BROKER-DEALER AGREEMENT
EXHIBIT
k.6
This
Broker-Dealer Agreement dated as of ________, 2007, is between [Auction Agent]
(the “Auction Agent”) (not in its individual capacity, but solely as agent of
Tortoise Energy Capital Corporation (the “Company”)), pursuant to authority
granted to it in the Auction Agency Agreement between the Company and the
Auction Agent dated as of ________, 2007 (the “Auction Agency Agreement”) and
[Broker-Dealer] (together with its successors and assigns, the
“Broker-Dealer”).
The
Company proposes to issue an aggregate of ____ shares of its Series __ Money
Market Cumulative Preferred®
Shares,
$0.001 par value per share, liquidation preference of $25,000 per share (the
“MMP Shares”), authorized by, and subject to the terms and conditions of, the
Articles Supplementary of Series __ Money Market Cumulative
Preferred®
Shares
(the “Articles Supplementary”).
The
Articles Supplementary provide that for each Dividend Period of outstanding
MMP
Shares following the initial Dividend Period, the Applicable Rate for MMP
Shares
shall equal the rate per annum that results from an Auction for outstanding
MMP
Shares. The Board of Directors of the Company has adopted resolutions appointing
[Auction Agent] as Auction Agent for purposes of the Auction Procedures,
and
pursuant to Section 2.5 of the Auction Agency Agreement, the Company has
requested and directed the Auction Agent to execute and deliver this
Agreement.
The
Auction Procedures require the participation of one or more
Broker-Dealers.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Auction Agent and Broker-Dealer agree as follows:
| I. |
DEFINITIONS
AND RULES OF CONSTRUCTION.
|
| 1.1 |
Terms
Defined by Reference to the Articles
Supplementary.
|
Capitalized
terms used herein but not defined herein shall have the respective meanings
specified in the Articles Supplementary.
| 1.2 |
Terms
Defined Herein.
|
As
used
herein, the following terms shall have the following meanings, unless the
context otherwise requires:
(a) “Articles
Supplementary” shall mean the Articles Supplementary of Money Market Cumulative
Preferred®
Shares
of the Company dated _______, 2007, specifying the powers, preferences and
rights of the MMP Shares.
(b) “Auction”
shall have the meaning specified in Section 3.1(a) hereof.
(c) “Auction
Procedures” shall mean the procedures as from time to time in effect for
conducting Auctions that are set forth in Part II of the Articles
Supplementary.
(d) “Authorized
Officer” shall mean (i) in the case of the Auction Agent, each Vice President,
Assistant Vice President and Assistant Treasurer of the Auction Agent assigned
to the Dealing and Trading Group of its Corporate Trust Division and every
other
officer or employee of the Auction Agent designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Company and (ii)
in
the case of the Company, its Treasurer and every other officer or employee
of
the Company designated an “Authorized Officer” for purposes hereof in a written
communication delivered to the Auction Agent.
(e) “Broker-Dealer
Officer” shall mean each officer or employee of a Broker-Dealer designated as a
“Broker-Dealer Officer” for purposes of this Agreement in a written
communication to the Auction Agent.
(f) “Broker-Dealer
Agreement” shall mean this Agreement and any substantially similar agreement
between the Auction Agent and a Broker-Dealer.
| 1.3 |
Rules
of Construction.
|
Unless
the context or use indicates another or different meaning or intent, the
following rules shall apply to the construction of this Agreement:
(a) Words
importing the singular number shall include the plural number and vice
versa.
(b) The
captions and headings herein are solely for convenience of reference and
shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
(c) The
words
“hereof,” “herein,” “hereto,” and other words of similar import refer to this
Agreement as a whole.
(d) All
references herein to a particular time of day shall be to New York City
time.
| II. |
NOTIFICATION
OF DIVIDEND PERIOD.
|
The
provisions contained in Section 4 of Part I of the Articles Supplementary
concerning the notification of a Special Dividend Period will be followed
by the
Auction Agent and Broker-Dealer, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to
be a
part of this Agreement to the same extent as if such provisions were set
forth
fully herein.
| III. |
THE
AUCTION.
|
| 3.1 |
Purpose;
Incorporation by Reference of Auction
Procedures.
|
(a) On
each
Auction Date, the provisions of the Auction Procedures will be followed by
the
Auction Agent for the purpose of determining the Applicable Rate for
the
2
MMP
Shares for the next Dividend Period. Each periodic operation of such procedures
is hereinafter referred to as an “Auction.”
(b) All
of
the provisions contained in the Auction Procedures are incorporated herein
by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully herein. In
the
case of any conflict between the terms of any document incorporated herein
by
reference and the terms hereof, the terms in this Agreement shall
control.
(c) Broker-Dealer
agrees to act as, and assumes the obligations of and limitations and
restrictions placed upon, a Broker-Dealer under this Agreement. Broker-Dealer
understands that other persons meeting the requirements specified in the
definition of “Broker-Dealer” contained in Section 17 of Part I of the Articles
Supplementary may execute a Broker-Dealer Agreement and participate as
Broker-Dealers in Auctions.
(d) Broker-Dealer
and other Broker-Dealers may participate in Auctions for their own accounts.
However, the Company, by notice to Broker-Dealer and all other Broker-Dealers,
may prohibit all Broker-Dealers from submitting Bids in Auctions for their
own
accounts, provided that Broker-Dealers may continue to submit Hold Orders
and
Sell Orders. The Auction Agent shall have no duty or liability with respect
to
enforcement of this Section 3.1(d).
| 3.2 |
Preparation
for Each Auction.
|
(a) Not
later
than 9:30 a.m. on each Auction Date for the MMP Shares, the Auction Agent
shall
advise Broker-Dealer by telephone of the Reference Rate and the Maximum Rate
in
effect on such Auction Date.
(b) In
the
event that the Auction Date for any Auction shall be changed, the Auction
Agent,
by such means as the Auction Agent reasonably deems practicable, shall give
notice of such change to Broker-Dealer not later than the earlier of 9:15
a.m.
on the new Auction Date or 9:15 a.m. on the old Auction Date. Thereafter,
Broker-Dealer promptly shall notify customers of Broker-Dealer that
Broker-Dealer believes are Beneficial Owners of MMP Shares of such change
in the
Auction Date.
(c) The
Auction Agent from time to time may, but shall have no obligation to, request
Broker-Dealer to provide it with a list of the respective customers
Broker-Dealer believes are Beneficial Owners of MMP Shares. Broker-Dealer
shall
comply with any such request, and the Auction Agent shall keep confidential
any
such information, including information received as to the identity of Bidders
in any Auction, and shall not disclose any such information so provided to
any
Person other than the Company; and such information shall not be used by
the
Auction Agent or its officers, employees, agents or representatives for any
purpose other than such purposes as are described herein. Notwithstanding
the
foregoing, the Auction Agent reserves the right and is authorized to disclose
any such information if (a) it is ordered to do so by a court of competent
jurisdiction or a regulatory body, judicial or quasi-judicial agency or
authority having the authority to compel such disclosure, (b) it is advised
by
its counsel that its
3
failure
to do so would be unlawful or (c) it is advised by its counsel that failure
to
do so could expose the Auction Agent to loss, liability, claim or damage
for
which it has not received indemnity or security satisfactory to it. In the
event
that the Auction Agent is required to disclose information in accordance
with
the foregoing sentence, it shall provide written notice of such requirement
to
Broker-Dealer as promptly as practicable. The Auction Agent shall transmit
any
list of customers Broker-Dealer believes are Beneficial Owners of MMP Shares
and
information related thereto only to its officers, employees, agents or
representatives who need to know such information for the purposes of acting
in
accordance with this Agreement and to the Company, and the Auction Agent
shall
prevent the transmission of such information to others and shall cause its
officers, employees, agents and representatives to abide by the foregoing
confidentiality restrictions.
| 3.3 |
Auction
Schedule; Method of Submission of Orders.
|
(a) The
Company and the Auction Agent shall conduct Auctions for the MMP Shares in
accordance with the schedule set forth below. Such schedule may be changed
at
any time by the Auction Agent with the consent of the Company, which consent
shall not be withheld unreasonably. The Auction Agent shall give notice of
any
such change to Broker-Dealer. Such notice shall be received prior to the
first
Auction Date on which any such change shall be effective.
|
Time
|
Event
|
|
By
9:30 a.m.
|
The
Auction Agent shall advise the Company and the Broker-Dealers of
the
Reference Rate and the Maximum Rate as set forth in Section 3.2(a)
hereof.
|
|
9:30
a.m. - 1:00 p.m.
|
The
Auction Agent shall assemble information communicated to it by
Broker-Dealers as provided in Section 2 of Part II of the Articles
Supplementary.
Submission
Deadline is 1:00 p.m.
|
|
Not
earlier than 1:00 p.m.
|
The
Auction Agent shall make determinations pursuant to Section 4 of
Part II
of the Articles Supplementary.
|
|
By
approximately 3:00 p.m.
|
The
Auction Agent shall advise the Company of the results of the Auction
as
provided in Section 4(b) of Part II of the Articles Supplementary.
Submitted Bids and Submitted Sell Orders will be accepted and rejected
in
whole or in part and MMP Shares will be allocated as provided
in
|
4
|
Section
5 of Part II of the Articles Supplementary.
The
Auction Agent shall give notice of the Auction results as set forth
in
Section 3.4(a) hereof.
|
The
Auction Agent will follow the Bond Market Association’s Market Practice U.S.
Holiday Recommendations for shortened trading days for the bond markets (the
“BMA Recommendation”) unless the Auction Agent is instructed otherwise. In the
event of a BMA Recommendation on an Auction Date, the Submission Deadline
will
be 11:30 a.m., instead of 1:00 p.m.
(b) Broker-Dealer
agrees to maintain a list of Potential Beneficial Owners and to contact the
Potential Beneficial Owners on such list on or prior to each Auction Date
for
the purposes set forth in Section 1(a)(ii) of Part II of the Articles
Supplementary.
(c) Broker-Dealer
shall submit Orders to the Auction Agent in writing in substantially the
form
attached hereto as Exhibit B. Broker-Dealer shall submit separate Orders
to the
Auction Agent for each Potential Beneficial Owner or Beneficial Owner on
whose
behalf Broker-Dealer is submitting an Order and shall not net or aggregate
the
Orders of Potential Beneficial Owners or Beneficial Owners on whose behalf
Broker-Dealer is submitting Orders.
(d) Broker-Dealer
shall deliver to the Auction Agent (i) a written notice, substantially in
the
form attached hereto as Exhibit C, of transfers of MMP Shares, made through
Broker-Dealer by a Beneficial Owner to another Person other than pursuant
to an
Auction, and (ii) a written notice, substantially in the form attached hereto
as
Exhibit D, of the failure of MMP Shares to be transferred to or by any Person
that purchased or sold MMP Shares through Broker-Dealer pursuant to an Auction.
The Auction Agent is not required to accept any notice delivered pursuant
to the
terms of the foregoing sentence with respect to an Auction unless it is received
by the Auction Agent by 3:00 p.m. on the Business Day preceding the applicable
Auction Date.
| 3.4 |
Notice
of Auction Results.
|
(a) On
each
Auction Date, the Auction Agent shall provide to Broker-Dealer the notice
required by paragraph (a) of the settlement procedures set forth on Exhibit
A
hereto (the “Settlement Procedures”). On the Business Day next succeeding such
Auction Date, the Auction Agent shall notify Broker-Dealer in writing of
the
disposition of all Orders submitted by Broker-Dealer in the Auction held
on such
Auction Date. The Auction Agent, unless instructed otherwise in writing by
the
Company, is authorized to release the Winning Bid Rate after each Auction
for
public dissemination
(b) Broker-Dealer
shall notify each Beneficial Owner or Potential Beneficial Owner on whose
behalf
Broker-Dealer has submitted an Order as set forth in paragraph
5
(b)
of
the Settlement Procedures, and take such other action as is required of
Broker-Dealer pursuant to the Settlement Procedures.
If
any
Beneficial Owner or Existing Holder selling MMP Shares in an Auction fails
to
deliver such MMP Shares, the Broker-Dealer of any Person that was to have
purchased MMP Shares in such Auction may deliver to such Person a number
of
whole MMP Shares that is less than the number of MMP Shares that otherwise
was
to be purchased by such Person. In such event, the number of MMP Shares to
be so
delivered shall be determined by such Broker-Dealer. Delivery of such lesser
number of MMP Shares shall constitute good delivery. Upon the occurrence
of any
such failure to deliver MMP Shares, such Broker-Dealer shall deliver to the
Auction Agent the notice required by Section 3.3(d)(ii) hereof. Notwithstanding
the foregoing terms of this Section 3.4(b), any delivery or non-delivery
of MMP
Shares which represents any departure from the results of an Auction, as
determined by the Auction Agent, shall be of no effect unless and until the
Auction Agent shall have been notified of such delivery or non-delivery in
accordance with the terms of Section 3.3(d) hereof.
| 3.5 |
Service
Charge to be Paid to Broker-Dealer.
|
On
each
Dividend Payment Date, the Auction Agent shall, promptly after its receipt
of
funds from the Company, pay to each Broker-Dealer, a service charge in the
amount equal to: (i) in the case of any Auction immediately preceding a Dividend
Period of less than one year, the product of (A) a fraction the numerator
of
which is the number of days in the Dividend Period (calculated by counting
the
first day of such Dividend Period but excluding the last day thereof) and
the
denominator of which is 360, times (B) ¼ of 1%, times (C) $25,000 times (D) the
sum of the aggregate number of MMP Shares placed by such Broker-Dealer, or
(ii)
the amount mutually agreed upon by the Company and the Broker-Dealers in
the
case of any Auction immediately preceding a Dividend Period of one year or
longer. For the purposes of the preceding sentence, the MMP Shares shall
be
placed by a Broker-Dealer if such shares were (i) the subject of Hold Orders
deemed to have been submitted to the Auction Agent by the Broker-Dealer and
were
acquired by the Broker-Dealer for its own account or were acquired by the
Broker-Dealer for its customers who are Beneficial Owners or (ii) the subject
of
an Order submitted by the Broker-Dealer that is (a) a Submitted Bid of an
Existing Holder that resulted in the Existing Holder continuing to hold the
shares as a result of the Auction or (b) a Submitted Bid of a Potential Holder
that resulted in the Potential Holder purchasing the shares as a result of
the
Auction or (iii) a valid Hold Order. For the avoidance of doubt, only one
Broker-Dealer shall be considered to have placed a particular MMP Share at
any
particular Auction for purposes of this Section 3.5.
| IV. |
THE
AUCTION AGENT.
|
| 4.1 |
Duties
and Responsibilities.
|
(a) The
Auction Agent is acting solely as non-fiduciary agent for the Company hereunder,
has only the duties expressly set forth herein, and owes no duties,
6
fiduciary
or otherwise, to any Person by reason of this Agreement and no implied duties,
fiduciary or otherwise, shall be read into this Agreement against the Auction
Agent.
(b) The
Auction Agent undertakes to perform such duties and only such duties as are
set
forth specifically in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Auction Agent.
(c) In
the
absence of bad faith or gross negligence on its part, the Auction Agent shall
not be liable for any action taken, suffered or omitted by it, or for any
error
of judgment made by it in the performance of its duties under this Agreement.
The Auction Agent shall not be liable for any error of judgment made in good
faith unless the Auction Agent shall have been grossly negligent in ascertaining
(or failing to ascertain) the pertinent facts. In no event shall the Auction
Agent be responsible or liable for special, indirect or consequential loss
or
damage of any kind whatsoever (including, but not limited to, loss of profit),
even if the Auction Agent has been advised of the likelihood of such loss
or
damage and regardless of the form of action.
| 4.2 |
Rights
of the Auction Agent.
|
(a) The
Auction Agent may conclusively rely upon, and shall be fully protected in
acting
or refraining from acting in accordance with, any communication authorized
by
this Agreement and any proper written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper
or
document reasonably believed by it to be genuine and appropriately authorized.
The Auction Agent shall not be liable for acting upon any telephone
communication authorized by this Agreement which the Auction Agent reasonably
believes in good faith, after reasonable inquiry, to have been given by the
Company or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Company or with the Broker-Dealers or with
both.
(b) The
Auction Agent may consult with counsel of its choice and the advice of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by the Auction Agent hereunder in good
faith and in reasonable reliance thereon.
(c) The
Auction Agent shall not be required to advance, expend or risk its own funds
or
otherwise incur or become exposed to financial liability in the performance
of
its duties hereunder. Unless otherwise instructed by the Company in writing, the
Auction Agent (i) shall not be obligated to invest any money received by
it
hereunder and (ii) shall be under no liability for interest on any money
received by it hereunder.
(d) The
Auction Agent may perform its duties and exercise its rights hereunder either
directly or by or through agents or attorneys and shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
by
it with due care hereunder.
7
(e) The
Auction Agent shall not be required to, and does not, make any representations
as to the validity, accuracy, value or genuineness of any signatures or
endorsements, other than its own and those of its authorized
officers.
(f) Any
corporation into which the Auction Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Auction Agent shall be a party,
or any
corporation succeeding to the dealing and trading business of the Auction
Agent
shall be the successor of the Auction Agent hereunder, with the consent of
the
Company but without the execution or filing of any paper with any party hereto
or any further act on the part of any of the parties hereto, except where
any
instrument of transfer or assignment may be required by law to effect such
succession, anything herein to the contrary notwithstanding.
(g) All
the
rights, privileges, immunities and protections granted to the Auction Agent
herein are deemed granted to the Paying Agent and [Auction Agent] in any
of the
capacities it undertakes in connection with this Agreement.
(h) Whenever
in the administration of the provisions of this Agreement, the Auction Agent
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action to be taken hereunder, such matter,
in
the absence of gross negligence or bad faith on the part of the Auction Agent,
shall be deemed to be conclusively proved and established by a certificate
describing the action requested by the Company or the Broker-Dealer, signed
by
the Company or the Broker-Dealer, respectively, and delivered to the Auction
Agent and such certificate, in the absence of gross negligence or bad faith
on
the part of the Auction Agent, shall be full warrant to the Auction Agent
for
any action taken or omitted by it under the provisions of this Agreement
upon
the faith thereof. Upon receipt of any such certificate signed by the Company
or
the Broker-Dealer, the Auction Agent shall promptly provide a copy of said
certificate to the Broker-Dealer or the Company, respectively. The Auction
Agent
shall not be bound to make any investigation into the facts or matters stated
in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement, order, approval or other paper or document
furnished by the Company or the Broker-Dealer, except to the extent that
such
failure to investigate would be deemed grossly negligent.
| V. |
MISCELLANEOUS.
|
| 5.1 |
Termination.
|
Any
party
may terminate this Agreement at any time upon five days’ prior written notice to
the other party. This Agreement shall automatically terminate upon the
redemption of all outstanding MMP Shares or upon termination of the Auction
Agency Agreement.
8
| 5.2 |
Force
Majeure
|
Neither
party to this Agreement shall be responsible or liable for any failure or
delay
in the performance of its obligations under this Agreement arising out of
or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; acts of terrorism;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications services; accidents; labor disputes; acts of
civil
or military authority or governmental actions; it being understood that the
parties shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
| 5.3 |
Participant
in Securities Depository; Payment of Dividends
in
|
Same-Day
Funds.
(a) Broker-Dealer
is at the date hereof, and shall remain for the term of this Agreement, a
member
of, or a participant in, the Securities Depository (or an affiliate of such
a
member or participant).
(b) Broker-Dealer
represents that it (or if Broker-Dealer does not act as Agent Member, one
of its
affiliates) shall make all dividend payments on the MMP Shares available
in
same-day funds on each Dividend Payment Date to customers that use Broker-Dealer
(or its affiliate) as Agent Member.
| 5.4 |
Communications.
|
(a) Except
for (i) communications authorized to be made by telephone pursuant to this
Agreement or the Auction Procedures and (ii) communications with the Auctions
(other than those expressly required to be made in writing), all notices,
requests and other communications to any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given to such party
at its
address or telecopier number set forth below:
If
to the
Auction Agent,
addressed
to:
[Auction
Agent]
[Address]
Attention:
Telephone:
Facsimile:
If
to the
Broker-Dealer,
addressed
to:
9
[Auction
Agent]
[Address]
Attention:
Telephone:
Facsimile:
or
such
other address or telecopier number as such party hereafter may specify for
such
purpose by notice to the other party. Each such notice, request or communication
shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of Broker-Dealer by a Broker-Dealer
Officer and on behalf of the Auction Agent by an Authorized Officer.
Broker-Dealer may record telephone communications with the Auction
Agent.
| 5.5 |
Entire
Agreement.
|
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or implied, between
the
parties relating to the subject matter hereof.
| 5.6 |
Benefits.
|
Nothing
in this Agreement, express or implied, shall give to any person, other than
the
Company, which is a third party beneficiary of this Agreement, the Auction
Agent
and Broker-Dealer and their respective successors and permitted assigns,
any
benefit of any legal or equitable right, remedy or claim under this
Agreement.
| 5.7 |
Amendment;
Waiver.
|
(a) This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
(b) Failure
of either party to this Agreement to exercise any right or remedy hereunder
in
the event of a breach of this Agreement by the other party shall not constitute
a waiver of any such right or remedy with respect to any subsequent
breach.
| 5.8 |
Successors
and Assigns.
|
This
Agreement shall be binding upon, inure to the benefit of, and be enforceable
by,
the respective successors and permitted assigns of each of Broker-Dealer
and the
Auction Agent. This Agreement may not be assigned by either party hereto
absent
the prior written consent of the other party.
10
| 5.9 |
Severability.
|
If
any
clause, provision or section of this Agreement shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any
remaining clause, provision or section hereof.
| 5.10 |
Execution
in Counterparts.
|
This
Agreement may be executed in several counterparts, each of which shall be
an
original and all of which shall constitute but one and the same
instrument.
| 5.11 |
Governing
Law, Jurisdiction, Waiver of Trial By
Jury.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING
TO
CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF
NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND PROCEEDINGS ARISING
OUT
OF THIS BROKER-DEALER AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE
BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK,
STATE OF NEW YORK.
EACH
PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK
AND
STATE OF NEW YORK WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD
OR CLAIM THE SAME. EACH OF THE PARTIES HERETO ALSO IRREVOCABLY WAIVES ALL
RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature
page follows]
11
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of
the
date first above written.
|
[Auction
Agent]
By:___________________________________________
Name:
Title:
|
|
|
[Broker-Dealer]
By:___________________________________________
Name:
Title:
|
12
EXHIBIT
A
SETTLEMENT
PROCEDURES
Capitalized
terms used herein shall have the respective meanings specified in the Articles
Supplementary.
(a) On
each
Auction Date, the Auction Agent shall notify by telephone, or through the
Auction Agent’s auction processing system or other means acceptable to the
parties, the Broker-Dealers that participated in the Auction held on such
Auction Date and submitted an Order on behalf of any Beneficial Owner or
Potential Beneficial Owner of:
(i) the
Applicable Rate fixed for the next succeeding Dividend Period;
(ii) whether
Sufficient Clearing Bids existed for the determination of the Applicable
Rate;
(iii) if
such
Broker-Dealer (a “Seller’s Broker-Dealer”) submitted a Bid or a Sell Order on
behalf of a Beneficial Owner, the number of MMP Shares, if any, to be sold
by
such Beneficial Owner;
(iv) if
such
Broker-Dealer (a “Buyer’s Broker-Dealer”) submitted a Bid on behalf of a
Potential Beneficial Owner, the number of MMP Shares, if any, to be purchased
by
such Potential Beneficial Owner;
(v) if
the
aggregate number of MMP Shares to be sold by all Beneficial Owners on whose
behalf such Broker-Dealer submitted a Bid or a Sell Order exceeds the aggregate
number of MMP Shares to be purchased by all Potential Beneficial Owners on
whose
behalf such Broker-Dealer submitted a Bid, the name or names of one or more
Buyer’s Broker-Dealers (and the name of the Agent Member, if any, of each such
Buyer’s Broker-Dealer) acting for one or more purchasers of such excess number
of MMP Shares and the number of such MMP Shares to be purchased from one
or more
Beneficial Owners on whose behalf such Broker-Dealer acted by one or more
Potential Beneficial Owners on whose behalf each of such Buyer’s Broker-Dealers
acted;
(vi) if
the
aggregate number of MMP Shares to be purchased by all Potential Beneficial
Owners on whose behalf such Broker-Dealer submitted a Bid exceeds the aggregate
number of MMP Shares to be sold by all Beneficial Owners on whose behalf
such
Broker-Dealer submitted a Bid or a Sell Order, the name or names of one or
more
Seller’s Broker-Dealers (and the name of the Agent Member, if any, of each such
Seller’s Broker-Dealer) acting for one or more sellers of such excess number of
MMP Shares and the number of such MMP Shares to be sold to one or more Potential
Beneficial Owners on whose behalf such Broker-Dealer acted by one or more
Beneficial Owners on whose behalf each of such Seller’s Broker-Dealers acted;
and
A-1
(vii) the
Auction Date of the next succeeding Auction with respect to the MMP
Shares.
(b) On
each
Auction Date, each Broker-Dealer that submitted an Order on behalf of any
Beneficial Owner or Potential Beneficial Owner shall:
(i) in
the
case of a Broker-Dealer that is a Buyer’s Broker-Dealer, instruct each Potential
Beneficial Owner on whose behalf such Broker-Dealer submitted a Bid that
was
accepted, in whole or in part, to instruct such Potential Beneficial Owner’s
Agent Member to pay to such Broker-Dealer (or its Agent Member) through the
Securities Depository the amount necessary to purchase the number of MMP
Shares
to be purchased pursuant to such Bid against receipt of such MMP Shares and
advise such Potential Beneficial Owner of the Applicable Rate for the next
succeeding Dividend Period;
(ii) in
the
case of a Broker-Dealer that is a Seller’s Broker-Dealer, instruct each
Beneficial Owner on whose behalf such Broker-Dealer submitted a Sell Order
that
was accepted, in whole or in part, or a Bid that was accepted, in whole or
in
part, to instruct such Beneficial Owner’s Agent Member to deliver to such
Broker-Dealer (or its Agent Member) through the Securities Depository the
number
of MMP Shares to be sold pursuant to such Order against payment therefor
and
advise any such Beneficial Owner that will continue to hold MMP Shares of
the
Applicable Rate for the next succeeding Dividend Period;
(iii) advise
each Beneficial Owner on whose behalf such Broker-Dealer submitted a Hold
Order
of the Applicable Rate for the next succeeding Dividend Period;
(iv) advise
each Beneficial Owner on whose behalf such Broker-Dealer submitted an Order
of
the Auction Date for the next succeeding Auction; and
(v) advise
each Potential Beneficial Owner on whose behalf such Broker-Dealer submitted
a
Bid that was accepted, in whole or in part, of the Auction Date for the next
succeeding Auction.
(c) On
the
basis of the information received by it pursuant to (a) above, each
Broker-Dealer that submitted a Bid or a Sell Order on behalf of a Potential
Beneficial Owner or a Beneficial Owner shall, in such manner and at such
time or
times as in its sole discretion it may determine, allocate any funds received
by
it pursuant to (b)(i) above and any MMP Shares received by it pursuant to
(b)(ii) above among the Potential Beneficial Owners, if any, on whose behalf
such Broker-Dealer submitted Bids, the Beneficial Owners, if any, on whose
behalf such Broker-Dealer submitted Bids that were accepted or Sell Orders,
and
any Broker-Dealer or Broker-Dealers identified to it by the Auction Agent
pursuant to (a)(v) or (a)(vi) above.
A-2
(d) On
each
Auction Date:
(i) each
Potential Beneficial Owner and Beneficial Owner shall instruct its Agent
Member
as provided in (b)(i) or (ii) above, as the case may be;
(ii) each
Seller’s Broker-Dealer which is not an Agent Member of the Securities Depository
shall instruct its Agent Member to (A) pay through the Securities Depository
to
the Agent Member of the Beneficial Owner delivering MMP Shares to such
Broker-Dealer pursuant to (b)(ii) above the amount necessary to purchase
such
MMP Shares against receipt of such MMP Shares, and (B) deliver such MMP Shares
through the Securities Depository to a Buyer’s Broker-Dealer (or its Agent
Member) identified to such Seller’s Broker-Dealer pursuant to (a)(v) above
against payment therefor; and
(iii) each
Buyer’s Broker-Dealer which is not an Agent Member of the Securities Depository
shall instruct its Agent Member to (A) pay through the Securities Depository
to
a Seller’s Broker-Dealer (or its Agent Member) identified pursuant to (a)(vi)
above the amount necessary to purchase the MMP Shares to be purchased pursuant
to (b)(i) above against receipt of such MMP Shares, and (B) deliver such
MMP
Shares through the Securities Depository to the Agent Member of the purchaser
thereof against payment therefor.
(e) On
the
day after the Auction Date:
(i) each
Bidder’s Agent Member referred to in (d)(i) above shall instruct the Securities
Depository to execute the transactions described in (b)(i) or (ii) above,
and
the Securities Depository shall execute such transactions;
(ii) each
Seller’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d)(ii) above, and the
Securities Depository shall execute such transactions; and
(iii) each
Buyer’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d)(iii) above, and the
Securities Depository shall execute such transactions.
(f) If
a
Beneficial Owner selling MMP Shares in an Auction fails to deliver such MMP
Shares (by authorized book-entry), a Broker-Dealer may deliver to the Potential
Beneficial Owner on behalf of which it submitted a Bid that was accepted
a
number of whole MMP Shares that is less than the number of MMP Shares that
otherwise was to be purchased by such Potential Beneficial Owner. In such
event,
the number of MMP Shares to be so delivered shall be determined solely by
such
Broker-Dealer. Delivery of such lesser number of MMP Shares shall constitute
good delivery. Notwithstanding the foregoing terms of this paragraph (f),
any
delivery or non-delivery of MMP Shares which shall represent any departure
from
the results of an Auction, as determined by the Auction Agent, shall be of
no
effect unless and until the Auction Agent shall have been notified of such
delivery or non-delivery in accordance with the provisions of the Auction
Agency
Agreement and the Broker-Dealer Agreements.
A-3
EXHIBIT
B
AUCTION
BID FORM
Submit
To:
Issue:
Money
Market Cumulative Preferred Shares of Tortoise
Energy
Capital Corporation
The
undersigned Broker-Dealer submits the following Order on behalf of the Bidder
listed below:
Name
of
Bidder: _______________________________________
BENEFICIAL
OWNER
Shares
now held ____________________ HOLD _________________________
BID
at
rate of ________________________
SELL
______________________________
POTENTIAL
BENEFICIAL OWNER
#
of
Preferred Shares __________________
:
BID
at
rate of ________________________
|
(1)
|
If
submitting more than one Bid for one Bidder, use additional Auction
Bid
Forms.
|
|
(2)
|
If
one or more Bids covering in the aggregate more than the number
of
outstanding MMP Shares held by any Beneficial Owner are submitted,
such
bid shall be considered valid in the order of priority set forth
in the
Auction Procedures on the above
issue.
|
|
(3)
|
A
Hold or Sell Order may be placed only by a Beneficial Owner covering
a
number of MMP Shares not greater than the number of MMP Shares
currently
held.
|
|
(4)
|
Potential
Beneficial Owners may make only Bids, each of which must specify
a rate.
If more than one Bid is submitted on behalf of any Potential Beneficial
Owner, each Bid submitted shall be a separate Bid with the rate
specified.
|
|
(5)
|
Bids
may contain no more than three figures to the right of the decimal
point
(.001 of 1%). Fractions will not be
accepted.
|
B-1
|
(6)
|
An
Order must be submitted in whole MMP Shares having an aggregate
liquidation preference of $25,000 or integral increments in excess
thereof.
|
|
|
||
| _______________________________________________ | ||
| Authorized Signature | ||
| Name:_________________________________________________ | ||
| Title:__________________________________________________ | ||
B-2
EXHIBIT
C
(Note:
To
be used only for transfers made other than pursuant to an Auction)
TRANSFER
FORM
Re:
_____________________________________________________________
“MMP
Shares”)
We
are
(check one):
[
] the
Existing Holder named below;
[
] the
Broker-Dealer for such Beneficial Owner; or
[
] the
Agent
Member for such Existing Holder.
We
hereby
notify you that such Beneficial Owner has transferred _________ MMP Shares
to
______________________________
____________________________________
(Name
of
Existing Holder)
____________________________________
(Name
of
Broker-Dealer)
____________________________________
(Name
of
Agent Member)
By:
________________________
Printed
Name:
Title:
C-1
EXHIBIT
D
(Note:
To
be used only for failures to deliver or to pay for
MMP
Shares sold pursuant to an Auction)
NOTICE
OF
A FAILURE TO DELIVER
We
are a
Broker-Dealer for _______________ (the [“Purchaser”] [“Seller”]), which
[purchased] [sold] _____ MMP Shares of ____________________ in the Auction
held
on ____________________ from the [seller] [purchaser] of such MMP
Shares.
We
hereby
notify you that (check one):
the
Seller failed to deliver such MMP Shares to the Purchaser.
_______________
the
Purchaser failed to make payment to the Seller upon delivery of ___________
such
MMP Shares.
Name:
___________________________
By:
________________________________
Printed
Name:
Title:
D-1
