TORTOISE ENERGY INFRASTRUCTURE CORPORATION AUCTION AGENCY AGREEMENT dated as of _________ __, ____ relating to the SERIES __ TORTOISE AUCTION PREFERRED SHARES [AUCTION AGENT] as Auction Agent
EXHIBIT
k.4
dated
as
of _________ __, ____
relating
to the
SERIES __ TORTOISE
AUCTION PREFERRED SHARES
[AUCTION
AGENT]
as
Auction Agent
THIS
AUCTION AGENCY AGREEMENT (this
“Agreement”), dated as of ________ __, ____, is
between TORTOISE
ENERGY INFRASTRUCTURE CORPORATION (the “Company”) and
[AUCTION
AGENT].
The
Company proposes to issue an aggregate of ____ shares of its Series __
Tortoise Auction Preferred Shares, $0.001 par value per share, liquidation
preference of $25,000
per share, authorized by, and subject to the terms and conditions of, the
Articles Supplementary of Tortoise Auction Preferred
Shares.
The
Company desires that [Auction Agent] perform certain duties as agent in
connection with each Auction of Tortoise Auction Preferred Shares (in
such capacity, the “Auction Agent”), and as the transfer agent, registrar,
dividend paying agent and redemption agent with respect to the Tortoise
Auction Preferred Shares (in such capacity, the “Paying Agent”), upon the
terms and conditions set forth in this Agreement, and the Company hereby
appoints [Auction Agent] as said Auction Agent and Paying Agent in
accordance with those terms and conditions.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Company and the Auction Agent agree as follows:
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I.
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DEFINITIONS
AND RULES
OF CONSTRUCTION.
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1.1 Terms
Defined by Reference
to the Articles Supplementary.
Capitalized
terms used herein but not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2 Certain
Defined
Terms.
As
used
herein and in the Settlement Procedures, the following terms shall have the
following meanings, unless the context otherwise requires:
(a) “Agent
Member” shall mean a member of, or participant in, the Securities Depository
that will act on behalf of a Bidder.
(b) “Articles
Supplementary” shall mean the Articles Supplementary for the
Series __ Tortoise Auction Preferred Shares of the Company dated
[DATE], specifying the powers, preferences and rights of the Tortoise
Auction Preferred Shares.
(c) “Auction”
shall have the meaning specified in Section 2.1 hereof.
(d) “Auction
Procedures” shall mean the procedures as from time to time in effect for
conducting Auctions that are set forth in Part II of the Articles
Supplementary.
(e) “Authorized
Officer” shall mean (i) in the case of the Auction Agent, each Vice President,
Assistant Vice President and Assistant Treasurer of the Auction Agent assigned
to the Dealing and Trading Group of its Corporate Trust Division and
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every
other officer or employee of the Auction Agent designated an “Authorized
Officer” for purposes hereof in a written communication delivered to the Company
and (ii) in the case of the Company, its Chief Financial Officer and every
other
officer or employee of the Company designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Auction
Agent.
(f) “Broker-Dealer
Agreement” shall mean each agreement between the Auction Agent and a
broker-dealer substantially in the form attached hereto as Exhibit
A.
(g) “Closing”
shall mean the date the Company consummates the transactions for the issuance
and sale of the Tortoise
Auction Preferred Shares.
(h) “Company
Officer” shall mean the President, each Vice President (whether or not
designated by a number or word or words added before or after the title “Vice
President”), the Secretary, the Treasurer, each Assistant Secretary and each
Assistant Treasurer of the Company and every other officer or employee of
the
Company designated as a “Company Officer” for purposes hereof in a notice from
the Company to the Auction Agent.
(i) “Holder”
means, with respect to Tortoise Auction Preferred Shares, the registered
holder
of Tortoise Auction Preferred Shares as the same appears on the share ledger
or
share records of the Company.
(j) “Rate
Multiple” shall have the meaning assigned to it in Section 2.8.
(k) “Settlement
Procedures” shall mean the Settlement Procedures attached as Exhibit A to the
Broker-Dealer Agreement.
1.3 Rules
of
Construction.
Unless
the context or use indicates another or different meaning or intent, the
following rules shall apply to the construction of this Agreement:
(a) Words
importing the singular number shall include the plural number and vice
versa.
(b) The
captions and headings herein are solely for convenience of reference and
shall
not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
(c) The
words “hereof,” “herein,” “hereto” and other words of similar import refer to
this Agreement as a whole.
(d) All
references herein to a particular time of day shall be to New York City
time.
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II. THE
AUCTION.
2.1 Purpose;
Incorporation by Reference of Auction Procedures and Settlement
Procedures.
(a) The
Board of Directors of the Company has adopted a resolution
appointing [Auction Agent] as Auction Agent for purposes of the
Auction Procedures. The Auction Agent hereby accepts such
appointment and agrees that, on each Auction Date, it shall follow (i) the
procedures set forth in this Section 2 and (ii) the Auction Procedures for
the
purpose of determining the Applicable Rate for the Tortoise Auction
Preferred Shares for the next Dividend Period. Each
periodic operation of such procedures is hereinafter referred to as an
“Auction.”
(b) All
of the provisions contained in the Auction Procedures and in the Settlement
Procedures are incorporated herein by reference in their entirety and shall
be
deemed to be a part of this Agreement to the same extent as if such provisions
were set forth fully herein. In the case of any conflict
between the terms of any document incorporated herein by reference and the
terms
hereof, the terms in this agreement shall control.
2.2 Preparation
for Each
Auction; Maintenance of Registry of Existing Holders.
(a) As
of the date hereof, the Company shall provide the Auction Agent with a list
of
the Broker-Dealers and shall deliver to the Auction Agent for execution by
the
Auction Agent a Broker-Dealer Agreement signed by each such
Broker-Dealer. Not later than five Business Days prior to any
Auction Date for which any change in such list of Broker-Dealers is to be
effective, the Company shall notify the Auction Agent in writing of such
change
and, if any such change is the addition of a Broker-Dealer to such list,
the
Company shall cause to be delivered to the Auction Agent for execution by
the
Auction Agent a Broker-Dealer Agreement signed by such
Broker-Dealer. The Auction Agent shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation
of
any such Broker-Dealer in any Auction.
(b) In
the event that the Auction Date for any Auction shall be changed, the Auction
Agent, by such means as the Auction Agent reasonably deems practicable, shall
give notice of such change to the Broker-Dealers not later than the earlier
of
9:15 a.m. on the new Auction Date or 9:15 a.m. on the old Auction
Date.
(c) The
provisions contained in Section 4(b) of Part I of the Articles Supplementary
concerning Special Dividend Periods and the notification of a Special Dividend
Period will be followed by the Company and, to the extent applicable, the
Auction Agent, and the provisions contained therein are incorporated herein
by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully
herein.
(d) (i) On
each Auction Date, the Auction Agent shall determine the Maximum
Rate. Not later than 10:30 a.m. on each Auction Date, the Auction
Agent shall notify the Company and the Broker-Dealers of the Maximum
Rate.
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(ii) If
the Reference Rate is the applicable “AA” Composite Commercial Paper Rate and
such rate is to be based on rates supplied by Commercial Paper Dealers and
one
or more of the Commercial Paper Dealers shall not provide a quotation for
the
determination of the applicable “AA” Composite Commercial Paper Rate, the rate
shall be determined on the basis of the quotations (or quotation) furnished
by
the remaining Commercial Paper Dealer(s), if any, or, if there are no such
Commercial Paper Dealers, by a nationally recognized dealer in commercial
paper
of such issuers then making such quotations selected by the
Company.
(e) (i) The
Auction Agent shall maintain a registry of the Existing Holders of
the Tortoise Auction Preferred Shares (the “Tortoise Auction
Preferred Shares Register”) for purposes of Auctions and shall indicate
thereon the identity of the Broker-Dealer that submitted the most recent
Order
in any Auction, which resulted in such Existing Holder continuing to hold
or
purchase such Tortoise Auction Preferred Shares. The Auction
Agent may consider a Broker-Dealer which has submitted an Order as the Existing
Holder for the purposes of the Tortoise Auction Preferred Shares Register;
provided, that the Auction Agent may request the Broker-Dealer to provide
a list
of its customers if in its sole discretion it determines to do
so. The Auction Agent may conclusively rely upon the information
furnished to the Auction Agent by the Broker-Dealer and notices from the
Securities Depository regarding the results of redemptions or mandatory
tenders.
(ii) In
the event of any partial redemption of Tortoise Auction Preferred Shares,
upon
notice by the Company to the Auction Agent of such partial redemption (delivered
at least one day prior to the date a notice of redemption is required to
be
given to the Holders of the Tortoise Auction Preferred Shares to be redeemed),
the Auction Agent shall at least three (3) Business Days prior to the date
of
redemption request the Securities Depository to notify the Auction Agent
of the
identities of the Agent Members (and the respective numbers of Tortoise Auction
Preferred Shares) from the accounts of which Tortoise Auction Preferred Shares
have been called for redemption and the person or department at such Agent
Member to contact regarding such redemption. At least two Business
Days prior to the date of redemption, the Auction Agent shall request each
Broker-Dealer so identified to disclose to the Auction Agent (upon selection
by
such Agent Member of the Existing Holders whose Tortoise Auction Preferred
Shares are to be redeemed) the number of Tortoise Auction Preferred Shares
of
each such Existing Holder, if any, to be redeemed by the Company, provided
that
the Auction Agent has been furnished with the name and telephone number of
a
person or department at such Broker-Dealer from which it is to request such
information. In the absence of receiving any such information with
respect to an Existing Holder, from such Existing Holder's Agent Member or
otherwise, the Auction Agent may continue to treat such Existing Holder as
having ownership of the number of Tortoise Auction Preferred Shares shown
in the
Auction Agent's registry of Existing Holders.
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(iii) The
Auction Agent shall register a transfer of the ownership of Tortoise Auction
Preferred Shares from an Existing Holder to another Existing Holder, or
to
another Person if permitted by the Company, only if (A) such transfer is
made
pursuant to an Auction or (B) if such transfer is made other than pursuant
to an
Auction, the Auction Agent has been notified of such transfer in writing,
in a
notice substantially in the form of Exhibit C to the Broker-Dealer Agreement,
by
such Existing Holder or by the Agent Member of such Existing Holder only
to or
through a Broker-Dealer that has entered into a Broker-Dealer Agreement
with the
Auction Agent and the Company or other persons as the Company
permits. The Auction Agent is not required to accept any notice of
transfer delivered for an Auction unless it is received by the Auction
Agent by
3:00 p.m. on the Business Day preceding the Auction. The Auction
Agent shall rescind a transfer made on the registry of the Existing Holders
of
any Tortoise Auction Preferred Shares if the Auction Agent has been notified
in
writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer
Agreement, by the Agent Member or the Broker-Dealer of any Person that
(i)
purchased any Tortoise Auction Preferred Shares and the seller failed to
deliver
such Tortoise Auction Preferred Shares or (ii) sold any Tortoise Auction
Preferred Shares and the purchaser failed to make payment to such Person
upon
delivery to the purchaser of such Tortoise Auction Preferred
Shares.
(f) The
Auction Agent may, but shall have no obligation to, request that the
Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements,
provide the Auction Agent with a list of their respective customers that
such
Broker-Dealers believe are Beneficial Owners of Tortoise Auction Preferred
Shares. The Auction Agent shall keep confidential any such
information and shall not disclose any such information so provided to any
Person other than the relevant Broker-Dealer and the Company, provided that
the
Auction Agent reserves the right to disclose any such information if (a)
it is
ordered to do so by a court of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having the authority to compel
such disclosure, (b) it is advised by its counsel in writing that its failure
to
do so would be unlawful or (c) it is advised by its counsel in writing that
failure to do so could expose the Auction Agent to loss, liability, claim
or
damage for which it has not received indemnity or security satisfactory to
it.
2.3 Auction
Schedule. The
Auction Agent shall conduct Auctions on the Business Day immediately prior
to
the start of each Dividend Period in accordance with the schedule set forth
below. Such schedule may be changed by the Auction Agent with the
consent of the Company, which consent shall not be withheld
unreasonably. The Auction Agent shall give notice of any such change
to each Broker-Dealer. Such notice shall be received prior to the
first Auction Date on which any such change shall be effective.
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Time
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Event
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By
10:30 a.m.
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The
Auction Agent shall advise the Company and the Broker-Dealers
of the
Reference Rate and the Maximum Rate as set forth in Section 2.2(d)
hereof.
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Time
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Event
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10:30
a.m. – 1:00 p.m.
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The
Auction Agent shall assemble information communicated to
it by
Broker-Dealers as provided in Section 2 of Part II of the
Articles
Supplementary.
Submission
Deadline is 1:00 p.m.
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Not
earlier than 1:00 p.m.
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The
Auction Agent shall make determinations pursuant to Section
4 of Part II
of the Articles Supplementary.
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By
approximately 3:00 p.m.
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The
Auction Agent shall advise the Company of the results of the
Auction as
provided in Section 4(b) of Part II of the Articles
Supplementary. Submitted Bid Orders and Submitted Sell Orders
will be accepted and rejected in whole or in part and Tortoise
Auction
Preferred Shares will be allocated as provided in Section 5 of
Part II of
the Articles Supplementary.
The
Auction Agent shall give notice of the Auction results as set
forth in
Section 2.4 hereof.
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The
Auction Agent will follow the Securities Industry and Financial Markets
Association's Market Practice U.S. Holiday Recommendations for shortened
trading
days for the bond markets (the “SIFMA Recommendation”) unless
the Auction Agent is instructed otherwise. In the event of a SIFMA
Recommendation on an Auction Date, the Submission Deadline will be 11:30
a.m.,
instead of 1:00 p.m., and as a result, the notice set forth in Section 2.4
will
occur earlier.
2.4 Notice
of Auction
Results.
The
Auction Agent will advise each Broker-Dealer who submitted a Bid or Sell
Order
in an Auction whether such Bid or Sell Order was accepted or rejected in
whole
or in part and of the Applicable Rate for the next Dividend Period for the
related Tortoise Auction Preferred Shares by telephone or other electronic
means
acceptable to the parties. The Auction Agent, unless instructed
otherwise in writing by the Company, is authorized to release the Winning
Bid
Rate after each Auction for public dissemination.
2.5 Broker-Dealers.
(a) On
each Dividend Payment Date immediately succeeding the Auction Date, the Auction
Agent shall, promptly after its receipt of funds from the Company, pay to
each
Broker-Dealer a service charge in the amount equal to: (i) in the case of
any
Auction immediately preceding a Dividend Period of less than one year, the
product of (A) a fraction the numerator of which is the number of days in
the
Dividend Period (calculated by counting the first day of such Dividend Period
but excluding the last day thereof) and the denominator of which is 360,
times
(B) ¼ of 1%, times (C) $25,000 times (D) the sum of the aggregate number of
Tortoise Auction Preferred Shares placed
6
by
such
Broker-Dealer, or (ii) the amount mutually agreed upon by the Company and
the
Broker-Dealers in the case of any Auction immediately preceding a Dividend
Period of one year or longer. For the purposes of the preceding
sentence, the Tortoise Auction Preferred Shares shall be placed by a
Broker-Dealer if such shares were (1) the subject of Hold Orders deemed to
have
been submitted to the Auction Agent by the Broker-Dealer and were acquired
by
the Broker-Dealer for its own account or were acquired by the Broker-Dealer
for
its customers who are Beneficial Owners or (2) the subject of an Order submitted
by the Broker-Dealer that is (a) a Submitted Bid of an Existing Holder that
resulted in the Existing Holder continuing to hold the shares as a result
of the
Auction or (b) a Submitted Bid of a Potential Holder that resulted in the
Potential Holder purchasing the shares as a result of the Auction or (3)
the
subject of a valid Hold Order. For the avoidance of doubt, only one
Broker-Dealer shall be considered to have placed a particular Tortoise Auction
Preferred Share at any particular Auction for purposes of this Section
2.5(a).
(b) The
Company shall not designate any Person to act as a Broker-Dealer, or permit
an
Existing Holder or a Potential Beneficial Owner to participate in Auctions
through any Person other than a Broker-Dealer, without the prior approval
of the
Auction Agent, which approval shall not be withheld
unreasonably. Notwithstanding the foregoing, the Company may
designate an Affiliate of Xxxxxx
Brothers Inc. to act as a Broker-Dealer.
(c) The
Auction Agent shall terminate any Broker-Dealer Agreement as set forth therein
if so directed by the Company.
(d) Subject
to Section 2.5(b) hereof, the Auction Agent from time to time shall enter
into
such Broker-Dealer Agreements as the Company shall request in
writing.
(e) The
Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership
of Tortoise
Auction Preferred Shares and Submission of Bids by the Company and Its
Affiliates.
Neither
the Company nor any Affiliate of the Company may submit an Order in any Auction,
except that an Affiliate of the Company that is a Broker-Dealer may submit
an
Order. The Company shall notify the Auction Agent if the Company or, to the
best
of the Company's knowledge, any Affiliate of the Company becomes a Beneficial
Owner of any Tortoise Auction Preferred Shares. The restrictions in
this Section 2.6 shall in no way limit the activities of the Auction
Agent. The Auction Agent shall have no duty or liability with respect
to enforcement of this Section 2.6.
2.7 Access
to and Maintenance of
Auction Records.
The
Auction Agent shall afford to the Company, its agents, independent public
accountants and counsel, at reasonable times during normal business hours,
access to all books, records, documents and other information concerning
the
conduct and results of Auctions, to review and make extracts or copies of
(at
the Company's sole cost and expense), provided that any such agent, accountant
or counsel shall furnish the Auction Agent with a letter from the Company
requesting that the Auction Agent afford such person access. The
Auction Agent shall maintain records relating to any Auction for a period
of at
least six years after such Auction, and such records, in reasonable detail,
shall
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reflect
accurately and fairly the actions taken by the Auction Agent
hereunder. The Company agrees to keep confidential any information
regarding the customers of any Broker-Dealer received from the Auction Agent
in
connection with this Agreement or any Auction, and shall not disclose such
information or permit the disclosure of such information without the prior
written consent of the applicable Broker-Dealer to anyone except such agent,
accountant or counsel engaged to audit or review the results of Auctions
as
permitted by this Section 2.7. The Company reserves the right to
disclose any such information if it is ordered to do so by a court of competent
jurisdiction or a regulatory body, judicial or quasi-judicial agency or
authority having authority to compel such disclosure, or if it is advised
by its
counsel that its failure to do so would be unlawful. Any such agent,
accountant or counsel, before having access to such information, shall agree
to
keep such information confidential and not to disclose such information or
permit disclosure of such information without the prior written consent of
the
applicable Broker-Dealer, provided that such agent, accountant or counsel
may
reserve the right to disclose any such information if it is ordered to do
so by
a court of competent jurisdiction or a regulatory body, judicial or
quasi-judicial agency or authority having authority to compel such disclosure,
or if it is advised by its counsel that its failure to do so would be
unlawful.
2.8 Information
Concerning
Rates.
If
there
is any change in the credit rating of Tortoise Auction Preferred Shares by
a
Rating Agency (or substitute or successor Rating Agencies) then rating the
Tortoise Auction Preferred Shares that results in any change in the applicable
percentage of the Reference Rate used to determine the Maximum Rate for Tortoise
Auction Preferred Shares (the “Rate Multiple”), the Company
shall notify the Auction Agent of such change in the Rate Multiple by no
later
than the Business Day immediately preceding the next Auction Date. In
determining the Maximum Rate on any Auction Date, the Auction Agent shall
be
entitled to rely on the last Rate Multiple for Tortoise Auction Preferred
Shares
of which it has most recently received notice from the Company.
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III.
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THE
AUCTION AGENT AS
PAYING AGENT.
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3.1 The
Paying
Agent.
The
Board
of Directors of the Company has adopted resolutions appointing [Auction Agent]
as Auction Agent and Paying Agent. The Paying Agent hereby accepts
such appointment and agrees to act in accordance with its standard procedures
and the provisions of the Articles Supplementary which are specified herein
with
respect to the Tortoise Auction Preferred Shares and as set forth in this
Section 3.
3.2 The
Company's Notices to the
Paying Agent.
Whenever
any Tortoise
Auction Preferred Shares are to be redeemed, the Company shall mail a
Notice of Redemption by first-class mail, postage prepaid, to the Paying
Agent
and the Paying Agent shall mail such notice by first class mail, postage
prepaid, to each Holder of Tortoise
Auction Preferred Shares being redeemed and pursuant to Section 3(b) of
Part I of the Articles Supplementary.
3.3 The
Company to Provide Funds
for Dividends and Redemptions.
(a) Not
later than 3:00 p.m. on the Business Day preceding each Dividend Payment
Date,
the Company shall deposit with the Paying Agent an aggregate amount of federal
funds or similar same-day funds equal to the declared dividends to be paid
to
Holders on such Dividend Payment Date and shall give the Paying Agent
irrevocable
8
instructions
to apply such funds to the payment of such dividends on such Dividend Payment
Date.
(b) If
the Company shall give a Notice of Redemption, then by 12:00 noon on the
date
fixed for redemption, the Company shall deposit in trust with the Paying
Agent
an aggregate amount of federal funds or similar same-day funds sufficient
to
redeem such Tortoise Auction Preferred Shares called for redemption and shall
give the Paying Agent irrevocable instructions and authority to pay the
redemption price to the Holders of Tortoise Auction Preferred Shares called
for
redemption upon surrender of the certificate or certificates
therefor.
3.4 Disbursing
Dividends and
Redemption Price.
After
receipt of the federal funds or similar same-day funds and instructions from
the
Company described in Section 3.3 above, the Paying Agent shall pay to the
Holders (or former Holders) entitled thereto (i) on each corresponding Dividend
Payment Date, dividends on the Tortoise Auction Preferred Shares, and (ii)
on
any date fixed for redemption, the redemption price of any Tortoise Auction
Preferred Shares called for redemption. The amount of dividends for any Dividend
Period to be paid by the Paying Agent to Holders will be determined by the
Company as set forth in Section 2 of Part I of the Articles
Supplementary. The redemption price to be paid by the Paying Agent to
the Holders of any Tortoise Auction Preferred Shares called for redemption
will
be determined as set forth in Section 3 of Part I of the Articles
Supplementary. 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.
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IV.
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THE
PAYING AGENT AS
TRANSFER AGENT AND
REGISTRAR.
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4.1 Original
Issue of Tortoise
Auction Preferred Share Certificates.
On
the
Original Issue Date for any Tortoise Auction Preferred Share, one certificate
for Tortoise Auction Preferred Shares shall be issued by the Company and
registered in the name of Cede & Co., as nominee of the Securities
Depository, and countersigned by the Paying Agent.
4.2 Registration
of Transfer or
Exchange of Tortoise
Auction Preferred Shares.
Except
as
provided in this Section 4.2, the Tortoise Auction Preferred Shares 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 Company 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 Auction Preferred Shares, at the Company'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 Company's option and upon its receipt
of
such documents as it deems appropriate, any Tortoise
9
Auction
Preferred Shares may be registered in the stock 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 Company's expense.
4.3 Removal
of
Legend. Any
request for removal of a legend indicating a restriction on transfer from
a
certificate evidencing Tortoise Auction Preferred Shares shall be accompanied
by
an opinion of counsel stating that such legend may be removed and such Tortoise
Auction Preferred Shares may be transferred free of the restriction described
in
such legend, said opinion to be delivered under cover of a letter from a
Company
Officer authorizing the Paying Agent to remove the legend on the basis of
said
opinion.
4.4 Lost,
Stolen or Destroyed
Tortoise Auction Preferred Share 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 Company and by the Paying Agent, subject at all times
to
provisions of law, the Articles Supplementary governing such matters and
resolutions adopted by the Board of Directors of the Company 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 request by the Company to the Paying Agent to issue
a replacement or new certificate pursuant to this Section 4.4 shall be deemed
to
be a representation and warranty by the Company to the Paying Agent that
such
issuance will comply with provisions of applicable law and the Articles
Supplementary and resolutions of the Company.
4.5 Disposition
of Canceled
Certificates; Record Retention. The
Paying Agent shall retain share 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
Company, shall afford to the Company, its agents and counsel access at
reasonable times during normal business hours to review and make extracts
or
copies (at the Company'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 Company, shall deliver
to
the Company 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 Company
with prompt written notice of such request so that the Company may appeal
such
request and the Paying Agent shall cooperate with the Company 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 Company without the approval of
the
Paying Agent, which approval shall not be withheld unreasonably, but will
be
safely stored for possible future reference.
4.6 Share
Register.
The
Paying Agent shall maintain the share register, which shall contain a list
of
the Holders, the number of Tortoise Auction Preferred Shares held by each
10
Holder
and the address of each Holder. The Paying Agent shall record in the
share 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 share register or any other books of the Company in the possession
of the
Paying Agent, the Paying Agent will notify the Company and secure instructions
as to permitting or refusing such inspection. The Paying Agent
reserves the right, however, to exhibit the share 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.
4.7 Return
of
Funds. Any
funds
paid to the Paying Agent for the paying of dividends but not applied to the
payment of dividends, including interest earned on such moneys, will, to
the
extent permitted by law, be repaid to the Company at the end of 90 days from
the
date on which such moneys were to have been so applied. Upon written
request, the Company 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 Auction
Preferred Shares called for redemption on such date and (ii) such other amounts,
if any, to which Holders of Tortoise Auction Preferred Shares 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 Company upon its written request whereupon the Company
shall assume all responsibility and liability for compliance with any abandoned
or unclaimed property law or regulation. Funds, while deposited with
the Auction Agent, will be held in trust for the payment of the applicable
dividend, redemption price or, as may be applicable under the Articles
Supplementary, other charges.
|
V.
|
REPRESENTATIONS
AND
WARRANTIES.
|
5.1 Representations
and
Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the
Company has been duly organized and is validly existing as a corporation
under
the laws of the State of Maryland, and has full power to execute and deliver
this Agreement and to authorize, create and issue the Tortoise Auction Preferred
Shares;
(ii) the
Company is registered with the Commission under the 1940 Act as a closed-end,
nondiversified, management investment company;
(iii) this
Agreement has been duly and validly authorized, executed and delivered by
the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(iv) the
form of the certificate evidencing the Tortoise Auction Preferred Shares
complies with all applicable state and federal laws;
11
(v)
the Tortoise Auction Preferred Shares have
been duly and validly authorized by the Company and, upon completion of the
initial sale of the Tortoise Auction Preferred Shares and receipt of payment
therefor, will be validly issued by the Company, fully paid and
nonassessable;
(vi) at
the time of the offering of the Tortoise Auction Preferred Shares, the Tortoise
Auction Preferred Shares offered will be registered under the Securities
Act and
no further action by or before any governmental body or authority of the
United
States or of any state thereof is required in connection with the execution
and
delivery of this Agreement or will be required in connection with the issuance
of the Tortoise Auction Preferred Shares, except such action as required
by
applicable state securities laws;
(vii) the
execution and delivery of this Agreement and the issuance and delivery of
the
Tortoise Auction Preferred Shares do not and will not conflict with, violate
or
result in a breach of the terms, conditions or provisions of, or constitute
a
default under, the Articles of Incorporation or by-laws of the Company, any
order or decree of any court or public authority having jurisdiction over
the
Company or any mortgage, indenture, contract, agreement or undertaking to
which
the Company is a party or by which it is bound the effect of which conflict,
violation, breach or default would be material to the Company; and
(viii) no
taxes are payable upon or in respect of the execution of this Agreement or
will
be payable upon or in respect of the issuance of the Tortoise Auction Preferred
Shares.
5.2 Representations
and
Warranties of the Auction Agent. The
Auction Agent represents and warrants to the Company that:
(i) the
Auction Agent is duly organized and is validly existing as a banking corporation
in good standing under the laws of the State of New York and has the corporate
power to enter into and perform its obligations under this Agreement;
and
(ii) this
Agreement has been duly and validly authorized, executed and delivered by
the
Auction Agent and constitutes the legal, valid and binding obligation of
the
Auction Agent, enforceable against the Auction Agent in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization and other laws
of
general applicability relating to or affecting creditors' rights and to general
equitable principles.
|
VI.
|
THE
AUCTION
AGENT.
|
6.1 Duties
and
Responsibilities.
(a) The
Auction Agent is acting solely as non-fiduciary agent for the Company hereunder,
has only the duties expressly set forth herein, and owes no duties,
12
fiduciary
or otherwise to any Person by reason of this Agreement and no implied duties,
fiduciary or otherwise, shall be read into this Agreement against the Auction
Agent.
(b) The
Auction Agent undertakes to perform such duties and only such duties as are
set
forth specifically in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Auction Agent.
(c) In
the absence of bad faith or gross negligence on its part, the Auction Agent
shall not be liable for any action taken, suffered or omitted by it, or for
any
error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of
judgment made in good faith unless the Auction Agent shall have been grossly
negligent in ascertaining (or failing to ascertain) the pertinent
facts.
6.2 Rights
of the Auction
Agent.
(a) The
Auction Agent may rely conclusively upon, and shall be fully protected in
acting
or refraining from acting in accordance with, any communication authorized
by
this Agreement and any proper written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper
or
document reasonably believed by it to be genuine and appropriately
authorized. The Auction Agent shall not be liable for acting upon any
telephone communication authorized by this Agreement which the Auction Agent
reasonably believes in good faith, after reasonable inquiry, to have been
given
by the Company or by a Broker-Dealer. The Auction Agent may record
telephone communications with the Company or with the Broker-Dealers or with
both.
(b) The
Auction Agent may consult with counsel of its choice and the advice of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by the Auction Agent hereunder in good
faith and in reasonable reliance thereon.
(c) The
Auction Agent shall not be required to advance, expend or risk its own funds
or
otherwise incur or become exposed to financial liability in the performance
of
its duties hereunder. Unless otherwise instructed by the Company in
writing, the Auction Agent (i) shall not be obligated to invest any money
received by it hereunder and (ii) shall be under no liability for interest
on
any money received by it hereunder.
(d) The
Auction Agent may perform its duties and exercise its rights hereunder either
directly or by or through agents or attorneys and shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
by
it with due care hereunder.
(e) The
Auction Agent shall not be responsible or liable for any failure or delay
in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; acts of terrorism;
interruptions, loss or malfunctions of
13
utilities,
computer (hardware or software) or communications services; accidents; labor
disputes; acts of civil or military authority or governmental actions; it
being
understood that the Auction Agent shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
(f) The
Auction Agent shall not be required to, and does not, make any representations
as to the validity, accuracy, value or genuineness of any signatures or
endorsements, other than its own and those of its authorized
officers.
(g) Any
corporation into which the Auction Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Auction Agent shall be a party,
or any
corporation succeeding to the dealing and trading business of the Auction
Agent
shall be the successor of the Auction Agent hereunder, with the consent of
the
Company but without the execution or filing of any paper with any party hereto
or any further act on the part of any of the parties hereto, except where
any
instrument of transfer or assignment may be required by law to effect such
succession, anything herein to the contrary notwithstanding.
(h) All
the rights, privileges, immunities and protections granted to the Auction
Agent
herein are deemed granted to the Paying Agent and the Auction Agent in any
of
the capacities it undertakes in connection with this Agreement.
(i) Whenever
in the administration of the provisions of this Agreement, the Auction Agent
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action to be taken hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of gross negligence or bad faith on the part of the Auction
Agent, be deemed to be conclusively proved and established by a certificate
describing such action as requested by the Company or the Broker-Dealer,
signed
by the Company or the Broker-Dealer, respectively, and delivered to the Auction
Agent and such certificate, in the absence of gross negligence or bad faith
on
the part of the Auction Agent, shall be full warrant to the Auction Agent
for
any action taken or omitted by it under the provisions of this Agreement
upon
the faith thereof. Upon receipt of any such certificate signed by the
Company or the Broker-Dealer, the Auction Agent shall promptly provide a
copy of
said certificate to the Broker-Dealer or the Company,
respectively. The Auction Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement,
order, approval or other paper or document furnished by the Company or the
Broker-Dealer, except to the extent that such failure to investigate would
be
deemed gross negligence.
6.3 Compensation,
Expenses and
Indemnification.
(a) The
Company shall pay to the Auction Agent from time to time reasonable compensation
for all services rendered by it under this Agreement and under the Broker-Dealer
14
Agreements
as shall be set forth in a separate writing signed by the Company and the
Auction Agent, subject to adjustments if the Tortoise Auction Preferred Shares
no longer are held of record by the Securities Depository or its nominee
or if
there shall be such other change as shall increase or decrease materially
the
Auction Agent's obligations hereunder or under the Broker-Dealer
Agreements.
(b) The
Company shall reimburse the Auction Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Auction Agent
in
accordance with any provision of this Agreement and of the Broker-Dealer
Agreements (including the reasonable compensation, expenses and disbursements
of
its agents and counsel), except any expense, disbursement or advance
attributable to the Auction Agent's gross negligence or bad faith, upon
submission to the Company of reasonable documentation thereof. In no
event shall the Auction Agent be responsible or liable for special, indirect
or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(c) The
Company shall indemnify the Auction Agent and its officers, directors, employees
and agents for, and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Auction Agent
arising out of or in connection with its agency under this Agreement and
under
the Broker-Dealer Agreements, including the costs and expenses of defending
themselves against any claim of liability in connection with their exercise
or
performance of any of their duties hereunder and thereunder, except such
as may
result from its gross negligence or bad faith.
6.4 Auction
Agent's
Disclaimer.
The
Auction Agent makes no representation as to the validity or adequacy of the
Agreement, the Broker-Dealer Agreements or the Tortoise Auction Preferred
Shares
except to the extent otherwise set forth in Section 5.2 and except that the
Auction Agent hereby represents that the Agreement has been duly authorized,
executed and delivered by the Auction Agent and constitutes a legal and binding
obligation of the Auction Agent.
|
VII.
|
MISCELLANEOUS.
|
7.1 Term
of
Agreement.
(a) The
term of this Agreement is unlimited unless it shall be terminated as provided
in
this Section 7.1. The Company may terminate this Agreement at any
time by so notifying the Auction Agent, provided that, if any Tortoise Auction
Preferred Shares remain outstanding, the Company shall have entered into
an
agreement with a successor auction agent. The Auction Agent may
terminate this Agreement upon prior notice to the Company on the date specified
in such notice, which date shall be no earlier than 60 days after delivery
of
such notice. If the Auction Agent terminates this Agreement while any
Tortoise Auction Preferred Shares remain outstanding, the Company shall use
its
best efforts to enter into an agreement with a successor auction agent
containing substantially the same terms and conditions as this
Agreement.
15
(b) Except
as otherwise provided in this Section 7.1(b), the respective rights and duties
of the Company and the Auction Agent under this Agreement shall cease upon
termination of this Agreement. The Company's representations,
warranties, covenants and obligations to the Auction Agent under Section
5.1
hereof shall survive the termination hereof. The Auction Agent's
representations, warranties, covenants and obligations under Section 5.2
hereof
shall survive the termination hereof. Upon termination of this
Agreement, the Auction Agent shall (i) resign as Auction Agent under the
Broker-Dealer Agreements, (ii) at the Company's written request, deliver
promptly to the Company or to another authorized party copies of all books
and
records maintained by it in connection with its duties hereunder, and (iii)
at
the written request of the Company, transfer promptly to the Company or to
any
successor auction agent any funds deposited by the Company with the Auction
Agent (whether in its capacity as Auction Agent or as Paying Agent) pursuant
to
this Agreement which have not been distributed previously by the Auction
Agent
in accordance with this Agreement.
7.2 Communications.
Except
for (i) communications authorized to be made by telephone pursuant to this
Agreement or the Auction Procedures and (ii) communications in connection
with
Auctions (other than those expressly required to be in writing), all notices,
requests and other communications to any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given to such party
at its
address or telecopier number set forth below:
|
If
to the Company, addressed to:
|
00000
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000
Attention: Xxxxx
X. Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
|
|
If
to the Auction Agent, addressed to:
|
[Auction
Agent]
[Address]
Attention:
Group:
Telephone:
Facsimile:
|
or
such
other address or telecopier number as such party hereafter may specify for
such
purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified
herein.
Communications shall be given on behalf of the Company by a Company Officer
and
on behalf of the Auction Agent by an Authorized Officer.
7.3 Entire
Agreement.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or implied, between
the
parties relating to
16
the
subject matter hereof, except for written agreements relating to the
compensation of the Auction Agent.
7.4 Benefits.
Nothing
herein, express or implied, shall give to any Person, other than the Company,
the Auction Agent and their respective successors and assigns, any benefit
of
any legal or equitable right, remedy or claim hereunder.
7.5 Amendment;
Waiver.
(a) This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
(b) Failure
of either party hereto to exercise any right or remedy hereunder in the event
of
a breach hereof by the other party shall not constitute a waiver of any such
right or remedy with respect to any subsequent breach.
7.6 Successors
and
Assigns. This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by,
the respective successors and permitted assigns of each of the Company and
the
Auction Agent. This Agreement may not be assigned by either party
hereto absent the prior written consent of the other party, which consent
shall
not be withheld unreasonably.
7.7 Severability.
If
any
clause, provision or section hereof shall be ruled invalid or unenforceable
by
any court of competent jurisdiction, the invalidity or unenforceability of
such
clause, provision or section shall not affect any of the remaining clauses,
provisions or sections hereof.
7.8 Execution
in
Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
an
original and all of which shall constitute but one and the same
instrument.
7.9 Governing
Law, Jurisdiction,
Waiver of Trial By Jury. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING
TO
CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF
NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND PROCEEDINGS
ARISING OUT OF THIS AUCTION AGENCY AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN,
CITY
OF NEW YORK, STATE OF NEW YORK.
EACH
PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN THE COURTS LOCATED IN THE BOROUGH
OF
MANHATTAN, CITY OF NEW YORK AND STATE OF NEW YORK WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME. EACH OF THE PARTIES
HERETO ALSO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM
17
ARISING
OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.10 Limitation
of
Liability. A copy of the Articles of Incorporation of the
Company is on file with the Secretary of State of the State of
Maryland. This Agreement has been executed on behalf of the Company
by an officer of the Company in such capacity and not individually and the
obligations of the Company under this Agreement are not binding upon such
officer or the shareholders of the Company individually but are binding only
upon the assets and property of the Company.
[Signature
page follows]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers
as of
the date first above written.
| TORTOISE ENERGY INFRASTRUCTURE CORPORATION | |||
|
|
By:
|
||
|
Name: Chief
Financial Officer
|
|||
|
Title: Xxxxx
X.
Xxxxxxx
|
|||
|
Date
|
By:
|
[AUCTION AGENT] | |
| Name: | |||
| Title: | |||
19
EXHIBIT
A
FORM
OF
BROKER-DEALER AGREEMENT
A-1
