Exhibit d.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
CUSIP: _____________
No. 1
TORTOISE ENERGY CAPITAL CORPORATION
$__________ Tortoise Notes, Series ___ Due ______________
Tortoise Energy Capital Corporation, a Maryland Corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of ________________
Dollars $___________) on _______________________________.
Additional provisions of the Series ___ Tortoise Notes are set forth on
the reverse side hereof.
Dated: ____________________ TORTOISE ENERGY CAPITAL CORPORATION
By: __________________________
Name: Xxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
By:___________________________
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION Seal
This is one of the Securities of the series designated herein and referred to in
the within-mentioned Indenture.
Dated: ___________________
THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE
By:_______________________
Authorized Signatory
FORM OF REVERSE SIDE OF NOTE
TORTOISE ENERGY CAPITAL CORPORATION
$_______________ Series ___ Tortoise Notes Due ________
This Note is one of a duly authorized series of Securities of Tortoise
Energy Capital Corporation, a Maryland corporation (such corporation, and its
successors and assigns under the Indenture (as defined below) hereinafter
referred to, being herein called the "Company") issued pursuant to the
provisions of an indenture (the "Base Indenture") dated November 14, 2005 by and
between the Company and The Bank of New York Trust Company, N.A., a national
banking association (together with its successors, the "Trustee"), as trustee,
and a supplemental indenture between the Company and the Trustee to be dated
________________ (the "Supplemental Indenture," and together with the Base
Indenture, the "Indenture"). Defined terms used in this Note shall have the
meanings ascribed to them in the Indenture.
1. Interest
The Company promises to pay interest on the principal amount of the Series
__ Tortoise Notes (the "Tortoise Notes") at the Applicable Rate until maturity.
General. Each series of Tortoise Notes will bear interest at the Applicable
Rate determined as set forth below, payable on the respective dates set forth
below. Interest on the Tortoise Notes shall be payable when due (as described
below). If the Company does not pay interest when due, it will trigger an event
of default under the Indenture (subject to the cure provisions), and the Company
will be restricted from declaring dividends and making other distributions with
respect to its common stock and any preferred stock.
On the Business Day next preceding each Interest Payment Date, the Company
is required to deposit with the Paying Agent sufficient funds for the payment of
interest. The Company does not intend to establish any reserves for the payment
of interest.
All moneys paid to the Paying Agent for the payment of interest shall be
held in trust for the payment of such interest to the Holders. Interest will be
paid by the Paying Agent to the Holders as their names appear on the securities
ledger or securities records of the Company, which Xxxxxx(s) is expected to be
the nominee of the Securities Depository. The Securities Depository will credit
the accounts of the Agent Members of the Holders in accordance with the
Securities Depository's normal procedures. The Securities Depository's current
procedures provide for it to distribute interest in same-day funds to Agent
Members who are, in turn, expected to distribute such interest to the persons
for whom they are acting as agents. The Agent Member of a beneficial owner will
be responsible for holding or disbursing such payments on the applicable
Interest Payment Date to such beneficial owner in accordance with the
instructions of such Holder.
Interest in arrears for any past Rate Period may be subject to a Default
Rate of interest (described below) and may be paid at any time, without
reference to any regular Interest Payment Date, to the Holders as their names
appear on the securities ledger or securities records of the Company on such
date, not exceeding 15 days preceding the payment date thereof, as may
be fixed by the Board of Directors. Any interest payment shall first be credited
against the earliest accrued but unpaid interest. No interest will be payable in
respect of any payment or payments which may be in arrears.
The amount of interest payable on each Interest Payment Date of each Rate
Period of less than one (1) year (or in respect of interest on another date in
connection with a redemption during such Rate Period) shall be computed by
multiplying the Applicable Rate (or the Default Rate) for such Rate Period (or a
portion thereof) by a fraction, the numerator of which will be the number of
days in such Rate Period (or portion thereof) that such Tortoise Notes were
outstanding and for which the Applicable Rate or the Default Rate was applicable
and the denominator of which will be 360, multiplying the amount so obtained by
$25,000, and rounding the amount so obtained to the nearest cent. During any
Rate Period of one (1) year or more, the amount of interest per Tortoise Note
payable on any Interest Payment Date (or in respect of interest on another date
in connection with a redemption during such Rate Period) shall be computed as
described in the preceding sentence.
Determination of Interest Rate. The interest rate for the initial Rate
Period (i.e., the period from and including the Original Issue Date to and
including the initial Auction Date) and the initial Auction Date are set forth
on the cover page of the Prospectus. After the initial Rate Period, subject to
certain exceptions, the Tortoise Notes will bear interest at the Applicable Rate
that the Auction Agent advises the Company has resulted from an Auction.
The initial Rate Period for Tortoise Notes Series ___ shall be 8 days. Rate
Periods after the initial Rate Period shall either be Standard Rate Periods or,
subject to certain conditions and with notice to Holders, Special Rate Periods.
A Special Rate Period will not be effective unless Sufficient Clearing Bids
exist at the Auction in respect of such Special Rate Period (that is, in
general, the aggregate amount of Tortoise Notes subject to Buy Orders by
Potential Holders is at least equal to the aggregate amount of Tortoise Notes
subject to Sell Orders by Existing Holders).
Interest will accrue at the Applicable Rate from the Original Issue Date
and shall be payable on each Interest Payment Date thereafter. For Rate Periods
of less than 30 days, Interest Payment Dates shall occur on the first Business
Day following such Rate Period and, if greater than 30 days, then on a monthly
basis on the first Business Day of each month within such Rate Period and on the
Business Day following the last day of such Rate Period. Interest will be paid
through the Securities Depository on each Interest Payment Date.
Except during a Default Period as described below, the Applicable Rate
resulting from an Auction will not be greater than the Maximum Rate, which is
equal to the Applicable Percentage of the Reference Rate, subject to upward but
not downward adjustment in the discretion of the Board of Directors after
consultation with the Broker-Dealers. The Applicable Percentage will be
determined based on the lower of the credit ratings assigned on that date to the
Tortoise Notes by Xxxxx'x and Fitch, as follows:
Xxxxx'x Fitch
Credit Rating Credit Rating Applicable Percentage
--------------------------------------------------------------------------------
Aa3 or above AA- or above 200%
A3 to A1 A- to A+ 250%
Baa3 to Baa1 BBB- to BBB+ 275%
Below Baa3 Below BBB- 300%
The Reference Rate is the greater of (1) the applicable AA Composite
Commercial Paper Rate (for a Rate Period of fewer than 184 days) or the
applicable Treasury Index Rate (for a Rate Period of 184 days or more), or (2)
the applicable LIBOR. For Standard Rate Periods or less only, the Applicable
Rate resulting from an Auction will not be less than the Minimum Rate, which is
70% of the applicable AA Composite Commercial Paper Rate. No Minimum Rate is
specified for Auctions in respect to Rate Periods of more than the Standard Rate
Period.
The Maximum Rate for the Tortoise Notes will apply automatically following
an Auction for the notes in which Sufficient Clearing Bids have not been made
(other than because all Tortoise Notes were subject to Submitted Hold Orders).
If an Auction for any subsequent Rate Period is not held for any reason,
including because there is no Auction Agent or Broker-Dealer, then the Interest
Rate on the Tortoise Notes for any such Rate Period shall be the Maximum Rate
(except for circumstances in which the Interest Rate is the Default Rate, as
described below).
The All Hold Rate will apply automatically following an Auction in which
all of the outstanding Tortoise Notes are subject to (or are deemed to be
subject to) Submitted Hold Orders. The All Hold Rate is 80% of the applicable AA
Composite Commercial Paper Rate.
Prior to each Auction, Broker-Dealers will notify Holders and the Trustee
of the term of the next succeeding Rate Period as soon as practicable after the
Broker-Dealers have been so advised by the Company. After each Auction, on the
Auction Date, Broker-Dealers will notify Holders of the Applicable Rate for the
next succeeding Rate Period and of the Auction Date of the next succeeding
Auction.
Notification of Rate Period. The Company will designate the duration of
subsequent Rate Periods of each series of Tortoise Notes; provided, however,
that no such designation is necessary for a Standard Rate Period and, provided
further, that any designation of a Special Rate Period shall be effective only
if (i) notice thereof shall have been given as provided herein, (ii) any failure
to pay in a timely manner to the Trustee the full amount of any interest on, or
the redemption price of, Tortoise Notes shall have been cured as provided above,
(iii) Sufficient Clearing Bids shall have existed in an Auction held on the
Auction Date immediately preceding the first day of such proposed Special Rate
Period, (iv) if the Company shall have mailed a Notice of Redemption with
respect to any Tortoise Notes, the redemption price with respect to such
Tortoise Notes shall have been deposited with the Paying Agent, and (v) the
Company has confirmed that as of the Auction Date next preceding the first day
of such Special Rate Period, it has Eligible Assets with an aggregate Discounted
Value at least equal to the Tortoise Notes Basic Maintenance Amount, and the
Company has consulted with the Broker-Dealers and has provided notice of such
designation and otherwise complied with the Rating Agency Guidelines.
Designation of a Special Rate Period. If the Company proposes to designate
any Special Rate Period, not fewer than seven (7) (or two (2) Business Days in
the event the duration of the
Rate Period prior to such Special Rate Period is fewer than eight (8) days) nor
more than 30 Business Days prior to the first day of such Special Rate Period,
notice shall be (i) made by press release and (ii) communicated by the Company
by telephonic or other means to the Trustee and confirmed in writing promptly
thereafter. Each such notice shall state (A) that the Company proposes to
exercise its option to designate a succeeding Special Rate Period, specifying
the first and last days thereof and (B) that the Company will by 3:00 p.m., New
York City time, on the second Business Day next preceding the first day of such
Special Rate Period, notify the Auction Agent and the Trustee, who will promptly
notify the Broker-Dealers, of either (x) its determination, subject to certain
conditions, to proceed with such Special Rate Period, subject to the terms of
any Specific Redemption Provisions, or (y) its determination not to proceed with
such Special Rate Period, in which latter event the succeeding Rate Period shall
be a Standard Rate Period.
No later than 3:00 p.m., New York City time, on the second Business Day
next preceding the first day of any proposed Special Rate Period, the Company
shall deliver to the Trustee and the Auction Agent, who will promptly deliver to
the Broker-Dealers and Existing Holders, either:
(i) a notice stating (A) that the Company has determined to designate the
next succeeding Rate Period as a Special Rate Period, specifying the first and
last days thereof and (B) the terms of any Specific Redemption Provisions; or
(ii) a notice stating that the Company has determined not to exercise its
option to designate a Special Rate Period.
If the Company fails to deliver either such notice with respect to any
designation of any proposed Special Rate Period to the Auction Agent and the
Auction Agent is unable to make the confirmation described above by 3:00 p.m.,
New York City time, on the second Business Day next preceding the first day of
such proposed Special Rate Period, the Company shall be deemed to have delivered
a notice to the Auction Agent with respect to such Rate Period to the effect set
forth in clause (ii) above, thereby resulting in a Standard Rate Period.
Default Period. Subject to cure provisions, a Default Period with respect
to a particular series of Tortoise Notes will commence on any date the Company
fails to deposit irrevocably in trust in same-day funds, with the Paying Agent
by 12:00 noon, New York City time,
(A) the full amount of any declared interest on that series payable on the
Interest Payment Date (an "Interest Default"), or
(B) the full amount of any redemption price (the "Redemption Price")
payable on the date fixed for redemption (the "Redemption Date") (a "Redemption
Default" and together with an Interest Default, hereinafter referred to as
"Default").
Subject to cure provisions, a Default Period with respect to an Interest
Default or a Redemption Default shall end on the Business Day on which, by 12:00
noon, New York City time, all unpaid interest and any unpaid Redemption Price
shall have been deposited irrevocably in trust in same-day funds with the Paying
Agent. In the case of an Interest Default, the Applicable Rate for each Rate
Period commencing during a Default Period will be equal to the
Default Rate, and each subsequent Rate Period commencing after the beginning of
a Default Period shall be a Standard Rate Period; provided, however, that the
commencement of a Default Period will not by itself cause the commencement of a
new Rate Period.
No Auction shall be held during a Default Period with respect to an
Interest Default applicable to that series of Tortoise Notes. No Default Period
with respect to an Interest Default or Redemption Default shall be deemed to
commence if the amount of any interest or any Redemption Price due (if such
default is not solely due to the willful failure of the Company) is deposited
irrevocably in trust, in same-day funds with the Paying Agent by 12:00 noon, New
York City time within three Business Days after the applicable Interest Payment
Date or Redemption Date, together with an amount equal to the Default Rate
applied to the amount of such non-payment based on the actual number of days
comprising such period divided by 360 for each series. The Default Rate shall be
equal to the Reference Rate multiplied by three (3).
2. Trustee, Paying Agent and Auction Agent
The Trustee will act as Paying Agent with respect to the Tortoise Notes
unless and until another entity appointed by a resolution of the Board of
Directors enters into an agreement with the Company to serve as paying agent,
which paying agent may be the same as the Trustee or the Auction Agent.
The Bank of New York, a national banking association duly organized and
operating under the laws of the United States of America, will act as Auction
Agent unless and until another commercial bank, trust company, or other
financial institution appointed by a resolution of the Board of Directors enters
into an agreement with the Company to follow the Auction Procedures for the
purpose of determining the Applicable Rate.
3. Indenture
The terms of the Tortoise Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). The Tortoise Notes are subject to all such terms, and Holders of
Tortoise Notes are referred to the Indenture and the Act for a statement of
those terms.
The aggregate principal amount of Tortoise Notes which may be authenticated
and delivered under the Indenture is unlimited (per Section 3.1 of the
Indenture). The Tortoise Notes are one of the Auction Rate Senior Notes referred
to in the Indenture. The Indenture imposes certain limitations on, among other
things, the issuance of debt and redeemable stock by the Company, the payment of
dividends and other distributions and acquisitions or retirements of the
Company's capital stock and transactions with Affiliates.
4. Optional Redemption
To the extent permitted under the Investment Company Act and Maryland law,
the Company at its option may redeem Tortoise Notes having a Rate Period of one
year or less, in whole or in part, out of funds legally available therefor, on
the Interest Payment Date upon not less than 15 days' and not more than 40 days'
prior notice. This optional redemption is not
available during the initial Rate Period or during any period during which the
Company does not have the option to redeem Tortoise Notes. The optional
redemption price shall be equal to the aggregate principal amount of the
Tortoise Notes to be redeemed, plus an amount equal to accrued interest to the
date fixed for redemption. Tortoise Notes having a Rate Period of more than one
year are redeemable at the option of the Company, in whole or in part, out of
funds legally available therefor, prior to the end of the relevant Rate Period,
upon not less than 15 days' and not more than 40 days' prior notice, subject to
any Specific Redemption Provisions, which may include the payment of redemption
premiums. The Company shall not effect any optional redemption unless after
giving effect thereto (1) the Company has available on such date fixed for the
redemption certain Deposit Securities with maturity or tender dates not later
than the day preceding the applicable redemption date and having a value not
less than the amount (including any applicable premium) due to Holders of a
series of Tortoise Notes by reason of the redemption of a series of Tortoise
Notes and (2) the Company would have Eligible Assets with an aggregate
Discounted Value at least equal to the Tortoise Notes Basic Maintenance Amount
immediately subsequent to such redemption.
The Company also reserves the right to repurchase Tortoise Notes in market
or other transactions from time to time in accordance with applicable law and at
a price that may be more or less than the principal amount of the Tortoise
Notes, but is under no obligation to do so.
5. Mandatory Redemption
If the Company fails to maintain Eligible Assets with an aggregate
Discounted Value at least equal to the Tortoise Notes Basic Maintenance Amount
as of any Valuation Date or, fails to satisfy the 1940 Act Tortoise Notes Asset
Coverage as of the last Business Day of any month, and such failure is not cured
within ten Business Days following such Valuation Date in the case of a failure
to maintain the Tortoise Notes Basic Maintenance Amount or on the last Business
Day of the following month in the case of a failure to maintain the 1940 Act
Tortoise Notes Asset Coverage as of such last Business Day (each an "Asset
Coverage Cure Date"), the Tortoise Notes will be subject to mandatory redemption
out of funds legally available therefor.
The principal amount of Tortoise Notes to be redeemed in such circumstances
will be equal to the lesser of (1) the minimum principal amount of Tortoise
Notes the redemption of which, if deemed to have occurred immediately prior to
the opening of business on the relevant Asset Coverage Cure Date, would result
in the Company having Eligible Assets with an aggregated Discounted Value at
least equal to the Tortoise Notes Basic Maintenance Amount or sufficient to
satisfy the 1940 Act Tortoise Notes Asset Coverage, as the case may be, in
either case as of the relevant Asset Coverage Cure Date (provided that, if there
is no such minimum principal amount of Tortoise Notes the redemption of which
would have such result, all Tortoise Notes then outstanding will be redeemed),
and (2) the maximum principal amount of Tortoise Notes that can be redeemed out
of funds expected to be available therefor on the Mandatory Redemption Date (as
defined below) at the Mandatory Redemption Price (as defined below).
Any redemption of less than all of the outstanding Tortoise Notes of a
series will be made from Tortoise Notes designated by the Company. The Company
shall designate Tortoise Notes to be redeemed on a pro rata basis among the
Holders in proportion to the principal amount of Tortoise Notes they hold, by
lot or such other method as the Company shall deem equitable. No
optional or mandatory redemption of less than all outstanding Tortoise Notes of
a series will be made unless the aggregate principal amount of Tortoise Notes to
be redeemed is equal to $25,000 or integral multiples thereof. Any redemption of
less than all Tortoise Notes outstanding will be made in such a manner that all
Tortoise Notes outstanding after such redemption are in authorized
denominations.
The Company is required to effect such a mandatory redemption not later
than 40 days after the Asset Coverage Cure Date, as the case may be (the
"Mandatory Redemption Date"), except that if the Company does not have funds
legally available for the redemption of, or is not otherwise legally permitted
to redeem, all of the outstanding Tortoise Notes of a series, which are subject
to mandatory redemption, or the Company otherwise is unable to effect such
redemption on or prior to such Mandatory Redemption Date, the Company will
redeem those Tortoise Notes on the earliest practicable date on which the
Company will have such funds available, upon notice to record owners of Tortoise
Notes and the Paying Agent. The Company's ability to make a mandatory redemption
may be limited by the provisions of the Investment Company Act or Maryland law.
The redemption price per Tortoise Note in the event of any mandatory redemption
will be the principal amount, plus an amount equal to accrued but unpaid
interest to the date fixed for redemption, plus (in the case of a Rate Period of
more than one year) a redemption premium, if any, determined by the Board of
Directors after consultation with the Broker-Dealers and set forth in any
applicable Specific Redemption Provisions (the "Mandatory Redemption Price").
6. Notice of Redemption
Pursuant to Rule 23c-2 under the Investment Company Act, the Company will
file a notice of its intention to redeem with the SEC so as to provide at least
the minimum notice required by such Rule or any successor provision (notice
currently must be filed with the SEC generally at least 30 days prior to the
redemption date). The Company shall deliver a notice of redemption to the
Auction Agent and the Trustee containing the information described below one
Business Day prior to the giving of notice to Holders in the case of an optional
redemption and on or prior to the 30th day preceding the Mandatory Redemption
Date in the case of a mandatory redemption. The Trustee will use its reasonable
efforts to provide notice to each holder of Tortoise Notes called for redemption
by electronic means not later than the close of business on the Business Day
immediately following the Business Day on which the Trustee determines the
principal amount of Tortoise Notes to be redeemed (or, during a Default Period
with respect to such Tortoise Notes, not later than the close of business on the
Business Day immediately following the day on which the Trustee receives notice
of redemption from the Company). Such notice will be confirmed promptly by the
Trustee in writing not later than the close of business on the third Business
Day preceding the redemption date by providing the notice to each holder of
record of Tortoise Notes called for redemption, the Paying Agent (if different
from the Trustee) and the Securities Depository ("Notice of Redemption"). The
Notice of Redemption will be addressed to the registered owners of the Tortoise
Notes at their addresses appearing on the books or share records of the Company.
Such notice will set forth (1) the redemption date, (2) the principal amount and
identity of Tortoise Notes to be redeemed, (3) the redemption price (specifying
the amount of accrued interest to be included therein), (4) that interest on the
Tortoise Notes to be redeemed will cease to accrue on such redemption date, and
(5) the Investment Company Act provision under which redemption shall be made.
No defect in
the Notice of Redemption or in the transmittal or mailing thereof will affect
the validity of the redemption proceedings, except as required by applicable
law.
If less than all of the outstanding Tortoise Notes of a series are redeemed
on any date, the amount per Holder to be redeemed on such date will be selected
by the Company on a pro rata basis in proportion to the principal amount of
Tortoise Notes held by such Holders, by lot or by such other method as is
determined by the Company to be fair and equitable, subject to the terms of any
Specific Redemption Provisions and subject to maintaining authorized
denominations as described above. Tortoise Notes may be subject to mandatory
redemption as described herein notwithstanding the terms of any Specific
Redemption Provisions. The Auction Agent will give notice to the Securities
Depository, whose nominee will be the record holder of all of the Tortoise
Notes, and the Securities Depository will determine the Tortoise Notes to be
redeemed from the account of the Agent Member of each beneficial owner. Each
Agent Member will determine the principal amount of Tortoise Notes to be
redeemed from the account of each beneficial owner for which it acts as agent.
An Agent Member may select for redemption Tortoise Notes from the accounts of
some beneficial owners without selecting for redemption any Tortoise Notes from
the accounts of other beneficial owners. Notwithstanding the foregoing, if
neither the Securities Depository nor its nominee is the record holder of all of
the Tortoise Notes, the particular principal amount to be redeemed shall be
selected by the Company by lot, on a pro rata basis between each series or by
such other method as the Company shall deem fair and equitable, as contemplated
above.
If Notice of Redemption has been given, then upon the deposit of funds with
the Paying Agent sufficient to effect such redemption, interest on such Tortoise
Notes will cease to accrue and such Tortoise Notes will no longer be deemed to
be outstanding for any purpose and all rights of the owners of the Tortoise
Notes so called for redemption will cease and terminate, except the right of the
owners of such Tortoise Notes to receive the redemption price, but without any
interest or additional amount. The Company shall be entitled to receive from the
Paying Agent, promptly after the date fixed for redemption, any cash deposited
with the Paying Agent in excess of (1) the aggregate redemption price of the
Tortoise Notes called for redemption on such date and (2) such other amounts, if
any, to which holders of Tortoise Notes called for redemption may be entitled.
The Company will be entitled to receive, from time to time after the date fixed
for redemption, from the Paying Agent the interest, if any, earned on such funds
deposited with the Paying Agent and the owners of Tortoise Notes so redeemed
will have no claim to any such interest. Any funds so deposited which are
unclaimed two years after such redemption date will be paid, to the extent
permitted by law, by the Paying Agent to the Company upon its request. After
such payment, holders of Tortoise Notes called for redemption may look only to
the Company for payment.
So long as any Tortoise Notes are held of record by the nominee of the
Securities Depository, the redemption price for such Tortoise Notes will be paid
on the redemption date to the nominee of the Securities Depository. The
Securities Depository's normal procedures provide for it to distribute the
amount of the redemption price to Agent Members who, in turn, are expected to
distribute such funds to the persons for whom they are acting as agent.
Notwithstanding the provisions for redemption described above, no Tortoise
Notes may be redeemed unless all interest in arrears on the Outstanding Tortoise
Notes, and any
indebtedness of the Company ranking on a parity with the Tortoise Notes, have
been or are being contemporaneously paid or set aside for payment, except in
connection with the liquidation of the Company in which case all Tortoise Notes
and all indebtedness ranking on a parity with the Tortoise Notes must receive
proportionate amounts and that the foregoing shall not prevent the purchase or
acquisition of all the Outstanding Tortoise Notes pursuant to the successful
completion of an otherwise lawful purchase or exchange offer made on the same
terms to, and accepted by, Holders of all Outstanding Tortoise Notes.
Except for the provisions described above, nothing contained in the
Indenture limits any legal right of the Company to purchase or otherwise acquire
Tortoise Notes outside of an Auction at any price, whether higher or lower than
the price that would be paid in connection with an optional or mandatory
redemption, so long as, at the time of any such purchase, there is no arrearage
in the payment of interest on or the mandatory or optional redemption price with
respect to, any Tortoise Notes for which Notice of Redemption has been given and
the Company is in compliance with the 1940 Act Tortoise Notes Asset Coverage and
has Eligible Assets with an aggregate Discounted Value at least equal to the
Tortoise Notes Basic Maintenance Amount after giving effect to such purchase or
acquisition on the date thereof. If less than all outstanding Tortoise Notes are
redeemed or otherwise acquired by the Company, the Company shall give notice of
such transaction to the Auction Agent, in accordance with the procedures agreed
upon by the Board of Directors.
7. Denominations; Transfer; Exchange
The Tortoise Notes are in registered form without coupons in denominations
of the Principal Amount of $25,000 and integral multiples thereof. A Holder may
transfer or exchange Tortoise Notes in accordance with the Indenture. The
Company, Security Registrar or Trustee may require a Holder, among other things,
to furnish appropriate endorsements or transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture.
8. Persons Deemed Owners
The Tortoise Notes are being issued by means of a book-entry only system
with no physical distribution of certificates to be made except as provided in
the Indenture. The book-entry system will be maintained by the Securities
Depository and will evidence ownership of the Tortoise Notes, with transfers of
ownership effected on the records of the Securities Depository and its
participants pursuant to the rules and procedures established by the Securities
Depository and its participants. The Company will recognize Cede & Co., as
nominee of the Securities Depository, as the owner of the Tortoise Notes for all
purposes, including payment of principal and interest, notices and voting.
Transfer of principal and interest to participants of the Securities Depository
will be the responsibility of the Securities Depository, and transfer of
principal and interest to beneficial owners of the Tortoise Notes by
participants of the Securities Depository will be the responsibility of such
participants and other nominees of such beneficial owners. The Company will not
be responsible or liable for such transfers or payments or for maintaining,
supervising or reviewing the records maintained by the Securities Depository,
its participants or persons acting through such participants.
9. Unclaimed Money
If money for the payment of Principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company, to
the extent permitted by law. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Tortoise Notes and the Indenture if the
Company deposits with the Trustee money, U.S. Government Obligations, such other
obligations or arrangements as may be specified, or a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof for
the payment of Principal and any premium and interest on the Tortoise Notes on
the respective Stated Maturities, in accordance with the terms of the Indenture
and such Securities.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Tortoise Notes may be amended with the written consent of the Holders of
at least a majority in Principal Amount outstanding of the Tortoise Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in Principal Amount outstanding of
the Tortoise Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder of the Tortoise Notes, the Company and the
Trustee may amend the Indenture or the Tortoise Notes: to evidence the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company in the Indenture and in the
Securities; to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power conferred upon the Company by the Indenture; to add
any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the benefit of such
series); to add to or change any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; to add to, change or eliminate any of the provisions of
the Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (1) apply to any Security
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (2) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or to establish the
form or terms of Securities of any series and to increase the aggregate
principal amount of any Outstanding series of Securities, as permitted by the
Indenture; to evidence and provide for the acceptance of appointment by a
successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of the Indenture; or to cure any ambiguity, to correct or
supplement any provision which may be defective or inconsistent with any other
provision, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect.
12. Events of Default and Acceleration of Maturity; Remedies
Any one of the following events constitutes an "event of default" under the
Indenture:
o default in the payment of any interest upon any series of Tortoise
Notes when it becomes due and payable and the continuance of such
default for a period of 30 days;
o default in the payment of any Redemption Price payable on the
Redemption Date;
o default in the payment of the principal of, or premium on, any series
of Tortoise Notes at its Stated Maturity;
o default in the performance, or breach, of any covenant or warranty of
the Company in the Indenture (other than a covenant or warranty a
default in whose performance or whose breach is specifically dealt
with in Section 5.1 of the Indenture or which has expressly been
included in the Indenture solely for the benefit of series of Tortoise
Notes other than this series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default";
o the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days (provided
that, if any Person becomes the successor to the Company pursuant to
Article VIII of the Indenture and such Person is a corporation,
partnership or trust organized and validly existing under the law of a
jurisdiction outside the United States, each reference in this
paragraph to an applicable Federal or State law of a particular kind
shall be deemed to refer to such law or any applicable comparable law
of
such non-U.S. jurisdiction, for as long as such Xxxxxx is the
successor to the Company hereunder and is so organized and existing);
o the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company
in furtherance of any such action (provided that, if any Person
becomes the successor to the Company pursuant to Article VIII of the
Indenture and such Person is a corporation, partnership or trust
organized and validly existing under the law of a jurisdiction outside
the United States, each reference in this paragraph to an applicable
Federal or State law of a particular kind shall be deemed to refer to
such law or any applicable comparable law of such non-U.S.
jurisdiction, for as long as such Person is the successor to the
Company hereunder and is so organized and existing);
o if, pursuant to Section 18(a)(1)(c)(ii) of the Investment Company Act,
on the last business day of each of twenty-four consecutive calendar
months any series of Tortoise Notes shall have an asset coverage of
less than 100%; or
o any other Event of Default provided with respect to Tortoise Notes of
this series.
Upon the occurrence of an Event of Default with respect to Tortoise Notes
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than a majority in principal
amount of the Outstanding Tortoise Notes of that series may declare the
principal amount of all the Tortoise Notes of that series (or, in the case of
any Security of that series which specifies an amount to be due and payable
thereon upon acceleration of the Maturity thereof, such amount as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified above with respect
to Tortoise Notes of any series at the time Outstanding occurs, the principal
amount of all the Tortoise Notes of that series (or, in the case of any Security
of that series which specifies an amount to be due and payable thereon upon
acceleration of the Maturity thereof, such amount as may be specified by the
terms thereof) shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Tortoise Notes of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as provided in the
Indenture, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if: (1) the Company has
paid or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Tortoise Notes of that series, (B) the principal of (and
premium, if any, on) any Tortoise Notes of that series which have become due
otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Tortoise Notes, (C) to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Tortoise Notes, and (D) all sums paid
or advanced by the Trustee and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; and (2) all
Events of Default with respect to Tortoise Notes of that series, other than the
non-payment of the principal of Tortoise Notes of that series which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
13. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Tortoise Notes and may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company
under the Tortoise Notes or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting the Tortoise
Notes, each Holder of Tortoise Notes waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Tortoise
Notes.
15. Authentication
The Trustee's authentication certificate upon the Tortoise Notes shall be
substantially in the forms provided in the Indenture. No Tortoise Notes shall be
secured or entitled to the benefit of the Indenture, or shall be valid or
obligatory for any purpose, unless a certificate of authentication,
substantially in such form, has been duly executed by the Trustee; and such
certificate of the Trustee upon any Tortoise Notes shall be conclusive evidence
and the only competent evidence that such Bond has been authenticated and
delivered. The Trustee's certificate of authentication shall be deemed to have
been duly executed by it if manually signed by an authorized officer of the
Trustee, but it shall not be necessary that the same person sign the certificate
of authentication on all of the Tortoise Notes issued.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder of Tortoise
Notes or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with rights of survivorship and not
as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Tortoise Notes and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Holders of Tortoise Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Tortoise Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Tortoise Notes, upon written
request and without charge to the Holder of Tortoise Notes, a copy of the
Indenture which has in it the text of the Tortoise Notes in larger type.
Requests may be made to: Tortoise Energy Capital Corporation, 00000 Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx.
ASSIGNMENT FORM
To assign these Series ___ Tortoise Notes, fill in the form below:
I or we assign and transfer these Series ___ Tortoise Notes to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _______________________________ agent to transfer these
Series ___ Tortoise Notes on the books of the Company. The agent may
substitute another to act for him.
Date:______________________ Your Signature: ____________________________