EXHIBIT K.4
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
FORM OF AUCTION AGENCY AGREEMENT
dated as of June __, 2004
relating to the
AUCTION RATE SENIOR NOTES
$______ SERIES ___, DUE __________, 2044
$______ SERIES ___, DUE __________, 0000
Xxx Xxxx xx Xxx Xxxx
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of June __,
2004, is between Tortoise Energy Infrastructure Corporation (the "Company") and
The Bank of New York.
The Company proposes to offer $____ and $____ aggregate principal
amount of auction rate senior notes Series ____ and Series ____ (collectively,
the "Tortoise Notes"), authorized by, and subject to the terms and conditions
of, the Supplemental Indenture of Trust by and between the Company and
__________________, in its capacity as trustee (the "Trustee"), dated June
_____, 2004 (the "Supplemental Indenture"), which supplements the Indenture
dated June ___, 2004 by and between the Company and the Trustee.
The Company desires that The Bank of New York perform certain duties as
agent in connection with each Auction of Tortoise Notes (in such capacity, the
"Auction Agent"), and as the transfer agent, registrar, paying agent and
redemption agent with respect to the Tortoise Notes (in such capacity, the
"Paying Agent"), upon the terms and conditions set forth in this Agreement, and
the Company hereby appoints The Bank of New York 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:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Supplemental Indenture.
---------------------------------------------------------
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Supplemental Indenture.
1.2 Certain Defined Terms.
----------------------
As used herein and in the Settlement Procedures, the following terms
shall have the following meanings, unless the context otherwise requires:
(a) "Agent Member" shall mean a member of, or participant in,
the Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1
hereof.
(c) "Auction Procedures" shall mean the procedures as from
time to time in effect for conducting Auctions that are set forth in
Appendix A of the Supplemental Indenture.
(d) "Authorized Officer" shall mean each Vice President,
Assistant Vice President and Associate of the Auction Agent and every
other officer or employee of the Auction Agent designated as an
"Authorized Officer" for purposes hereof in a written communication
from the Auction Agent to the Company.
1
(e) "Broker-Dealer Agreement" shall mean each agreement
between the Auction Agent and a broker-dealer substantially in the form
attached hereto as Exhibit A.
(f) "Closing" shall mean the date the Company consummates the
transactions for the issuance and sale of the Tortoise Notes.
(g) "Company Officer" shall mean the President, each Vice
President (whether or not designated by a number or word or words added
before or after the title "Vice President"), the Secretary, the
Treasurer, each Assistant Secretary and each Assistant Treasurer of the
Company and every other officer or employee of the Company designated
as a "Company Officer" for purposes hereof in a notice from the Company
to the Auction Agent.
(h) "Holder" means, with respect to Tortoise Notes, the
registered holder of Tortoise Notes as the same appears on the records
of the Company.
(i) "Rate Multiple" shall have the meaning assigned to it in
Section 2.8.
(j) "Supplemental Indenture" shall mean the Supplemental
Indenture of Trust by and between the Company and ____________________,
dated June _____, 2004, as amended or supplemented.
(k) "Settlement Procedures" shall mean the Settlement
Procedures attached as Exhibit A to the Broker-Dealer Agreement.
1.3 Rules of Construction.
----------------------
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the
plural number and vice versa.
(b) The captions and headings herein are solely for
convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto" and other words of
similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be
to New York City time.
2
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 The Bank of New York as Auction Agent for
purposes of the Auction Procedures. The Auction Agent hereby accepts
such appointment and agrees that, on each Auction Date, it shall follow
(i) the procedures set forth in this Section 2 and (ii) the Auction
Procedures for the purpose of determining the Applicable Rate for the
Tortoise Notes for the next Rate Period. Each periodic operation of
such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures
and in the Settlement Procedures are incorporated herein by reference
in their entirety and shall be deemed to be a part of this Agreement to
the same extent as if such provisions were set forth fully herein. In
the case of any conflict between the terms of any document incorporated
herein by reference and the terms hereof, the terms in this agreement
shall control.
2.2 Preparation for Each Auction; Maintenance of Registry of
Existing Holders.
--------------------------------------------------------
(a) As of the date hereof, the Company shall provide the
Auction Agent with a list of the Broker-Dealers and shall deliver to
the Auction Agent for execution by the Auction Agent a Broker-Dealer
Agreement signed by each such Broker-Dealer. Not later than five
Business Days prior to any Auction Date for which any change in such
list of Broker-Dealers is to be effective, the Company shall notify the
Auction Agent in writing of such change and, if any such change is the
addition of a Broker-Dealer to such list, the Company shall cause to be
delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent
shall have entered into a Broker-Dealer Agreement with each
Broker-Dealer prior to the participation of any such Broker-Dealer in
any Auction.
(b) In the event that the Auction Date for any Auction shall
be changed after the Auction Agent shall have given the notice referred
to in paragraph (a) of the Settlement Procedures, the Auction Agent, by
such means as the Auction Agent reasonably deems practicable, shall
give notice of such change to the Broker-Dealers not later than the
earlier of 9:15 a.m. on the new Auction Date or 9:15 a.m. on the old
Auction Date.
(c) The provisions contained in Section 2.04 of the
Supplemental Indenture concerning Special Rate Periods and the
notification of a Special Rate Period will be followed by the Company
and, to the extent applicable, the Auction Agent, and the provisions
contained therein are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were set forth fully herein.
(d) (i) On each Auction Date, the Auction Agent shall
determine the Maximum Rate. Not later than 9:30 a.m. on each Auction
Date, the Auction Agent shall notify the Company and the Broker-Dealers
of the Maximum Rate.
3
(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 current registry of
the Existing Holders of the Tortoise Notes for purposes of each
individual Auction based on the information provided to it from time to
time by the Broker-Dealer. The Auction Agent shall keep such list
current and accurate and shall indicate thereon the identity of each
Existing Holder, if any, whose most recent Order was submitted and
resulted in such Existing Holder continuing to hold or purchase
Tortoise Notes. The Company shall use commercially reasonable efforts
to provide or cause to be provided to the Auction Agent within ten
Business Days following the date of the Closing a list of the initial
Existing Holders of Tortoise Notes, the number of notes purchased by
each such Existing Holder and the respective Broker-Dealer of each such
Existing Holder through which such Existing Holder purchased such
Tortoise Notes. The Auction Agent may rely upon, as conclusive evidence
of the identities of the Existing Holders, such list, the results of
each Auction and notices from any Existing Holder, the Agent Member of
any Existing Holder or the Broker-Dealer of any Existing Holder with
respect to such Existing Holder's transfer of any Tortoise Notes to
another Person.
(ii) In the event of any partial redemption of Tortoise Notes,
upon notice by the Company to the Auction Agent of such partial
redemption, the Auction Agent promptly shall request the Securities
Depository to notify the Auction Agent of the identities of the Agent
Members (and the respective numbers of Tortoise Notes) from the
accounts of which Tortoise Notes have been called for redemption and
the person or department at such Agent Member to contact regarding such
redemption. At least two Business Days prior to the Auction preceding
the date of redemption, the Auction Agent shall request each Agent
Member so identified to disclose to the Auction Agent (upon selection
by such Agent Member of the Existing Holders whose Tortoise Notes are
to be redeemed) the number of Tortoise Notes of each such Existing
Holder, if any, to be redeemed by the Company, provided that the
Auction Agent has been furnished with the name and telephone number of
a person or department at such Agent Member from which it is to request
such information. In the absence of receiving any such information with
respect to an Existing Holder, from such Existing Holder's Agent Member
or otherwise, the Auction Agent may continue to treat such Existing
Holder as having ownership of the number of Tortoise Notes shown in the
Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the
ownership of Tortoise Notes from an Existing Holder to another Existing
Holder, or to another Person if permitted by the Company, only if (A)
such transfer is made pursuant to an Auction or (B) if such transfer is
made other than pursuant to an Auction, the Auction Agent has been
notified of such transfer in writing, in a notice substantially in the
form of Exhibit C to the Broker-Dealer Agreement, by such Existing
Holder or by the Agent Member of such Existing Holder only to or
through a Broker-Dealer that has entered into a Broker-Dealer Agreement
with the Auction Agent and the Company or other persons as the Company
permits. The Auction Agent is not required to accept
4
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 Notes if the Auction
Agent has been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member
or the Broker-Dealer of any Person that (i) purchased any Tortoise
Notes and the seller failed to deliver such Tortoise Notes or (ii) sold
any Tortoise Notes and the purchaser failed to make payment to such
Person upon delivery to the purchaser of such Tortoise Notes.
(f) The Auction Agent may, but shall have no obligation to,
request that the Broker-Dealers, as set forth in Section 3.2(c) of the
Broker-Dealer Agreements, provide the Auction Agent with a list of
their respective customers that such Broker-Dealers believe are
Beneficial Owners of Tortoise Notes. The Auction Agent shall keep
confidential any such information and shall not disclose any such
information so provided to any Person other than the relevant
Broker-Dealer and the Company, provided that the Auction Agent reserves
the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory body, judicial
or quasi-judicial agency or authority having the authority to compel
such disclosure or (b) it is advised by its counsel in writing that its
failure to do so would be unlawful.
2.3 Auction Schedule.
-----------------
The Auction Agent shall conduct Auctions on the Business Day
immediately prior to the start of each Rate Period in accordance with the
schedule set forth below. Such schedule may be changed by the Auction Agent with
the consent of the Company, which consent shall not be withheld unreasonably.
The Auction Agent shall give notice of any such change to each Broker-Dealer.
Such notice shall be received prior to the first Auction Date on which any such
change shall be effective.
Time Event
--------------------------- --------------------------------------------
By 9:30 a.m. The Auction Agent shall advise the Company
and the Broker-Dealers of the Reference Rate
and the Maximum Rate as set forth in Section
2.2(d)(i) hereof.
9:30 a.m. - 1:00 p.m. The Auction Agent shall assemble information
communicated to it by Broker-Dealers as
provided in Section 2 of Appendix A of the
Supplemental Indenture. Submission deadline
is 1:00 p.m.
Not earlier than 1:00 p.m. The Auction Agent shall make determinations
pursuant to Section 3 of Appendix A of the
Supplemental Indenture.
By approximately 3:00 p.m. The Auction Agent shall advise the
5
Company of the results of the Auction as
provided in Section 3(b) of Appendix A of
the Supplemental Indenture. Submitted Bid
Orders and Submitted Sell Orders will be
accepted and rejected in whole or in part
and Tortoise Notes will be allocated as
provided in Section 4 of Appendix A of the
Supplemental Indenture.
The Auction Agent shall give notice of the
Auction results as set forth in Section 2.4
hereof.
The Auction Agent will follow the Bond Market Association's Market
Practice U.S. Holiday Recommendations for shortened trading days for the bond
markets (the "BMA Recommendation") unless the Auction Agent is instructed
otherwise. In the event of a BMA Recommendation on an Auction Date, the
Submission Deadline will be 11:30 a.m., instead of 1:00 p.m., and as a result
the notice set forth in Section 2.4 will occur earlier.
2.4 Notice of Auction Results.
--------------------------
The Auction Agent will advise each Broker-Dealer who submitted a Bid or
Sell Order in an Auction whether such Bid or Sell Order was accepted or rejected
in whole or in part and of the Applicable Rate for the next Rate Period for the
related Tortoise Notes by telephone or other electronic means acceptable to the
parties. The Auction Agent, unless instructed otherwise in writing by the
Company, is authorized to release the Winning Bid Rate after each auction for
public dissemination.
2.5 Broker-Dealers.
---------------
(a) Not later than 3:00 p.m. on each Interest Payment Date,
the Auction Agent after each Auction will pay to each Broker-Dealer,
from funds provided by the Company, a service charge in the amount
equal to: (i) in the case of any Auction immediately preceding a Rate
Period of less than one year, the product of (A) a fraction the
numerator of which is the number of days in the Rate Period (calculated
by counting the first day of such Rate Period but excluding the last
day thereof) and the denominator of which is 360, times (B) 1/4 of 1%,
times (C) $25,000 times (D) the sum of the aggregate number of Tortoise
Notes placed by such Broker-Dealer, or (ii) the amount mutually agreed
upon by the Company and the Broker-Dealers in the case of any Auction
immediately preceding a Rate Period of one year or longer. For the
purposes of the preceding sentence, the Tortoise Notes shall be placed
by a Broker-Dealer if such notes were (1) the subject of Hold Orders
deemed to have been submitted to the Auction Agent by the Broker-Dealer
and were acquired by the Broker-Dealer for its own account or were
acquired by the Broker-Dealer for its customers who are Beneficial
Owners or (2) the subject of an order submitted by the Broker-Dealer
that is (a) a Submitted Bid of an Existing Holder that resulted in the
Existing Holder continuing to hold the notes as a result of the Auction
or (b) a Submitted Bid of a Potential Holder that resulted in the
Potential Holder purchasing the notes as a result of the Auction or (3)
the subject of a valid Hold Order. For the avoidance of doubt, only
6
one Broker-Dealer shall be considered to have placed a particular Tortoise Note
at any particular Auction for purposes of this Section 2.5(a).
(b) The Company shall not designate any Person to act as a
Broker-Dealer, or permit an Existing Holder or a Potential Beneficial
Owner to participate in Auctions through any Person other than a
Broker-Dealer, without the prior approval of the Auction Agent, which
approval shall not be withheld unreasonably. Notwithstanding the
foregoing, the Company may designate an Affiliate or Xxxxxx Brothers
Inc. to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Company.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from
time to time shall enter into such Broker-Dealer Agreements as the
Company shall request in writing.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of Tortoise Notes and Submission of Bids by the
Company and Its Affiliates.
---------------------------------------------------------
Neither the Company nor any Affiliate of the Company may submit an
Order in any Auction, except that an Affiliate of the Company that is a
Broker-Dealer may submit an Order. The Company shall notify the Auction Agent if
the Company or, to the best of the Company's knowledge, any Affiliate of the
Company becomes a Beneficial Owner of any Tortoise Notes. The restrictions in
this Section 2.6 shall in no way limit the activities of the Auction Agent. The
Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
---------------------------------------------
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, at reasonable times during normal business
hours, to review and make extracts or copies of (at the Company's sole cost and
expense), access to all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
Company requesting that the Auction Agent afford such person access. The Auction
Agent shall maintain records relating to any Auction for a period of at least
six years after such Auction, and such records, in reasonable detail, shall
reflect accurately and fairly the actions taken by the Auction Agent hereunder.
The Company agrees to keep confidential any information regarding the customers
of any Broker-Dealer received from the Auction Agent in connection with this
Agreement or any Auction, and shall not disclose such information or permit the
disclosure of such information without the prior
7
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 Notes by a
rating agency (or substitute or successor rating agencies) then rating the
Tortoise Notes that results in any change in the applicable percentage of the
"AA" Composite Commercial Paper Rate used to determine the Maximum Rate for
Tortoise Notes (the "Rate Multiple"), the Company shall notify the Auction Agent
of such change in the Rate Multiple prior to the Auction Date. In determining
the Maximum Rate on any Auction Date, the Auction Agent shall be entitled to
rely on the last Rate Multiple for Tortoise Notes of which it has most recently
received notice from the Company.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
-----------------
The Board of Directors of the Company has adopted resolutions
appointing The Bank of New York 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 Supplemental Indenture which are
specified herein with respect to the Tortoise Notes and as set forth in this
Section 3.
3.2 The Company's Notices to the Paying Agent.
------------------------------------------
Whenever any Tortoise Notes are to be redeemed, the Company shall mail
a Notice of Redemption by first-class mail, postage prepaid, to each Holder of
Tortoise Notes being redeemed and to the Paying Agent pursuant to Section
2.03(b) of the Supplemental Indenture.
3.3 The Company to Provide Funds for Interest and Redemptions.
----------------------------------------------------------
(a) Not later than 3:00 p.m. on the Business Day preceding
each Interest 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 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.
(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 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.
8
3.4 Disbursing Interest 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 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 Company as set forth in
Article II, Section 2.02 of the 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 Article II, Section 2.03 of the
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.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 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 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 Notes.
-------------------------------------------------------
Except as provided in this Section 4.2, 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 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 Notes, 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 Notes 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 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
9
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 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 Company and by the Paying Agent, subject at all times to
provisions of law, the Supplemental Indenture governing such matters and
resolutions adopted by 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 Supplemental Indenture and resolutions of the Company.
4.5 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 Securities and Exchange Commission (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 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
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 register or other
records to any person in case it is (a) ordered to
10
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 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 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 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 Company upon its written
request. Funds, 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 the Supplemental Indenture, 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 Notes;
(ii) the Company is registered with the Commission under the
Investment Company Act as a closed-end, nondiversified, management
investment company;
(iii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles;
(iv) the form of the certificate evidencing the Tortoise Notes
complies with all applicable state and federal laws;
(v) the Tortoise Notes have been duly and validly authorized
by the Company and, upon completion of the initial sale of the Tortoise
Notes and receipt of payment therefor, will be validly issued by the
Company, fully paid and nonassessable;
(vi) at the time of the offering of the Tortoise Notes, the
Tortoise Notes offered will be registered under the Securities Act and
no further action by or before any governmental body or authority of
the United States or of any state thereof is required in connection
with the
11
execution and delivery of this Agreement or will be required in
connection with the issuance of the Tortoise Notes, except such action
as required by applicable state securities laws;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the Tortoise Notes do not and will not
conflict with, violate or result in a breach of the terms, conditions
or provisions of, or constitute a default under, the Articles of
Incorporation or by-laws of the Company, any order or decree of any
court or public authority having jurisdiction over the Company or any
mortgage, indenture, contract, agreement or undertaking to which the
Company is a party or by which it is bound the effect of which
conflict, violation, breach or default would be material to the
Company; and
(viii) no taxes are payable upon or in respect of the
execution of this Agreement or will be payable upon or in respect of
the issuance of the Tortoise Notes.
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 [__________] 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 agent for the
Company hereunder and owes no fiduciary duties to any Person.
(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 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 negligent in ascertaining (or failing to
ascertain) the pertinent facts.
12
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,
certificate or other instrument, paper or document reasonably believed
by it to be genuine and appropriately authorized. The Auction Agent
shall not be liable for acting upon any telephone communication
authorized by this Agreement which the Auction Agent reasonably
believes in good faith, after reasonable inquiry, to have been given by
the Company or by a Broker-Dealer. The Auction Agent may record
telephone communications with the Company or with the Broker-Dealers or
with both.
(b) The Auction Agent may consult with counsel of its choice
and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
the Auction Agent hereunder in good faith and in reasonable reliance
thereon.
(c) The Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder. Unless otherwise
instructed by the Company in writing, the Auction Agent (i) shall not
be obligated to invest any money received by it hereunder and (ii)
shall be under no liability for interest on any money received by it
hereunder.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys
and shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed by it with due care hereunder.
(e) The Auction Agent shall not be responsible or liable for
any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; acts of terrorism;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications services; accidents; labor disputes; acts
of civil or military authority or governmental actions; it being
understood that the Auction Agent shall use reasonable efforts which
are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
(f) The Auction Agent shall not be required to, and does not,
make any representations as to the validity, accuracy, value or
genuineness of any signatures or endorsements, other than its own and
those of its authorized officers.
(g) Any corporation into which the Auction Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Auction Agent shall be a party, or any corporation succeeding to the
dealing and trading business of the Auction Agent shall be the
successor of the Auction Agent hereunder, with the consent of the
Company but without the execution or filing of
13
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 Bank of New York 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 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 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 negligent.
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 Agreements as shall be set forth
in a separate writing signed by the Company and the Auction Agent,
subject to adjustments if the Tortoise Notes no longer are held of
record by the Securities Depository or its nominee or if there shall be
such other change as shall increase or decrease materially the Auction
Agent's obligations hereunder or under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Auction Agent in accordance with any provision
of this Agreement and of the Broker-Dealer Agreements (including the
reasonable compensation, expenses and disbursements of its agents and
counsel), except any expense, disbursement or advance attributable to
the Auction Agent's negligence or bad faith, upon submission to the
Company of reasonable documentation thereof.
(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
14
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 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 Notes
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 Notes remain outstanding, the Company shall have
entered into an agreement with a successor auction agent. The Auction
Agent may terminate this Agreement upon prior notice to the Company on
the date specified in such notice, which date shall be no earlier than
60 days after delivery of such notice. If the Auction Agent terminates
this Agreement while any Tortoise Notes remain outstanding, the Company
shall use its best efforts to enter into an agreement with a successor
auction agent containing substantially the same terms and conditions as
this Agreement.
(b) Except as otherwise provided in this Section 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
15
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:
Attn:
Tortoise Energy Infrastructure Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Telephone:
Facsimile:
If to the Auction Agent,
addressed to:
The Bank of New York
[Department]
[Street Address]
[City, State, ZIP]
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 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.
16
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
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17
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:
Title:
The Bank of New York
By:_______________________________________
Name:
Title:
19
