
(c) Officer's Certificates. Any certificate signed by any
officer of the Fund or the Adviser delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Fund or the Adviser, as the case may be, to each Underwriter as to the
matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Primary Shares. On the basis of the representations,
warranties and covenants contained herein and subject to the terms and
conditions set forth herein, the Fund agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Fund, at the price per share set forth in Schedule
B, the number of Primary Shares set forth in Schedule A opposite the name of
such Underwriter, plus any additional number of Primary Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Shares. In addition, on the basis of the
representations and warranties contained herein and subject to the terms and
conditions set forth herein, the Fund hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
________________ Common Shares in the aggregate at the price per share set forth
in Schedule B, less an amount per share equal to any dividends or distributions
declared by the Fund and payable on the Primary Shares but not payable on the
Option Shares. The option hereby granted will
expire 45 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Primary Shares upon
notice by the Representatives to the Fund setting forth the number of Option
Shares as to which the several Underwriters are then exercising the option and
the time and date of payment and delivery for such Option Shares. Any such time
and date of delivery (a "DATE OF DELIVERY") shall be determined by the
Representatives, but shall not be later than seven (7) full business days and no
earlier than three (3) full business days after the exercise of said option, nor
in any event prior to the Closing Time. If the option is exercised as to all or
any portion of the Option Shares, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option Shares
then being purchased which the number of Primary Shares set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Primary
Shares, subject in each case to such adjustments as ____________________ in its
discretion shall make to eliminate any sales or purchases of a fractional number
of Option Shares plus any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Primary Shares shall be made at the offices of
______________________________ or at such other place as shall be agreed upon by
the Representatives and the Fund, at 10:00 A.M. (Eastern time) on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten (10) business
days after such date as shall be agreed upon by the Representatives and the Fund
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Shares are purchased by
the Underwriters, payment of the purchase price for such Option Shares shall be
made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Fund, on each Date of Delivery as specified
in the notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately available
funds to a bank account designated by the Fund, against delivery to the
Representatives for the respective accounts of the Underwriters of the Shares to
be purchased by them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Primary Shares and the Option Shares, if
any, which it has agreed to purchase. _______________, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Primary Shares or the Option Shares, if
any, to be purchased by any Underwriter whose funds have not been received by
the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Primary
Shares and the Option Shares, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
three (3) full business days before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Primary Shares and the
Option Shares, if the Fund determines to issue any such certificates, will be
made available for examination and packaging by the Representatives in the City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be. The
Primary Shares and the Option Shares to be purchased hereunder shall be
delivered to you at the Closing Time or the relevant Date of Delivery, as the
case may be, through the facilities of the Depository Trust Company or another
mutually agreeable facility, against payment of the purchase price therefor in
immediately available funds to the order of the Fund.
Section 3. Covenants.
(a) The Fund and Adviser covenant with each Underwriter as
follows:
(i) Compliance With Securities Regulations and Commission Requests. The
Fund, subject to Section 3(a)(ii), will comply with the requirements of Rule
430A, Rule 430C or Rule 434, as applicable, and will notify the Representatives
as soon as practicable, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The Fund
will promptly effect the filings necessary pursuant to Rule 497 and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Fund will make every reasonable effort to prevent the issuance
of any stop order, or order of suspension or revocation of registration pursuant
to Section 8(e) of the 1940 Act, and, if any such stop order or order of
suspension or revocation of registration is issued, to obtain the lifting
thereof at the earliest possible moment.
(ii) Filing of Amendments. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus, and
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object; provided, however that this
covenant shall not apply to any post-effective amendment required by Rule 8b-16
of the 1940 Act which is filed with the Commission after the later of (x) one
year from the date of this Agreement or (y) the date on which the distribution
of the Shares is completed.
(iii) Delivery of Registration Statements. The Fund has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment (except any post-effective amendment required by Rule 8b-16 of the
1940 Act which is filed with the Commission after the later of (x) one year from
the date of this Agreement or (y) the date on which the distribution of the
Shares is completed) thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Fund hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) Continued Compliance With Securities Laws. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Shares, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Fund, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the Rules and Regulations, the Fund will promptly prepare and
file with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Fund will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify the Shares for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
provided, however, that the foregoing shall not apply to the extent that the
Shares are "covered securities" that are exempt from state regulation of
securities offerings pursuant to Section 18 of the 1933 Act; and provided,
further, that the Fund shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(vii) Rule 158. The Fund will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds received by
it from the sale of the Shares in the manner specified in the Prospectus under
"Use of Proceeds."
(ix) Listing. The Fund will use its best efforts to effect the listing
of the Shares on the NYSE, subject to notice of issuance, no later than two
weeks after the effectiveness of the Registration Statement.
(x) Restriction on Sale of Shares. During a period of 180 days from the
date of the Prospectus, the Fund will not, without the prior written consent of
Xxxxxx Xxxxxxxx, (A) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement under the 1933
Act with respect to any of the foregoing or (B) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Shares, whether
any such swap or transaction described in clause (A) or (B) above is to be
settled by delivery of Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Shares to be sold
hereunder or the Common Shares issued pursuant to any dividend reinvestment
plan.
(xi) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1940
Act and the 1934 Act within the time periods required by the 1940 Act and the
Rules and Regulations and the 1934 Act and the rules and regulations of the
Commission thereunder, respectively.
(xii) No Manipulation of Market For Shares. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, the Fund will not (a) take, directly
or indirectly, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Fund to facilitate the sale or resale of the Shares
in violation of federal or state securities laws, and (b) until the Closing
Time, or the Date of Delivery, if any, (i) except for Share repurchases
permitted in accordance with applicable laws and issuances of Shares or
purchases of Shares in the open market pursuant to the Fund's dividend
reinvestment plan, sell, bid for or purchase the Shares or pay any person any
compensation for soliciting purchases of the Shares or (ii) pay or agree to pay
to any person any compensation for soliciting another to purchase any other
securities of the Fund.
(xiii) Rule 462(b) Registration Statement. If the Fund elects to rely
upon Rule 462(b), the Fund shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Fund shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
Section 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Shares, (iii) the preparation, issuance and delivery of the certificates
for the Shares to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iv) the fees and disbursements of the Fund's
counsel, accountants and other advisers, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vi) the fees and expenses of any transfer
agent or registrar for the Shares, (vii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Shares, (viii) the
fees and expenses incurred in connection with the listing of the Shares on the
NYSE and (ix) the printing of any Sales Material.
(b) Termination of Agreement. If this Agreement is terminated
for any reason, the Fund or the Adviser shall reimburse, or arrange for an
affiliate to reimburse, the Underwriters for all of their out of pocket
expenses, including reasonable fees and disbursements of counsel for the
Underwriters up to a maximum reimbursement of $70,000.
Section 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Fund and the Adviser
contained in Section 1 hereof or in certificates of any officer of the Fund or
the Adviser delivered pursuant to the provisions hereof, to the performance by
the Fund and the Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act, no notice or
order pursuant to Section 8(e) of the 1940 Act shall have been issued, and no
proceedings with respect to either shall have been initiated or, to the Fund's
knowledge, threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 497 (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A and/or Rule 430C) or, if the Fund has elected to rely
upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 497.
(b) Opinion of Counsel for the Fund and the Adviser. At Closing
Time, the Representatives shall have received the favorable opinions, dated as
of Closing Time, from ____________________, counsel for the Fund and Advisor and
____________________, special counsel for the Fund, as to matters set forth in
Exhibit A, B and C hereto. As to matters of Maryland law, ____________________
may rely on the opinion of ____________________.
(c) Officers' Certificates. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of a duly
authorized officer of the Fund and of the chief financial or chief accounting
officer of the Fund and of the President or a Vice President or Managing
Director of the Adviser, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Sections 1(a) and (b) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Fund or the Adviser, as applicable, has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement, or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act, has been
issued and no proceedings for any such purpose have been instituted or are
pending or, to the knowledge of the Fund or the Adviser, contemplated by the
Commission.
(d) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from
____________________ a letter dated such date, in form and substance
satisfactory to the Representatives, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(e) Bring-Down Comfort Letter. At Closing Time, the
Representatives shall have received from __________ a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than three (3) business days prior to
Closing Time.
(f) Approval of Listing. At Closing Time, the Shares shall have
been approved for listing on the NYSE, subject only to official notice of
issuance.
(g) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(h) Conditions to Purchase of Option Shares. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Shares, the representations and
warranties of the Fund contained herein and the statements in any certificates
furnished by the Fund hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificates. Certificates, dated such Date of Delivery,
of a duly authorized officer of the Fund and of the chief financial or chief
accounting officer of the Fund and of the President or a Vice President or
Managing Director of the Adviser confirming that the information contained in
the certificate delivered by each of them at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Fund and the Adviser. The favorable
opinions of _______________, counsel for the Fund and the Adviser and
_______________, special counsel for the Fund, dated such Date of Delivery,
relating to the Option Shares to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b) hereof,
including reliance by _______________ on _______________ as to matters of
Maryland law.
(iii) Bring-Down Comfort Letter. A letter from _____, in form and
substance satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(e) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five (5) days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Shares as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions herein contained; and
all proceedings taken by the Fund and the Adviser in connection with the
organization and
registration of the Fund under the 1940 Act and the issuance and sale of the
Shares as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Shares, on
a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Shares, may be terminated
by the Representatives by notice to the Fund at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7, 8 and 13 shall survive any such termination
and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Adviser
agree, jointly and severally, to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any director,
officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Fund; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by __________), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Fund or the Adviser by any Underwriter
through __________ expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); and provided further that the Fund or the
Adviser will not be liable to any Underwriter with respect to any Prospectus to
the extent that the Fund or the Adviser shall sustain the burden of proving that
any such loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Shares to a person to whom such Underwriter failed to send
or give, at or prior to the Closing Time, a copy of the final Prospectus, as
then amended or supplemented if: (i) the Fund has previously furnished copies
thereof (sufficiently in advance of the Closing Time to allow for distribution
by the Closing Time) to the Underwriter and the loss, liability, claim, damage
or expense of such Underwriter resulted from an untrue statement or omission of
a material fact contained in or omitted from the preliminary Prospectus which
was corrected in the final Prospectus as, if applicable, amended or supplemented
prior to the Closing Time and such final Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) such failure to
give or send such final Prospectus by the Closing Time to the party or parties
asserting such loss, liability, claim, damage or expense would have constituted
a defense to the claim asserted by such person.
(b) Indemnification of Fund, Adviser, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Fund and
the Adviser, their respective directors, each of the Fund's officers who signed
the Registration Statement, and each person, if any, who controls the Fund or
the Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Fund or the Adviser by such Underwriter
through __________ expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Indemnification For Marketing Materials. In addition to the
foregoing indemnification, the Fund and the Adviser also agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a), as limited by the proviso
set forth therein, with respect to any Sales Material in the form approved by
the Fund and the Adviser for use by the Underwriters and securities firms to
whom the Fund or the Adviser shall have disseminated materials in connection
with the public offering of the Shares.
(d) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
__________, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Fund and the
Adviser. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party, prior to the date of such settlement, (1) reimburses such indemnified
party in accordance with
such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(f) Limitations on Indemnification. Any indemnification by the
Fund shall be subject to the requirements and limitations of Section 17(i) of
the 1940 Act and 1940 Act Release 11330.
Section 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Advisor on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Fund and the Adviser on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Fund and the Adviser on the one hand and
the Underwriters on the other hand in connection with the offering of the Shares
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Fund and the total
underwriting discount received by the Underwriters (whether from the Fund or
otherwise), in each case as set forth on the cover of the Prospectus or, if Rule
434 is used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Shares as set forth on such cover.
The relative fault of the Fund and the Adviser on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Adviser and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each
director of the Fund and each director of the Adviser, respectively, each
officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser, within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Fund and the Adviser, respectively. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Primary Shares set forth opposite
their respective names in Schedule A hereto and not joint.
Any contribution by the Fund shall be subject to the requirements and
limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section 8. Representations and Warranties to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or the Adviser submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Fund or the Adviser, and shall survive delivery of the
Shares to the Underwriters.
Section 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund, at any time at or prior to Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund or the Adviser,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any material outbreak of
hostilities or material escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) if trading in the Common Shares of the Fund has
been suspended or materially limited by the Commission or the NYSE, or if
trading generally on the American Stock Exchange or in the NASDAQ National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (iv) if a banking moratorium has been declared by either Federal or
Missouri authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section 9, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in full
force and effect.
Section 10. Default By One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or any Date of
Delivery to purchase the Shares which it or they are obligated to purchase under
this Agreement (the "Defaulted Shares"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Shares in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the
number of Shares to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number
of Shares to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Shares to be
purchased and sold on such Date of Delivery, shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Fund to sell the relevant Option Shares, as the case may be,
either the Representatives or the Fund shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven (7) days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives, ____________________, attention of _______________; and notices
to the Fund or the Adviser shall be directed, as appropriate, to the office of
the Adviser, _______________, attention of _______________.
Section 12. Parties.
This Agreement shall each inure to the benefit of and be binding upon the
Underwriters, the Fund, the Adviser and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Adviser and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Fund, the
Adviser and their respective partners and successors, and said controlling
persons and officers, directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Shares
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO
CENTRAL STANDARD TIME.
Section 14. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the
Underwriters, the Fund and the Adviser in accordance with its terms.
Very truly yours,
TORTOISE ENERGY CAPITAL CORPORATION
By:__________________________________________________
Name:
Title:
TORTOISE CAPITAL ADVISORS, LLC
By:__________________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
_____________________________________________
By: _________________________________________________
Authorized Signatory
Each for itself and collectively as Representatives of the other Underwriters
named in Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriter Primary Shares
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TOTAL:
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SCHEDULE B
Tortoise Energy Captial Corporation
__________ Common Shares
1 The initial public offering price per share for the Shares,
determined as provided in said Section 2, shall be $____________.
2 The purchase price per share for the Shares to be paid by the several
Underwriters shall be $________, being an amount equal to the initial public
offering price set forth above less $._______ per share; provided that the
purchase price per share for any Option Shares purchased upon the exercise of
the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Primary Shares but not payable on the Option Shares.
