MoFo Draft dated June 2, 2006
SERIES I MONEY MARKET CUMULATIVE PREFERRED (MMP(R)) SHARES
TORTOISE NORTH AMERICAN ENERGY CORPORATION
UNDERWRITING AGREEMENT
________, 2006
▇▇▇▇▇▇ BROTHERS INC.
As Representative of the several
Underwriters named in Schedule I
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tortoise North American Energy Corporation, a Maryland corporation (the
"Company"), proposes to, subject to the terms and conditions stated herein,
issue and sell to the Underwriters named in Schedule I hereto (each an
"Underwriter" and, together the "Underwriters") ____ shares of its Series I
Money Market Cumulative Preferred (MMP(R)) Shares, $25,000 liquidation
preference per share (the "MMP Shares"). The Company and the Company's
investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability
company (the "Investment Adviser"), each wishes to confirm its agreement
concerning the purchase of the MMP Shares from the Company by the Underwriters.
The Company has entered into an Investment Advisory Agreement with the
Investment Adviser dated October 31, 2005 (the "Advisory Agreement"); a Fund
Custody Agreement with Wachovia Bank, National Association, dated October 25,
2005 ("Custody Agreement"); a Stock Transfer Agency Agreement with Computershare
Investor Services, LLC, dated September 29, 2005 ("Transfer Agency Agreement");
an Administration Agreement with SEI Investments Mutual Funds Services, dated
October 20, 2005 ("Administration Agreement"); and an Auction Agency Agreement,
including the form of Broker-Dealer Agreement, with The Bank of New York, dated
________, 2006 (the "Auction Agreement"). Collectively, the Advisory Agreement,
the Custody Agreement, the Transfer Agency Agreement, the Administration
Agreement and the Auction Agreement (but excluding the Broker-Dealer Agreement)
are referred to herein as the "Company Agreements." This Underwriting Agreement
is herein referred to as the "Agreement."
Section 1. Representations, Warranties and Agreements of the Company and
the Investment Adviser. The Company and the Investment Adviser jointly and
severally represent, warrant and agree that:
(a) A registration statement on Form N-2 (File Nos. 333-133469 and
811-21700), 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 the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement (or any amendment or supplement to
either of them).
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(c) To the knowledge of the Company and the Investment Adviser, no
person is serving or acting as an officer, director or investment adviser of the
Company except in accordance with the provisions of the 1940 Act and the 1940
Act Rules and Regulations and the Investment Advisers Act of 1940, as amended
(the "Investment Adviser's Act") and the rules and regulations adopted by the
Commission under the Investment Adviser's Act (the "Investment Adviser's Act
Rules and Regulations").
(d) The Registration Statement and the 1940 Act Notification conform,
and the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the requirements
of the Securities Act, the 1940 Act and the Rules and Regulations and do not and
will not, as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to the
Prospectus and the 1940 Act Notification and any amendment or supplement
thereto) contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Registration
Statement, the 1940 Act Notification or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Underwriters or on the Underwriters' behalf specifically for inclusion therein.
(e) The Company has been duly incorporated and is existing as a
corporation in good standing under the laws of the State of Maryland, is duly
qualified to do business and is in good standing in each jurisdiction in which
its ownership or lease of property or the conduct of its business as described
in the Registration Statement and the Prospectus (and any amendment or
supplement to either) requires such qualification, and has all power and
authority necessary to own or hold property and to conduct the business as
described in the Registration Statement and the Prospectus (and any amendment or
supplement to either), except where the failure to so qualify or to be in good
standing would not reasonably be expected to have a material adverse effect on
the condition (financial or other), business, prospects, management,
shareholders' equity or results of operations of the Company (a "Material
Adverse Effect"). The Company has no subsidiaries.
(f) The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus under the caption "Capitalization."
All of the issued shares of common stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and conform in
all material respects to the description thereof contained in the Registration
Statement and the Prospectus (and any amendment or supplement to either).
(g) The MMP Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and delivered
against payment therefor in accordance with this Agreement, will be validly
issued, fully paid and non-assessable; and the MMP Shares will conform in all
material respects to the
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description thereof contained in the Registration Statement and the Prospectus
(and any amendment or supplement to either) and will be free and clear of all
preemptive rights or any other claim of any third party.
(h) This Agreement and each of the Company Agreements have been duly
authorized, executed and delivered by the Company and constitute valid and
legally binding agreements of the Company, enforceable against the Company in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Company's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles.
(i) None of the execution, delivery and performance of this Agreement
by the Company, the performance of the Company Agreements or the consummation of
the transactions contemplated hereby and thereby (i) conflict with, result in
the creation or imposition of any lien, charge or encumbrance upon the assets of
the Company under the terms or provisions of, or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, (ii) result in
any violation of the provisions of the charter (the "Charter") or by-laws of the
Company or (iii) result in the violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets, except in the case of clauses
(i) and (iii), such conflicts, breaches or violations that in the aggregate
would not reasonably be expected to have a Material Adverse Effect; and except
for the registration of the MMP Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under the 1940 Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and applicable state securities laws in connection with
the purchase and distribution of the MMP Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company, the performance of the Company
Agreements by the Company or the consummation of the transactions contemplated
hereby and thereby by the Company.
(j) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
There are no outstanding options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company.
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(k) The Company has not sustained, since the date of the latest
unaudited financial highlights included in the Prospectus, any material loss or
interference with its business that has had, or could reasonably be expected to
have, a Material Adverse Effect, and since such date, there has not been any
change in the capital stock or long-term debt of the Company or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, consolidated financial position, shareholders' equity,
results of operations, business or prospects of the Company that has had or
could reasonably be expected to have a Material Adverse Effect, other than as
set forth or contemplated in the Prospectus.
(l) The financial statements (including the related notes) filed as
part of the Registration Statement present fairly the financial condition and
results of operations of the Company, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(m) ▇▇▇▇▇ & Young LLP, who have reviewed the financial statements of
the Company, whose report appears in the Registration Statement and who have
delivered the letters referred to in Sections 8(f) and (g) hereof, have
represented to the Company that they are independent public accountants as
required by the Securities Act, the 1940 Act and the Rules and Regulations.
(n) The Company carries, or is covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of its business and the
value of its property and as is customary for companies engaged in similar
businesses in similar industries.
(o) There are no legal or governmental proceedings pending to which
the Company is a party or of which any property or assets of the Company is the
subject which are reasonably likely to be determined adversely to the Company
and, if determined adversely to the Company, would be reasonably likely to have
a Material Adverse Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(p) There are no contracts or other documents which are required to be
described in the Registration Statement or the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act, the 1940 Act or by the
Rules and Regulations which have not been described in the Registration
Statement or the Prospectus or filed as exhibits to the Registration Statement.
(q) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has paid
all taxes due thereon, and no tax deficiency has been determined adversely to
the Company which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company, might have) a Material
Adverse Effect.
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(r) The Company has made an election under Section 851(b) of the
Internal Revenue Code of 1986, as amended (the "Code"), to be treated as a
regulated investment company for federal income tax purposes.
(s) Since the date as of which information is given in the
Registration Statement and the Prospectus through the date hereof, and except as
may otherwise be disclosed in the Prospectus, the Company has not (i) issued or
granted any securities other than shares of common stock of the Company pursuant
to the Company's dividend reinvestment plan, (ii) incurred any liability or
obligation, direct or contingent, other than non-material liabilities and
obligations which were incurred in the ordinary course of business, or (iii)
entered into any transaction not in the ordinary course of business.
(t) The Company or its designee (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (B)
access to its assets is permitted only in accordance with management's
authorization and (C) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(u) The Company is not (i) in violation of its Charter or by-laws,
(ii) in default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject or
(iii) in violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except, in the case of clauses (ii) and
(iii), such defaults, events, violations or failures that in the aggregate would
not reasonably be expected to have a Material Adverse Effect. (v) There are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or the Underwriters for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(w) The statistical, market-related and industry data included in the
Prospectus and the Registration Statement are based on or derived from sources
which the Company believes to be reliable and accurate.
(x) The Company, subject to the filing of the Prospectus under Rule
497 under the 1933 Act Rules and Regulations, has taken all required action
under the Securities Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the MMP Shares as contemplated by
this Agreement.
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(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) Other than the Preliminary Prospectus and the Prospectus, neither
the Company nor the Investment Advisor has provided or prepared any marketing
materials in connection with the offering and sale of the MMP Shares.
(aa) This Agreement and each of the Company Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Investment Adviser's Act and the Investment Adviser's
Act Rules and Regulations.
(bb) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no director of
the Company is an "interested person" (as defined in the 1940 Act) of the
Company or an "affiliated person" (as defined in the 1940 Act) of the
Underwriters.
Section 2. Representations, Warranties and Agreements of the Investment
Adviser. The Investment Adviser represents, warrants and agrees that:
(a) The Investment Adviser has been duly formed and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in good standing in
each jurisdiction in which its ownership or lease of property or the conduct of
its business as described in the Registration Statement and the Prospectus (and
any amendment or supplement to either) requires such qualification (except where
the failure to so qualify or to be in good standing would not reasonably be
expected to have a Material Adverse Effect), and has the power and authority to
own or hold its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement to
either).
(b) The Investment Adviser is duly registered as an investment adviser
under the Investment Adviser's Act and there does not exist any proceeding or
any facts or circumstances the existence of which could lead to any proceeding
which could affect adversely the registration or good standing of the Investment
Adviser with the Commission. The Investment Adviser is not prohibited by the
Investment Adviser's Act, the 1940 Act, the Investment Adviser's Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under the Advisory
Agreement as contemplated by the Registration Statement and the Prospectus (or
any amendment or supplement thereto).
(c) This Agreement and the Advisory Agreement have each been duly
authorized, executed and delivered by the Investment Adviser, and constitute
valid and legally binding agreements of the Investment Adviser, enforceable
against the Investment Adviser in accordance with their terms, except as rights
to indemnity and contribution
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hereunder may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Investment Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(d) None of the execution, delivery and performance of this Agreement,
the performance of the Advisory Agreement or the consummation of the
transactions contemplated hereby and thereby (i) conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon the assets of the
Company under the terms or provisions of, or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Investment Adviser is a party or by which the Investment Adviser is
bound or to which any of the property or assets of the Investment Adviser is
subject, (ii) result in any violation of the provisions of the limited liability
company operating agreement or other organizational documents of the Investment
Adviser or (iii) result in the violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Investment Adviser or any of its properties or assets, except in the case of
clauses (i) and (iii), such conflicts, breaches or violations that in the
aggregate would not reasonably be expected to have a Material Adverse Effect;
and except for the registration of the MMP Shares under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the MMP Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement by the Investment
Adviser, the performance of the Advisory Agreement by the Investment Adviser, or
the consummation of the transactions contemplated hereby and thereby by the
Investment Adviser.
(e) The Investment Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Advisory Agreement.
(f) The Investment Adviser carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of its
businesses and the value of its property and as is customary for companies
engaged in similar businesses in similar industries.
(g) The description of the Investment Adviser and its business in the
Registration Statement and the Prospectus (and any amendment or supplement to
either) conformed as of the date hereof and as of the Delivery Date (as defined
herein) will conform in all material respects with the provisions of the
Securities Act, the 1940 Act, and the Rules and Regulations and such description
did not as of the date hereof and will not as of the Delivery Date (as defined
herein) contain an untrue statement of a material
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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 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
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official or employee from any funds of the Company or the Investment Adviser,
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(n) Neither the Investment Advisor nor any employee or agent of the
Investment Adviser has made any payment of funds of the Company or the
Investment Adviser or received or retained any funds, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus
or the Registration Statement which is not so disclosed.
(o) There are no contracts, agreements or understandings between the
Investment Adviser and any person that would give rise to a valid claim against
the Company or the Underwriters for a brokerage commission, finder's fee or
other like payment in connection with this offering.
Section 3. Purchase of the MMP Shares by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to the
Underwriters and the Underwriters agree to purchase from the Company the number
of MMP Shares set forth opposite such Underwriter's name on Schedule I hereto.
The price that the Underwriters shall pay for the MMP Shares shall be
$________ per share ($25,000 liquidation preference per share less an
underwriting fee of $___ per share).
The Company shall not be obligated to deliver any of the MMP Shares on the
Delivery Date (as hereinafter defined), except upon payment for all the MMP
Shares to be purchased on the Delivery Date as provided herein.
Section 4. Offering of MMP Shares by the Underwriters. The Underwriters
propose to offer the MMP Shares for sale upon the terms and conditions set forth
in the Prospectus.
Section 5. Delivery of and Payment for the MMP Shares. Delivery of and
payment for the MMP Shares shall be made at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at 10:00 A.M., New York City time, on ________, 2006 or at such other
date or place as shall be determined by agreement between the Underwriters and
the Company (the "Delivery Date"). On the Delivery Date, the Company shall
deliver or cause to be delivered the MMP Shares to the Underwriters through the
facilities of the Depository Trust Company against payment to or upon the order
of the Company of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
the Underwriters hereunder.
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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 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
11
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 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
12
(i) To apply the net proceeds from the sale of the MMP Shares in a
manner consistent with the investment objectives, policies and restrictions of
the Company as set forth in the Prospectus.
Section 7. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the MMP Shares and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act and the 1940 Act of the
Registration Statement, the Prospectus, and the 1940 Act Notification and any
amendments or supplements and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement, and any other related documents in connection with
the offering, purchase, sale and delivery of the MMP Shares; (e) the
preparation, issuance and delivery of the certificates for the MMP Shares, if
any, to the Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the MMP
Shares to the Underwriters, (f) any applicable listing or other fees including
the fees paid to the rating agencies in connection with the rating of the MMP
Shares; (g) the fees and expenses of qualifying the MMP Shares under the
securities laws of the several jurisdictions as provided in Section 6(g) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) all costs and reasonable
expenses of the Underwriters, other than the fees and disbursements of counsel
to the Underwriters; (i) the fees and expenses of the Company's accountants and
the fees and expenses of counsel for the Company, of the transfer agent and the
auction agent as set forth in the Auction Agency Agreement; and (j) all other
costs and reasonable expenses incident to the performance of the obligations of
the Company under this Agreement.
Section 8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Investment Adviser contained herein, to the performance by the Company and the
Investment Adviser of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Auction Agency
Agreement, the MMP Shares, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably
13
satisfactory in all material respects to counsel for the Underwriters, and the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(c) The Company shall have furnished to the Underwriters, in form and
substance reasonably satisfactory to the Underwriters, the written opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, dated the Delivery Date, to the effect of
paragraphs (i) through (xvii) below:
(i) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation of
the State of Maryland;
(ii) The Company has the corporate power to own, lease and
operate its property or assets and to conduct its business in all
material respects as substantially described in the Registration
Statement and the Prospectus under the caption "The Company."
(iii) The authorized stock of the Company conforms as to legal
matters in all material respects to the description thereof in the
Prospectus under the captions "Description of Money Market Cumulative
Preferred Shares" and "Description of Common Stock".
(iv) The sale and issuance of the MMP Shares have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement and the resolutions adopted by the Board of
Directors of the Company, or a duly authorized committee thereof, the
MMP Shares will be validly issued, fully paid and non assessable;
(v) The MMP Shares conform in all material respects to the
statements concerning them contained in the Prospectus and there are
no restrictions upon the voting or transfer of any of the MMP Shares
pursuant to the Company's Charter or by-laws or any Company Agreement;
except for the restrictions on transfer of the MMP Shares contained in
the Auction Agency Agreement;
(vi) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company is a party or to which any property or assets of
the Company is the subject which is reasonably likely to be determined
adversely to the Company and, if determined adversely to the Company,
would be reasonably likely to have a Material Adverse Effect; and, to
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) The Registration Statement was declared effective under the
Securities Act, the Prospectus was filed with the Commission within
the time
14
period required by Rule 497(c) and (h) of the 1933 Act Rules and
Regulations on the date specified in such opinion and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and, to such counsel's knowledge, no
proceeding for that purpose is pending or threatened by the
Commission;
(viii) The Registration Statement and the Prospectus (except for
the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act, the
1940 Act and the Rules and Regulations;
(ix) The statements contained in the Registration Statement and
the Prospectus under the captions "The Auction," "Description of Money
Market Cumulative Preferred Shares," "Description of Common Stock" and
"Federal Income Tax Matters," and the statements contained in the
Statement of Additional Information under the caption "Additional
Information Concerning the Auction" insofar as they purport to
summarize provisions of the Company's Charter and by-laws, contracts,
agreements or other legal documents referred to therein, tax laws,
legal conclusions, doctrines or practices of the United States,
constitute 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 described in the Registration
Statement and the Prospectus or filed as exhibits to the Registration
Statement;
(xi) The execution and delivery of this Agreement has been duly
authorized, by the Company. This Agreement has been duly executed,
and, so far as known to counsel to the Company, delivered by the
Company.
(xii) The Underwriting Agreement constitutes the valid and
legally binding agreement of the Company, and is enforceable against
the Company in accordance with its terms;
(xiii) None of the sale and issuance of the MMP Shares by the
Company pursuant to this Agreement, the execution, delivery and
performance by the Company of this Agreement, the performance by the
Company of each of the Company Agreements or the consummation of the
transactions contemplated by this Agreement and the Company Agreements
will (i) result in the creation or imposition of any lien, charge or
encumbrance upon the assets of the Company under the terms of
provisions of, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under any Company Agreement
(ii) result in any violation of the provisions of the Charter or
by-laws of the Company or (iii) result in the violation of any Federal
law or regulation or any order of any
15
Federal governmental authority known to such counsel, except in the
case of clauses (i) and (iii), such breaches or violations that in the
aggregate would not reasonably be expected to have a Material Adverse
Effect; and, except for the registration of the MMP Shares under the
Securities Act, the 1940 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws (as to
which counsel to the Company need not express an opinion), no consent,
approval, authorization or order of, or filing or registration with,
any such governmental authority is required for the execution,
delivery and performance of this Agreement, the performance of the
Company Agreements by the Company or the consummation of the
transactions contemplated hereby, except for such consents, approvals,
authorizations, orders, filings or registrations as have been obtained
or made, if any;
(xiv) None of (a) the sale and issuance of the MMP Shares by the
Company pursuant to this Agreement, (b) the execution, delivery and
performance by the Company of this Agreement, or (c) the performance
by the Company of each of the Company Agreements or the consummation
of the transactions contemplated by this Agreement and the Company
Agreements will result in the violation of any Maryland law or
regulation or any order of any Maryland governmental authority known
to us, except for such violations that in the aggregate would not
reasonably be expected to have a Material Adverse Effect (and except
for any law, regulation or order in connection with the securities
laws of the State of Maryland, as to which no opinion need be
expressed).
(xv) This Agreement and each of the Company Agreements complies
in all material respects with all applicable provisions of the 1940
Act, the Investment Adviser's Act, the 1940 Act Rules and Regulations
and the Investment Adviser's Act Rules and Regulations; and
(xvi) The Company is duly registered under the 1940 Act as a
closed-end, non-diversified, management investment company and the
1940 Act Notification has been duly filed with the Commission, and, at
the time of filing thereof and at the time of filing any amendment or
supplement thereto, complied as to form in all material respects with
all applicable provisions of the 1940 Act and the 1940 Act Rules and
Regulations and, to such counsel's knowledge, the Company has not
received any notice from the Commission pursuant to Section 8(e) of
the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement (or any amendment or supplement to either of
them).
In rendering such opinions, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Maryland and the laws of the State of
Missouri. To the extent such counsel deems proper and to the extent specified in
such opinion, such counsel may rely, as to matters involving the application of
laws of the State of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP or other counsel
of good standing whom such counsel believes to be reliable and who are
satisfactory to the Underwriters; provided that (x) such reliance is
16
expressly authorized by the opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters and is, in form and substance,
satisfactory to the Underwriters and their counsel and (y) such counsel states
in their opinion that they believe that they and the Underwriters are justified
in relying thereon.
Such counsel shall also state that it has participated in conferences
with officers and employees of the Company and the Investment Adviser,
representatives of the independent auditors for the Company, Maryland counsel to
the Company, the Underwriters and counsel for the Underwriters at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon, and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, except to
the limited extent otherwise covered by paragraphs (iii), (v) and (x) hereof and
have made no independent check or verification thereof, on the basis of the
foregoing, no facts have come to such counsel's attention that would have led
such counsel to believe that (a) the Registration Statement (except the
financial statements and other financial and statistical data contained therein,
as to which such counsel expresses no opinion), at the time it became effective,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
contained therein not misleading or (b) the Prospectus (except the financial
statements and other financial and statistical data contained therein, as to
which such counsel expresses no opinion), as of its issue date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(d) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Investment
Adviser, shall have furnished to the Underwriters their written opinion,
addressed to the Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Investment Adviser has been formed and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, is duly qualified to do business as a
foreign limited liability company and is in good standing in the
States of Missouri and Kansas; and has the limited liability company
power and authority to own or hold its properties and to conduct its
business as described in the Registration Statement and the
Prospectus;
(ii) The Investment Adviser is duly registered as an investment
adviser under the Investment Adviser's Act and is not prohibited by
the Investment Adviser's Act, the 1940 Act, the Investment Adviser's
Act Rules and Regulations or the 1940 Act Rules and Regulations from
acting under the Advisory Agreement as contemplated by the
Registration Statement and the Prospectus;
17
(iii) This Agreement and the Advisory Agreement have each been
duly authorized, executed and delivered by the Investment Adviser, and
constitute the valid and legally binding agreements of the Investment
Adviser, and, this Agreement is enforceable against the Investment
Adviser in accordance with its terms;
(iv) None of the execution, delivery and performance of this
Agreement by the Investment Adviser, the performance of the Advisory
Agreement or the consummation of the transactions contemplated by this
Agreement or the Advisory Agreement by the Company (i) conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon the assets of the Investment Adviser under the terms
or provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any agreement
listed on Exhibit A attached to such opinion, (ii) result in any
violation of the provisions of the limited liability company operating
agreement or other organizational documents of the Investment Adviser
or (iii) result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Investment Adviser or any of its
properties or assets, except in the case of clauses (i) and (iii),
such conflicts, breaches and violations that in the aggregate would
not reasonably be expected to have a Material Adverse Effect; and
except for the registration of the MMP Shares under the Securities Act
and the 1940 Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws (as to which such counsel
need not express an opinion), no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, the performance of the Advisory
Agreement or the consummation of the transactions contemplated by this
Agreement or the Advisory Agreement by the Investment Adviser;
(v) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Investment Adviser is a party or to which any property or
assets of the Investment Adviser is the subject which is reasonably
likely to be determined adversely to the Investment Adviser and, if
determined adversely to the Investment Adviser, would be reasonably
likely to have a Material Adverse Effect; and, to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(vi) The description of the Investment Adviser and its business
in the Registration Statement and the Prospectus complied and comply
in all material respects with the requirements of the Securities Act,
the 1940 Act, the Investment Adviser's Act, the Rules and Regulations
and the Investment Adviser's Act Rules and Regulations.
18
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America,
the General Corporation Law of the State of Delaware, and the laws of the State
of Missouri.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to the Underwriters, such opinion or opinions, dated the Delivery Date,
with respect to the issuance and sale of the MMP Shares, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from Ernst & Young LLP a letter or letters, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(g) With respect to the letter or letters of ▇▇▇▇▇ & Young LLP
referred to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "Initial Letter"), the
Company shall have furnished to the Underwriters a letter (the "Bring-down
Letter") of such accountants, addressed to the Underwriters and dated the
Delivery Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the Bring-down
Letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the
Bring-down Letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the Initial Letter and
(iii) confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(h) The Company shall have furnished to the Underwriters on the
Delivery Date a certificate, dated the Delivery Date, of its Chairman of the
Board of Directors, its Chief Executive Officer or President and its Chief
Financial Officer or Treasurer or an Assistant Treasurer stating that:
(i) The representations, warranties and agreements of the Company
contained herein and in the Auction Agency Agreement are true and correct
as of the date hereof and as of the Delivery Date; the Company has
19
complied with all its agreements contained herein prior to or on the
Delivery Date; and the conditions set forth in Section 8 have been
fulfilled;
(ii) Since the respective dates as of which information is given
in the Prospectus, other than as set forth in or contemplated by the
Prospectus, (A) there has not occurred any change or any development that
might have a Material Adverse Effect, (B) there has not been any change in
the capital stock, short-term debt or long-term debt of the Company that
might have a Material Adverse Effect, (C) the Company has not incurred any
material liability or obligation, direct or contingent, (D) there has not
occurred a material loss or interference with the Company's business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree and (E) the Company has not declared or paid any dividend on its
shares of common stock, except for dividends declared in the ordinary
course of business, and, except as set forth in or contemplated by the
Prospectus, the Company has not entered into any transaction (other than
purchases and sales of portfolio transactions) or agreement (other than
investment-related agreements) material to the Company; and
(iii) They carefully have examined the Registration Statement and
the Prospectus and, in their opinion (and in forming such opinion each
officer may rely on information provided by the other parties to this
Agreement) (A) as of the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (B) as of its date and the Delivery Date, the Prospectus did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) since the Effective Date, no
event has occurred which should have been set forth in a supplement to, or
amendment of, the Prospectus which has not been set forth in such a
supplement or amendment.
(i) The Investment Adviser shall have furnished to the Underwriters on
the Delivery Date a certificate, dated the Delivery Date, of a member of its
Board of Managers, dated the Delivery Date, stating that:
(i) The representations, warranties and agreements of the
Investment Adviser contained herein are true and correct as of the date
hereof and as of the Delivery Date; the Investment Adviser has complied
with all its agreements contained herein prior to or on the Delivery Date;
and the conditions set forth in Section 8 of this Agreement have been
fulfilled; and
(ii) They have examined the Registration Statement and the
Prospectus and, in their opinion (and in forming such opinion each officer
may rely on information provided by the other parties to this Agreement)
(A) as of the Effective Date, the Registration Statement did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or
20
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (B) as of its date and the
Delivery Date, the Prospectus did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (C)
since the Effective Date, no event has occurred which should have been set
forth in a supplement to, or amendment of, the Prospectus which has not
been set forth in such a supplement or amendment.
(j) The Company shall not have sustained since the date of the latest
audited financial statements included in the Prospectus (A) any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (B) since such date, there shall not
have been any change in the capital stock, short-term debt or long-term debt of
the Company or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, prospects,
shareholders' equity or results of operations of the Company, otherwise than as
described or contemplated in the Prospectus, the effect of which, in any such
case described in clause (A) or (B), is, in the judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the MMP Shares being delivered on the
Delivery Date on the terms and in the manner contemplated in the Prospectus and
in this Agreement.
(k) The Company shall have furnished to the Underwriters a report
showing compliance with the asset coverage requirements of the 1940 Act and the
1940 Act Shares Asset Coverage (as defined in the Registration Statement), each
dated the Delivery Date and in form and substance satisfactory to the
Underwriters. Each such report shall assume the receipt of the net proceeds from
the sale of the MMP Shares and may use portfolio holdings and valuations as of
the close of business of any day not more than six business days preceding the
Delivery Date, provided, however, that the Company represents in such report
that its total net assets as of the Delivery Date have not declined by 5% or
more from such valuation date.
(l) The Company shall have delivered and the Underwriters shall have
received evidence satisfactory to it that the MMP Shares are rated at least
"Aa2" by ▇▇▇▇▇'▇ Investors Service, Inc. and "AA" by Fitch, Inc., a division of
the McGraw Hill Companies, as of the Delivery Date, and subsequent to the
execution and delivery of this Agreement, (i) no downgrading shall have occurred
in the rating accorded the MMP Shares by any "nationally recognized statistical
rating organization" as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Rules and Regulations and (ii) no such
organization shall have publicly announced that is has under surveillance or
review, with possible negative implications, its rating of the MMP Shares.
(m) Neither the Company nor the Investment Adviser shall have failed
at or prior to the Delivery Date to have performed or complied with any of the
agreements contained herein and required to be performed or complied with by
them at or prior to the Delivery Date.
21
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such), including, without
limitation, as a result of terrorist activities after the date hereof, or any
other calamity or crisis as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery of
the 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
22
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, or (B)
in any Preliminary Prospectus, the Prospectus, the Registration Statement or in
any amendment or supplement thereto including information deemed to be a part of
the Registration Statement pursuant to Rule 430A of the Rules and Regulations,
if applicable, (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 or (iii) any act or failure to act
or any alleged act or failure to act by such Underwriter in connection with, or
relating in any manner to, the MMP Shares or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided that neither the Company nor the Investment Adviser
shall be liable under Section 9(a) to the extent that it is determined in a
final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its willful
misfeasance, bad faith, gross negligence in the performance of its duties or
reckless disregard of applicable obligations and duties), and shall reimburse
such Underwriter and each such director, officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by such
Underwriter, director, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, ▇▇▇▇▇▇▇▇▇ 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
23
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriters specifically for inclusion
therein, which information is limited to the information set forth in Section
9(e), and shall reimburse the Company and any such director, officer, employee
or controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, trustee, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Company or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent the indemnified party, and its respective directors, officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought under this Section 9 if,
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both an indemnified party (and/or its officers,
employees, directors and each person who controls the indemnified party within
the meaning of the Securities Act) and the indemnifying party and the
indemnified party shall have been
24
advised by its counsel that representation of both the indemnified party (and/or
its officers, employees, directors and each person who controls the indemnified
party within the meaning of the Securities Act) and the indemnifying party would
be inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) and in the
reasonable judgment of the indemnified party, it is advisable for the
indemnified party and its directors, officers, employees and controlling persons
to be jointly represented by separate counsel, then in that event the fees and
expenses of one such separate counsel shall be paid by the Company or the
Investment Adviser. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 9(a) or 9(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Investment Adviser (treated jointly as one
person for this purpose) on the one hand and the Underwriters on the other from
the offering of the 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
25
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Investment Adviser, on one hand,
or the Underwriters, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Investment Adviser and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 9(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9(d), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the MMP Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The Underwriters severally confirm and the Company and the
Investment Adviser acknowledge that the statements set forth in the last
sentence on the front cover page, its name and paragraphs four, six, seven and
ten under the section "Underwriting" in the Prospectus are correct and
constitute the only information concerning the Underwriters furnished in writing
to the Company specifically for inclusion in the Registration Statement and the
Prospectus.
Section 10. Defaulting Underwriters. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the MMP
Shares which the defaulting Underwriter agreed but failed to purchase on the
Delivery Date in the respective proportions which the number of MMP Shares set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
I hereto bears to the total number of MMP Shares set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule I hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any number of the MMP Shares on the Delivery Date if the number of
MMP Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the number of MMP Shares to be purchased
on the Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of MMP Shares which it agreed
to purchase on the Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, the total number of MMP Shares to
be purchased on such Delivery Date. If the remaining Underwriters do not elect
to purchase the MMP Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the
26
Delivery Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 7 and 12. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule I hereto who, pursuant to this Section 10,
purchases MMP Shares which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
Underwriters are obligated or agree to purchase the MMP Shares of a defaulting
or withdrawing Underwriter, either the non-defaulting Underwriters or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
Section 11. Termination. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the MMP Shares if, prior to that time, any
of the events described in Sections 8(j) or 8(n), shall have occurred or if the
Underwriters shall decline to purchase the MMP Shares for any reason permitted
under this Agreement.
Section 12. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the MMP Shares for delivery to the Underwriters by reason
of any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled or (b) the Underwriters decline to purchase the MMP Shares because
of a failure by the Company or the Investment Adviser to perform their
respective obligations under this Agreement, the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the MMP Shares, and upon demand the
Company shall pay the full amount thereof to the Underwriters.
Section 13. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in
the case of any notice pursuant to Section 9(c) the Director of Litigation,
Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇; and with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Fax:
▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration
27
Statement, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇); with a copy to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone:
▇▇▇-▇▇▇-▇▇▇▇); and
(c) if to the Investment Adviser, shall be delivered or sent by mail,
telex or facsimile transmission to Tortoise Capital Advisors, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone ▇▇▇-▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters.
Section 14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Investment Adviser, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Investment Adviser contained in this Agreement shall also be
deemed to be for the benefit of the directors, officers and the person or
persons, if any, who control the Underwriters within the meaning of Section 15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 9(b) of this Agreement shall be deemed to be for the
benefit of the Board of Directors of the Company, officers and employees of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
Section 15. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the 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
28
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 Charter of the Company
is on file with the Secretary of State of the State of Maryland. This Agreement
has been executed on behalf of the Company by an officer of the Company in such
capacity and not individually and the obligations of the Company under this
Agreement are not binding upon such officer or any of the directors or the
shareholders of the Company individually but are binding only upon the assets
and property of the Company.
Section 22. No Fiduciary Duty. The Company acknowledges and agrees that in
connection with this offering, sale of the MMP Shares or any other services the
Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and
any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the
public offering price of the MMP Shares, and such relationship between the
Company, on the one hand, and the Underwriters, on the other, is entirely and
solely commercial, based on arms-length negotiations; (iii) any duties and
obligations that the Underwriters may have to the Company shall be limited to
those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ from
those of the Company. The Company hereby waives any claims that the Company may
have against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
29
If the foregoing correctly sets forth the agreement among the Company, the
Investment Adviser and the Underwriters, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
TORTOISE NORTH AMERICAN ENERGY CORPORATION
By:
---------------------------------------
Name:
Title:
TORTOISE CAPITAL ADVISORS LLC
By:
---------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
As Representative of the several Underwriters named in Schedule I
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------
Name:
Authorized Representative
30
SCHEDULE I
Underwriter Number of MMP Shares
------------------------------------------------ ----------------------------
▇▇▇▇▇▇ Brothers Inc...........................
Total.........................................
----------------------------
31
