The Cushing MLP & Infrastructure Total Return Fund (SRV) 8-KEntry into a Material Definitive Agreement

Skadden, Arps, Slate, Meagher & Flom llp

November 21, 2023

NXG Cushing Midstream Energy Fund

600 N. Pearl Street, Suite 1205

Dallas, Texas 75201

Re:       NXG Cushing^® Midstream Energy Fund —

Issuance of Transferrable Rights                   

Ladies and Gentlemen:

We have acted as special counsel to NXG Cushing^® Midstream Energy Fund, a statutory trust (the “Trust”) created under the Delaware Statutory Trust Act (the “DSTA”), in connection with the issuance by the Trust to holders of common shares of beneficial interest, par value $0.001 per share of the Trust (the “Common Shares”), of 2,184,950 transferable rights (the “Rights”) entitling the holders of such Rights to purchase, upon exercise of the Rights, up to an aggregate of 728,317 Common Shares (the “Shares”).

This opinion is being furnished in accordance with the requirements of sub-paragraph (l) of item 25.2 of part C of Form N-2 under the Securities Act of 1933 (the “Securities Act”) and the Investment Company Act of 1940 (the “1940 Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

(i)        the notification of registration on Form N-8A (File No. 811-22072) of the Trust filed with the Securities and Exchange Commission (the “Commission”) under the 1940 Act on May 25, 2005;

(ii)       the registration statement on Form N-2 (File Nos. 333-273954 and 811-22072) of the Trust relating to the offering of the Common Shares, filed with the Commission on August 11, 2023 under the Securities Act and the 1940 Act, allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Securities Act Rules and Regulations”), Pre-Effective Amendments Nos. 1 and 2 thereto, including information deemed to be a part of the registration statement pursuant to Rule 430B of the Securities Act Rules and Regulations and the Notice of Effectiveness of the Commission posted on its website declaring such registration statement effective on November 13, 2023 (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);

NXG Cushing Midstream Energy Fund

November 21, 2023

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(iii)      the prospectus and Statement of Additional Information of the Trust, each dated November 13, 2023, in the form filed with the Commission on November 21, 2023 pursuant to Rule 424(b) of the Securities Act Rules and Regulations;

(iv)      the prospectus supplement of the Trust, dated November 21, 2023, relating to the issuance of the Rights and the Shares, in the form filed with the Commission on November 21, 2023 pursuant to Rule 424(b) of the Securities Act Rules and Regulations;

(v)       an executed copy of a certificate of Jeffrey Engelsman, Secretary of the Trust, dated the date hereof (the “Secretary’s Certificate”);

(vi)      a copy of the Trust’s Certificate of Trust, dated May 23, 2007, as amended by Certificates of Amendments dated as of February 20, 2018 and April 3, 2023 and a Certificate of Merger dated May 27, 2020 (as so amended, the “Certificate of Trust”), as certified by the Secretary of State of the State of Delaware as of November 21, 2023 and certified pursuant to the Secretary’s Certificate;

(vii)      a copy of the Trust’s Second Amended and Restated Agreement and Declaration of Trust, by the trustees of the Trust, dated as of May 12, 2011, as amended by Certificates of Amendment to the Trust’s Second Amended and Restated Declaration of Trust, dated February 20, 2018 and April 3, 2023, by the trustees of the Trust (as so amended, the “Declaration of Trust”), certified pursuant to the Secretary’s Certificate;

(viii)     a copy of the Trust’s Amended and Restated By-Laws, as amended and in effect as of the date hereof, certified pursuant to the Secretary’s Certificate;

(ix)      copies of certain resolutions adopted by the Board of Trustees of the Trust on August 4, 2023 and November 10, 2023, relating to the registration of the Shares and related matters, certified pursuant to the Secretary’s Certificate;

(x)       a copy of a certificate, dated the date hereof, from the Secretary of State of the State of Delaware with respect to the Trust’s existence and good standing in the State of Delaware; and

(xi)      a form of subscription certificate evidencing the Rights (the “Subscription Certificate”), filed as an exhibit to the Trust’s Current Report on Form 8-K, filed as of the date hereof.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Trust and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Trust and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.

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November 21, 2023

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In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Trust and others and of public officials, including those in the Secretary’s Certificate.

We do not express any opinion with respect to the laws of any jurisdiction other than the DSTA.

As used herein, “Organizational Documents” means those documents listed in paragraphs (vi) through (viii) above.

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:

1.        The Rights have been duly authorized by all requisite statutory trust action on the part of the Trust under the DSTA.

2.       The Shares issuable upon exercise of the Rights have been duly authorized by all requisite statutory trust action on the part of the Trust under the DSTA and, when issued upon exercise of the Rights in accordance with the terms of the Subscription Certificate, registered in the share record books of the Trust and delivered upon payment of the agreed upon consideration therefor by the holders of Rights pursuant to the Subscription Certificate, the Shares will be validly issued and fully paid, and under the DSTA, the holders of the Shares will have no obligation to make further payments for the purchase of such Shares or contributions to the Trust solely by reason of their ownership of such Shares except as provided in Article VIII, Section 2 of the Declaration of Trust and except for the obligation of holders of the Shares to repay any funds wrongfully distributed to them.

We have assumed that the Organizational Documents constitute the only governing instruments, as defined under the DSTA, of the Trust and that the Trust has, and since the time of its formation has had, at least one validly admitted and existing trustee of the Trust satisfying the requirements of the DSTA. Further, we have assumed that (i) no procedures have been instituted for and no other event has occurred, including, without limitation, any action taken by the Trust or its Board of Trustees or shareholders, as applicable, that would result in the liquidation, dissolution or winding-up of the Trust, (ii) no event has occurred that has adversely affected the good standing of the Trust under the laws of its jurisdiction of formation, and the Trust has taken all actions required by the laws of its jurisdiction of formation to maintain such good standing, and (iii) no grounds exist for the revocation or forfeiture of the Certificate of Trust. 

NXG Cushing Midstream Energy Fund

November 21, 2023

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We hereby consent to the filing or incorporation by reference of this opinion as an exhibit to the Registration Statement. We also hereby consent to the reference to our firm under the headings “Legal Matters” in the prospectus forming part of the Registration Statement and “General Information—Legal Matters” in the statement of additional information forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Securities Act Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

KTH