July 26, 2011
Chapman and Cutler LLP
111 West Monroe Street
Chicago, Illinois 60603
Energy Income and Growth Fund
120 East Liberty Drive, Suite 400
Wheaton, IL 60187
RE: Energy Income and Growth Fund
Ladies and Gentlemen:
We have acted as special Massachusetts counsel to Energy Income and Growth
Fund, a Massachusetts business trust (the "Fund"), in connection with the Fund's
Registration Statement on Form N-2, filed with the Securities and Exchange
Commission (the "Commission") on or about April 1, 2011 (the "Registration
Statement") and the supplement, dated July 26, 2011, to be filed with the
Commission under Rule 497 under the Securities Act of 1933, as amended (the
"1933 Act") on or about July 26, 2011 (the "Supplement"), with respect to up to
3,220,000 of its common shares of beneficial interest, $.01 par value per share
(the "Shares"). You have requested that we deliver this opinion to you, as
special counsel to the Fund, for use by you in connection with your opinion to
the Fund with respect to the Shares, to be filed with the Commission on or about
July 26, 2011 as an exhibit to Post-Effective Amendment No. 1 to the
Registration Statement (the "Amendment").
In connection with the furnishing of this opinion, we have examined the
following documents:
(a) a certificate dated as of a recent date of the Secretary of the
Commonwealth of Massachusetts as to the existence of the Fund;
(b) copies of the Fund's Declaration of Trust and of all amendments thereto
(the "Declaration") on file in the office of the Secretary of the Commonwealth
of Massachusetts;
(c) a certificate of the Secretary of the Fund, certifying as to, and
attaching copies of, the Fund's Declaration, the Fund's By-laws as currently in
effect (the "By-laws) and resolutions adopted by the Board of Trustees at
meetings held on September 21, 2007 and March 21, 2011 and resolutions adopted
by the Executive Committee of the Board of Trustees, acting as the Pricing
Committee, on July 26, 2011 (the "Resolutions");
Chapman and Cutler LLP
Energy Income and Growth Fund
July 26, 2011
Page 2
(d) copy of the Fund's Registration Statement as filed with Commission;
(e) a printer's proof of the Supplement received on July 26, 2011; and
(f) a draft of the Amendment received on July 26, 2011.
In such examination, we have assumed the genuineness of all signatures, the
conformity to the originals of all of the documents reviewed by us as copies,
the authenticity and completeness of all original documents reviewed by us in
original or copy form and the legal competence of each individual executing any
document. We have also assumed that the Supplement and the Amendment, when filed
with the Commission, will be in substantially the form of the printer's proofs
referenced in paragraph (e) and (f) above. We have further assumed that the
Fund's Declaration and the Resolutions will not have been amended, modified or
withdrawn with respect to matters relating to the Shares and will be in full
force and effect on the date of issuance of such Shares. We note that the Board
of Trustees of the Fund has approved an offering of the Fund's Common Shares at
a price or prices not below such price as is permitted under Section 23(b) of
the Investment Company Act of 1940, as amended (the "1940 Act") and that
further, the Board of Trustees and shareholders of the Fund have approved the
offering of the Fund's Common Shares at a price that is below the then current
net asset value per share, in accordance with Section 23(b) of the 1940 Act,
provided that such offering complies with certain conditions set forth in the
Fund's proxy statement on Form 14a, dated October 29, 2007 and filed pursuant to
Edgar with the Commission on October 26, 2007 (the "Proxy Statement"), and we
have assumed that any sale of Offering Shares, if made at a price that is less
than the current net asset value per share, will be made in conformity with the
conditions set forth in such Proxy Statement.
This opinion is based entirely on our review of the documents listed above
and such investigation of law as we have deemed necessary or appropriate. We
have made no other review or investigation of any kind whatsoever, and we have
assumed, without independent inquiry, the accuracy of the information set forth
in such documents. We have further assumed that there are no other documents
that are contrary to or inconsistent with the opinions expressed herein. As to
our opinion below relating to the valid existence of the Fund, our opinion
relies entirely upon and is limited by the certificate referenced in paragraph
(a) above.
Chapman and Cutler LLP
Energy Income and Growth Fund
July 26, 2011
Page 3
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts located in such Commonwealth, except that we
express no opinion as to any Massachusetts securities law. No opinion is given
herein as to the choice of law which any tribunal may apply. In addition, to the
extent that the Fund's Declaration, By-laws or the Resolutions refer to,
incorporate or require compliance with the Investment Company Act of 1940, as
amended, or any other law or regulation applicable to the Fund, except for the
internal substantive laws of the Commonwealth of Massachusetts, as aforesaid, we
have assumed compliance by the Fund with such Act and such other laws and
regulations. Further, we express no opinion with respect to, and we assume no
responsibility for, any offering documentation relating to the Fund, including
the Registration Statement and any amendment thereto, and the Supplement.
We understand that all of the foregoing assumptions and limitations are
acceptable to you.
Based upon and subject to the foregoing, please be advised that it is our
opinion that:
1. The Fund has been formed and is validly existing under the Fund's
Declaration and the laws of the Commonwealth of Massachusetts as a voluntary
association with transferable shares of beneficial interest commonly referred to
as a "Massachusetts business trust."
2. The Shares, when issued and sold in accordance with terms of the
Declaration and the Resolutions, will be validly issued, fully paid and
nonassessable, except that, as set forth in the Registration Statement,
shareholders of the Fund may under certain circumstances be held personally
liable for its obligations.
Chapman and Cutler LLP
Energy Income and Growth Fund
July 26, 2011
Page 4
This opinion is given as of the date hereof and we assume no obligation to
update this opinion to reflect any changes in law or any other facts or
circumstances which may hereafter come to our attention. We hereby consent to
your reliance on this opinion in connection with your opinion to the Fund with
respect to the Shares, to the reliance by the Fund on this opinion, to the
reference to our name in the Registration Statement and in the prospectus
forming a part thereof under the heading "Legal Matters" and to the filing of
this opinion as an exhibit to the Amendment.
Very truly yours,
/s/ Bingham McCutchen LLP