Exhibit k.6
BROKER-DEALER AGREEMENT
This Broker-Dealer Agreement dated as of ____________, is between The Bank
of New York (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 ___________ (the "Auction Agency Agreement") and
___________ (together with its successors and assigns, the "Broker-Dealer").
The Company proposes to issue an aggregate of ______ shares of its Series
IV Money Market Cumulative Preferred(R) 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(R) 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 The Bank of New York 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(R) Shares of the Company dated
_____________, 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 Chief Financial Officer 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
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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 10:30 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
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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.
(d) If either of the Company or the Broker-Dealer requests that the
Auction Agent reconcile the number of MMP Shares for which a Broker-Dealer
is listed as the Broker-Dealer in the MMP Share Register maintained by the
Auction Agent pursuant to Section 2.2(e) of the Auction Agreement with the
records of the Broker-Dealers, the Auction Agent may, but shall not be
required to, perform such reconciliation with the consent of the Company.
Any such reconciliation shall be based upon information provided by the
Broker-Dealers and/or the Securities Depository. If the Auction Agent
requires information from the Securities Depository in order to perform
such reconciliation, the Company shall request such information from the
Securities Depository or authorize the Auction Agent to request and obtain
such information from the Securities Depository. The fees for services
rendered and expenses (including any charges of the Securities Depository)
incurred by the Auction Agent in performing any such reconciliation shall
be paid by the Company; provided, however, that if such reconciliation was
requested by a Broker-Dealer, such fees and expenses shall be paid by such
Broker-Dealer. If as a result of any such reconciliation a discrepancy is
discovered between the records of the Broker-Dealers and the MMP Share
Register maintained by the Auction Agent pursuant to Section 2.2(e) of the
Auction Agreement, such stock register shall be adjusted to conform to the
records of the Broker-Dealers. If as a result of such reconciliation it is
discovered that there are MMP Shares for which no Broker-Dealer has made
known to the Auction Agent a Securities Depository participant account,
such MMP Shares will be reflected in the MMP Share Register maintained by
the Auction Agent pursuant to Section 2.2(e) of the Auction Agreement as
belonging to Xxxxxx Brothers Inc. The result of any reconciliation shall be
final and binding upon the Company, the Broker-Dealers and the Auction
Agent, absent manifest error; and, in no event, shall the Auction Agent
incur any liability for any determination or adjustment made in connection
with any reconciliation hereunder.
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
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Broker-Dealer. Such notice shall be received prior to the first Auction
Date on which any such change shall be effective.
Time Event
-------------------------------- ----------------------------------------
By 10:30 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.
10:30 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 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 Securities Industry and Financial
Markets Association's Market Practice U.S. Holiday Recommendations for
shortened trading days for the bond markets (the "SIFMA Recommendation")
unless the Auction Agent is instructed otherwise. In the event of a SIFMA
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
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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 (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.
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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) 1/4 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, 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.
(d) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Auction Agent be liable for special, indirect, punitive or
consequential damage (or loss) of any kind whatsoever (including but not
limited to lost profits), even if the
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Auction Agent has been advised of the likelihood of such damage (or loss)
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.
(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.
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(g) All the rights, privileges, immunities and protections granted to
the Auction Agent herein are deemed granted to the Paying Agent and the
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; provided, however, that the
Broker-Dealer may suspend its duties hereunder immediately if it
determines, in its reasonable judgment, that for any reason, including,
without limitation, (a) a pending or proposed change in applicable tax
laws, (b) a material adverse change in the financial condition of the
Company, (c) hostilities involving the United States, (d) a down-rating of
the MMP Shares, or (e) an imposition of material restrictions on the MMP
Shares or similar securities or obligations, it is not advisable to attempt
to auction the MMP Shares.. This Agreement shall automatically terminate
upon the redemption of all outstanding MMP Shares or upon termination of
the Auction Agency Agreement.
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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:
The Bank of New York
Corporate Trust Department
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Dealing & Trading Group - Auction Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Broker-Dealer, addressed to:
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[Broker-Dealer]
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.
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.
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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]
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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.
THE BANK OF NEW YORK
By: ________________________________
Name:
Title:
[Broker-Dealer]
By: ________________________________
Name:
Title:
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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
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(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.
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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:
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