BROKER-DEALER AGREEMENT
EXHIBIT
k.7
This
Broker-Dealer Agreement dated as of __________, ____, is between [Auction Agent]
(the “Auction Agent”) (not in its individual capacity, but solely as agent of
Tortoise Energy Infrastructure Corporation (the “Company”)), pursuant to
authority granted to it in the Auction Agency Agreement between the Company
and
the Auction Agent dated as of __________, ____ (the “Auction Agency Agreement”)
and [Broker-Dealer] (together with its successors and assigns, the
“Broker-Dealer”).
The
Company proposes to offer $____________ aggregate principal amount of auction
rate senior notes Series __ (the “Tortoise Notes”), authorized by, and
subject to the terms and conditions of, the Supplemental Indenture of Trust
by
and between the Company and [Trustee], in its capacity as trustee (the
“Trustee”), dated __________, 20__ (the “Supplemental Indenture”), which
supplements the Indenture, dated __________, 20__, by and between the Company
and the Trustee.
The
Supplemental Indenture provides that for each Rate Period of outstanding series
of Tortoise Notes following the initial Rate Period, the Applicable Rate for
each series of Tortoise Notes shall be equal to the rate per annum that results
from an Auction for outstanding notes of each series of Tortoise
Notes. The Board of Directors of the Company has adopted resolutions
appointing [Auction Agent] as Auction Agent for purposes of the Auction
Procedures, and pursuant to Section 2.5 of the Auction Agency Agreement, the
Company has requested and directed the Auction Agent to execute and deliver
this
Agreement.
The
Auction Procedures require the participation of one or more
Broker-Dealers.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Auction Agent and Broker-Dealer 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 Terms
Defined Herein.
As
used
herein, the following terms shall have the following meanings, unless the
context otherwise requires:
(a) “Auction”
shall have the meaning specified in Section 3.1(a) hereof.
(b) “Auction
Procedures” shall mean the procedures as from time to time in effect for
conducting Auctions that are set forth Appendix A of the Supplemental
Indenture.
(c) “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
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to
the
Dealing and Trading Group of its Corporate Trust Division and every other
officer or employee of the Auction Agent designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Trustee,
(ii) in the case of the Company, its 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,
(iii) in the case of the Trustee, every officer or employee of the Trustee
designated as an “Authorized Officer” for purposes hereof in a written
communication delivered to the Auction Agent.
(d) “Broker-Dealer
Officer” shall mean each officer or employee of a Broker-Dealer designated as a
“Broker-Dealer Officer” for purposes of this Agreement in a written
communication to the Auction Agent.
(e) “Broker-Dealer
Agreement” shall mean this Agreement and any substantially similar agreement
between the Auction Agent and a Broker-Dealer.
(f) “Supplemental
Indenture” shall mean the Supplemental Indenture by and between the Company and
BNY Midwest Trust Company dated __________, 20__, as amended or
supplemented.
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.
II. NOTIFICATION
OF RATE PERIOD.
The
provisions contained in Article II, Section 2.04 of the Supplemental Indenture
concerning the notification of a Special Rate Period will be followed by the
Auction Agent and Broker-Dealer, 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.
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III. THE
AUCTION.
3.1 Purpose;
Incorporation by Reference of Auction Procedures.
(a) On
each Auction Date, the provisions of the Auction Procedures will be followed
by
the Auction Agent 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 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.
(c) Broker-Dealer
agrees to act as, and assumes the obligations of and limitations and
restrictions placed upon, a Broker-Dealer under this
Agreement. Broker-Dealer understands that other persons meeting the
requirements specified in the definition of “Broker-Dealer” contained in Article
I, Section 1.01 of the Supplemental Indenture may execute a Broker-Dealer
Agreement and participate as Broker-Dealers in Auctions.
(d) Broker-Dealer
and other Broker-Dealers may participate in Auctions for their own
accounts. However, the Company, by notice to Broker-Dealer and all
other Broker Dealers, may prohibit all Broker-Dealers from submitting Bids
in
Auctions for their own accounts, provided that Broker-Dealers may
continue to submit Hold Orders and Sell Orders. The Auction Agent
shall have no duty or liability with respect to enforcement of this
Section 3.1(d).
3.2 Preparation
for Each Auction.
(a) Not
later than 10:30 a.m. on each Auction Date for the Tortoise Notes, the Auction
Agent shall advise Broker-Dealer by telephone of the Reference Rate and the
Maximum Rate in effect on such Auction Date.
(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 Broker-Dealer 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. Thereafter, Broker-Dealer promptly shall notify customers of
Broker-Dealer that Broker-Dealer believes are Beneficial Owners of Tortoise
Notes of such change in the Auction Date.
(c) The
Auction Agent from time to time may, but shall have no obligation to, request
Broker-Dealer to provide it with a list of the respective customers
Broker-Dealer believes are Beneficial Owners of Tortoise
Notes. Broker-Dealer shall comply with any such request, and the
Auction Agent shall keep confidential any such information, including
information received as to the identity of Bidders in any Auction, and shall
not
disclose any such information so provided to any Person other than the Company;
and such information shall not be used by the Auction Agent or its officers,
employees, agents or representatives for any purpose other than such purposes
as
are described herein. Notwithstanding the foregoing, the Auction
Agent
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reserves
the right and is authorized 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 that its failure to do so
would be unlawful or (c) it is advised by its counsel 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. In the
event that the Auction Agent is required to disclose information in accordance
with the foregoing sentence, it shall provide written notice of such requirement
to Broker-Dealer as promptly as practicable. The Auction Agent shall
transmit any list of customers Broker-Dealer believes are Beneficial Owners
of
Tortoise Notes and information related thereto only to its officers, employees,
agents or representatives who need to know such information for the purposes
of
acting in accordance with this Agreement and to the Company, and the Auction
Agent shall prevent the transmission of such information to others and shall
cause its officers, employees, agents and representatives to abide by the
foregoing confidentiality restrictions.
3.3 Auction
Schedule; Method of Submission of Orders.
(a) The
Company and the Auction Agent shall conduct Auctions for the Tortoise Notes
in
accordance with the schedule set forth below. Such schedule may be
changed at any time 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 Broker-Dealer. Such notice shall be
received prior to the first Auction Date on which any such change shall be
effective.
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 3.2(a)
hereof.
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10:30
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.
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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
Appendix
A of the Supplemental Indenture.
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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 Appendix A of the Supplemental
Indenture. Submitted Bids and Submitted Sell Orders will be
accepted and rejected in whole or in
part
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and
Tortoise Notes will be allocated as provided in Section 5 of Appendix
A of
the Supplemental Indenture.
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The
Auction Agent shall give notice of the Auction results as set forth
in
Section 3.4(a) 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.
(b) Broker-Dealer
agrees to maintain a list of Potential Beneficial Owners and to contact the
Potential Beneficial Owners on such list on or prior to each Auction Date for
the purposes set forth in Section 1(a)(ii) of Appendix A of the Supplemental
Indenture.
(c) Broker-Dealer
shall submit Orders to the Auction Agent in writing in substantially the form
attached hereto as Exhibit B. Broker-Dealer shall submit separate
Orders to the Auction Agent for each Potential Beneficial Owner or Beneficial
Owner on whose behalf Broker-Dealer is submitting an Order and shall not net
or
aggregate the Orders of Potential Beneficial Owners or Beneficial Owners on
whose behalf Broker-Dealer is submitting Orders.
(d) Broker-Dealer
shall deliver to the Auction Agent (i) a written notice, substantially in the
form attached hereto as Exhibit C, of transfers of Tortoise Notes, made through
Broker-Dealer by a Beneficial Owner to another Person other than pursuant to
an
Auction, and (ii) a written notice, substantially in the form attached hereto
as
Exhibit D, of the failure of Tortoise Notes to be transferred to or by any
Person that purchased or sold Tortoise Notes through Broker-Dealer pursuant
to
an Auction. The Auction Agent is not required to accept any notice
delivered pursuant to the terms of the foregoing sentence with respect to an
Auction unless it is received by the Auction Agent by 3:00 p.m. on the Business
Day preceding the applicable Auction Date.
3.4 Notice
of Auction Results.
(a) On
each Auction Date, the Auction Agent shall provide to Broker-Dealer the notice
required by paragraph (a) of the settlement procedures set forth on Exhibit
A
hereto (the “Settlement Procedures”). On the Business Day next
succeeding such Auction Date, the Auction Agent shall notify Broker-Dealer
in
writing of the disposition of all Orders submitted by Broker-Dealer in the
Auction held on such Auction Date. 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.
(b) Broker-Dealer
shall notify each Beneficial Owner or Potential Beneficial Owner on whose behalf
Broker-Dealer has submitted an Order as set forth in paragraph (b) of
the
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Settlement
Procedures, and take such other action as is required of Broker-Dealer pursuant
to the Settlement Procedures.
If
any
Beneficial Owner or Existing Holder selling Tortoise Notes in an Auction fails
to deliver such Tortoise Notes, the Broker-Dealer of any Person that was to
have
purchased Tortoise Notes in such Auction may deliver to such Person a number
of
whole Tortoise Notes that is less than the number of Tortoise Notes that
otherwise was to be purchased by such Person. In such event, the
number of Tortoise Notes to be so delivered shall be determined by such
Broker-Dealer. Delivery of such lesser number of Tortoise Notes shall
constitute good delivery. Upon the occurrence of any such failure to
deliver Tortoise Notes, such Broker-Dealer shall deliver to the Auction Agent
the notice required by Section 3.3(d)(ii) hereof. Notwithstanding the foregoing
terms of this Section 3.4(b), any delivery or non-delivery of Tortoise Notes
which represents any departure from the results of an Auction, as determined
by
the Auction Agent, shall be of no effect unless and until the Auction Agent
shall have been notified of such delivery or non-delivery in accordance with
the
terms of Section 3.3(d) hereof.
3.5 Service
Charge to be Paid to Broker-Dealer.
On
each
Interest Payment Date, the Auction Agent shall, promptly after its receipt
of
funds from the Company, pay to each Broker-Dealer a service charge in the amount
equal to: (i) in the case of any Auction immediately preceding a
Rate Period of less than one year, the product of (A) a fraction the numerator
of which is the number of days in the Rate Period (calculated by counting the
first day of such Rate Period but excluding the last day thereof) and the
denominator of which is 360, times (B) ¼ of 1%, times (C) $25,000 times (D) the
sum of the aggregate number of $25,000 principal amount increments 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 (i) 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 (ii) 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 (iii) a valid Hold
Order. For the avoidance of doubt, only one Broker-Dealer shall be
considered to have placed a particular Note at any particular Auction for
purposes of this Section 3.5.
IV. THE
AUCTION AGENT.
4.1 Duties
and Responsibilities.
(a) The
Auction Agent is acting solely as non-fiduciary agent for the Company hereunder,
has only the duties expressly set forth herein, and owes no duties, fiduciary
or
otherwise, to any Person by reason of this Agreement and no implied duties,
fiduciary or otherwise, shall be read into this Agreement against the Auction
Agent.
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(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. 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.
4.2 Rights
of the Auction Agent.
(a) The
Auction Agent may conclusively rely 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 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.
(f) 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
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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.
(g) All
the rights, privileges, immunities and protections granted to the Auction Agent
herein are deemed granted to BNY Midwest Trust Company, as Paying Agent, in
any
of the capacities it undertakes in connection with this Agreement.
(h) 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,
in
the absence of gross negligence or bad faith on the part of the Auction Agent,
shall be deemed to be conclusively proved and established by a certificate
describing the action 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 grossly negligent.
V. MISCELLANEOUS.
5.1 Termination.
Any
party
may terminate this Agreement at any time upon five days’ prior written notice to
the other party. This Agreement shall automatically terminate upon
the redemption of all outstanding Tortoise Notes or upon termination of the
Auction Agency Agreement.
5.2 Force
Majeure
Neither
party to this Agreement shall 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
parties shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
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5.3 Participant
in Securities Depository; Payment of Interest in Same-Day
Funds.
(a) Broker-Dealer
is at the date hereof, and shall remain for the term of this Agreement, a member
of, or a participant in, the Securities Depository (or an affiliate of such
a
member or participant).
(b) Broker-Dealer
represents that it (or if Broker-Dealer does not act as Agent Member, one of
its
affiliates) shall make all interest payments on the Tortoise Notes available
in
same-day funds on each Interest Payment Date to customers that use Broker-Dealer
(or its affiliate) as Agent Member.
5.4 Communications.
(a) Except
for (i) communications authorized to be made by telephone pursuant to this
Agreement or the Auction Procedures and (ii) communications with the Auctions
(other than those expressly required to be made 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 Auction Agent,
addressed
to:
[Auction
Agent]
[Address]
Attention:
Telephone:
Facsimile:
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If
to the Broker-Dealer,
addressed
to (with a copy to the General Counsel at the same address):
[Broker-Dealer]
[Address]
Attention:
Telephone:
Facsimile:
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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 Broker-Dealer by a
Broker-Dealer Officer and on behalf of the Auction Agent by an Authorized
Officer. Broker-Dealer may record telephone communications with the
Auction Agent.
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5.5 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.
5.6 Benefits.
Nothing
in this Agreement, express or implied, shall give to any person, other than
the
Company, which is a third party beneficiary of this Agreement, the Auction
Agent
and Broker-Dealer and their respective successors and permitted assigns, any
benefit of any legal or equitable right, remedy or claim under this
Agreement.
5.7 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 to this Agreement to exercise any right or remedy hereunder
in
the event of a breach of this Agreement by the other party shall not constitute
a waiver of any such right or remedy with respect to any subsequent
breach.
5.8 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 Broker-Dealer and
the
Auction Agent. This Agreement may not be assigned by either party
hereto absent the prior written consent of the other party.
5.9 Severability.
If
any
clause, provision or section of this Agreement 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
remaining clause, provision or section hereof.
5.10 Execution
in Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
5.11 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
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OF
THIS
BROKER-DEALER 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.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date first above written.
[Auction Agent] | |||
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By:
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Name: | |||
Title: | |||
[Broker-Dealer] | |||
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By:
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Name: | |||
Title: | |||
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EXHIBIT
A
SETTLEMENT
PROCEDURES
Capitalized
terms used herein shall have the respective meanings specified in
the Supplemental Indenture.
(a) On
each Auction Date, the Auction Agent shall notify by telephone, or through
the
Auction Agent’s auction processing system or other means acceptable to the
parties, the Broker-Dealers that participated in the Auction held on such
Auction Date and submitted an Order on behalf of any Beneficial Owner or
Potential Beneficial Owner of:
(i) the
Applicable Rate fixed for the next succeeding Auction Period;
(ii) whether
Sufficient Clearing Bids existed for the determination of the Applicable
Rate;
(iii) if
such Broker-Dealer (a “Seller’s Broker-Dealer”) submitted a Bid or a Sell Order
on behalf of a Beneficial Owner, the number of Tortoise Notes, if any, to be
sold by such Beneficial Owner;
(iv) if
such Broker-Dealer (a “Buyer’s Broker-Dealer”) submitted a Bid on behalf of a
Potential Beneficial Owner, the number of Tortoise Notes, if any, to be
purchased by such Potential Beneficial Owner;
(v) if
the aggregate number of Tortoise Notes to be sold by all Beneficial Owners
on
whose behalf such Broker-Dealer submitted a Bid or a Sell Order exceeds the
aggregate number of Tortoise Notes to be purchased by all Potential Beneficial
Owners on whose behalf such Broker-Dealer submitted a Bid, the name or names
of
one or more Buyer’s Broker-Dealers (and the name of the Agent Member, if any, of
each such Buyer’s Broker-Dealer) acting for one or more purchasers of such
excess number of Tortoise Notes and the number of such Tortoise Notes to be
purchased from one or more Beneficial Owners on whose behalf such Broker-Dealer
acted by one or more Potential Beneficial Owners on whose behalf each of such
Buyer’s Broker-Dealers acted;
(vi) if
the aggregate number of Tortoise Notes to be purchased by all Potential
Beneficial Owners on whose behalf such Broker-Dealer submitted a Bid exceeds
the
aggregate number of Tortoise Notes to be sold by all Beneficial Owners on whose
behalf such Broker-Dealer submitted a Bid or a Sell Order, the name or names
of
one or more Seller’s Broker-Dealers (and the name of the Agent Member, if any,
of each such Seller’s Broker-Dealer) acting for one or more sellers of such
excess number of Tortoise Notes and the number of such Tortoise Notes to be
sold
to one or more Potential Beneficial Owners on whose behalf such Broker-Dealer
acted by one or more Beneficial Owners on whose behalf each of such Seller’s
Broker-Dealers acted; and
(vii) the
Auction Date of the next succeeding Auction with respect to the Tortoise
Notes.
A-1
(b) On
each Auction Date, each Broker-Dealer that submitted an Order on behalf of
any
Beneficial Owner or Potential Beneficial Owner shall:
(i) in
the case of a Broker-Dealer that is a Buyer’s Broker-Dealer, instruct each
Potential Beneficial Owner on whose behalf such Broker-Dealer submitted a Bid
that was accepted, in whole or in part, to instruct such Potential Beneficial
Owner’s Agent Member to pay to such Broker-Dealer (or its Agent Member) through
the Securities Depository the amount necessary to purchase the number of
Tortoise Notes to be purchased pursuant to such Bid against receipt of such
Tortoise Notes and advise such Potential Beneficial Owner of the Applicable
Rate
for the next succeeding Rate Period;
(ii) in
the case of a Broker-Dealer that is a Seller’s Broker-Dealer, instruct each
Beneficial Owner on whose behalf such Broker-Dealer submitted a Sell Order
that
was accepted, in whole or in part, or a Bid that was accepted, in whole or
in
part, to instruct such Beneficial Owner’s Agent Member to deliver to such
Broker-Dealer (or its Agent Member) through the Securities Depository the number
of Tortoise Notes to be sold pursuant to such Order against payment therefor
and
advise any such Beneficial Owner that will continue to hold Tortoise Notes
of
the Applicable Rate for the next succeeding Rate Period;
(iii) advise
each Beneficial Owner on whose behalf such Broker-Dealer submitted a Hold Order
of the Applicable Rate for the next succeeding Rate Period;
(iv) advise
each Beneficial Owner on whose behalf such Broker-Dealer submitted an Order
of
the Auction Date for the next succeeding Auction; and
(v) advise
each Potential Beneficial Owner on whose behalf such Broker-Dealer submitted
a
Bid that was accepted, in whole or in part, of the Auction Date for the next
succeeding Auction.
(c) On
the basis of the information received by it pursuant to (a) above, each
Broker-Dealer that submitted a Bid or a Sell Order on behalf of a Potential
Beneficial Owner or a Beneficial Owner shall, in such manner and at such time
or
times as in its sole discretion it may determine, allocate any funds received
by
it pursuant to (b)(i) above and any Tortoise Notes received by it pursuant
to
(b)(ii) above among the Potential Beneficial Owners, if any, on whose behalf
such Broker-Dealer submitted Bids, the Beneficial Owners, if any, on whose
behalf such Broker-Dealer submitted Bids that were accepted or Sell Orders,
and
any Broker-Dealer or Broker-Dealers identified to it by the Auction Agent
pursuant to (a)(v) or (a)(vi) above.
(d) On
each Auction Date:
(i) each
Potential Beneficial Owner and Beneficial Owner shall instruct its Agent Member
as provided in (b)(i) or (ii) above, as the case may be;
(ii) each
Seller’s Broker-Dealer which is not an Agent Member of the Securities Depository
shall instruct its Agent Member to (A) pay through the Securities Depository
to
the Agent Member of the Beneficial Owner delivering Tortoise Notes to such
Broker-Dealer pursuant to (b)(ii) above the amount necessary to purchase such
Tortoise Notes against receipt of such Tortoise Notes, and (B) deliver such
Tortoise Notes through the Securities
A-2
Depository
to a Buyer’s Broker-Dealer (or its Agent Member) identified to such Seller’s
Broker-Dealer pursuant to (a)(v) above against payment therefor;
and
(iii) each
Buyer’s Broker-Dealer which is not an Agent Member of the Securities Depository
shall instruct its Agent Member to (A) pay through the Securities Depository
to
a Seller’s Broker-Dealer (or its Agent Member) identified pursuant to (a)(vi)
above the amount necessary to purchase the Tortoise Notes to be purchased
pursuant to (b)(i) above against receipt of such Tortoise Notes, and (B) deliver
such Tortoise Notes through the Securities Depository to the Agent Member of
the
purchaser thereof against payment therefor.
(e) On
the day after the Auction Date:
(i) each
Bidder’s Agent Member referred to in (d)(i) above shall instruct the Securities
Depository to execute the transactions described in (b)(i) or (ii) above, and
the Securities Depository shall execute such transactions;
(ii) each
Seller’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d)(ii) above, and the
Securities Depository shall execute such transactions; and
(iii) each
Buyer’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d)(iii) above, and the
Securities Depository shall execute such transactions.
(f) If
a Beneficial Owner selling Tortoise Notes in an Auction fails to deliver such
Tortoise Notes (by authorized book-entry), a Broker-Dealer may deliver to the
Potential Beneficial Owner on behalf of which it submitted a Bid that was
accepted a number of whole Tortoise Notes that is less than the number of
Tortoise Notes that otherwise was to be purchased by such Potential Beneficial
Owner. In such event, the number of Tortoise Notes to be so delivered
shall be determined solely by such Broker-Dealer. Delivery of such
lesser number of Tortoise Notes shall constitute good
delivery. Notwithstanding the foregoing terms of this paragraph (f),
any delivery or non-delivery of Tortoise Notes which shall represent any
departure from the results of an Auction, as determined by the Auction Agent,
shall be of no effect unless and until the Auction Agent shall have been
notified of such delivery or non-delivery in accordance with the provisions
of
the Auction Agency Agreement and the Broker-Dealer Agreements.
A-3
EXHIBIT
B
AUCTION
BID FORM
Submit
To:
|
Issue:
|
Tortoise
Notes of Tortoise Energy Infrastructure
Corporation
|
The
undersigned Broker-Dealer submits the following Order on behalf of the Bidder
listed below:
Name
of
Bidder:______________________
BENEFICIAL
OWNER
Notes
now
held ______________________ HOLD
__________________
BID
at
rate of _____________________
SELL___________________
POTENTIAL
BENEFICIAL OWNER
#
of
Notes___________
BID at rate of___________ Notes:
|
(1)
|
If
submitting more than one Bid for one Bidder, use additional Auction
Bid
Forms.
|
|
(2)
|
If
one or more Bids covering in the aggregate more than the number of
outstanding Tortoise Notes held by any Beneficial Owner are submitted,
such bid shall be considered valid in the order of priority set forth
in
the Auction Procedures on the above
issue.
|
|
(3)
|
A
Hold or Sell Order may be placed only by a Beneficial Owner covering
a
number of Tortoise Notes not greater than the number of Tortoise
Notes
currently held.
|
|
(4)
|
Potential
Beneficial Owners may make only Bids, each of which must specify
a
rate. If more than one Bid is submitted on behalf of any
Potential Beneficial Owner, each Bid submitted shall be a separate
Bid
with the rate specified.
|
|
(5)
|
Bids
may contain no more than three figures to the right of the decimal
point
(.001 of 1%). Fractions will not be
accepted.
|
|
(6)
|
An
Order must be submitted in whole Tortoise
Notes.
|
B-1
___________________________________________
Authorized
Signature:
Name:
Title: |
B-2
EXHIBIT
C
(Note:
To
be used only for transfers made other than pursuant to an Auction)
TRANSFER
FORM
|
Re:
|
____________________________________________Series_________________
|
|
(“Tortoise
Notes”)
|
We
are
(check one):
[ ] the
Existing Holder named below;
[ ] the
Broker-Dealer for such Beneficial Owner; or
[ ] the
Agent Member for such Existing Holder.
We
hereby
notify you that such Beneficial Owner has transferred
_________ Tortoise Notes to
__________________________________
______________________________________
(Name
of Existing Holder)
|
|
______________________________________
(Name
of Broker-Dealer)
|
|
______________________________________
(Name
of Agent Member)
|
|
By:______________________________________
Printed
Name:
Title
|
C-1
EXHIBIT
D
(Note:
To
be used only for failures to deliver or to pay for
Tortoise
Notes sold pursuant to an Auction)
NOTICE
OF
A FAILURE TO DELIVER
We
are a
Broker-Dealer for _____________________ (the “Purchaser”), which purchased _____
Tortoise Notes, Series _____ of ____________________________________ in the
Auction held on ____________________ from the seller of such Tortoise
Notes.
We
hereby
notify you that (check one):
______
the Seller failed to deliver such Tortoise Notes to the Purchaser.
______
the Purchaser failed to make payment to the Seller upon delivery of such
Tortoise Notes.
Name:
By:
Printed
Name:
Title:
|
D-1