Exhibit k.5
FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 31st day of May, 2005,
by and between TORTOISE ENERGY CAPITAL CORPORATION, a Maryland corporation (the
"Company" or "Fund") and U.S. BANCORP FUND SERVICES, LLC, a Wisconsin limited
liability company ("USBFS").
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a closed-end management investment
company, and is authorized to issue shares of common stock;
WHEREAS, USBFS is, among other things, in the business of providing fund
administration services for the benefit of its customers; and
WHEREAS, the Company desires to retain USBFS to provide fund administration
services for the Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. APPOINTMENT OF USBFS AS ADMINISTRATOR
The Company hereby appoints USBFS as administrator of the Company on the
terms and conditions set forth in this Agreement, and USBFS hereby accepts
such appointment and agrees to perform the services and duties set forth in
this Agreement. The services and duties of USBFS shall be confined to those
matters expressly set forth herein, and no implied duties are assumed by or
may be asserted against USBFS hereunder.
SERVICES AND DUTIES OF USBFS
USBFS shall provide the following fund administration services for the
Fund, including but not limited to:
A. General Fund Management:
(1) Act as liaison among all Fund service providers.
(2) Supply:
a. Corporate secretarial services.
b. Office facilities (which may be in USBFS's or its
affiliate's own offices).
c. Non-investment-related statistical and research data as
needed.
(3) Coordinate the Company's Board of Directors' (the "Board of
Directors" or the "Directors") communications, such as:
a. Establish meeting agendas and resolutions, with the
assistance of Company counsel.
b. Prepare reports for the Board of Directors based on
financial and administrative data.
c. Evaluate independent auditor.
d. Secure and monitor fidelity bond and director and officer
liability coverage, and make the necessary Securities and
Exchange Commission (the "SEC") filings relating thereto.
e. Prepare minutes of meetings of the Board of Directors and
Fund shareholders.
f. Recommend dividend declarations to the Board of Directors,
prepare and distribute to appropriate parties notices
announcing declaration of dividend distributions to
shareholders.
g. Provide personnel to serve as officers of the Company if so
elected by the Board of Directors, attend Board of Directors
meetings and present materials for Directors' review at such
meetings.
(4) Audits:
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to the SEC and facilitate audit process.
c. Provide office facilities.
(5) Assist in overall operations of the Fund.
(6) Pay Fund expenses upon written authorization from the Company.
(7) Maintain the Company's governing documents, including its
articles, bylaws and minute books.
B. Compliance:
(1) Regulatory Compliance:
a. Monitor compliance with the 1940 Act requirements,
including:
(i) Asset diversification tests.
(ii) Total return calculations.
(iii) Maintenance of books and records under Rule 31a-3.
b. Monitor Fund's compliance with the policies and investment
limitations of the Company as set forth in its prospectus
(the "Prospectus") and statement of additional information
(the "SAI") or as amended as notified by the Company.
c. Perform its duties hereunder in compliance with all
applicable laws and regulations and provide any
sub-certifications reasonably
requested by the Company in connection with any
certification required of the Company pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 (the "SOX Act") or any rules or
regulations promulgated by the SEC thereunder, provided the
same shall not be deemed to change USBFS's statndard of care
set forth herein.
d. Maintain awareness of applicable regulatory and operational
service issues and recommend dispositions.
e. Draft and disseminate to the New York Stock Exchange
quarterly earnings statements, annual written affirmation
statements, record date notification for annual meetings of
Fund shareholders, proxy voting updates and final results
and miscellaneous press releases as periodically required
with respect to material changes within the Fund.
(2) SEC Registration and Reporting:
a. Assist Fund counsel in updating the Prospectus and SAI and
in preparing proxy statements.
b. Prepare and file annual and semiannual reports, Forms N-SAR,
N-CSR, Form N-Q and N-PX filings.
c. Coordinate the printing and mailing of publicly disseminated
reports.
d. File fidelity bond under Rule 17g-1.
e. File shareholder reports under Rule 30b2-1.
f. Monitor sales of the Fund's shares and ensure that such
shares are properly registered or qualified, as applicable,
with the SEC and the appropriate state authorities.
(3) IRS Compliance:
a. Monitor the Company's status as a C corporation.
b. Calculate required distributions (including excise tax
distributions, if any).
C. Financial Reporting:
(1) Prepare financial data required by the Prospectus and SAI
(2) Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies, the Board of
Directors, the SEC, and independent accountants
(3) Supervise the Company's custodian and fund accountants in the
maintenance of the Company's general ledger and in the
preparation of the Fund's financial statements, including
oversight of expense accruals and payments, of the determination
of net asset value of the Company's shares, and of the
declaration and payment of dividends and other distributions to
shareholders.
(4) Compute the yield, total return and expense ratio of the Fund,
and the Fund's portfolio turnover rate.
(5) Monitor the expense accruals and notify the Company's management
of any proposed adjustments.
(6) Prepare quarterly financial statements, which include without
limitation the following items:
a. Schedule of Investments.
b. Statement of Assets and Liabilities.
c. Statement of Operations.
d. Statement of Changes in Net Assets.
e. Cash Statement.
f. Schedule of Capital Gains and Losses.
(7) Prepare quarterly broker security transaction summaries.
(8) Calculate distributable cash flow to be distributed quarterly to
shareholders.
(9) Calculate advisory fee.
D. Tax Reporting:
(1) Prepare and file on a timely basis appropriate state property tax
returns including any necessary schedules.
(2) Prepare state income breakdowns where relevant.
(3) File Form 1099 Miscellaneous for payments to Directors and other
service providers.
(4) Monitor wash sale losses.
(5) Calculate eligible dividend income for corporate shareholders.
(6) Calculate return of capital for shareholders.
2. COMPENSATION
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit A hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocker expenses (e.g. telecommunication charges, postage and
delivery charges, and reproduction charges) as are reasonably incurred by
USBFS in performing its duties hereunder. The Company shall pay all fees
and reimbursable expenses within thirty (30) calendar days following
receipt of the billing notice, except for any fee or expense subject to a
good faith dispute. The Company shall notify USBFS in writing within thirty
(30) calendar days following receipt of each invoice if the Company is
disputing any amounts in good faith. The Company shall settle such disputed
amounts within ten (10) calendar days of the day on which the parties agree
to the amount to be paid. With the exception of any fee or expense the
Company is disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of one and one-half percent (1 1/2%) per
month, after the due date.
3. INDEMNIFICATION; LIMITATION OF LIABILITY
A. USBFS shall exercise reasonable care in the performance of its duties
under this Agreement. USBFS shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Company in
connection with matters to which this Agreement relates, including
losses resulting from mechanical breakdowns or the failure of
communication or power supplies beyond USBFS's control, except a loss
arising out of or relating to USBFS's refusal or failure to comply
with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under
this Agreement. Notwithstanding any other provision of this Agreement,
if USBFS has exercised reasonable care in the performance of its
duties under this Agreement, the Company shall indemnify and hold
harmless USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) which USBFS may sustain or incur or which
may be asserted against USBFS by any person arising out of any action
taken or omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses, expenses,
and liabilities arising out of or relating to USBFS's refusal or
failure to comply with the terms of this Agreement or from bad faith,
negligence or from willful misconduct on its part in performance of
its duties under this Agreement, (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction
provided to USBFS by any duly authorized officer of the Company, such
duly authorized officer to be included in a list of authorized
officers furnished to USBFS and as amended from time to time in
writing by resolution of the Board of Directors.
USBFS shall indemnify and hold the Company harmless from and against
any and all claims, demands, losses, expenses, and liabilities of any
and every nature (including reasonable attorneys' fees) that the
Company may sustain or incur or that may be asserted against the
Company by any person arising out of any action taken or omitted to be
taken by USBFS as a result of USBFS's refusal or failure to comply
with the terms of this Agreement, its bad faith, negligence, or
willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, USBFS shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond USBFS's control. USBFS will make every
reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of USBFS. USBFS
agrees that it shall, at all times, have reasonable contingency plans
with appropriate parties, making reasonable provision for emergency
use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Company shall be
entitled to inspect USBFS's premises and operating capabilities at any
time during regular business hours of USBFS, upon reasonable notice to
USBFS.
Notwithstanding the above, USBFS reserves the right to reprocess and
correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may
be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning
the situation in question, and it is further understood that the
indemnitee will use all reasonable care to notify the indemnitor
promptly concerning any situation that presents or appears likely to
present the probability of a claim for indemnification. The indemnitor
shall have the option to defend the indemnitee against any claim that
may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon
the indemnitor shall take over complete defense of the claim, and the
indemnitee shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this section.
The indemnitee shall in no case confess any claim or make any
compromise in any case in which the indemnitor will be asked to
indemnify the indemnitee except with the indemnitor's prior written
consent.
C. The indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement
D. If USBFS is acting in another capacity for the Company pursuant to a
separate agreement, nothing herein shall be deemed to relieve USBFS of
any of its obligations in such other capacity
4. REPRESENTATIONS AND WARRANTIES
A. The Company hereby represents and warrants to USBFS, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Company in accordance with all requisite action and
constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of
creditors and secured parties; and
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding
on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its
execution or performance of this Agreement.
B. USBFS hereby represents and warrants to the Company, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Company in accordance with all requisite action and
constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of
creditors and secured parties; and
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION
USBFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Company all
records and other information relative to the Company and prior, present,
or potential shareholders of the Company (and clients of said
shareholders), and not to use such records and information for any purpose
other than the performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Company,
which approval shall not be unreasonably withheld and may not be withheld
where USBFS may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Company.
Further, USBFS will adhere to the privacy policies adopted by the Company
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, USBFS will not
share any nonpublic personal information concerning any of the Company's
shareholders to any third party unless specifically directed by the Company
or allowed under one of the exceptions noted under the Act.
6. COMPLIANCE WITH LAWS
The Company has and retains primary responsibility for all compliance
matters relating to the Company, including but not limited to compliance
with the 1940 Act, the Code, the SOX Act, the USA Patriot Act of 2002 and
the policies and limitations of the Company relating to its portfolio
investments as set forth in its Prospectus and SAI. USBFS's services
hereunder shall not relieve the Company of its responsibilities for
assuring such compliance or the Board of Directors' oversight
responsibility with respect thereto.
7. TERM OF AGREEMENT; AMENDMENT
This Agreement may be terminated by either party upon giving ninety (90)
days prior written notice to the other party or such shorter period as is
mutually agreed upon by the parties. However, this Agreement may be amended
by mutual written consent of the parties.
8. RECORDS
USBFS shall keep records relating to the services to be performed hereunder
in the form and manner, and for such period, as it may deem advisable and
is agreeable to the Company, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section
31 of the 1940 Act and the rules thereunder. USBFS agrees that all such
records prepared or maintained by USBFS relating to the services to be
performed by USBFS hereunder are the property of the Company and will be
preserved, maintained, and made available in accordance with such
applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Company on and in accordance with its request.
9. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder.
10. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the Company
by written notice to USBFS, USBFS will promptly, upon such termination and
at the expense of the Company, transfer to such successor all relevant
books, records, correspondence, and other data established or maintained by
USBFS under this Agreement in a form reasonably acceptable to the Company
(if such form differs from the form in which USBFS has maintained, the
Company shall pay any expenses associated with transferring the data to
such form), and will cooperate in the transfer of such duties and
responsibilities, including provision for
assistance from USBFS's personnel in the establishment of books, records,
and other data by such successor.
11. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder.
12. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower USBFS to
act as agent for the other party to this Agreement, or to conduct business
in the name, or for the account, of the other party to this Agreement.
13. SERVICES NOT EXCLUSIVE
Nothing in this Agreement shall limit or restrict USBFS from providing
services to other parties that are similar or identical to some or all of
the services provided hereunder.
14. INVALIDITY
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties
15. DATA NECESSARY TO PERFORM SERVICES
The Company or its agent shall furnish to USBFS the data necessary to
perform the services described herein at such times and in such form as
mutually agreed upon. If USBFS is also acting in another capacity for the
Company, nothing herein shall be deemed to relieve USBFS of any of its
obligations in such capacity.
16. ASSIGNMENT
This Agreement may not be assigned by either party without the prior
written consent of the other party.
17. NOTICES
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three (3) days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Company shall be sent to:
Tortoise Capital Advisors
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
18. MULTIPLE ORIGINALS
This Agreement may be executed on two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer on one or more counterparts as of the date first
above written.
TORTOISE ENERGY CAPITAL CORPORATION U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ------------------------------------
Title: CFO & Treasurer Title: President
EXHIBIT A
FUND ADMINISTRATION & COMPLIANCE SERVICES ANNUAL FEE SCHEDULE
TORTOISE MLP INVESTMENT CORPORATION (CLOSED-END FUND)
Annual fee based upon assets per fund*
7 basis points on the first $300 million
6 basis points on the next $500 million
4 basis points on the balance
Minimum annual fee: $45,000**
** Includes quarterly financial statements produced within 30 days of
quarter-end. If additional financial statements are required, or financial
statements are required sooner than the 30th day of a period end, there is
and additional fee of $5,000 per occurrence.
Extraordinary services - quoted separately
- Multiple classes
- Legal administration
- Master feeder funds
- International funds
- File transfer (subject to requirements)
- Etc.
Plus out-of-pocket expenses, including but not limited to:
Postage, Stationery
Programming, Special Reports
Proxies, Insurance
XXXXX filing
Retention of records
Federal and state regulatory filing fees
Certain insurance premiums
Expenses from board of directors meetings
Auditing and legal expenses
Blue Sky conversion expenses (if necessary)
All other out-of-pocket expenses
Fees are billed monthly.
* Subject to CPI increase, Milwaukee MSA.
INTERNATIONAL FUNDS
Annual fee based upon assets per fund*
9 basis points on the first $200 million
8 basis points on the next $300 million
6 basis points on the next $500 million
4 basis points on the balance
Minimum annual fee: $50,000 per fund
Extraordinary services - quoted separately
- Multiple classes
- Legal administration
- Master feeder funds
- International funds
- File transfer (subject to requirements)
- Etc.
Plus out-of-pocket expenses, including but not limited to:
Postage, Stationery
Programming, Special Reports
Proxies, Insurance
XXXXX filing
Retention of records
Federal and state regulatory filing fees
Certain insurance premiums
Expenses from board of directors meetings
Auditing and legal expenses
Blue Sky conversion expenses (if necessary)
All other out-of-pocket expenses
Fees are billed monthly.
* Subject to CPI increase.
