TORTOISE ENERGY CAPITAL CORPORATION
___________________________
AUCTION AGENCY AGREEMENT
dated as of ________, 2007
relating to the
AUCTION RATE SENIOR NOTES
$________ SERIES __, DUE ________, ____
[Auction Agent]
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of ________,
2007, is between Tortoise Energy Capital Corporation (the "Company") and
[Auction Agent].
The Company proposes to offer $________ aggregate principal amount of
auction rate senior notes Series __ (the "Tortoise Notes"), authorized by, and
subject to the terms and conditions of, the Supplemental Indenture of Trust by
and between the Company and The Bank of New York Trust Company, N.A., in its
capacity as trustee (the "Trustee"), dated ________, 2007 (the "Supplemental
Indenture"), which supplements the Indenture dated November 14, 2005 by and
between the Company and the Trustee.
The Company desires that [Auction Agent] perform certain duties as agent in
connection with each Auction of Tortoise Notes (in such capacity, the "Auction
Agent"), upon the terms and conditions set forth in this Agreement, and the
Company hereby appoints [Auction Agent] as said Auction Agent in accordance with
those terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Supplemental Indenture.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Supplemental Indenture.
1.2 Certain Defined Terms.
As used herein and in the Settlement Procedures, the following terms shall
have the following meanings, unless the context otherwise requires:
(a) "Agent Member" shall mean a member of, or participant in, the
Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Procedures" shall mean the procedures as from time to
time in effect for conducting Auctions that are set forth in Appendix A of
the Supplemental Indenture.
(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 Trustee, (ii) in the case of the
Company, its Treasuer 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 and (iii) in the case
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of the Trustee, every officer or employee of the Trustee designated as an
"Authorized Officer" for purposes hereof in a written communication
delivered to the Auction Agent.
(e) "Broker-Dealer Agreement" shall mean each agreement between the
Auction Agent and a broker-dealer substantially in the form attached hereto
as Exhibit A.
(f) "Closing" shall mean the date the Company consummates the
transactions for the issuance and sale of the Tortoise Notes.
(g) "Company Officer" shall mean the President, each Vice President
(whether or not designated by a number or word or words added before or
after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Secretary and each Assistant Treasurer of the Company and every
other officer or employee of the Company designated as a "Company Officer"
for purposes hereof in a notice from the Company to the Auction Agent.
(h) "Holder" means, with respect to Tortoise Notes, the registered
holder of Tortoise Notes as the same appears on the records of the Company.
(i) "Rate Multiple" shall have the meaning assigned to it in Section
2.8.
(j) "Supplemental Indenture" shall mean the Supplemental Indenture of
Trust by and between the Company and The Bank of New York Trust Company,
N.A., dated ________, 2007, as amended or supplemented.
(k) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
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.
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II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Board of Directors of the Company has adopted a resolution
appointing [Auction Agent] as Auction Agent for purposes of the Auction
Procedures. The Auction Agent hereby accepts such appointment and agrees
that, on each Auction Date, it shall follow (i) the procedures set forth in
this Section 2 and (ii) the Auction Procedures for the purpose of
determining the Applicable Rate for the Tortoise Notes for the next Rate
Period. Each periodic operation of such procedures is hereinafter referred
to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and in
the Settlement 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.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing
Holders.
(a) As of the date hereof, the Company shall provide the Auction Agent
with a list of the Broker-Dealers and shall deliver to the Auction Agent
for execution by the Auction Agent a Broker-Dealer Agreement signed by each
such Broker-Dealer. Not later than five Business Days prior to any Auction
Date for which any change in such list of Broker-Dealers is to be
effective, the Company shall notify the Auction Agent in writing of such
change and, if any such change is the addition of a Broker-Dealer to such
list, the Company shall cause to be delivered to the Auction Agent for
execution by the Auction Agent a Broker-Dealer Agreement signed by such
Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(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 the Broker-Dealers
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.
(c) The provisions contained in Section 2.04 of the Supplemental
Indenture concerning Special Rate Periods and the notification of a Special
Rate Period will be followed by the Company and, to the extent applicable,
the Auction Agent, 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.
(d) (i) On each Auction Date, the Auction Agent shall determine the
Maximum Rate. Not later than 9:30 a.m. on each Auction Date, the Auction
Agent shall notify the Company and the Broker-Dealers of the Reference Rate
and the Maximum Rate in effect on such Auction Date.
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(ii) If the Reference Rate is the applicable "AA" Composite
Commercial Paper Rate and such rate is to be based on rates supplied
by Commercial Paper Dealers and one or more of the Commercial Paper
Dealers shall not provide a quotation for the determination of the
applicable "AA" Composite Commercial Paper Rate, the rate shall be
determined on the basis of the quotations (or quotation) furnished by
the remaining Commercial Paper Dealer(s), if any, or, if there are no
such Commercial Paper Dealers, by a nationally recognized dealer in
commercial paper of such issuers then making such quotations selected
by the Company.
(e) (i) The Auction Agent shall maintain a registry of the Existing
Holders of the Tortoise Notes (the "Tortoise Note Register") for purposes
of Auctions and shall indicate thereon the identity of the Broker-Dealer
that submitted the most recent Order in any Auction, which resulted in such
Existing Holder continuing to hold or purchase such Tortoise Notes. The
Auction Agent may consider a Broker-Dealer which has submitted an Order as
the Existing Holder for the purposes of the Tortoise Note Register;
provided, that the Auction Agent may request the Broker-Dealer to provide a
list of its customers if in its sole discretion it determines to do so. The
Auction Agent may conclusively rely upon the information furnished to the
Auction Agent by the Broker-Dealer and notices from the Securities
Depository regarding the results of redemptions or mandatory tenders.
(ii) In the event of any partial redemption of Tortoise Notes,
upon notice by the Company to the Trustee of such partial redemption
(delivered at least one day prior to the date a notice of redemption
is required to be given to the Holders of Tortoise Notes to be
redeemed), the Trustee promptly shall request the Securities
Depository to notify it of the identities of the Agent Members (and
the respective numbers of Tortoise Notes) from the accounts of which
Tortoise Notes have been called for redemption and the person or
department at such Agent Member to contact regarding such redemption.
At least two Business Days prior to the the date of redemption, the
Trustee shall request each Agent Member so identified to disclose to
it (upon selection by such Agent Member of the Existing Holders whose
Tortoise Notes are to be redeemed) the number of Tortoise Notes of
each such Existing Holder, if any, to be redeemed by the Company,
provided that the Trustee has been furnished with the name and
telephone number of a person or department at such Agent Member from
which it is to request such information. Promptly upon its receipt of
such information, the Trustee shall provide such information to the
Auction Agent in writing. In the absence of receiving any such
information with respect to an Existing Holder, from such Existing
Holder's Agent Member or otherwise, the Auction Agent may continue to
treat such Existing Holder as having ownership of the number of
Tortoise Notes shown in the Auction Agent's registry of Existing
Holders.
(iii) The Auction Agent shall register a transfer of the
ownership of Tortoise Notes from an Existing Holder to another
Existing Holder, or to another Person if permitted by the Company,
only if (A) such transfer is made pursuant to an Auction or (B) if
such transfer is made other than pursuant to an Auction, the Auction
Agent has been notified of such transfer in writing, in a notice
substantially in the form of Exhibit C to the Broker-Dealer Agreement,
by such Existing Holder or by the Agent Member of such Existing Holder
only to or through a Broker-Dealer that has entered into a
Broker-Dealer Agreement with the Auction Agent and the Company or
other persons as the Company permits. The Auction Agent is not
required to accept any notice of transfer delivered for an Auction
unless it is received by the Auction Agent by 3:00 p.m. on the
Business Day preceding the Auction. The Auction Agent shall rescind a
transfer
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made on the registry of the Existing Holders of any Tortoise Notes if
the Auction Agent has been notified in writing, in a notice
substantially in the form of Exhibit D to the Broker-Dealer Agreement,
by the Agent Member or the Broker-Dealer of any Person that (i)
purchased any Tortoise Notes and the seller failed to deliver such
Tortoise Notes or (ii) sold any Tortoise Notes and the purchaser
failed to make payment to such Person upon delivery to the purchaser
of such Tortoise Notes.
(f) The Auction Agent may, but shall have no obligation to, request
that the Broker-Dealers, as set forth in Section 3.2(c) of the
Broker-Dealer Agreements, provide the Auction Agent with a list of their
respective customers that such Broker-Dealers believe are Beneficial Owners
of Tortoise Notes. The Auction Agent shall keep confidential any such
information and shall not disclose any such information so provided to any
Person other than the relevant Broker-Dealer and the Company, provided that
the Auction Agent reserves the right 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 in
writing that its failure to do so would be unlawful, or (c) it is advised
by its counsel in writing 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.
2.3 Auction Schedule.
The Auction Agent shall conduct Auctions on the Business Day immediately
prior to the start of each Rate Period in accordance with the schedule set forth
below. Such schedule may be changed 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 each 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
2.2(d) 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 Appendix A of the
Supplemental Indenture. 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 Appendix A of the
Supplemental Indenture.
By approximately 3:00 p.m. The Auction Agent shall advise the
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Company of the results of the Auction as
provided in Section 4(b) of Appendix A of
the Supplemental Indenture. Submitted Bid
Orders and Submitted Sell Orders will be
accepted and rejected in whole or in part
and Tortoise Notes will be allocated as
provided in Section 5 of Appendix A of the
Supplemental Indenture.
The Auction Agent shall give notice of the
Auction results as set forth in Section 2.4
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., and as a result, the notice set forth
in Section 2.4 will occur earlier.
2.4 Notice of Auction Results.
The Auction Agent will advise each Broker-Dealer who submitted a Bid or
Sell Order in an Auction whether such Bid or Sell Order was accepted or rejected
in whole or in part and of the Applicable Rate for the next Rate Period for the
related Tortoise Notes by telephone or other electronic means acceptable to the
parties. 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.
2.5 Broker-Dealers.
(a) On each Interest 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 Rate Period of less than one year, the product of
(A) a fraction the numerator of which is the number of days in the Rate
Period (calculated by counting the first day of such Rate 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 Tortoise Notes 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 Rate Period of one year or longer. For the
purposes of the preceding sentence, the Tortoise Notes shall be placed by a
Broker-Dealer if such notes were (1) 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 (2) 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 notes as a result of the Auction or (b) a Submitted Bid of a
Potential Holder that resulted in the Potential Holder purchasing the notes
as a result of the Auction or (3) the subject of a valid Hold Order. For
the avoidance of doubt, only one Broker-
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Dealer shall be considered to have placed a particular Tortoise Note at any
particular Auction for purposes of this Section 2.5(a).
(b) The Company shall not designate any Person to act as a
Broker-Dealer, or permit an Existing Holder or a Potential Beneficial Owner
to participate in Auctions through any Person other than a Broker-Dealer,
without the prior approval of the Auction Agent, which approval shall not
be withheld unreasonably. Notwithstanding the foregoing, the Company may
designate an Affiliate of Xxxxxx Brothers Inc. to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed by the Company.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from time to
time shall enter into such Broker-Dealer Agreements as the Company shall
request in writing.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of Tortoise Notes and Submission of Bids by the Company and
Its Affiliates.
Neither the Company nor any Affiliate of the Company may submit an Order in
any Auction, except that an Affiliate of the Company that is a Broker-Dealer may
submit an Order. The Company shall notify the Auction Agent if the Company or,
to the best of the Company's knowledge, any Affiliate of the Company becomes a
Beneficial Owner of any Tortoise Notes. The restrictions in this Section 2.6
shall in no way limit the activities of the Auction Agent. The Auction Agent
shall have no duty or liability with respect to enforcement of this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, at reasonable times during normal business
hours, access to all books, records, documents and other information concerning
the conduct and results of Auctions, to review and make extracts or copies of
(at the Company's sole cost and expense), provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
Company requesting that the Auction Agent afford such person access. The Auction
Agent shall maintain records relating to any Auction for a period of at least
six years after such Auction, and such records, in reasonable detail, shall
reflect accurately and fairly the actions taken by the Auction Agent hereunder.
The Company agrees to keep confidential any information regarding the customers
of any Broker-Dealer received from the Auction Agent in connection with this
Agreement or any Auction, and shall not disclose such information or permit the
disclosure of such information without the prior written consent of the
applicable Broker-Dealer to anyone except such agent, accountant or counsel
engaged to audit or review the results of Auctions as permitted by this Section
2.7. The Company reserves the right to disclose any such information if it is
ordered to do so by a court of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having authority to compel such
disclosure, or if it is advised by its counsel that its failure to do so would
be unlawful. Any such agent, accountant or counsel, before having access to such
information, shall agree to keep such information confidential and not to
disclose such information or permit disclosure of such information without the
prior
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written consent of the applicable Broker-Dealer, provided that such agent,
accountant or counsel may reserve the right to disclose any such information if
it is ordered to do so by a court of competent jurisdiction or a regulatory
body, judicial or quasi-judicial agency or authority having authority to compel
such disclosure, or if it is advised by its counsel that its failure to do so
would be unlawful.
2.8 Information Concerning Rates.
If there is any change in the credit rating of Tortoise Notes by a Rating
Agency (or substitute or successor Rating Agencies) then rating the Tortoise
Notes that results in any change in the applicable percentage of the "AA"
Composite Commercial Paper Rate used to determine the Maximum Rate for Tortoise
Notes (the "Rate Multiple"), the Company shall notify the Auction Agent of such
change in the Rate Multiple by no later than the Business Day immediately
preceding the next Auction Date. In determining the Maximum Rate on any Auction
Date, the Auction Agent shall be entitled to rely on the last Rate Multiple for
Tortoise Notes of which it has most recently received notice from the Company.
III. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the Company has been duly organized and is validly existing as a
corporation under the laws of the State of Maryland, and has full power to
execute and deliver this Agreement and to authorize, create and issue the
Tortoise Notes;
(ii) the Company is registered with the Commission under the
Investment Company Act as a closed-end, nondiversified, management
investment company;
(iii) this Agreement has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights
and to general equitable principles;
(iv) the form of the certificate evidencing the Tortoise Notes
complies with all applicable state and federal laws;
(v) the Tortoise Notes have been duly and validly authorized by the
Company and, upon completion of the initial sale of the Tortoise Notes and
receipt of payment therefor, will be validly issued by the Company, fully
paid and nonassessable;
(vi) at the time of the offering of the Tortoise Notes, the Tortoise
Notes offered will be registered under the Securities Act and no further
action by or before any governmental body or authority of the United States
or of any state thereof is required in connection with the execution and
delivery of this Agreement or will be required in connection with the
issuance of the Tortoise Notes, except such action as required by
applicable state securities laws;
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(vii) the execution and delivery of this Agreement and the issuance
and delivery of the Tortoise Notes do not and will not conflict with,
violate or result in a breach of the terms, conditions or provisions of, or
constitute a default under, the Articles of Incorporation or by-laws of the
Company, any order or decree of any court or public authority having
jurisdiction over the Company or any mortgage, indenture, contract,
agreement or undertaking to which the Company is a party or by which it is
bound the effect of which conflict, violation, breach or default would be
material to the Company; and
(viii) no taxes are payable upon or in respect of the execution of
this Agreement or will be payable upon or in respect of the issuance of the
Tortoise Notes.
3.2 Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Company that:
(i) the Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of the State of New
York and has the corporate power to enter into and perform its obligations
under this Agreement; and
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Auction Agent and constitutes the legal, valid and binding
obligation of the Auction Agent, enforceable against the Auction Agent in
accordance with its terms, subject only to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
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.
4.2 Rights of the Auction Agent.
(a) The Auction Agent may rely conclusively upon, and shall be fully
protected in acting or refraining from acting in accordance with, any
communication authorized
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by this Agreement and any proper written instruction, notice, request,
direction, consent, report, 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 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 Auction Agent shall use
reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
(f) 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.
(g) 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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(h) All the rights, privileges, immunities and protections granted to
the Auction Agent herein are deemed granted to [Paying Agent], as Paying
Agent, in any of the capacities it undertakes in connection with this
Agreement.
(i) 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 (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of gross negligence
or bad faith on the part of the Auction Agent, be deemed to be conclusively
proved and established by a certificate describing such action as 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 gross negligence.
4.3 Compensation, Expenses and Indemnification.
(a) The Company shall pay to the Auction Agent from time to time
reasonable compensation for all services rendered by it under this
Agreement and under the Broker-Dealer Agreements as shall be set forth in a
separate writing signed by the Company and the Auction Agent, subject to
adjustments if the Tortoise Notes no longer are held of record by the
Securities Depository or its nominee or if there shall be such other change
as shall increase or decrease materially the Auction Agent's obligations
hereunder or under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Auction Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any expense,
disbursement or advance attributable to the Auction Agent's gross
negligence or bad faith, upon submission to the Company of reasonable
documentation thereof. 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.
(c) The Company shall indemnify the Auction Agent and its officers,
directors, employees and agents for, and hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Auction Agent arising out of or in connection with its agency
under this Agreement and under the Broker-Dealer Agreements, including the
costs and expenses of defending themselves against any claim of liability
in
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connection with their exercise or performance of any of their duties
hereunder and thereunder, except such as may result from its gross
negligence or bad faith.
4.4 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or adequacy of
the Agreement, the Broker-Dealer Agreements or the Tortoise Notes except to the
extent otherwise set forth in Section 3.2 and except that the Auction Agent
hereby represents that the Agreement has been duly authorized, executed and
delivered by the Auction Agent and constitutes a legal and binding obligation of
the Auction Agent.
V. MISCELLANEOUS.
5.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 5.1. The Company may terminate this
Agreement at any time by so notifying the Auction Agent, provided that, if
any Tortoise Notes remain outstanding, the Company shall have entered into
an agreement with a successor auction agent. The Auction Agent may
terminate this Agreement upon prior notice to the Company on the date
specified in such notice, which date shall be no earlier than 60 days after
delivery of such notice. If the Auction Agent terminates this Agreement
while any Tortoise Notes remain outstanding, the Company shall use its best
efforts to enter into an agreement with a successor auction agent
containing substantially the same terms and conditions as this Agreement.
(b) Except as otherwise provided in this Section 5.1(b), the
respective rights and duties of the Company and the Auction Agent under
this Agreement shall cease upon termination of this Agreement. The
Company's representations, warranties, covenants and obligations to the
Auction Agent under Section 3.1 hereof shall survive the termination
hereof. The Auction Agent's representations, warranties, covenants and
obligations under Section 3.2 hereof shall survive the termination hereof.
Upon termination of this Agreement, the Auction Agent shall (i) resign as
Auction Agent under the Broker-Dealer Agreements, (ii) at the Company's
written request, deliver promptly to the Company or to another authorized
party copies of all books and records maintained by it in connection with
its duties hereunder, and (iii) at the written request of the Company,
transfer promptly to the Company or to any successor auction agent any
funds deposited by the Company with the Auction Agent pursuant to this
Agreement which have not been distributed previously by the Auction Agent
in accordance with this Agreement.
5.2 Communications.
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be 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:
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If to the Company,
addressed to:
Tortoise Energy Capital Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Auction Agent,
addressed to:
[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 the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
5.3 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, except for written
agreements relating to the compensation of the Auction Agent.
5.4 Benefits.
Nothing herein, express or implied, shall give to any Person, other than
the Company, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
5.5 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 hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any
subsequent breach.
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5.6 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 the
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
5.7 Severability.
If any clause, provision or section hereof 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 of
the remaining clauses, provisions or sections hereof.
5.8 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.
5.9 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 AUCTION AGENCY 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.
5.10 Limitation of Liability.
A copy of the Articles of Incorporation of the Company is on file with the
Secretary of State of the State of Maryland. This Agreement has been executed on
behalf of the Company by an officer of the Company in such capacity and not
individually and the obligations of the Company under this Agreement are not
binding upon such officer or the shareholders of the Company individually but
are binding only upon the assets and property of the Company.
[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.
TORTOISE ENERGY CAPITAL CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
[AUCTION AGENT]
By:
------------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT
