SUPPLEMENTAL INDENTURE OF TRUST by and between TORTOISE ENERGY INFRASTRUCTURE CORPORATION, as Issuer and BNY MIDWEST TRUST COMPANY, as Trustee Authorizing the Issuance of $________ aggregate principal amount Auction Rate Senior Notes Series __ Dated...
EXHIBIT
d.5.
by
and
between
as
Issuer
and
BNY
MIDWEST TRUST COMPANY,
as
Trustee
Authorizing
the Issuance of
$________
aggregate principal amount
Auction
Rate Senior Notes Series __
Dated
as
of ________, 200_
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1
|
||
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Interpretation
|
10
|
|
ARTICLE II
NOTE
DETAILS, FORM OF NOTES, REDEMPTION OF NOTES
AND USE OF PROCEEDS OF NOTES
|
11
|
|
|
Section
2.01
|
General
Terms
|
11
|
|
Section
2.02
|
Interest
|
12
|
|
Section
2.03
|
Redemption
|
14
|
|
Section
2.04
|
Designation
of Rate Period
|
18
|
|
Section
2.05
|
Restrictions
on Transfer
|
19
|
|
Section
2.06
|
1940
Act Tortoise Notes Asset Coverage
|
20
|
|
Section
2.07
|
Tortoise
Notes Basic Maintenance Amount
|
20
|
|
Section
2.08
|
Certain
Other Restrictions
|
20
|
|
Section
2.09
|
Compliance
Procedures for Asset Maintenance Tests
|
20
|
|
Section
2.10
|
Delivery
of Notes
|
21
|
|
Section
2.11
|
Trustee’s
Authentication Certificate
|
22
|
|
ARTICLE III GENERAL
PROVISIONS
|
22
|
|
|
Section
3.01
|
Trustee
as Paying Agent
|
22
|
|
Section
3.02
|
The
Issuer to Provide Funds for Interest and Redemptions
|
22
|
|
Section
3.03
|
Disbursing
Interest and Redemption Price
|
22
|
|
Section
3.04
|
Original
Issue of Tortoise Note Authentication Certificates
|
23
|
|
Section
3.05
|
Registration
of Transfer or Exchange of Tortoise Notes
|
23
|
|
Section
3.06
|
Removal
of Legend
|
23
|
|
Section
3.07
|
Lost,
Stolen or Destroyed Tortoise Note Authentication
Certificates
|
23
|
|
Section
3.08
|
Disposition
of Canceled Certificates; Record Retention
|
24
|
|
Section
3.09
|
Register
|
24
|
|
Section
3.10
|
Return
of Funds
|
24
|
|
Section
3.11
|
Date
of Execution
|
25
|
|
Section
3.12
|
Laws
Governing
|
25
|
|
Section
3.13
|
Severability
|
25
|
|
Section
3.14
|
Exhibits
|
25
|
|
ARTICLE IV APPLICABILITY
OF INDENTURE
|
25
|
|
|
APPENDIX
A AUCTION
PROCEDURES
|
▇-▇
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|
▇▇▇▇▇▇▇▇
▇ FORM
OF NOTE
|
B-1
|
|
|
APPENDIX
C FORM
OF TRUSTEE AUTHENTICATION CERTIFICATE
|
C-1
|
|
i
THIS
SUPPLEMENTAL INDENTURE OF TRUST (this “Supplemental Indenture”) dated as of
________, 200_, is by and between TORTOISE ENERGY INFRASTRUCTURE CORPORATION,
a
Maryland corporation (the “Issuer”) and BNY MIDWEST TRUST COMPANY, an Illinois
trust company (together with its successors, the “Trustee”) as successor trustee
hereunder, (all capitalized terms used in these preambles, recitals and granting
clauses shall have the same meanings assigned thereto in Article I
hereof);
W
I T
N E S S E T H:
WHEREAS,
the
Issuer has previously entered into an Indenture dated as of July 13, 2004
(the “Original Indenture,” and together with this Supplemental Indenture, the
“Indenture”), between the Issuer and the Trustee;
WHEREAS,
the
Issuer desires to enter into this Supplemental Indenture in order to issue
Tortoise Notes pursuant to the terms of the Original Indenture, including
Section 3.1 thereof;
WHEREAS,
the
Issuer represents that it has been formed and is validly existing as a Maryland
corporation and that by proper action it has duly authorized the issuance
of
$________ of its auction rate senior notes, Series __ (the “Tortoise Notes”),
and it has by proper action authorized the execution and delivery of this
Supplemental Indenture;
WHEREAS,
the
Tortoise Notes constitute Securities as defined in the Indenture;
and
WHEREAS,
the
Trustee has agreed to accept the trusts herein contained upon the terms herein
set forth;
NOW,
THEREFORE,
it is
mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS
AND USE OF PHRASES
Section
1.01 Definitions.
All
words and phrases defined in Article I of the Indenture shall have the same
meaning in this Supplemental Indenture, except as otherwise appears in this
Article. In addition, the following terms have the following meanings in
this
Supplemental Indenture unless the context clearly requires
otherwise:
“‘AA’
Composite Commercial Paper Rate”
on
any
date means (i) the interest equivalent of (1) the 7-day rate, in the
case of a Rate Period which is 7 days or shorter, (2) the 30-day rate, in
the case of a Rate Period which is a Standard Rate Period greater than 7
days
but fewer than or equal to 31 days, or (3) the 180-day rate, in the case of
all other Rate Periods, on financial commercial paper on behalf of issuers
whose
corporate bonds are rated “AA” by S&P, or the equivalent of such rating by
another nationally recognized rating agency, as announced by the Federal
Reserve
Bank of New York for the close of business on the Business Day immediately
preceding such date; or (ii) if the Federal Reserve Bank of New York does
not make
available
such a rate, then the arithmetic average of the interest equivalent of such
rates on financial commercial paper placed on behalf of such issuers, as
quoted
on a discount basis or otherwise by the Commercial Paper Dealers to the Auction
Agent for the close of business on the Business Day immediately preceding
such
date (rounded to the next highest .001 of 1%). If any Commercial Paper Dealer
does not quote a rate required to determine the “AA” Composite Commercial Paper
Rate, such rate shall be determined on the basis of the quotations (or
quotation) furnished by the remaining Commercial Paper Dealers (or Dealer),
if
any, or, if there are no such Commercial Paper Dealers, a nationally recognized
dealer in commercial paper of such issues then making such quotations selected
by the Issuer. For purposes of this definition, (A) “Commercial Paper
Dealers” shall mean (1) Citigroup Global Markets Inc., ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇
Sachs & Co.; (2) in lieu of any thereof, its respective Affiliate
or successor; and (3) in the event that any of the foregoing shall cease to
quote rates for financial commercial paper of issuers of the sort described
above, in substitution therefor, a nationally recognized dealer in financial
commercial paper of such issuers then making such quotations selected by
the
Issuer, and (B) “interest equivalent” of a rate stated on a discount basis
for financial commercial paper of a given number of days’ maturity shall mean a
number equal to the quotient (rounded upward to the next higher one-thousandth
of 1%) of (1) such rate expressed as a decimal, divided by (2) the
difference between (x) 1.00 and (y) a fraction, the numerator of which
shall be the product of such rate expressed as a decimal, multiplied by the
number of days in which such commercial paper shall mature and the denominator
of which shall be 360.
“Affiliate”
means
any person controlled by, in control of or under common control with the
Issuer;
provided that no Broker-Dealer controlled by, in control of or under common
control with the Issuer shall be deemed to be an Affiliate nor shall any
corporation or any person controlled by, in control of or under common control
with such corporation one of the directors or executive officers of which
is
also a Director of the Issuer be deemed to be an Affiliate solely because
such
director or executive officer is also a Director of the Issuer.
“Agent
Member”
means
a
member of or participant in the Securities Depository that will act on behalf
of
a Bidder.
“All
Hold Rate”
means
80% of the “AA” Composite Commercial Paper Rate.
“Applicable
Rate”
means
the rate determined in accordance with the procedures in Section 2.02(c)(i)
of this Supplemental Indenture.
“Auction”
means
each periodic implementation of the Auction Procedures.
“Auction
Agent”
means
[Auction Agent] unless and until another commercial bank, trust company,
or
other financial institution appointed by a resolution of the Board of
Directors enters into an agreement with the Issuer to follow the Auction
Procedures for the purpose of determining the Applicable
Rate.
“Auction
Agreement”
means
the
agreement between the Auction Agent and the Issuer pursuant to which the
Auction
Agent agrees to follow the procedures specified in
2
Appendix
A to this Supplemental Indenture, as such agreement may from time to time
be
amended or supplemented.
“Auction
Date”
means
the first Business Day next preceding the first day of a Rate Period for
each
series of Tortoise Notes.
“Auction
Period”
means
with respect to the Tortoise Notes, either a Standard Auction Period or a
Special Auction Period, as applicable.
“Auction
Procedures”
means
the procedures for conducting Auctions set forth in Appendix A
hereto.
“Authorized
Denomination”
means
$25,000 and any integral multiple thereof.
“Available
Tortoise Notes”
means
for each series of Tortoise Notes on each Auction Date, the aggregate principal
amount of Tortoise Notes of such series that are not the subject of Submitted
Hold Orders.
“Beneficial
Owner,”
with
respect to each series of Tortoise Notes, means a customer of a Broker-Dealer
who is listed on the records of that Broker-Dealer (or, if applicable, the
Auction Agent) as a holder of such series of Tortoise Notes.
“Bid”
shall
have the meaning specified in Appendix A hereto.
“Bidder”
means
each Beneficial Owner, Potential Beneficial Owner and Broker Dealer who places
an Order.
“Board
of Directors”
or
“Board”
means
the Board of Directors of the Issuer or any duly authorized committee thereof
as
permitted by applicable law.
“Broker-Dealer”
means
any broker-dealer or broker-dealers, or other entity permitted by law to
perform
the functions required of a Broker-Dealer by the Auction Procedures, that
has
been selected by the Issuer and has entered into a Broker-Dealer Agreement
that
remains effective.
“Broker-Dealer
Agreement”
means
an agreement between the Auction Agent and a Broker-Dealer, pursuant to which
such Broker-Dealer agrees to follow the Auction Procedures.
“Business
Day”
means
a
day on which the New York Stock Exchange is open for trading and which is
not a
Saturday, Sunday or other day on which banks in the City of New York, New
York
are authorized or obligated by law to close.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Commercial
Paper Dealers”
has
the
meaning set forth in the definition of AA Composite Commercial Paper
Rate.
3
“Commission”
means
the Securities and Exchange Commission.
“Default
Rate”
means
the Reference Rate multiplied by three (3).
“Deposit
Securities”
means
cash and any obligations or securities, including short term money market
instruments that are Eligible Assets, rated at least AAA, A-2 or SP-2 by
Fitch,
except that, such obligations or securities shall be considered “Deposit
Securities” only if they are also rated at least P-2 by Moody’s.
“Discount
Factor”
means
the Moody’s Discount Factor (if ▇▇▇▇▇’▇ is then rating the Tortoise Notes),
Fitch Discount Factor (if Fitch is then rating the Tortoise Notes) or an
Other
Rating Agency Discount Factor, whichever is applicable.
“Discounted
Value”
means
the quotient of the Market Value of an Eligible Asset divided by the applicable
Discount Factor, provided that with respect to an Eligible Asset that is
currently callable, Discounted Value will be equal to the quotient as calculated
above or the call price, whichever is lower, and that with respect to an
Eligible Asset that is prepayable, Discounted Value will be equal to the
quotient as calculated above or the par value, whichever is lower.
“Eligible
Assets”
means
Moody’s Eligible Assets or Fitch’s Eligible Assets (if Moody’s or Fitch are then
rating the Tortoise Notes) and/or Other Rating Agency Eligible Assets, whichever
is applicable.
“Error
Correction Deadline”
means
one hour after the Auction Agent completes the dissemination of the results
of
the Auction to Broker-Dealers without regard to the time of receipt of such
results by any Broker-Dealer; provided, however, in no event shall the Error
Correction Deadline extend past 4:00 p.m., New York City time unless the
Auction Agent experiences technological failure or force majeure in
disseminating the Auction results which causes a delay in dissemination past
3:00 p.m., New York City time.
“Existing
Holder,”
with
respect to Tortoise Notes of a series, shall mean a Broker-Dealer (or any
such
other Person as may be permitted by the Issuer) that is listed on the records
of
the Auction Agent as a holder of Tortoise Notes of such series.
“Fitch”
means
Fitch Ratings and its successors at law.
“Fitch
Discount Factor”
means
the discount factors set forth in the Fitch Guidelines for use in calculating
the Discounted Value of the Issuer’s assets in connection with Fitch’s ratings
of Tortoise Notes.
“Fitch
Eligible Asset”
means
assets of the Issuer set forth in the Fitch Guidelines as eligible for inclusion
in calculating the Discounted Value of the Issuer’s assets in connection with
Fitch’s ratings of Tortoise Notes.
“Fitch
Guidelines”
mean
the guidelines provided by Fitch, as may be amended from time to time, in
connection with Fitch’s ratings of Tortoise Notes.
4
“Hold
Order”
shall
have the meaning specified in Appendix A hereto or
an
Order deemed to have been submitted as provided in paragraph (c) of Section
1 of
Appendix A hereto.
“Interest
Payment Date”
when
used with respect to any Tortoise Notes, means the date on which an
installment of interest on such Tortoise Notes shall
be
due and payable which generally shall be the day next following an Auction
Date.
“LIBOR”
means,
for purposes of determining the Reference Rate, (i) the rate for deposits
in U.S. dollars for the designated Rate Period, which appears on display
page
3750 of Moneyline’s Telerate Service (“Telerate Page 3750”) (or such other
page as may replace that page on that service, or such other service as may
be
selected by ▇▇▇▇▇▇ Brothers Inc. or its successors) as of 11:00 a.m.,
London time, on the day that is the Business Day on the Auction Date or,
if the
Auction Date is not a Business Day, the Business Day preceding the Auction
Date
(the “LIBOR Determination Date”), or (ii) if such rate does not appear on
Telerate Page 3750 or such other page as may replace such Telerate
Page 3750, (A) ▇▇▇▇▇▇ Brothers Inc. shall determine the arithmetic mean of
the offered quotations of the reference banks to leading banks in the London
interbank market for deposits in U.S. dollars for the designated Rate Period
in
an amount determined by ▇▇▇▇▇▇ Brothers Inc. by reference to requests for
quotations as of approximately 11:00 a.m. (London time) on such date made
by ▇▇▇▇▇▇ Brothers Inc. to the reference banks, (B) if at least two of the
reference banks provide such quotations, LIBOR shall equal such arithmetic
mean
of such quotations, (C) if only one or none of the reference banks provide
such quotations, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that leading banks in The City of New York, New York selected
by
▇▇▇▇▇▇ Brothers Inc. (after obtaining the Issuer’s approval) are quoting on the
relevant LIBOR Determination Date for deposits in U.S. dollars for the
designated Rate Period in an amount determined by ▇▇▇▇▇▇ Brothers Inc. (after
obtaining the Issuer’s approval) that is representative of a single transaction
in such market at such time by reference to the principal London office of
leading banks in the London interbank market; provided, however, that if
▇▇▇▇▇▇
Brothers Inc. is not a Broker-Dealer or does not quote a rate required to
determine LIBOR, LIBOR will be determined on the basis of the quotation or
quotations furnished by any other Broker-Dealer selected by the Issuer to
provide such rate or rates not being supplied by ▇▇▇▇▇▇ Brothers Inc.; provided
further, that if ▇▇▇▇▇▇ Brothers Inc. and/or a substitute Broker-Dealer are
required but unable to determine a rate in accordance with at least one of
the
procedures provided above, LIBOR shall be the most recently determinable
LIBOR.
If the number of Rate Period days shall be (i) 7 or more but fewer than 21
days, such rate shall be the seven-day LIBOR rate; (ii) more than 21 but
fewer than 49 days, such rate shall be one-month LIBOR rate; (iii) 49 or
more but fewer than 77 days, such rate shall be the two-month LIBOR rate;
(iv) 77 or more but fewer than 112 days, such rate shall be the three-month
LIBOR rate; (v) 112 or more but fewer than 140 days, such rate shall be the
four-month LIBOR rate; (vi) 140 or more but fewer than 168 days, such rate
shall be the five-month LIBOR rate; (vii) 168 or more but fewer 189 days,
such rate shall be the six-month LIBOR rate; (viii) 189 or more but fewer
than 217 days, such rate shall be the seven-month LIBOR rate; (ix) 217 or
more but fewer than 252 days, such rate shall be the eight-month LIBOR rate;
(x) 252 or more but fewer than 287 days, such rate shall be the nine-month
LIBOR
5
rate;
(xi) 287 or more but fewer than 315 days, such rate shall be the ten-month
LIBOR rate; (xii) 315 or more but fewer than 343 days, such rate shall be
the eleven-month LIBOR rate; and (xiii) 343 or more days but fewer than 365
days, such rate shall be the twelve-month LIBOR rate.
“Market
Value”
means
the market value of an asset of the Issuer determined as follows: For equity
securities, the value obtained from readily available market quotations.
If an
equity security is not traded on an exchange or not available from a
Board-approved pricing service, the value obtained from written broker-dealer
quotations. For fixed-income securities, the value obtained from readily
available market quotations based on the last sale price of
a
security on the day the Issuer values its assets or the market value
obtained from a pricing service or the value obtained from a direct written
broker-dealer quotation from a dealer who has made a market in the security.
“Market Value” for other securities will mean the value obtained pursuant to the
Issuer’s valuation procedures. If the market value of a security cannot be
obtained, or the Issuer’s investment adviser determines that the value of a
security as so obtained does not represent the fair value of a security,
fair
value for that security shall be determined pursuant to the valuation
procedures adopted by
the Board of Directors.
“Maximum
Rate”
means,
on any date on which the Applicable Rate is determined, the rate equal to
the
applicable percentage of the Reference Rate, subject to upward but not downward
adjustment in the discretion of the Board of Directors after consultation
with
the Broker-Dealers, provided that immediately following any such increase
the
Issuer would be in compliance with the Tortoise Notes Basic Maintenance
Amount.
“Minimum
Rate”
means,
on any Auction Date with respect to a Rate Period of __ days or fewer, 70%
of
the AA Composite Commercial Paper Rate at the close of business on the Business
Day next preceding such Auction Date. There shall be no Minimum Rate on any
Auction Date with respect to a Rate Period of more than the Standard Rate
Period.
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc., a Delaware corporation, and its successors at
law.
“Moody’s
Discount Factor”
means
the discount factors set forth in the Moody’s Guidelines for use in calculating
the Discounted Value of the Issuer’s assets in connection with Moody’s ratings
of Tortoise Notes.
“Moody’s
Eligible Assets”
means
assets of the Issuer set forth in the Moody’s Guidelines as eligible for
inclusion in calculating the Discounted Value of the Issuer’s assets in
connection with Moody’s ratings of Tortoise Notes.
“Moody’s
Guidelines”
mean
the guidelines provided by Moody’s, as may be amended from time to time, in
connection with Moody’s ratings of Tortoise Notes.
“1940
Act Tortoise Notes Asset Coverage”
means
asset coverage, as determined in accordance with Section 18(h) of the
Investment Company Act, of at least 300% with respect to all outstanding
senior
securities representing indebtedness of the Issuer, including all Outstanding
Tortoise Notes (or such other asset coverage as may in the future be specified
in or under the Investment Company Act as the minimum asset coverage for
senior
securities
6
representing
indebtedness of a closed-end investment company as a condition of declaring
dividends on its common stock), determined on the basis of values calculated
as
of a time within 48 hours next preceding the time of such
determination.
“Notes”
means
Securities of the Issuer ranking on a parity with the Tortoise Notes that
may be
issued from time to time pursuant to the Indenture.
“Order”
means
a
Hold Order, Bid or Sell Order.
“Original
Issue Date”
means,
with respect to Series __ Tortoise Notes, ________, 20__.
“Other
Rating Agency”
means
each rating agency, if any, other than Moody’s or Fitch then providing a rating
for the Tortoise Notes pursuant to the request of the Issuer.
“Other
Rating Agency Discount Factor”
means
the discount factors set forth in the Other Rating Agency Guidelines of each
Other Rating Agency for use in calculating the Discounted Value of the Issuer’s
assets in connection with the Other Rating Agency’s rating of Tortoise
Notes.
“Other
Rating Agency Eligible Assets”
means
assets of the Issuer set forth in the Other Rating Agency Guidelines of each
Other Rating Agency as eligible for inclusion in calculating the Discounted
Value of the Issuer’s assets in connection with the Other Rating Agency’s rating
of Tortoise Notes.
“Other
Rating Agency Guidelines”
mean
the guidelines provided by each Other Rating Agency, as may be amended from
time
to time, in connection with the Other Rating Agency’s rating of Tortoise
Notes.
“Outstanding”
or
“outstanding”
means,
as of any date, Tortoise Notes theretofore issued by the Issuer except, without
duplication, (i) any Tortoise Notes theretofore canceled, redeemed or
repurchased by the Issuer, or delivered to the Trustee for cancellation or
with
respect to which the Issuer has given notice of redemption and irrevocably
deposited with the Paying Agent sufficient funds to redeem such Tortoise
Notes
and (ii) any Tortoise Notes represented by any certificate in lieu of which
a new certificate has been executed and delivered by the Issuer. Notwithstanding
the foregoing, (A) in connection with any Auction, any series of Tortoise
Notes as to which the Issuer or any person known to the Auction Agent to
be an
Affiliate of the Issuer shall be the Existing Holder thereof shall be
disregarded and deemed not to be Outstanding; and (B) for purposes of
determining the Tortoise Notes Basic Maintenance Amount, Tortoise Notes held
by
the Issuer shall be disregarded and not deemed Outstanding but Tortoise Notes
held by any Affiliate of the Issuer shall be deemed Outstanding.
“Paying
Agent”
means
BNY Midwest Trust Company unless and until another entity appointed by
a
resolution of the Board of Directors enters into an agreement with the
Issuer to
serve as paying agent, transfer agent, registrar, and redemption agent
with
respect to the Tortoise Notes, which Paying Agent may be the same as the
Trustee
or the Auction Agent.
7
“Person”
or
“person”
means
and includes an individual, a partnership, a trust, a company, an unincorporated
association, a joint venture or other entity or a government or any agency
or
political subdivision thereof.
“Potential
Beneficial Owner,”
with
respect to a series of Tortoise Notes, shall mean a customer of a Broker-Dealer
that is not a Beneficial Owner of Tortoise Notes of such series but that
wishes
to purchase Tortoise Notes of such series, or that is a Beneficial Owner
of
Tortoise Notes of such series that wishes to purchase additional Tortoise
Notes
of such series.
“Potential
Holder,”
with
respect to Tortoise Notes of such series, shall mean a Broker-Dealer (or
any
such other person as may be permitted by the Issuer) that is not an Existing
Holder of Tortoise Notes of such series or that is an Existing Holder of
Tortoise Notes of such series that wishes to become the Existing Holder of
additional Tortoise Notes of such series.
“Rate
Period”
means,
with respect to a series of Tortoise Notes, the period commencing on the
Original Issue Date thereof and ending on the date specified for such series
on
the Original Issue Date thereof and thereafter, as to such series, the period
commencing on the day following each Rate Period for such series and ending
on
the day established for such series by the Issuer.
“Rating
Agency”
means
each of Fitch (if Fitch is then rating Tortoise Notes), Moody’s (if ▇▇▇▇▇’▇ is
then rating Tortoise Notes) and any Other Rating Agency.
“Rating
Agency Guidelines”
mean
Fitch Guidelines (if Fitch is then rating Tortoise Notes), Moody’s Guidelines
(if ▇▇▇▇▇’▇ is then rating Tortoise Notes) and any Other Rating Agency
Guidelines.
“Redemption
Date,”
when
used with respect to any Tortoise Note to be redeemed, means the date fixed
for
such redemption by or pursuant to the Indenture.
“Redemption
Price,”
when
used with respect to any Tortoise Note to be redeemed, means the price at
which
it is to be redeemed pursuant to the Indenture.
“Reference
Rate”
means,
with respect to the determination of the Maximum Rate and Default Rate, the
greater of (i) the applicable AA Composite Commercial Paper Rate (for a
Rate Period of fewer than 184 days) or the applicable Treasury Index Rate
(for a
Rate Period of 184 days or more), or (ii) the applicable LIBOR
Rate.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time.
“Securities
Depository”
means
The Depository Trust Company and its successors and assigns or any successor
securities depository selected by the Issuer that agrees to follow the
procedures required to be followed by such securities depository in connection
with the Tortoise Notes Series __.
“Sell
Order”
shall
have the meaning specified in Appendix A hereto.
8
“Special
Auction Period”
means
an Auction Period that is not a Standard Auction Period.
“Special
Rate Period”
means
a
Rate Period that is not a Standard Rate Period.
“Specific
Redemption Provisions”
means,
with respect to any Special Rate Period of more than one year, either, or
any
combination of a period (a “Non-Call Period”) determined by the Board of
Directors after consultation with the Broker-Dealers, during which the Tortoise
Notes subject to such Special Rate Period are not subject to redemption at
the
option of the Issuer consisting of a number of whole years as determined
by the
Board of Directors after consultation with the Broker-Dealers, during each
year
of which the Tortoise Notes subject to such Special Rate Period shall be
redeemable at the Issuer’s option and/or in connection with any mandatory
redemption at a price equal to the principal amount plus accrued but unpaid
interest plus a premium expressed as a percentage or percentages of $25,000
or
expressed as a formula using specified variables as determined by the Board
of
Directors after consultation with the Broker-Dealers.
“Standard
Auction Period”
means
an Auction Period of ___ days.
“Standard
Rate Period”
means
a
Rate Period of __ days.
“Stated
Maturity”
with
respect to Tortoise Notes Series __, shall mean ________, 20__.
“Submission
Deadline”
means
1:00 P.M., New York City time, on any Auction Date or such other time on
such
date as shall be specified by the Auction Agent from time to time pursuant
to
the Auction Agreement as the time by which the Broker-Dealers are required
to
submit Orders to the Auction Agent. Notwithstanding the foregoing, the Auction
Agent will follow the Securities Industry and Financial Markets Association’s
Early Market Close Recommendations for shortened trading days for the bond
markets (the “SIFMA Recommendation”) unless the Auction Agent is instructed
otherwise in writing by the Company. In the event of a SIFMA Recommendation
with
respect to an Auction Date, the Submission Deadline will be 11:30 A.M., instead
of 1:00 P.M., New York City time.
“Submitted
Bid”
shall
have the meaning specified in Appendix A hereto.
“Submitted
Hold Order”
shall
have the meaning specified in Appendix A hereto.
“Submitted
Order”
shall
have the meaning specified in Appendix A hereto.
“Submitted
Sell Order”
shall
have the meaning specified in Appendix A hereto.
“Sufficient
Clearing Bids”
means
for each series of Tortoise Notes, an Auction for which the aggregate principal
amount of Tortoise Notes of such series that are the subject of Submitted
Bids
by Potential Beneficial Owners specifying one or more rates not higher
than the
Maximum Rate is not less than the aggregate principal amount of Tortoise
Notes
of such series
9
that
are
the subject of Submitted Sell Orders and of Submitted Bids by Existing Holders
specifying rates higher than the Maximum Rate.
“Tortoise
Notes Basic Maintenance Amount”
as
of
any Valuation Date has the meaning set forth in the Rating Agency
Guidelines.
“Tortoise
Notes Series __”
means
the Series __ Tortoise Notes or any other Notes hereinafter designated as
Series
__ of the Tortoise Notes.
“Treasury
Index Rate”
means
the average yield to maturity for actively traded marketable U.S. Treasury
fixed
interest rate securities having the same number of 30-day periods to maturity
as
the length of the applicable Rate Period, determined, to the extent necessary,
by linear interpolation based upon the yield for such securities having the
next
shorter and next longer number of 30-day periods to maturity treating all
Rate
Periods with a length greater than the longest maturity for such securities
as
having a length equal to such longest maturity, in all cases based upon data
set
forth in the most recent weekly statistical release published by the Board
of
Governors of the Federal Reserve System (currently in H.15(519)); provided,
however, if the most recent such statistical release shall not have been
published during the 15 days preceding the date of computation, the foregoing
computations shall be based upon the average of comparable data as quoted
to the
Issuer by at least three recognized dealers in U.S. Government securities
selected by the Issuer.
“Trustee”
means
BNY Midwest Trust Company or such other person who is named as a trustee
pursuant to the terms of the Indenture.
“Valuation
Date”
means
every Friday, or, if such day is not a Business Day, the next preceding Business
Day; provided, however, that the first Valuation Date may occur on any other
date established by the Issuer; provided, further, however, that such first
Valuation Date shall be not more than one week from the date on which Tortoise
Notes Series __ initially are issued.
“Winning
Bid Rate”
means
for each series of Tortoise Notes, the lowest rate specified in any Submitted
Bid of such series of Tortoise Notes which if selected by the Auction Agent
as
the Applicable Rate would cause the aggregate principal amount of Tortoise
Notes
of such series that are the subject of Submitted Bids specifying a rate not
greater than such rate to be not less than the aggregate principal amount
of
Available Tortoise Notes of such series.
Section
1.02 Interpretation.
References to sections, subsections, clauses, sub-clauses, paragraphs and
subparagraphs are to such sections, subsections, clauses, sub-clauses,
paragraphs and subparagraphs contained in this supplemental indenture,
as the
case may be, unless specifically identified otherwise.
Words
importing the masculine gender include the feminine gender. Words importing
persons include firms, associations and corporations. Words importing the
singular number include the plural number and vice versa. Additional terms
are
defined in the body of this Supplemental Indenture and the Appendices
hereto.
10
In
the
event that any term or provision contained herein with respect to the Tortoise
Notes shall conflict with or be inconsistent with any term or provision
contained in the Indenture, the terms and provisions of this Supplemental
Indenture shall govern.
ARTICLE II
NOTE
DETAILS, FORM OF NOTES, REDEMPTION
OF
NOTES AND USE OF PROCEEDS OF NOTES
Section 2.01 General
Terms.
(a) Designation:
Series __: A series of Notes having an aggregate principal amount of $________,
is designated “Series __ Tortoise Notes” (“Tortoise Notes Series __”). The
principal amount of the Tortoise Notes Series __ shall be due and payable
at the
Stated Maturity. The initial Rate Period for Tortoise Notes Series __ shall
be
the period from and including the Original Issue Date thereof to and including
________, 200_. The Tortoise Notes Series __ shall have an Applicable Rate
for
the initial Rate Period equal to ___% per annum and an initial Interest Payment
Date of________, 200_. Thereafter, the Applicable Rate shall be determined
in
accordance with the Auction Procedures set forth in Appendix A hereto, until
the
Stated Maturity. The Tortoise Notes Series __ shall have such other terms
and
conditions as are set forth herein. The Tortoise Notes Series __ shall
constitute a separate series of Notes of the Issuer.
(b) Subject
to Section 2.03(i) hereof, the Board of Directors of the Issuer may, in the
future, without further consent of the holders of the Tortoise Notes or the
holders of shares of beneficial interest of the Issuer, authorize an increase
in
the aggregate principal amount of an Outstanding series of Tortoise Notes
or the
issuance of additional series of Tortoise Notes, with the same terms and
conditions of the respective series herein described, except that the Applicable
Rate for its initial Rate Period, its initial Interest Payment Date and any
other changes in the terms herein set forth shall be as set forth in a
supplemental indenture.
(c) The
global securities representing Tortoise Notes, as described in paragraph
(d)
below, shall be in substantially the form set forth in Appendix B hereto,
with
such appropriate insertions, notations, legends and other variations as are
required or permitted by the Indenture or any supplemental indenture. The
Tortoise Notes and the rights
and duties of the Issuer, the Trustee, any Paying Agent, the Holders thereof
(and of the Securities of any other series), shall be subject to and governed
by
the Indenture (including as it has been amended and supplemented by this
Supplemental Indenture and as it may be hereafter amended or supplemented
by any
supplemental indenture thereto pursuant to the applicable provisions thereof)
insofar as the Indenture shall be applicable.
(d) Except
as
otherwise provided in this Section, the Tortoise Notes in the form of one
global
note for each series shall be registered in the name of the Securities
Depository or its nominee and ownership thereof shall be maintained in
book-entry form by the Securities Depository for the account of the Agent
Members. Initially, each global note shall be registered in the name of
Cede & Co., as the nominee of The Depository Trust Company. The global
notes may be transferred, in whole but not in part, only to the Securities
Depository or a
11
nominee
of the Securities Depository or to a successor Securities Depository selected
or
approved by the Issuer or to a nominee of such successor Securities Depository.
Each global note shall bear a legend substantially to the following effect:
“Except as otherwise provided in the Indenture, this global note may be
transferred, in whole but not in part, only to another nominee of the Securities
Depository (as defined in the Indenture) or to a successor Securities Depository
or to a nominee of a successor Securities Depository.”
Section
2.02 Interest.
(a) The
Holders of any series of Tortoise Notes shall be entitled to receive interest
payments on their Tortoise Notes at the Applicable Rate, determined as set
forth
in paragraph (c) of this Section 2.02, and no more, payable on the
respective dates determined as set forth in paragraph (b) of this
Section 2.02. Interest on the Outstanding Tortoise Notes of any series
issued on the Original Issue Date shall accumulate from the Original Issue
Date.
(b) (i)
Interest
shall be payable, subject to subparagraph (b)(ii) of this Section 2.02,
on each
series of Tortoise Notes, with respect to any Rate Period on the first
Business
Day following the last day of such Rate Period; provided, however, if the
Rate
Period is greater than 30 days then on a monthly basis on the first Business
Day
of each month within such Rate Period, not including the initial Rate Period,
and on the Business Day following the last day of such Rate
Period.
(ii) If
a day
for payment of interest resulting from the application of subparagraph
(b)(i)
above is not a Business Day, then the Interest Payment Date shall be the
first
Business Day following such day for payment of interest in the case of
a series
of Tortoise Notes designated as “Series __.”
(iii) The
Issuer shall pay to the Paying Agent not later than 3:00 p.m., New York
City
time, on the Business Day next preceding each Interest Payment Date for
each
series of Tortoise Notes, an aggregate amount of funds available on the
next
Business Day in the City of New York, New York, equal to the interest to
be paid
to all Holders of such Tortoise Notes on such Interest Payment Date. The
Issuer shall not be required to establish any reserves for the payment
of
interest.
(iv) All
moneys paid to the Paying Agent for the payment of interest shall be held
in
trust for the payment of such interest by the Paying Agent for the benefit
of
the Holders specified in subparagraph (b)(v) of this Section 2.02. Any
moneys
paid to the Paying Agent in accordance with the foregoing but not applied
by the
Paying Agent to the payment of interest, including interest earned on such
moneys, will, to the extent permitted by law, be repaid to the Issuer at
the end
of 90 days from the date on which such moneys were to have been so
applied.
(v) Each
interest payment on a series of Tortoise Notes shall be paid on the
Interest
Payment Date therefor to the Holders of that series as their names
appear on the
security ledger or security records of the Issuer on the Business Day
next
preceding such Interest Payment Date. Interest in arrears for any past
Rate
Period may be declared and paid at any time, without reference to any
regular
Interest Payment Date, to
12
the
Holders as their names appear on the books or records of the Issuer on
such
date, not exceeding 15 days preceding the payment date thereof, as may
be fixed
by the Board of Directors. No interest will be payable in respect of any
Interest Payment or payments which may be in arrears.
(c)
(i) The
interest rate on Outstanding Tortoise Notes of each series during the period
from and after the Original Issue Date to and including the last day of
the
initial Rate Period therefor shall be equal __%. For each subsequent Rate
Period
with respect to the Tortoise Notes Outstanding thereafter, the interest
rate
shall be equal to the rate per annum that results from an Auction; provided,
however, that if an Auction for any subsequent Rate Period of a series
of
Tortoise Notes is not held for any reason or if Sufficient Clearing Bids
have
not been made in an Auction (other than as a result of all series of Tortoise
Notes being the subject of Submitted Hold Orders), then the interest rate
on a
series of Tortoise Notes for any such Rate Period shall be the Maximum
Rate
(except during a Default Period (as defined below) when the interest rate
shall
be the Default Rate, as set forth in Section 2.02(c)(ii) below). The All
Hold
Rate will apply automatically following an Auction in which all of the
Outstanding series of Tortoise Notes are subject (or are deemed to be subject)
to Hold Orders. The rate per annum at which interest is payable on a series
of
Tortoise Notes as determined pursuant to this Section 2(c)(i) shall be
the
“Applicable Rate.” For Standard Rate Periods or shorter periods only, the
Applicable Rate resulting from an Auction will not be less than the Minimum
Rate.
(ii) Subject
to the cure provisions below, a “Default Period” with respect to a particular
series will commence on any date the Issuer fails to deposit irrevocably
in
trust in same-day funds, with the Paying Agent by 12:00 noon, New York
City
time, (A) the full amount of any redemption price (the “Redemption Price”)
payable on the date fixed for redemption (the “Redemption Date”) (a “Redemption
Default,” which shall constitute an Event of Default pursuant to Section 5.1(7)
of the Original Indenture) or (B) the full amount of any accrued interest
on
that series payable on the Interest Payment Date (an “Interest Default” and
together with a Redemption Default, hereinafter referred to as “Default”).
Subject to the cure provisions of Section 2(c)(iii) below, a Default Period
with
respect to an Interest Default or a Redemption Default shall end on the
Business
Day on which, by 12:00 noon, New York City time, all unpaid interest and
any
unpaid Redemption Price shall have been deposited irrevocably in trust
in
same-day funds with the Paying Agent. In the case of an Interest Default,
the
Applicable Rate for each Rate Period commencing during a Default Period
will be
equal to the Default Rate, and each subsequent Rate Period commencing after
the
beginning of a Default Period shall be a Standard Rate Period; provided,
however, that the commencement of a Default Period will not by itself cause
the
commencement of a new Rate Period. No Auction shall be held during a Default
Period with respect to an Interest Default applicable to that series of
Tortoise
Notes.
(iii) No
Default Period with respect to an Interest Default or Redemption Default
shall
be deemed to commence if the amount of any interest or any Redemption Price
due
(if such default is not solely due to the willful failure of the Issuer)
is
deposited irrevocably in trust, in same-day funds with the Paying Agent
by 12:00
noon, New York City time within three Business Days after the applicable
Interest Payment Date or Redemption Date, together with an amount equal
to the
Default Rate applied to
13
the
amount of such non-payment based on the actual number of days comprising
such
period divided by 360 for each series. The Default Rate shall be equal to
the Reference Rate multiplied by three (3).
(iv) The
amount of interest per Tortoise Note payable on each Interest Payment
Date of
each Rate Period of less than one (1) year (or in respect of interest
on another
date in connection with a redemption during such Rate Period) shall be
computed
by multiplying the Applicable Rate (or the Default Rate) for such Rate
Period
(or a portion thereof) by a fraction, the numerator of which will be
the number
of days in such Rate Period (or portion thereof) that such Tortoise Notes
were
outstanding and for which the Applicable Rate or the Default Rate was
applicable
and the denominator of which will be 360, multiplying the amount so obtained
by
$25,000, and rounding the amount so obtained to the nearest cent. During
any
Rate Period of one (1) year or more, the amount of interest per Tortoise
Note
payable on any Interest Payment Date (or in respect of interest on another
date
in connection with a redemption during such Rate Period) shall be computed
as
described in the preceding sentence.
(d)
Any
Interest Payment made on any series of Tortoise Notes shall first be credited
against the earliest accrued but unpaid interest due with respect to such
series.
Section
2.03 Redemption.
(a) (i) After
the
initial Rate Period, subject to the provisions of this Section 2.03 and
to the
extent permitted under the Investment Company Act, the Issuer may, at
its
option, redeem in whole or in part out of funds legally available therefor
a
series of Tortoise Notes herein designated as (A) having a Rate Period
of one
year or less, on the Business Day after the last day of such Rate Period
by
delivering a notice of redemption not less than 15 days and not more
than 40
days prior to the date fixed for such redemption, at a redemption price
equal to
the aggregate principal amount, plus an amount equal to accrued but unpaid
interest thereon (whether or not earned) to the date fixed for redemption
(“Redemption Price”), or (B) having a Rate Period of more than one year, on any
Business Day prior to the end of the relevant Rate Period by delivering
a notice
of redemption not less than 15 days and not more than 40 days prior to
the date
fixed for such redemption, at the Redemption Price, plus a redemption
premium,
if any, determined by the Board of Directors after consultation with
the
Broker-Dealers and set forth in any applicable Specific Redemption Provisions
at
the time of the designation of such Rate Period as set forth in Section
2.04
hereof; provided, however, that during a Rate Period of more than one
year no
series of Tortoise Notes will be subject to optional redemption except
in
accordance with any Specific Redemption Provisions approved by the Board
of
Directors after consultation with the Broker-Dealers at the time of the
designation of such Rate Period. Notwithstanding the foregoing, the Issuer
shall
not give a notice of or effect any redemption pursuant to this Section
2.03(a)(i) unless, on the date on which the Issuer intends to give such
notice
and on the date of redemption (a) the Issuer has available certain Deposit
Securities with maturity or tender dates not later than the day preceding
the
applicable redemption date and having a value not less than the amount
(including any applicable premium) due to Holders of a series of Tortoise
Notes
by reason of the redemption of such Tortoise Notes on such date fixed
for the
redemption and (b) the Issuer would have Eligible Assets with an aggregate
Discounted Value at least equal the Tortoise Notes Basic Maintenance
Amount
immediately subsequent to
14
such
redemption, if such redemption were to occur on such date, it being understood
that the provisions of paragraph (d) of this Section 2.03 shall be applicable
in
such circumstances in the event the Issuer makes the deposit and takes
the other
action required thereby.
(ii) If
the
Issuer fails to maintain, as of any Valuation Date, Eligible Assets with
an
aggregate Discounted Value at least equal to the Tortoise Notes Basic
Maintenance Amount or, as of the last Business Day of any month, the 1940
Act
Tortoise Notes Asset Coverage, and such failure is not cured within ten
Business
Days following such Valuation Date in the case of a failure to maintain
the
Tortoise Notes Basic Maintenance Amount or on the last Business Day of
the
following month in the case of a failure to maintain the 1940 Act Tortoise
Notes
Asset Coverage as of such last Business Day (each an “Asset Coverage Cure
Date”), the Tortoise Notes will be subject to mandatory redemption out of funds
legally available therefor. The aggregate principal amount of Tortoise
Notes to
be redeemed in such circumstances will be equal to the lesser of (A) the
minimum
principal amount of Tortoise Notes the redemption of which, if deemed to
have
occurred immediately prior to the opening of business on the relevant Asset
Coverage Cure Date, would result in the Issuer having Eligible Assets with
an
aggregate Discounted Value at least equal to the Tortoise Notes Basic
Maintenance Amount, or sufficient to satisfy 1940 Act Tortoise Notes Asset
Coverage, as the case may be, in either case as of the relevant Asset Coverage
Cure Date (provided that, if there is no such minimum principal amount
of
Tortoise Notes the redemption of which would have such result, all Tortoise
Notes then Outstanding will be redeemed), and (B) the maximum principal
amount
of Tortoise Notes that can be redeemed out of funds expected to be available
therefor on the Mandatory Redemption Date at the Mandatory Redemption Price
set
forth in subparagraph (a)(iii) of this Section 2.03.
(iii) In
determining the Tortoise Notes required to be redeemed in accordance with
the
foregoing Section 2.03(a)(ii), the Issuer shall allocate the aggregate
principal
amount of Tortoise Notes required to be redeemed to satisfy the Tortoise
Notes
Basic Maintenance Amount or the 1940 Act Tortoise Notes Asset Coverage,
as the
case may be, pro rata among the Holders of Tortoise Notes in proportion
to the
aggregate principal amount of Tortoise Notes they hold, by lot or by such
other
method as the Issuer shall deem equitable, subject to the further provisions
of
this subparagraph (iii). The Issuer shall effect any required mandatory
redemption pursuant to subparagraph (a)(ii) of this Section 2.03 no later
than
40 days after the Asset Coverage Cure Date (the “Mandatory Redemption Date”),
except that if the Issuer does not have funds legally available for the
redemption of, or is not otherwise legally permitted to redeem, the aggregate
principal amount of Tortoise Notes which would be required to be redeemed
by the
Issuer under clause (A) of subparagraph (a)(ii) of this Section 2.03 if
sufficient funds were available, or the Issuer otherwise is unable to effect
such redemption on or prior to such Mandatory Redemption Date, the Issuer
shall
redeem those Tortoise Notes, and other Notes, on the earliest practicable
date
on which the Issuer will have such funds available, upon notice pursuant
to
Section 2.03(b) to record owners of the Tortoise Notes to be redeemed and
the
Paying Agent. The Issuer will deposit with the Paying Agent funds
sufficient to redeem the specified aggregate principal amount of Tortoise
Notes
with respect to a redemption required under subparagraph (a)(ii) of this
Section
2.03, by 1:00 p.m., New York City time, of the Business Day immediately
preceding the
15
Mandatory
Redemption Date. If fewer than all of the Outstanding Tortoise Notes are
to be redeemed pursuant to this Section 2.03(a)(iii), the aggregate principal
amount of Tortoise Notes to be redeemed shall be redeemed pro rata from
the
Holders of such Tortoise Notes in proportion to the aggregate principal
amount
of such Tortoise Notes held by such Holders, by lot or by such other method
as
the Issuer shall deem fair and equitable, subject, however, to the terms
of any
applicable Specific Redemption Provisions. “Mandatory Redemption Price”
means the Redemption Price plus (in the case of a Rate Period of one year
or
more only) a redemption premium, if any, determined by the Board of Directors
after consultation with the Broker-Dealers and set forth in any applicable
Specific Redemption Provisions.
(b) In
the
event of a redemption pursuant to Section 2.03(a), the Issuer will file a
notice of its intention to redeem with the Commission so as to provide at
least
the
minimum notice required under Rule 23c-2 under the Investment Company Act
or any
successor provision. In addition, the Issuer shall deliver a notice of
redemption to the Auction Agent and the Trustee (the “Notice of Redemption”)
containing the information set forth below (i) in the case of an optional
redemption pursuant to subparagraph (a)(i) above, at least three Business
Days
prior to the giving of notice to the Holders and (ii) in the case of a
mandatory redemption pursuant to subparagraph (a)(ii) above, on or prior
to the
30th day preceding the Mandatory Redemption Date. The Trustee will use its
reasonable efforts to provide notice to each Holder of Tortoise Notes called
for
redemption by electronic or other reasonable means not later than the close
of
business on the Business Day immediately following the day on which the Trustee
determines the Tortoise Notes to be redeemed (or, during a Default Period
with
respect to such Tortoise Notes, not later than the close of business on the
Business Day immediately following the day on which the Trustee receives
Notice
of Redemption from the Issuer). The Trustee shall confirm such notice in
writing
not later than the close of business on the third Business Day preceding
the
date fixed for redemption by providing the Notice of Redemption to each Holder
of Tortoise Notes called for redemption, the Paying Agent (if different from
the
Trustee) and the Securities Depository. Notice of Redemption will be addressed
to the registered owners of each series of Tortoise Notes at their addresses
appearing on the books or records of the Issuer. Such Notice of Redemption
will
set forth (i) the date fixed for redemption, (ii) the principal amount
and identity of Tortoise Notes to be redeemed, (iii) the redemption price
(specifying the amount of accrued interest to be included therein and any
redemption premium, if any), (iv) that interest on the Tortoise Notes to be
redeemed will cease to accrue on such date fixed for redemption,
(v) applicable cusip number(s) and (vi) the provision under which
redemption shall be made. No defect in the Notice of Redemption or in the
transmittal or mailing thereof will affect the validity of the redemption
proceedings, except as required by applicable law. If fewer than all Tortoise
Notes held by any Holder are to be redeemed, the Notice of Redemption mailed
to
such Holder shall also specify the principal amount of Tortoise Notes to
be
redeemed from such Holder.
(c) Notwithstanding
the provisions of paragraph (a) of this Section 2.03, no Tortoise Notes may
be redeemed unless all interest on the Outstanding Tortoise Notes and all
Notes
of the Issuer ranking on a parity with the Tortoise Notes, have been or
are
being contemporaneously paid or set aside for payment; provided, however,
that
the foregoing shall not prevent the purchase or acquisition of all Outstanding
Tortoise Notes pursuant to the successful completion of an otherwise lawful
purchase or exchange offer made on the same terms to, and accepted by,
Holders
of all Outstanding Tortoise Notes.
16
(d) Upon
the
deposit of funds sufficient to redeem any Tortoise Notes with the Paying
Agent
and the giving of the Notice of Redemption to the Trustee under paragraph
(b) of
this Section 2.03, interest on such Tortoise Notes shall cease to accrue
and such Tortoise Notes shall no longer be deemed to be Outstanding for any
purpose (including, without limitation, for purposes of calculating whether
the
Issuer has maintained the requisite Tortoise Notes Basic Maintenance Amount
or
the 1940 Act Tortoise Notes Asset Coverage), and all rights of the Holder
of the
Tortoise Notes so called for redemption shall cease and terminate, except
the
right of such Holder to receive the
redemption price specified herein, but without any interest or other additional
amount. Such redemption price shall be paid by the Paying Agent to the nominee
of the Securities Depository. The Issuer shall be entitled to receive from
the
Paying Agent, promptly after the date fixed for redemption, any cash deposited
with the Paying Agent in excess of (i) the aggregate redemption price of
the Tortoise Notes called for redemption on such date and (ii) such other
amounts, if any, to which Holders of the Tortoise Notes called for redemption
may be entitled. Any funds so deposited that are unclaimed at the end of
two
years from such redemption date shall, to the extent permitted by law, be
paid
to the Issuer, after which time the Holders of Tortoise Notes so called for
redemption may look only to the Issuer for payment of the redemption price
and
all other amounts, if any, to which they may be entitled. The Issuer shall
be
entitled to receive, from time to time after the date fixed for redemption,
any
interest earned on the funds so deposited.
(e) To
the
extent that any redemption for which Notice of Redemption has been given
is not
made by reason of the absence of legally available funds therefor, or is
otherwise prohibited, such redemption shall be made as soon as practicable
to
the extent such funds become legally available or such redemption is no
longer
otherwise prohibited. Failure to redeem any series of Tortoise Notes shall
be
deemed to exist at any time after the date specified for redemption in
a Notice
of Redemption when the Issuer shall have failed, for any reason whatsoever,
to
deposit in trust with the Paying Agent the redemption price with respect
to any
Tortoise Notes for which such Notice of Redemption has been given.
Notwithstanding the fact that the Issuer may not have redeemed any Tortoise
Notes for which a Notice of Redemption has been given, interest may be
paid on a
series of Tortoise Notes and shall include those Tortoise Notes for which
Notice
of Redemption has been given but for which deposit of funds has not been
made.
(f) All
moneys paid to the Paying Agent for payment of the redemption price of
any
Tortoise Notes called for redemption shall be held in trust by the Paying
Agent
for the benefit of Holders of Tortoise Notes to be redeemed.
(g) So
long
as any Tortoise Notes are held of record by the nominee of the Securities
Depository, the redemption price for such Tortoise Notes will be paid on
the
date fixed for redemption to the nominee of the Securities Depository for
distribution to Agent Members for distribution to the persons for whom
they are
acting as agent.
(h) Except
for the provisions described above, nothing contained herein limits any
right of
the Issuer to purchase or otherwise acquire any Tortoise Notes outside
of an
Auction at any price, whether higher or lower than the price that would
be paid
in connection with an optional or mandatory redemption, so long as, at
the time
of any such purchase, there is no arrearage in the payment of interest
on, or
the mandatory or optional redemption price with
17
respect
to, any series of Tortoise Notes for which Notice of Redemption has been
given
and the Issuer is in compliance with the 1940 Act Tortoise Notes Asset Coverage
and has Eligible Assets with an aggregate Discounted Value at least equal
to the
Tortoise Notes Basic Maintenance Amount after giving effect to such purchase
or
acquisition on the date thereof. If fewer than all the Outstanding Tortoise
Notes of any series are redeemed or otherwise acquired by the Issuer, the
Issuer
shall
give notice of such transaction to the Trustee, in accordance with the
procedures agreed upon by the Board of Directors.
(i) The
Board
of Directors may, without further consent of the holders of the Tortoise
Notes
or the holders of shares of capital stock of the Issuer, authorize, create
or
issue any class or series of Notes, including other series of Tortoise
Notes,
ranking prior to or on a parity with the Tortoise Notes to the extent permitted
by the Investment Company Act, if, upon issuance, either (A) the net
proceeds from the sale of such Notes (or such portion thereof needed to
redeem
or repurchase the Outstanding Tortoise Notes) are deposited with the Trustee
in
accordance with Section 2.03(d), Notice of Redemption as contemplated by
Section 2.03(b) has been delivered prior thereto or is sent promptly
thereafter, and such proceeds are used to redeem all Outstanding Tortoise
Notes
or (B) the Issuer would meet the 1940 Act Tortoise Notes Asset Coverage,
the Tortoise Notes Basic Maintenance Amount and the requirements of
Section 2.08 hereof.
(j) If
any
Tortoise Notes are to be redeemed and such Tortoise Notes are held by the
Securities Depository, the Issuer shall include in the notice of redemption
delivered to the Securities Depository: (i) under an item entitled
“Publication Date for Securities Depository Purposes”, the Interest Payment Date
prior to the Redemption Date, and (ii) an instruction to the Securities
Depository to (x) determine on such Publication Date after the Auction held
on the immediately preceding Auction Date has settled, the Depository
participants whose Securities Depository positions will be redeemed and
the
principal amount of such Tortoise Notes to be redeemed from each such position
(the “Securities Depository Redemption Information”), and (y) notify the
Auction Agent immediately after such determination of (A) the positions of
the Depository Participants in such Tortoise Notes immediately prior to
such
Auction settlement, (B) the positions of the Depository Participants in
such Tortoise Notes immediately following such Auction settlement and
(C) the Securities Depository Redemption Information. “Publication Date”
shall mean three Business Days after the Auction Date next preceding such
Redemption Date.
Section
2.04 Designation
of Rate Period.
(a) The
initial Rate Period for each series of Tortoise Notes is as set forth under
“Designation” in Section 2.01(a) above. The Issuer will designate the
duration of subsequent Rate Periods of each series of Tortoise Notes; provided,
however, that no such designation is necessary for a Standard Rate Period
and,
provided further, that any designation of a Special Rate Period shall be
effective only if (i) notice thereof shall have been given as provided
herein, (ii) any failure to pay in a timely manner to the Trustee the full
amount of any interest on, or the redemption price of, Tortoise Notes shall
have
been cured as provided above, (iii) Sufficient Clearing Bids shall have
existed in an Auction held on the Auction Date immediately preceding the
first
day of such proposed Special Rate Period, (iv) if the Issuer shall have
mailed a Notice of Redemption with respect to any Tortoise Notes, the redemption
price
18
with
respect to such Tortoise Notes shall have been deposited with the Paying
Agent,
and (v) in the case of the designation of a Special Rate Period, the Issuer
has confirmed that as of the Auction Date next preceding the first day of
such
Special Rate Period, it has Eligible Assets with an aggregate
Discounted Value at least equal to the Tortoise Notes Basic Maintenance Amount,
and the Issuer has consulted with the Broker-Dealers and has provided notice
of
such designation and otherwise complied with the Rating Agency
Guidelines.
(b) If
the
Issuer proposes to designate any Special Rate Period, not fewer than 7
(or two
Business Days in the event the duration of the Rate Period prior to such
Special
Rate Period is fewer than 8 days) nor more than 30 Business Days prior
to the
first day of such Special Rate Period, notice shall be (i) made by press
release and (ii) communicated by the Issuer by telephonic or other means to
the Trustee and confirmed in writing promptly thereafter. Each such notice
shall
state (A) that the Issuer proposes to exercise its option to designate a
succeeding Special Rate Period, specifying the first and last days thereof
and
(B) that the Issuer will by 3:00 p.m., New York City time, on the
second Business Day next preceding the first day of such Special Rate Period,
notify the Auction Agent and the Trustee, who will promptly notify the
Broker-Dealers, of either (x) its determination, subject to certain
conditions, to proceed with such Special Rate Period, subject to the terms
of
any Specific Redemption Provisions, or (y) its determination not to proceed
with such Special Rate Period, in which latter event the succeeding Rate
Period
shall be a Standard Rate Period.
No
later
than 3:00 p.m., New York City time, on the second Business Day next
preceding the first day of any proposed Special Rate Period, the Issuer
shall
deliver to the Auction Agent and Trustee, who will promptly deliver to
the
Broker-Dealers and Existing Holders, either:
(i) a
notice
stating (A) that the Issuer has determined to designate the next succeeding
Rate Period as a Special Rate Period, specifying the first and last days
thereof
and (B) the terms of any Specific Redemption Provisions; or
(ii) a
notice
stating that the Issuer has determined not to exercise its option to designate
a
Special Rate Period.
If
the
Issuer fails to deliver either such notice with respect to any designation
of
any proposed Special Rate Period to the Auction Agent or is unable to make
the
confirmation provided in clause (v) of Paragraph (a) of this Section 2.04
by 3:00 p.m., New York City time, on the second Business Day next preceding
the first day of such proposed Special Rate Period, the Issuer shall be
deemed
to have delivered a notice to the Auction Agent with respect to such Rate
Period
to the effect set forth in clause (ii) above, thereby resulting in a Standard
Rate Period.
Section
2.05 Restrictions
on Transfer.
Tortoise Notes may be transferred only (a) pursuant to an order placed in
an Auction, (b) to or through a Broker-Dealer or (c) to the Issuer or
any Affiliate. Notwithstanding the foregoing, a transfer other than pursuant
to
an Auction will not be effective unless the selling Existing Holder or
the Agent
Member of such Existing Holder, in the case of an Existing Holder whose
Tortoise
Notes are listed in its own name on the books of the Auction Agent, or
the
Broker-Dealer or Agent Member of such Broker-Dealer, in the case of a transfer
between persons holding Tortoise Notes through different Broker-Dealers,
advises
the Auction Agent of such transfer. The certificates representing the Tortoise
Notes issued to the
19
Securities
Depository will bear legends with respect to the restrictions described
above
and stop-transfer instructions will be issued to the Transfer Agent and/or
Registrar.
Section
2.06 1940
Act Tortoise Notes Asset Coverage.
The
Issuer shall maintain, as of the last Business Day of each month in which
any
Tortoise Notes are Outstanding, asset coverage with respect to the Tortoise
Notes which is equal to or greater than the 1940 Act Tortoise Notes Asset
Coverage; provided, however, that Section 2.03(a)(ii) shall be the sole
remedy in the event the Issuer fails to do so.
Section
2.07 Tortoise
Notes Basic Maintenance Amount.
So long
as the Tortoise Notes are Outstanding and any Rating Agency is then rating
the
Tortoise Notes, the Issuer shall maintain, as of each Valuation Date, Eligible
Assets having an aggregate Discounted Value equal to or greater than the
Tortoise Notes Basic Maintenance Amount; provided, however, that
Section 2.03(a)(ii) shall be the sole remedy in the event the Issuer fails
to do so.
Section
2.08 Certain
Other Restrictions.
(a) For
so
long as any Tortoise Notes are Outstanding and any Rating Agency is then
rating
the Tortoise Notes, the Issuer will not engage in certain proscribed
transactions set forth in the Rating Agency Guidelines, unless it has received
written confirmation from each such Rating Agency that proscribes the applicable
transaction in its Rating Agency Guidelines that any such action would
not
impair the rating then assigned by such Rating Agency to a series of Tortoise
Notes.
(b) For
so
long as any Tortoise Notes are Outstanding, the Issuer will not declare,
pay or
set apart for payment any dividend or other distribution (other than a
dividend
or distribution paid in shares of, or options, warrants or rights to subscribe
for or purchase, common shares or other shares of capital stock of the
Issuer)
upon any class of shares of capital stock of the Issuer, unless, in every
such
case, immediately after such transaction, the 1940 Act Tortoise Notes Asset
Coverage would be achieved after deducting the amount of such dividend,
distribution, or purchase price, as the case may be; provided, however,
that
dividends may be declared upon any preferred shares of capital stock of
the
Issuer if the Tortoise Notes and any other senior securities representing
indebtedness of the Issuer have an asset coverage of at least 200% at the
time
of declaration thereof, after deducting the amount of such
dividend.
(c) A
declaration of a dividend or other distribution on or purchase or redemption
of
any common or preferred shares of capital stock of the Issuer is prohibited
(i) at any time that an Event of Default under the Indenture has occurred
and is continuing, (ii) if after giving effect to such declaration, the
Issuer would not have Eligible Assets with an aggregate Discounted Value
at
least equal to the Tortoise Notes Basic Maintenance Amount or the 1940
Act
Tortoise Notes Asset Coverage, or (iii) the Issuer
has not redeemed the full amount of Tortoise Notes required to be redeemed
by
any provisions for mandatory redemption contained herein.
Section
2.09 Compliance
Procedures for Asset Maintenance Tests.
For so
long as any Tortoise Notes are Outstanding and any Rating Agency is then
rating
such Tortoise Notes:
20
(a) As
of
each Valuation Date, the Issuer shall determine in accordance with the
procedures specified herein (i) the Market Value of each Eligible Asset
owned by the Issuer on that date, (ii) the Discounted Value of each such
Eligible Asset using the Discount Factors, (iii) whether the Tortoise Notes
Basic Maintenance Amount is met as of that date, (iv) the value of the
total assets of the Issuer, less all liabilities, and (v) whether the 1940
Act Tortoise Notes Asset Coverage is met as of that date.
(b) Upon
any
failure to maintain the required Tortoise Notes Basic Maintenance Amount
or 1940
Act Tortoise Notes Asset Coverage on any Valuation Date, the Issuer may use
reasonable commercial efforts (including, without limitation, altering the
composition of its portfolio, purchasing Tortoise Notes outside of an Auction
or
in the event of a failure to file a Rating Agency Certificate (as defined
below)
on a timely basis, submitting the requisite Rating Agency Certificate) to
re-attain (or certify in the case of a failure to file on a timely basis,
as the
case may be) the required Tortoise Notes Basic Maintenance Amount or 1940
Act
Tortoise Notes Asset Coverage on or prior to the Asset Coverage Cure
Date.
(c) Compliance
with the Tortoise Notes Basic Maintenance Amount and 1940 Act Tortoise Notes
Asset Coverage tests shall be determined with reference to those Tortoise
Notes
which are deemed to be Outstanding hereunder.
(d) The
Issuer shall deliver to each Rating Agency which is then rating Tortoise
Notes
and any other party specified in the Rating Agency Guidelines all certificates
that are set forth in the respective Rating Agency Guidelines regarding 1940
Act
Tortoise Notes Asset Coverage, Tortoise Notes Basic Maintenance Amount and/or
related calculations at such times and containing such information as set
forth
in the respective Rating Agency Guidelines (each, a “Rating Agency
Certificate”).
(e) In
the
event that any Rating Agency Certificate is not delivered within the time
periods set forth in the Rating Agency Guidelines, the Issuer shall be deemed
to
have failed to maintain the Tortoise Notes Basic Maintenance Amount or the
1940
Act Tortoise Notes Asset Coverage, as the case may be, on such Valuation
Date
for purposes of Section 2.09(b). In the event that any Rating Agency
Certificate with respect to an applicable Asset Coverage Cure Date is not
delivered within the time periods set forth in the Rating Agency Guidelines,
the
Issuer shall be deemed to have failed to have Eligible Assets with an aggregate
Discounted Value at least equal to the Tortoise Notes Basic Maintenance Amount
or to meet the 1940 Tortoise Notes Asset Coverage, as the case may be, as
of the
related Valuation Date, and such failure shall be deemed not to have been
cured as of such Asset Coverage Cure Date for purposes of the mandatory
redemption provisions.
Section
2.10 Delivery
of Notes.
Upon
the execution and delivery of this Supplemental Indenture, the Issuer shall
execute and deliver to the Trustee and the Trustee shall authenticate the
Tortoise Notes and deliver them to The Depository Trust Company and as
hereinafter in this Section provided.
Prior
to
the delivery by the Trustee of any of the Tortoise Notes, there shall have
been
filed with or delivered to the Trustee the following:
21
(a) A
resolution duly adopted by the Issuer, certified by the Secretary or other
Authorized Officer thereof, authorizing the execution and delivery of this
Supplemental Indenture and the issuance of the Tortoise Notes.
(b) Duly
executed copies of this Supplemental Indenture and a copy of the
Indenture.
(c) Rating
letters from each Rating Agency rating the Tortoise Notes.
(d) An
Opinion of Counsel and an Officers’ Certificate pursuant to Sections 3.3
and 9.3 of the Original Indenture.
Section
2.11 Trustee’s
Authentication Certificate.
The
Trustee’s authentication certificate upon the Tortoise Notes shall be
substantially in the forms provided in Appendix C hereto. No Tortoise Note
shall
be secured hereby or entitled to the benefit hereof, or shall be valid or
obligatory for any purpose, unless a certificate of authentication,
substantially in such form, has been duly executed by the Trustee; and such
certificate of the Trustee upon any Tortoise Note shall be conclusive evidence
and the only competent evidence that such Bond has been authenticated and
delivered hereunder. The Trustee’s certificate of authentication shall be deemed
to have been duly executed by it if manually signed by an authorized officer
of
the Trustee, but it shall not be necessary that the same person sign the
certificate of authentication on all of the Tortoise Notes issued
hereunder.
ARTICLE III
GENERAL
PROVISIONS
Section
3.01 Trustee
as Paying Agent.
The
Trustee shall serve as Paying Agent, Transfer Agent and Registrar unless
and
until another entity appointed by a resolution of the Board of Directors
enters
into an agreement with the Issuer to serve as Paying Agent, Transfer Agent
and
Registrar.
Section
3.02 The
Issuer to Provide Funds for Interest and Redemptions.
Not
later than 3:00 p.m. on the Business Day preceding each Interest Payment
Date, the Issuer shall deposit with the Paying Agent an aggregate amount
of
federal funds or similar same-day funds equal to the declared interest to
be
paid to Holders on such Interest Payment Date and shall give the Paying Agent
irrevocable instructions to apply such funds to the payment of such interest
on
such Interest Payment Date.
If
the
Issuer shall give a Notice of Redemption, then by 11:00 AM on the date
fixed for
redemption, the Issuer shall deposit in trust with the Paying Agent an
aggregate
amount of federal funds or similar same-day funds sufficient to redeem
such
Tortoise Notes called for redemption and shall give the Paying Agent irrevocable
instructions and authority to pay the redemption price to the Holders of
Tortoise Notes called for redemption upon surrender of the certificate
or
certificates therefor.
Section
3.03 Disbursing
Interest and Redemption Price.
After
receipt of the federal funds or similar same-day funds and instructions
from the
Issuer, the Paying Agent shall pay to
22
the
Holders (or former Holders) entitled thereto (i) on each corresponding
Interest Payment Date, interest on the Tortoise Notes, and (ii) on any date
fixed for redemption, the redemption price of any Tortoise Notes called for
redemption. The amount of interest for any Rate Period to be paid by the
Paying
Agent to Holders will be determined by the Issuer as set forth in this
Supplemental Indenture. The redemption price to be paid by the Paying Agent
to
the Holders of any Tortoise Notes called for redemption will be determined
as
set forth in this Supplemental Indenture. The Paying Agent shall have no duty to
determine the redemption price and may rely conclusively on the amount thereof
set forth in the Notice of Redemption.
Section
3.04 Original
Issue of Tortoise Note Authentication Certificates.
On the
Original Issue Date for any Tortoise Note, one certificate for Tortoise Notes
shall be issued by the Issuer and registered in the name of Cede & Co.,
as nominee of the Securities Depository, and countersigned by the Paying
Agent.
Section
3.05 Registration
of Transfer or Exchange of Tortoise Notes.
The
Tortoise Notes shall be registered solely in the name of the Securities
Depository or its nominee. If the Securities Depository shall give notice
of its
intention to resign as such, and if the Issuer shall not have selected a
substitute Securities Depository acceptable to the Paying Agent prior to
such
resignation, then, upon such resignation of the Securities Depository, the
Tortoise Notes, at the Issuer’s request and expense, may be registered for
transfer or exchange, and new certificates thereupon shall be issued in the
name
of the designated transferee or transferees, upon surrender of the old
certificate in form deemed by the Paying Agent to be endorsed properly for
transfer with (a) all necessary endorsers’ signatures guaranteed in such
manner and form and by such guarantor as the Paying Agent may reasonably
require, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement and (c) satisfactory evidence of compliance with all applicable
laws relating to the collection of taxes in connection with any registration
of
transfer or exchange or funds necessary for the payment of such taxes. If
there
is no Securities Depository, at the Issuer’s option and upon its receipt of such
documents as it deems appropriate, any Tortoise Notes may be registered in
the
note register in the name of the Beneficial Owner thereof, and such Beneficial
Owner thereupon will be entitled to receive certificates therefor and required
to deliver certificates thereof upon transfer or exchange thereof at the
Issuer’s expense.
Section
3.06 Removal
of Legend.
Any
request for removal of a legend indicating a restriction on transfer from
a
certificate evidencing Tortoise Notes shall be accompanied
by an opinion of counsel stating that such legend may be removed and such
Tortoise Notes may be transferred free of the restriction described in such
legend, said opinion to be delivered under cover of a letter from an officer
of
the Issuer authorizing the Paying Agent to remove the legend on the basis
of
said opinion.
Section
3.07 Lost,
Stolen or Destroyed Tortoise Note Authentication
Certificates.
The
Paying Agent shall, at the Holder’s expense, issue and register replacement
certificates for certificates represented to have been lost, stolen or
destroyed, upon the fulfillment of such requirements as shall be deemed
appropriate by the Issuer and by the Paying Agent, subject at all times
to
provisions of law, this Supplemental Indenture governing such matters and
resolutions adopted by the Issuer with respect to lost, stolen or destroyed
securities. The Paying Agent may issue new certificates in exchange for
and upon
the cancellation of mutilated certificates. Any
23
request
by the Issuer to the Paying Agent to issue a replacement or new certificate
pursuant to this section shall be deemed to be a representation and warranty
by
the Issuer to the Paying Agent that such issuance will comply with provisions
of
applicable law and this Supplemental Indenture and resolutions of the
Issuer.
Section
3.08 Disposition
of Canceled Certificates; Record Retention.
The
Paying Agent shall retain certificates which have been canceled and any
accompanying documentation thereto in accordance with applicable rules and
regulations of the Commission for at least six calendar years from the date
of
such cancellation. The Paying Agent, upon written request by the Issuer,
shall
afford to the Issuer, its agents and counsel access at reasonable times during
normal business hours to review and make extracts or copies (at the Issuer’s
sole cost and expense) of such certificates and accompanying documentation.
Upon
the expiration of this six-year period, the Paying Agent, upon written request
by the Issuer, shall deliver to the Issuer the canceled certificates and
any
accompanying documentation. In the event that the Commission requests that
any
or all such records be furnished to it, the Paying Agent shall provide the
Issuer with prompt written notice of such request so that the Issuer may
appeal
such request and the Paying Agent shall cooperate with the Issuer in any
such
appeal. In the event that such appeal is unsuccessful, the Paying Agent shall
be
permitted to furnish to the Commission, either at its principal office or
at any
regional office, complete, correct and current hard copies of any and all
records that were requested by the Commission provided that the Paying Agent
shall exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded to such records. Thereafter, such records shall
not
be destroyed by the Issuer without the approval of the Paying Agent, which
approval shall not be withheld unreasonably, but will be safely stored for
possible future reference.
Section
3.09 Register.
The
Paying Agent shall maintain the register, which shall contain a list of the
Holders, the number of Tortoise Notes held by each Holder and the address
of
each Holder. The Paying Agent shall record in the register any change of
address
of a Holder upon notice by such Holder. In case of any written request or
demand
for the inspection of the register or any other books of the Issuer in the
possession of the Paying Agent, the Paying Agent will notify the Issuer and
secure instructions as to permitting or refusing such inspection. The Paying
Agent reserves the right, however, to exhibit the register or other records
to
any person in case it is (a) 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 or (b) advised by its counsel that its failure to do so would be
unlawful.
Section
3.10 Return
of Funds.
Any
funds paid to the Paying Agent for the paying of interest but not applied
to the
payment of interest, including interest earned on such moneys, will, to
the
extent permitted by law, be repaid to the Issuer at the end of 90 days
from the
date on which such moneys were to have been so applied. Upon written request,
the Issuer shall be entitled to receive from the Paying Agent, promptly
after
the date fixed for redemption, any cash deposited with the Paying Agent
in
excess of (i) the aggregate redemption price of the Tortoise Notes called
for redemption on such date and (ii) such other amounts, if any, to which
Holders of Tortoise Notes called for redemption may be entitled. Any funds
so
deposited that are unclaimed at the end of two years from such redemption
date
shall, to the extent permitted by law, be paid to the Issuer upon its written
request whereupon the Issuer shall assume all responsibility and liability
for
compliance with any abandoned or unclaimed property law or regulation.
Funds,
24
while
deposited with the Auction Agent, will be held in trust for the payment of
the
applicable interest, redemption price or, as may be applicable under this
Supplemental Indenture, other charges.
Section
3.11 Date
of Execution.
This
Supplemental Indenture for convenience and for the purpose of reference is
dated
as of ________, 20__.
Section
3.12 Laws
Governing.
It is
the intent of the parties hereto that this Supplemental Indenture shall in
all
respects be governed by the laws of the State of New York. The parties agree
that all actions and proceedings arising out of this Indenture or any of
the
transactions contemplated hereby shall be brought in the County of New York
and,
in connection with any such action or proceeding, submit to the jurisdiction
of,
and venue in, such County. Each of the parties hereto also irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim arising
out
of this Indenture or the transactions contemplated hereby.
Section
3.13 Severability.
Of any
covenant, agreement, waiver, or part thereof in this Supplemental Indenture
contained be forbidden by any pertinent law or under any pertinent law be
effective to render this Supplemental Indenture invalid or unenforceable
or to
impair the lien hereof, then each such covenant, agreement, waiver, or part
thereof shall itself be and is hereby declared to be wholly ineffective,
and
this Supplemental Indenture shall be construed as if the same were not included
herein.
Section
3.14 Exhibits.
The
terms of the Exhibits attached to this Supplemental Indenture are incorporated
herein in all particulars.
ARTICLE IV
APPLICABILITY
OF INDENTURE
The
provisions of the Indenture are hereby ratified, approved and confirmed,
except
as otherwise expressly modified by this Supplemental Indenture. The
representations, warranties and covenants contained in the Indenture (except
as
expressly modified herein) are hereby reaffirmed with the same force and
effect
as if fully set forth herein and made again as of the date
hereof.
25
IN
WITNESS WHEREOF,
the
Issuer has caused this Supplemental Indenture to be executed in its corporate
name and behalf by the Secretary, and the Trustee, to evidence its acceptance
of
the trusts hereby created, has caused this Supplemental Indenture to be executed
in its corporate name and behalf, all in multiple counterparts, each of which
shall be deemed an original, and the Issuer and the Trustee have caused this
Supplemental Indenture to be dated as of the date herein above first shown,
although actually executed on the dates shown in the acknowledgments hereafter
appearing. The Issuer’s Articles of Incorporation are on file with the Secretary
of State of the State of Maryland, and said officers of the Issuer have executed
this Supplemental Indenture as officers and not individually, and the
obligations and rights set forth in this Supplemental Indenture are not binding
upon any such officers, or the Board of Directors or stockholders of the
Issuer,
individually, but are binding only upon the assets and property of the
Issuer.
|
_________________________________________
Name:
Title:
|
|
|
BNY
MIDWEST TRUST COMPANY,
as Trustee
_________________________________________
Name:
Title:
|
26
APPENDIX
A
AUCTION
PROCEDURES
1. Orders
by Existing Holders and Potential Beneficial Owners.
(a)
Prior to the Submission Deadline on each Auction Date:
(i) each
Existing Holder may submit to a Broker-Dealer, in writing or by such other
method as shall be reasonably acceptable to such Broker-Dealer, one or more
Orders as to:
(A) the
principal amount of Outstanding Tortoise Notes, if any, of the series held
by
the Existing Holder which the Existing Holder commits to continue to hold
for
the next succeeding Rate Period without regard to the Applicable Rate of
the
Tortoise Notes;
(B) the
principal amount of Outstanding Tortoise Notes, if any, of the series held
by
the Existing Holder which the Existing Holder commits to continue to hold
for
the next succeeding Rate Period if the Applicable Rate for Tortoise Notes
for
the next succeeding Rate Period is not less than the rate per annum specified
in
such Bid (and if the Auction Rate is less than such specified rate, the effect
of the Order shall be as set forth in paragraph (b)(i)(A) of this Section);
and/or
(C) the
principal amount of Outstanding Tortoise Notes, if any, of the series held
by
the Existing Holder which the Existing Holder offers to sell on the next
succeeding Interest Payment Date without regard to the Applicable Rate for
Tortoise Notes for the next succeeding Rate Period; and
(ii) each
Potential Beneficial Owner may submit to a Broker-Dealer, in writing or by
such
other method as shall be reasonably acceptable to such Broker-Dealer, an
Order
as to the principal amount of outstanding Tortoise Notes of such a series
which
each such Potential Beneficial Owner offers to purchase if the Applicable
Rate
for the Tortoise Notes of such series for the next succeeding Rate Period
is not less than the rate per annum then specified by such Potential Beneficial
Owner.
For
the
purposes of these Auction Procedures, an Order containing the information
referred to in clause (i)(A) of this paragraph (a) is referred to as a “Hold
Order,” an Order containing the information referred to in clause (i)(B) or (ii)
of this paragraph (a) is referred to as a “Bid,” and an Order containing the
information referred to in clause (i)(C) of this paragraph (a) is referred
to as
a “Sell Order.” No Auction Desk of a Broker-Dealer shall accept a Bid or Sell
Order which is conditioned on being filled in whole or which does not specify
a
specific rate. “Auction Desk” means the business unit of a Broker-Dealer that
fulfills the responsibilities of a Broker-Dealer, including soliciting Bids
for
Tortoise Notes of a series while they bear interest at the Applicable
Rate.
(b) (i) A
Bid by
an Existing Holder shall constitute an offer to sell on the next succeeding
Auction Date:
A-1
(A) the
principal amount of outstanding Tortoise Notes specified in the Bid if the
Applicable Rate determined on the Auction Date for the next succeeding Auction
Period shall be less than the rate specified in such Bid; or
(B) the
principal amount or a lesser principal amount of outstanding Tortoise
Notes to be determined as described in clause (v) of paragraph (a) of
Section 5 of this Appendix A if the Applicable Rate determined on the
Auction Date for the next succeeding Auction Period shall be equal to such
specified rate; or
(C) a
lesser
principal amount of outstanding Tortoise Notes be determined as described
in clause (iv) of paragraph (b) of Section 5 of this Appendix A if the rate
specified therein shall be higher than the Maximum Rate and Sufficient Clearing
Bids do not exist.
(ii) A
Sell
Order by an Existing Holder of Tortoise Notes of a series subject to an
Auction on any Auction Date shall constitute an offer to sell:
(A) the
principal amount of outstanding Tortoise Notes of the series specified in
the
Sell Order; or
(B) the
principal amount or a lesser principal amount of outstanding Tortoise Notes
of
the series as set forth in clause (iv) of paragraph (b) of Section 5 of
this Appendix A if Sufficient Clearing Bids for Tortoise Notes of the series
do
not exist;
(iii) A
Bid by
an Existing Holder or a Potential Holder of Tortoise Notes of a series
subject to an Auction on any Auction Date shall constitute an offer to
purchase:
(A) the
principal amount of outstanding Tortoise Notes of the series specified in
the
Bid if the Applicable Rate for the Tortoise Notes determined on the Auction
Date
for the next succeeding Auction Period shall be higher than the rate specified
therein; or
(B) the
principal amount or a lesser principal amount of outstanding Tortoise Notes
of
the series as set forth in clause (vi) of paragraph (a) of Section 5 of
this Appendix A if the Applicable Rate for the Tortoise Notes determined
on the
Auction Date shall be equal to the rate specified therein.
(C) Anything
herein to the contrary notwithstanding:
(1) if
an
Order or Orders covering all of the outstanding Tortoise Notes of the series
held by any Existing Holder is not submitted to the Auction Agent prior to
the
Submission Deadline, the Auction Agent shall deem a Hold Order to have been
submitted by or on behalf of the Existing Holder
covering the principal
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amount
of
outstanding Tortoise Notes of the series held by the Existing Holder and
not
subject to Orders submitted to the Auction Agent; provided, however, that
if an
Order or Orders covering all of the outstanding Tortoise Notes of the series
held by any Existing Holder is not submitted to the Auction Agent prior to
the
Submission Deadline for an Auction relating to a Special Auction Period
consisting of more than a Standard Auction Period, the Auction Agent shall
deem
a Sell Order to have been submitted by or on behalf of the Existing Holder
covering the principal amount of outstanding Tortoise Notes of the series
held
by the Existing Holder and not subject to Orders submitted to the Auction
Agent;
(2) for
purposes of any Auction, any Order by an Existing Holder or
Potential Holder shall be revocable until the Submission Deadline, and
after the Submission Deadline all Orders shall be irrevocable; and
(3) for
purposes of any Auction, any Tortoise Notes sold or purchased pursuant to
clauses (i), (ii) or (iii) of paragraph (b) of this Section 1 shall be sold
or purchased at a price equal to 100% of the aggregate thereof.
2. Submission
of Orders by Broker-Dealers to Auction Agent.
(a) Each
Broker-Dealer shall submit to the Auction Agent in writing, through the Auction
Agent’s auction processing system or by such other electronic means, as shall be
reasonably acceptable to the Auction Agent, prior to the Submission Deadline
on
each Auction Date, all Orders obtained by such Broker-Dealer, and specifying
with respect to each Order or aggregation of Orders pursuant to paragraph
(e) of
this Section 2:
(i) the
principal amount of the Bidders placing Orders;
(ii) the
aggregate principal amount of Tortoise Notes of the series, if any, that
are the
subject of the Order;
(iii) to
the
extent that the Bidder is an Existing Holder of Tortoise Notes of the
series:
(A) the
principal amount of Tortoise Notes, if any, of the series subject to any
Hold
Order placed by the Existing Holder;
(B) the
principal amount of Tortoise Notes, if any, of the series subject to any
Bid
placed by the Existing Holder and the rate specified in the Bid;
and
(C) the
principal amount of Tortoise Notes, if any, of the series subject to any
Sell
Order placed by the Existing Holder; and
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(iv) to
the
extent the Bidder is a Potential Holder of Tortoise Notes of the series,
the
rate specified in such Bid.
(b) If
more
than one Bid is submitted on behalf of any Potential Beneficial Owner, each
Bid
submitted with the same rate shall be aggregated and considered a single
Bid and
each Bid submitted with a different rate shall be considered a separate Bid
with
the rate and the principal amount of Tortoise Notes of the series specified
therein.
A
Broker
Dealer may aggregate the Orders of different Potential Beneficial Owners
on
whose behalf such Broker-Dealer is submitting Orders; provided, however,
Bids
may only be aggregated if the rates on the Bids are the same when rounded
pursuant to the provisions of paragraph (b) of Section 3 of this Appendix
A. Notwithstanding the foregoing, the Auction Agent may at any time request
that
such Orders be separate for each different Potential Beneficial
Owner.
(c) None
of
the Company or the Auction Agent shall be responsible for the failure of
any
Broker-Dealer to submit an Order to the Auction Agent on behalf of any
Beneficial Owner, Potential Beneficial Owner, Existing Holder or Potential
Holder.
(d) Nothing
contained herein shall preclude a Broker-Dealer from placing an Order for
some
or all of the Tortoise Notes of a series for its own account.
(e) Until
the
Submission Deadline, a Broker-Dealer may, for any reason, withdraw or modify
any
Order previously submitted to the Auction Agent.
(f) After
the
Submission Deadline, and prior to the Error Correction Deadline, a Broker-Dealer
may:
(i) submit
to
the Auction Agent an Order received from a Beneficial Owner or Potential
Beneficial Owner or generated from its own account by the Broker-Dealer,
in
either case prior to the Submission Deadline and not submitted to the Auction
Agent prior to the Submission Deadline as a result of (A) an event of force
majeure or a technological failure which made delivery prior to the Submission
Deadline impossible or (B) a clerical error on the part of the
Broker-Dealer; or
(ii) modify
or
withdraw an Order received or generated for its own account by the Broker-Dealer
and submitted to the Auction Agent prior to the Submission Deadline, if the
Broker-Dealer determines that such Order contained a clerical error on the
part
of the Broker-Dealer.
In
the event a Broker-Dealer makes such a submission, modification or
withdrawal and the Auction Agent has already run the Auction, the Auction
Agent
shall rerun the Auction, taking into account such submission, modification
or
withdrawal. Such a submission, modification or withdrawal shall be deemed
to
constitute a representation by the Broker-Dealer that, in the case of a newly
submitted Order, the failure to submit such Order prior to the Submission
Deadline resulted from an event described in clause (i) above and such Order
was
received from a Beneficial Owner or Potential Beneficial Owner prior
to the Submission Deadline or generated internally by the Broker-Dealer for
its
own account prior to the Submission Deadline and, in the
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case
of a
modified or withdrawn Order, that the Order as originally submitted contained
a
clerical error on the part of the Broker-Dealer. The Auction Agent shall
be
entitled to rely conclusively (and shall be fully protected in so relying)
for
any and all purposes of the Auction Procedures on any Order submitted to,
modified or withdrawn from the Auction Agent after the Submission Deadline
and
prior to the Error Correction Deadline as having been submitted, modified
or
withdrawn in compliance with the Auction Procedures.
(g) If
after
the Auction Agent announces the results of an Auction a Broker-Dealer becomes
aware that an error was made by the Auction Agent, the Broker-Dealer may
communicate its concern to the Auction Agent prior to the Error Correction
Deadline. If the Auction Agent determines there has been such an error (as
a
result of either a communication from a Broker-Dealer or its own internal
review) prior to the final settlement of transfers with respect to such Auction
at the Securities Depository, the Auction Agent shall correct the error and
notify each Broker-Dealer that submitted Bids or held a position in the Tortoise
Notes of the series subject to such Auction of the corrected results. If
an
error by the Auction Agent is discovered after such final settlement, the
Auction Agent may make the change and post new results if the Auction Agent
receives consent (which may be oral) from each Broker-Dealer that submitted
a
Bid or held a position in the Auction.
(h) Nothing
contained herein shall preclude the Auction Agent from:
(i) advising
a Broker-Dealer prior to the Submission Deadline that it has not received
Sufficient Clearing Bids for Tortoise Notes of the series, provided, however,
that if the Auction Agent so advises any Broker-Dealer, it shall so advise
all
Broker-Dealers;
(ii) verifying
the Orders of a Broker-Dealer prior to the Submission Deadline, provided,
however, that if the Auction Agent verifies the Orders of any Broker-Dealer,
it
shall verify the Orders of all Broker-Dealers requesting such verification;
or
(iii) contacting
a Broker-Dealer who has submitted an Order that does not conform to the
requirements of these Auction Procedures and requesting that such Broker-Dealer
resubmit such Order so that it conforms to the requirements of these Auction
Procedures; provided, however, that if the Auction Agent has not received
a
corrected conforming Order within one hour of the Submission Deadline, the
Auction Agent shall, to the extent possible, adjust such Order
in
conformity with the provisions of these Auction Procedures, and, if the Auction
Agent is unable to so adjust such Order, the Auction Agent shall reject such
Order.
3. Treatment
of Orders by the Auction Agent.
Anything herein to the contrary notwithstanding:
(a) If
the Auction Agent receives an Order which does not conform to the requirements
of these Auction Procedures, the Auction Agent may contact the Broker-Dealer
submitting such Order for a period of up to one hour after the Submission
Deadline and request that such Broker-Dealer resubmit such Order so that
it
conforms to the requirements of these Auction Procedures. If the Auction
Agent
has not received a corrected conforming Order within
A-5
one
hour
of the Submission Deadline, the Auction Agent shall, to the extent possible,
adjust such Order in conformity with the provisions of these Auction Procedures
and, if the Auction Agent is unable to so adjust such Order, the Auction
Agent
shall reject such Order.
(b) If
any
rate specified in any Bid contains more than three figures to the right of
the
decimal point, the Auction Agent shall round the rate up to the next highest
one
thousandth (.001) of 1%.
(c) If
one or
more Orders covering in the aggregate more than the principal amount of
outstanding Tortoise Notes of the series subject to an Auction held by any
Existing Holder is submitted to the Auction Agent, such Orders shall be
considered valid as follows:
(i) all
Hold
Orders for Tortoise Notes of a series shall be considered Hold Orders, but
only
up to and including in the aggregate the principal amount of outstanding
Tortoise Notes of the series held by such Existing Holder;
(ii) (A) any
Bid
of an Existing Holder shall be considered valid as a Bid of an Existing Holder
up to and including the excess of the principal amount of outstanding Tortoise
Notes of a series held by the Existing Holder over the principal amount of
Tortoise Notes of the series subject to any Hold Orders referred to in clause
(i) above;
(B) subject
to subclause (A), all Bids of any Existing Holder with the same rate shall
be
aggregated and considered a single Bid of an Existing Holder up to and
including
the excess of the principal amount of outstanding Tortoise Notes of the
series
held by the Existing Holder over the principal amount of Tortoise Notes
of the
series subject to any Hold Orders referred to in clause (i) above;
(C) subject
to subclause (A), if more than one Bid with different rates is submitted
on
behalf of such Existing Holder, such Bids shall be considered Bids of
an
Existing Holder in the ascending order of their respective rates up to
the
amount of excess of the principal amount of outstanding Tortoise Notes
of the
series held by the Existing Holder over the principal amount of Tortoise
Notes
of the series subject to any Hold Orders referred to in clause (i)
above;
(D) the
principal amount, if any, of outstanding Tortoise Notes of the series
subject to
Bids not considered to be Bids of an Existing Holder under this clause
(ii)
shall be treated as the subject of a Bid for Tortoise Notes of the series
by a
Potential Holder; and
(iii) all
Sell
Orders shall be considered Sell Orders, but only up to and including a principal
amount of Tortoise Notes of the series equal to the excess of the principal
amount of outstanding Tortoise Notes of the series held by such Existing
Holder
over the sum of the principal amount of Tortoise Notes of such series subject
to
Hold Orders referred to in clause (i) above and the principal amount of Tortoise
Notes of such
A-6
series
considered to be subject to Bids of such Existing Holder pursuant to clause
(ii)
above.
(d) If
an
Order specifies Tortoise Notes of a series to be held, purchased or sold
in a
principal amount which is not an Authorized Denomination, the Auction Agent
shall round the amount down to the nearest Authorized Denomination, and the
Auction Agent shall conduct the Auction Procedures as if such Order had been
submitted in such lower amount.
(e) If
any
portion of an Order of an Existing Holder relates to a Tortoise Note of a
series that has been called for redemption on or prior to the Interest Payment
Date next succeeding such Auction, the Order shall be invalid with respect
to
such portion and the Auction Agent shall conduct the Auction Procedures as
if
such portion of such Order had not been submitted.
(f) No
Tortoise Note of a series which has been called for redemption on or prior
to
the Interest Payment Date next succeeding such Auction shall be included
in the
calculation of Available Tortoise Notes for such Auction.
4. Determination
of Applicable Rate.
(a) Promptly after the Submission Deadline for the Tortoise Notes of a
series on each Auction Date, the Auction Agent shall assemble all Orders
submitted or deemed submitted to it by the Broker-Dealers (each such Order
as
submitted or deemed submitted by a Broker-Dealer being hereinafter referred
to
as a “Submitted Hold Order,” a “Submitted Bid” or a “Submitted Sell Order,” as
the case may be, and collectively as a “Submitted Order”) and shall determine
(i) the Available Tortoise Notes, (ii) whether there are Sufficient
Clearing Bids, and (iii) the Applicable Rate.
(b) Promptly
after the Auction Agent has made such determination, it shall advise the
Company
of the Applicable Rate for the next succeeding Rate Period.
5. Allocation
of Tortoise Notes.
(a) In
the event of Sufficient Clearing Bids for the Tortoise Notes of a series
subject
to the further provisions of paragraphs (c) and (d) of this Section 5.
Submitted Orders for Tortoise Notes of the series shall be accepted or rejected
as follows in the following order of priority:
(i) the
Submitted Hold Order of each Existing Holder shall be accepted, thus requiring
each such Existing Holder to continue to hold the Tortoise Notes that are
the
subject of such Submitted Hold Order;
(ii) the
Submitted Sell Order of each Existing Holder shall be accepted and the
Submitted
Bids of each Existing Holder specifying any rate that is higher than the
Winning
Bid Rate shall be accepted, thus requiring each Existing Holder to sell
the
Tortoise Notes that are the subject of such Submitted Sell Order or Submitted
Bid;
(iii) the
Submitted Bid of each Existing Holder specifying any rate that is lower
than the
Winning Bid Rate shall be rejected, thus requiring each such Existing Holder
to
continue to hold the Tortoise Notes that are the subject of the Submitted
Bid;
A-7
(iv) the
Submitted Bid of each Potential Holder specifying any rate that is lower
than
the Winning Bid Rate for Tortoise Notes of the series shall be accepted,
thus requiring each such Potential Holder to purchase the Tortoise Notes
that
are the subject of the Submitted Bid;
(v) the
Submitted Bid of each Existing Holder specifying a rate that is equal to
the
Winning Bid Rate shall be accepted, thus requiring each such Existing Holder
to
continue to hold the Tortoise Notes of the series that are the subject of
the
Submitted Bid, but only up to and including the principal amount of Tortoise
Notes of such series obtained by multiplying (A) the principal amount
of Outstanding Tortoise Notes which are not the subject of Submitted Hold
Orders
described in clause (i) of this paragraph (a) or of Submitted Bids described
in
clauses (iii) and (iv) of this paragraph (a) by (B) a fraction, the
numerator of which shall be the principal amount of Outstanding Tortoise
Notes
held by such Existing Holder subject to such Submitted Bid and the denominator
of which shall be the aggregate principal amount of Outstanding Tortoise
Notes
subject to such Submitted Bids made by all such Existing Holders that specified
a rate equal to the Winning Bid Rate, and the remainder, if any, of such
Submitted Bid shall be rejected, thus requiring each such Existing Holder
to
sell any excess amount of Tortoise Notes;
(vi) the
Submitted Bid of each Potential Holder specifying a rate that is equal to
the
Winning Bid Rate shall be accepted, thus requiring each such Potential Holder
to
purchase the Tortoise Notes of the series that are the subject of such Submitted
Bid, but only in an amount equal to the principal amount of Tortoise Notes
of
such series obtained by multiplying (A) the aggregate principal amount
of Outstanding Tortoise Notes which are not the subject of Submitted Hold
Orders
described in clause (i) of this paragraph (a) or of Submitted Bids described
in
clauses (iii), (iv) or (v) of this paragraph (a) by (B) a fraction, the
numerator of which shall be the principal amount of Outstanding Tortoise
Notes
subject to such Submitted Bid and the denominator of which shall be the sum
of
the Outstanding Tortoise Notes subject to such Submitted Bids made by all
such
Potential Holders that specified a rate equal to the Winning Bid Rate, and
the
remainder of such Submitted Bid shall be rejected; and
(vii) the
Submitted Bid of each Potential Holder specifying any rate that is higher
than
the Winning Bid Rate shall be rejected.
(b) In
the
event there are not Sufficient Clearing Bids for the Tortoise Notes of the
series subject to the provisions of paragraphs (c) and (d) of this
Section 5, Submitted Orders for the Tortoise Notes of the series shall be
accepted or rejected as follows in the following order of
priority:
(i) the
Submitted Hold Order of each Existing Holder shall be accepted, thus requiring
each such Existing Holder to continue to hold the Tortoise Notes that are
the
subject of such Submitted Hold Order;
A-8
(ii) the
Submitted Bid of each Existing Holder specifying any rate that is not higher
than the Maximum Rate shall be accepted, thus requiring each such Existing
Holder to continue to hold the Tortoise Notes that are the subject of such
Submitted Bid;
(iii) the
Submitted Bids specifying any rate that is not higher than the Maximum Rate
for
the Tortoise Notes shall be accepted, thus requiring each such Potential
Holder
to purchase the Tortoise Notes that are the subject of such Submitted Bid;
and
(iv) the
Submitted Sell Orders of each Existing Holder shall be accepted as Submitted
Sell Orders and the Submitted Bids of each Existing Holder specifying any
rate
that is higher than the Maximum Rate shall be deemed to be and shall be accepted
as Submitted Sell Orders, in both cases only up to and including the principal
amount of Tortoise Notes of such series obtained by multiplying (A) the
principal amount of Tortoise Notes subject to Submitted Bids described in
clause (iii) of this paragraph (b) by (B) a fraction, the numerator of
which shall be the principal amount of Outstanding Tortoise Notes held by
such Existing Holder subject to such Submitted Sell Order or such Submitted
Bid
deemed to be a Submitted Sell Order and the denominator of which shall be
the
principal amount of Outstanding Tortoise Notes subject to all such
Submitted Sell Orders and such Submitted Bids deemed to be Submitted Sell
Orders, and the remainder of each such Submitted Sell Order or Submitted
Bid
shall be deemed to be and shall be accepted as a Hold Order and each such
Existing Holder shall be required to continue to hold such excess amount
of
Tortoise Notes; and
(v) the
Submitted Bid of each Potential Holder specifying any rate that is higher
than
the Maximum Rate shall be rejected.
(c) If,
as a
result of the procedures described in paragraphs (a) or (b) of this
Section 5, any Existing Holder or any Potential Holder would be required to
purchase or sell an aggregate principal amount of Tortoise Notes of a series
that is not an Authorized Denomination on any Auction Date, the Auction Agent
shall by lot, in such manner as it shall determine in its sole discretion,
round
up or down the principal amount of Tortoise Notes of such series to be purchased
or sold by any Existing Holder or Potential Holder on such Auction Date as
a
result of such procedures so that the principal amount of Tortoise Notes
so
purchased or sold by each Existing Holder or Potential Holder on the Auction
Date shall be an Authorized Denomination of Tortoise Notes, even if such
allocation results in one or more of such Existing Holders or Potential Holders
not purchasing or selling any Tortoise Notes on such Auction
Date.
(d) If,
as a
result of the procedures described in paragraph (a) of this Section 5, any
Potential Holder would be required to purchase less than the minimum Authorized
Denomination of Tortoise Notes of that series that is not an Authorized
Denomination on any Auction Date, the Auction Agent shall by lot, in such
manner
as it shall determine in its sole discretion, allocate Tortoise Notes of
that series for purchase among Potential Holders so that the principal
amount of Tortoise Notes of such series purchased on the Auction
Date by any Potential Holder shall be an Authorized Denomination, even if
the allocation results in one or more Potential Holders not purchasing Tortoise
Notes of such series on the Auction Date.
A-9
6. Notice
of Applicable Rate.
(a) On
each Auction Date, the Auction Agent shall notify each Broker-Dealer that
participated in the Auction held on such Auction Date by electronic means
acceptable to the Auction Agent and the applicable Broker-Dealer of the
following, with respect to the Tortoise Notes of a series for which an Auction
was held on such Auction Date:
(i) the
Applicable Rate determined on such Auction Date for the succeeding Rate
Period;
(ii) whether
Sufficient Clearing Bids existed for the determination of the Winning Bid
Rate;
(iii) if
such
Broker-Dealer submitted a Bid or a Sell Order on behalf of an Existing Holder,
whether such Bid or Sell Order was accepted or rejected and the principal
amount
of Tortoise Notes of the series, if any, to be sold by such Existing
Holder;
(iv) if
such
Broker-Dealer submitted a Bid on behalf of a Potential Holder, whether such
Bid
was accepted or rejected and the principal amount of Tortoise Notes of
the series, if any, to be purchased by such Potential Holder;
(v) if
the
principal amount of Tortoise Notes of a series to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted Bids or Sell Orders
is
different from the principal amount of Tortoise Notes of such series
to
be purchased by all Potential Holders on whose behalf such Broker-Dealer
submitted a Bid, the name or names of one or more Broker-Dealers (and the
Agent
Member, if any, of each such other Broker-Dealer) and the principal amount
of
Tortoise Notes of such series to be (A) purchased from one or more Existing
Holders on whose behalf such other Broker-Dealers submitted Bids or Sell
Orders
or (B) sold to one or more Potential Holders on whose behalf such
Broker-Dealer submitted Bids; and
(vi) the
immediately succeeding Auction Date.
(b) On
each
Auction Date, with respect to each series of Tortoise Notes for which an
Auction
was held on such Auction Date, each Broker-Dealer that submitted an Order
on
behalf of any Existing Holder or Potential Holder shall, if requested:
(i) advise each Existing Holder and Potential Holder on whose behalf such
Broker-Dealer submitted an Order as to (A) the Applicable Rate determined
on such Auction Date, (B) whether any Bid or Sell Order submitted on behalf
of each such Owner was accepted or rejected and (C) the immediately
succeeding Auction Date; (ii) instruct each Potential Holder on whose
behalf such Broker-Dealer submitted a Bid that was accepted, in whole or
in
part, to instruct such Potential Holder’s Agent Member to pay to such
Broker-Dealer (or its Agent Member) through the Securities Depository the
amount
necessary to purchase the principal amount of Tortoise Notes of such series
to
be purchased pursuant to such Bid against receipt of such Tortoise Notes;
and
(iii) instruct each Existing Holder on whose behalf such Broker-Dealer
submitted a Sell Order that was accepted or a Bid that was rejected in
whole or
in part, to instruct such Existing Holder’s Agent Member to deliver to such
Broker-Dealer (or its Agent Member) through the Securities Depository
the
A-10
principal
amount of Tortoise Notes of the series to be sold pursuant to such Bid or
Sell
Order against payment therefor.
7. Miscellaneous
Provisions Regarding Auctions.
(a) In
this Appendix A, each reference to the purchase, sale or holding of Tortoise
Notes shall refer to beneficial interests in Tortoise Notes, unless the context
clearly requires otherwise.
(b) During
an
auction Rate Period with respect to each series of Tortoise Notes, the
provisions of the Indenture and the definitions contained therein and described
in this Appendix A, including without limitation the definitions of All Hold
Rate, Interest Payment Date, Maximum Rate, and Applicable Rate, may be amended
pursuant to the Indenture by obtaining the consent of the majority of the
owners
of the affected Outstanding Tortoise Notes of a series bearing interest at
the
Applicable Rate as follows. If on the first Auction Date occurring at least
20
days after the date on which the Trustee mailed notice of such proposed
amendment to the registered owners of the affected Outstanding Tortoise Notes
of
the series, (i) the Applicable Rate which is determined on such date is the
Winning Bid Rate or the All Hold Rate and (ii) there is delivered to the
Company and the Trustee an opinion of counsel to the effect that such amendment
shall not adversely affect the validity of the Tortoise Notes of the series
or
any exemption from federal income tax to which the interest on the Tortoise
Notes of the series would otherwise be entitled, the proposed amendment shall
be
deemed to have been consented to by the owners of all affected Outstanding
Tortoise Notes of the series bearing interest at the Applicable
Rate.
(c) If
the
Securities Depository notifies the Company that it is unwilling or unable
to
continue as registered owner of the Tortoise Notes of a series or if at any
time
the Securities Depository shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor to the Securities Depository is not
appointed by the Company within 90 days after the Company receives notice
or
becomes aware of such condition, as the case may be, the company shall execute
and the Trustee shall authenticate and deliver certificates representing
the
Tortoise Notes of the series. Such Tortoise Notes shall be registered in
such
names and Authorized Denominations as the Securities Depository, pursuant
to
instructions from the Agent Members or otherwise, shall instruct the Company
and
the Trustee.
(d) During
an
Auction Rate Period, so long as the ownership of the Tortoise Notes of a
series
is maintained in book-entry form by the Securities Depository, an Existing
Holder or a Beneficial Owner may sell, transfer or otherwise dispose of a
Tortoise Note only pursuant to a Bid or Sell Order in accordance with the
Auction Procedures or to or through a Broker-Dealer, provided that (i) in
the case of all transfers other than pursuant to Auctions such Existing Holder
or its Broker-Dealer or its Agent Member advises the Auction Agent of such
transfer and (ii) a sale, transfer or other disposition of Tortoise Notes
of the series from a customer of a Broker-Dealer who is listed on the records
of
that Broker-Dealer as the holder of such Tortoise Notes to that Broker-Dealer
or
another customer of that Broker-Dealer shall not be deemed to be a sale,
transfer or other disposition for purposes of this paragraph if such
Broker-Dealer remains the Existing Holder of the Tortoise Notes so sold,
transferred or disposed or immediately after such sale, transfer or
disposition.
A-11
8. Changes
in Auction Period or Auction Date.
(a) Changes
in Auction Period.
(i)
During any Auction Period, the Company, may, from time to time on the Interest
Payment Date immediately following the end of any Auction Period, change
the
length of the Auction Period with respect to all of the Tortoise Notes of
a
series in order to accommodate economic and financial factors that may affect
or
be relevant to the length of the Auction Period and the rate of Tortoise
Notes
of such series. The Company shall initiate the change in the length of the
Auction Period by giving written notice to the Trustee, Auction Agent, the
Broker-Dealers and the Securities Depository that the Auction Period shall
change, if the conditions described herein are satisfied, and the proposed
effective date of the change, at least 10 Business Days prior to the Auction
Date for such Auction Period.
(ii) Any
such
changed Auction Period shall be for a period of one day, seven-days, 28-days,
35-days, three months, six months and shall be for all of the Tortoise Notes
of
a series in an Auction Period.
(iii) The
change in the length of the Auction Period shall not be allowed unless
Sufficient Clearing Bids existed at the Auction immediately preceding the
proposed change.
(iv) The
change in length of the Auction Period shall take effect only if Sufficient
Clearing Bids exist at the Auction on the Auction Date for such first Auction
Period. For purposes of the Auction for such first Auction Period only, each
Existing Holder shall be deemed to have submitted Sell Orders with respect
to
all of its Tortoise Notes of a series except to the extent such Existing
Holder submits an Order with respect to such notes.
(b) Changes
in Auction Date.
The
Auction Agent, at the direction of the Company, may specify an earlier
Auction
Date (but in no event more than five Business Days earlier) than the Auction
Date that would otherwise be determined in accordance with the definition
of
“Auction Date” in order to conform with then current market practice with
respect to similar securities or to accommodate economic and financial
factors
that may affect or be relevant to the day of the week constituting an Auction
Date and the rate of the Tortoise Notes of the series. The Auction Agent
shall
provide notice of the Company’s direction to specify an earlier Auction Date for
an Auction Period by means of a written notice delivered at least 45 days
prior
to the proposed changed Auction Date to the Company, the Broker-Dealers
and the
Securities Depository. In the event that Auction Agent is instructed to
specify
an earlier Auction Date, the days of the week on which an Auction Period begins
and ends and the Interest Payment Date shall be adjusted
accordingly.
A-12
APPENDIX
B
FORM
OF NOTE
B-1
APPENDIX
C
FORM
OF TRUSTEE AUTHENTICATION CERTIFICATE
C-1