TORTOISE ENERGY INFRASTRUCTURE CORPORATION AUCTION AGENCY AGREEMENT dated as of ________, 2007 relating to the SERIES __ MONEY MARKET CUMULATIVE PREFERRED® SHARES [Auction-Agent] as Auction Agent
EXHIBIT
k.4
_______________
dated
as
of ________, 2007
relating
to the
SERIES
__
MONEY MARKET CUMULATIVE PREFERRED®
SHARES
[Auction-Agent]
as
Auction Agent
This
Auction Agency Agreement (this “Agreement”), dated as of ________, 2007, is
between Tortoise Energy Infrastructure Corporation (the “Company”) and [Auction
Agent].
The
Company proposes to issue an aggregate of ____ shares of its Series __ Money
Market Cumulative Preferred®
Shares,
$0.001 par value per share, liquidation preference of $25,000 per share (the
“MMP Shares”), authorized by, and subject to the terms and conditions of, the
Articles Supplementary of Money Market Cumulative Preferred®
Shares.
The
Company desires that [Auction Agent] perform certain duties as agent in
connection with each Auction of MMP Shares (in such capacity, the “Auction
Agent”), and as the transfer agent, registrar, dividend paying agent and
redemption agent with respect to the MMP Shares (in such capacity, the “Paying
Agent”), upon the terms and conditions set forth in this Agreement, and the
Company hereby appoints [Auction Agent] as said Auction Agent and Paying
Agent
in accordance with those terms and conditions.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Company and the Auction Agent agree as follows:
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I.
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DEFINITIONS
AND RULES OF CONSTRUCTION.
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1.1 Terms
Defined by Reference to the Articles Supplementary.
Capitalized
terms used herein but not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2 Certain
Defined Terms.
As
used
herein and in the Settlement Procedures, the following terms shall have the
following meanings, unless the context otherwise requires:
(a) “Agent
Member” shall mean a member of, or participant in, the Securities Depository
that will act on behalf of a Bidder.
(b) “Articles
Supplementary” shall mean the Articles Supplementary for the Series __ Money
Market Cumulative Preferred®
Shares
of the Company dated ________, 2007, specifying the powers, preferences and
rights of the MMP Shares.
(c) “Auction”
shall have the meaning specified in Section 2.1 hereof.
(d) “Auction
Procedures” shall mean the procedures as from time to time in effect for
conducting Auctions that are set forth in Part II of the Articles
Supplementary.
(e) “Authorized
Officer” shall mean (i) in the case of the Auction Agent, each Vice President,
Assistant Vice President and Assistant Treasurer of the Auction Agent assigned
to the Dealing and Trading Group of its Corporate Trust Division and
every
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other
officer or employee of the Auction Agent designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Company and (ii)
in
the case of the Company, its Treasurer and every other officer or employee
of
the Company designated an “Authorized Officer” for purposes hereof in a written
communication delivered to the Auction Agent.
(f) “Broker-Dealer
Agreement” shall mean each agreement between the Auction Agent and a
broker-dealer substantially in the form attached hereto as Exhibit
A.
(g) “Closing”
shall mean the date the Company consummates the transactions for the issuance
and sale of the MMP Shares.
(h) “Company
Officer” shall mean the President, each Vice President (whether or not
designated by a number or word or words added before or after the title “Vice
President”), the Secretary, the Treasurer, each Assistant Secretary and each
Assistant Treasurer of the Company and every other officer or employee of
the
Company designated as a “Company Officer” for purposes hereof in a notice from
the Company to the Auction Agent.
(i) “Holder”
means, with respect to MMP Shares, the registered holder of MMP Shares as
the
same appears on the share ledger or share records of the Company.
(j) “Rate
Multiple” shall have the meaning assigned to it in Section 2.8.
(k) “Settlement
Procedures” shall mean the Settlement Procedures attached as Exhibit A to the
Broker-Dealer Agreement.
1.3 Rules
of Construction.
Unless
the context or use indicates another or different meaning or intent, the
following rules shall apply to the construction of this Agreement:
(a) Words
importing the singular number shall include the plural number and vice
versa.
(b) The
captions and headings herein are solely for convenience of reference and
shall
not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
(c) The
words
“hereof,” “herein,” “hereto” and other words of similar import refer to this
Agreement as a whole.
(d) All
references herein to a particular time of day shall be to New York City
time.
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II.
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THE
AUCTION.
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2.1 Purpose;
Incorporation by Reference of Auction Procedures and Settlement
Procedures.
(a) The
Board
of Directors of the Company has adopted a resolution appointing [Auction
Agent]
as Auction Agent for purposes of the Auction Procedures. The Auction Agent
hereby accepts such appointment and agrees that, on each Auction Date, it
shall
follow (i) the procedures set forth in this Section 2 and (ii) the Auction
Procedures for the purpose of determining the Applicable Rate for the MMP
Shares
for the next Dividend Period. Each periodic operation of such procedures
is
hereinafter referred to as an “Auction.”
(b) All
of
the provisions contained in the Auction Procedures and in the Settlement
Procedures are incorporated herein by reference in their entirety and shall
be
deemed to be a part of this Agreement to the same extent as if such provisions
were set forth fully herein. In the case of any conflict between the terms
of
any document incorporated herein by reference and the terms hereof, the terms
in
this agreement shall control.
2.2 Preparation
for Each Auction; Maintenance of Registry of Existing Holders.
(a) As
of the
date hereof, the Company shall provide the Auction Agent with a list of the
Broker-Dealers and shall deliver to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer.
Not
later than five Business Days prior to any Auction Date for which any change
in
such list of Broker-Dealers is to be effective, the Company shall notify
the
Auction Agent in writing of such change and, if any such change is the addition
of a Broker-Dealer to such list, the Company shall cause to be delivered
to the
Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement
signed by such Broker-Dealer. The Auction Agent shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation
of
any such Broker-Dealer in any Auction.
(b) In
the
event that the Auction Date for any Auction shall be changed, the Auction
Agent,
by such means as the Auction Agent reasonably deems practicable, shall give
notice of such change to the Broker-Dealers not later than the earlier of
9:15
a.m. on the new Auction Date or 9:15 a.m. on the old Auction Date.
(c) The
provisions contained in Section 4(b) of Part I of the Articles Supplementary
concerning Special Dividend Periods and the notification of a Special Dividend
Period will be followed by the Company and, to the extent applicable, the
Auction Agent, and the provisions contained therein are incorporated herein
by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully
herein.
(d) 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.
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(e) (i)
The
Auction Agent shall maintain a registry of the Existing Holders of the MMP
Shares (the “MMP Shares Register”) for purposes of Auctions and shall indicate
thereon the identity of the Broker-Dealer that submitted the most recent
Order
in any Auction, which resulted in such Existing Holder continuing to hold
or
purchase such MMP Shares. The Auction Agent may consider a Broker-Dealer
which
has submitted an Order as the Existing Holder for the purposes of the MMP
Shares
Register; provided, that the Auction Agent may request the Broker-Dealer
to
provide a list of its customers if in its sole discretion it determines to
do
so. The Auction Agent may conclusively rely upon the information furnished
to
the Auction Agent by the Broker-Dealer and notices from the Securities
Depository regarding the results of redemptions or mandatory
tenders.
(ii) In
the
event of any partial redemption of MMP Shares, upon notice by the Company
to the
Auction Agent of such partial redemption (delivered at least one day prior
to
the date a notice of redemption is required to be given to the Holders of
the
MMP shares to be redeemed), 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 MMP Shares) from the accounts of which
MMP Shares have been called for redemption and the person or department at
such
Agent Member to contact regarding such redemption. At least two Business
Days
prior to the date of redemption, the Auction Agent shall request each Agent
Member so identified to disclose to the Auction Agent (upon selection by
such
Agent Member of the Existing Holders whose MMP Shares are to be redeemed)
the
number of MMP Shares of each such Existing Holder, if any, to be redeemed
by the
Company, provided that the Auction Agent has been furnished with the name
and
telephone number of a person or department at such 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 MMP Shares shown in the Auction Agent's
registry of Existing Holders.
(iii) The
Auction Agent shall register a transfer of the ownership of MMP Shares from
an
Existing Holder to another Existing Holder, or to another Person if permitted
by
the Company, only if (A) such transfer is made pursuant to an Auction or
(B) if
such transfer is made other than pursuant to an Auction, the Auction Agent
has
been notified of such transfer in writing, in a notice substantially in the
form
of Exhibit C to the Broker-Dealer Agreement, by such Existing Holder or by
the
Agent Member of such Existing Holder only to or through a Broker-Dealer that
has
entered into a Broker-Dealer Agreement with the Auction Agent and the Company
or
other persons as the Company permits. The Auction Agent is not required to
accept any notice of transfer delivered for an Auction unless it is received
by
the Auction Agent by 3:00 p.m. on the Business Day preceding the Auction.
(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
4
believe
are Beneficial Owners of MMP Shares. The Auction Agent shall keep confidential
any such information and shall not disclose any such information so provided
to
any Person other than the relevant Broker-Dealer and the Company, provided
that
the Auction Agent reserves the right to disclose any such information if
(a) it
is ordered to do so by a court of competent jurisdiction or a regulatory
body,
judicial or quasi-judicial agency or authority having the authority to compel
such disclosure, (b) it is advised by its counsel in writing that its failure
to
do so would be unlawful or (c) it is advised by its counsel in writing that
failure to do so could expose the Auction Agent to loss, liability, claim
or
damage for which it has not received indemnity or security satisfactory to
it.
2.3 Auction
Schedule.
The
Auction Agent shall conduct Auctions on the Business Day immediately prior
to
the start of each Dividend Period in accordance with the schedule set forth
below. Such schedule may be changed by the Auction Agent with the consent
of the
Company, which consent shall not be withheld unreasonably. The Auction Agent
shall give notice of any such change to each Broker-Dealer. Such notice shall
be
received prior to the first Auction Date on which any such change shall be
effective.
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Time
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Event
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By
9:30 a.m.
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The
Auction Agent shall advise the Company and the Broker-Dealers of
the
Reference Rate and the Maximum Rate as set forth in Section 2.2(d)
hereof.
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9:30
a.m. - 1:00 p.m.
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The
Auction Agent shall assemble information communicated to it by
Broker-Dealers as provided in Section 2 of Part II of the Articles
Supplementary.
Submission
Deadline is 1:00 p.m.
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Not
earlier than 1:00 p.m.
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The
Auction Agent shall make determinations pursuant to Section 3 of
Part II
of the Articles Supplementary.
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By
approximately 3:00 p.m.
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The
Auction Agent shall advise the Company of the results of the Auction
as
provided in Section 3(b) of Part II of the Articles Supplementary.
Submitted Bid Orders and Submitted Sell Orders will be accepted
and
rejected in whole or in part and MMP Shares will be allocated as
provided
in Section 4 of Part II of the Articles Supplementary.
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5
| 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 Dividend Period for the
related MMP Shares by telephone or other electronic means acceptable to the
parties. The Auction Agent, unless instructed otherwise in writing by the
Company, is authorized to release the Winning Bid Rate after each Auction
for
public dissemination.
2.5 Broker-Dealers.
(a) On
each
Dividend Payment Date immediately succeeding the Auction Date, the Auction
Agent
shall, promptly after its receipt of funds from the Company, pay to each
Broker-Dealer a service charge in the amount equal to: (i) in the case of
any
Auction immediately preceding a Dividend Period of less than one year, the
product of (A) a fraction the numerator of which is the number of days in
the
Dividend Period (calculated by counting the first day of such Dividend Period
but excluding the last day thereof) and the denominator of which is 360,
times
(B) ¼ of 1%, times (C) $25,000 times (D) the sum of the aggregate number of MMP
Shares 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 Dividend Period of one year or longer. For the purposes of the
preceding sentence, the MMP Shares shall be placed by a Broker-Dealer if
such
shares were (1) the subject of Hold Orders deemed to have been submitted
to the
Auction Agent by the Broker-Dealer and were acquired by the Broker-Dealer
for
its own account or were acquired by the Broker-Dealer for its customers who
are
Beneficial Owners or (2) the subject of an Order submitted by the Broker-Dealer
that is (a) a Submitted Bid of an Existing Holder that resulted in the Existing
Holder continuing to hold the shares as a result of the Auction or (b) a
Submitted Bid of a Potential Holder that resulted in the Potential Holder
purchasing the shares as a result of the Auction or (3) the subject of a
valid
Hold Order. For the avoidance of doubt, only one Broker-Dealer shall be
considered to have placed a particular MMP Share at any particular Auction
for
purposes of this Section 2.5(a).
(b) The
Company shall not designate any Person to act as a Broker-Dealer, or permit
an
Existing Holder or a Potential Beneficial Owner to participate in Auctions
through any Person other than a Broker-Dealer, without the prior approval
of the
Auction Agent, which approval shall not be withheld unreasonably.
Notwithstanding the
6
foregoing,
the Company may designate an Affiliate of Xxxxxx Brothers Inc. to act as
a
Broker-Dealer.
(c) The
Auction Agent shall terminate any Broker-Dealer Agreement as set forth therein
if so directed by the Company.
(d) Subject
to Section 2.5(b) hereof, the Auction Agent from time to time shall enter
into
such Broker-Dealer Agreements as the Company shall request in writing.
(e) The
Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership
of MMP Shares and Submission of Bids by the Company and Its
Affiliates.
Neither
the Company nor any Affiliate of the Company may submit an Order in any Auction,
except that an Affiliate of the Company that is a Broker-Dealer may submit
an
Order. The Company shall notify the Auction Agent if the Company or, to the
best
of the Company's knowledge, any Affiliate of the Company becomes a Beneficial
Owner of any MMP Shares. The restrictions in this Section 2.6 shall in no
way
limit the activities of the Auction Agent. The Auction Agent shall have no
duty
or liability with respect to enforcement of this Section 2.6.
2.7 Access
to and Maintenance of Auction Records.
The
Auction Agent shall afford to the Company, its agents, independent public
accountants and counsel, at reasonable times during normal business hours,
access to all books, records, documents and other information concerning
the
conduct and results of Auctions, to review and make extracts or copies of
(at
the Company's sole cost and expense), provided that any such agent, accountant
or counsel shall furnish the Auction Agent with a letter from the Company
requesting that the Auction Agent afford such person access. The Auction
Agent
shall maintain records relating to any Auction for a period of at least six
years after such Auction, and such records, in reasonable detail, shall reflect
accurately and fairly the actions taken by the Auction Agent hereunder. The
Company agrees to keep confidential any information regarding the customers
of
any Broker-Dealer received from the Auction Agent in connection with this
Agreement or any Auction, and shall not disclose such information or permit
the
disclosure of such information without the prior written consent of the
applicable Broker-Dealer to anyone except such agent, accountant or counsel
engaged to audit or review the results of Auctions as permitted by this Section
2.7. The Company reserves the right to disclose any such information if it
is
ordered to do so by a court of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having authority to compel
such
disclosure, or if it is advised by its counsel that its failure to do so
would
be unlawful. Any such agent, accountant or counsel, before having access
to such
information, shall agree to keep such information confidential and not to
disclose such information or permit disclosure of such information without
the
prior written consent of the applicable Broker-Dealer, provided that such
agent,
accountant or counsel may reserve the right to disclose any such information
if
it is ordered to do so by a court of competent jurisdiction or a regulatory
body, judicial or quasi-judicial agency or authority having authority to
compel
such disclosure, or if it is advised by its counsel that its failure to do
so
would be unlawful.
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2.8 Information
Concerning Rates.
If
there
is any change in the credit rating of MMP Shares by a Rating Agency (or
substitute or successor Rating Agencies) then rating the MMP Shares that
results
in any change in the applicable percentage of the Reference Rate used to
determine the Maximum Rate for MMP Shares (the “Rate Multiple”), the Company
shall notify the Auction Agent of such change in the Rate Multiple by no
later
than the Business Day immediately preceding the next Auction Date. In
determining the Maximum Rate on any Auction Date, the Auction Agent shall
be
entitled to rely on the last Rate Multiple for MMP Shares of which it has
most
recently received notice from the Company.
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III.
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THE
AUCTION AGENT AS PAYING AGENT.
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3.1 The
Paying Agent.
The
Board
of Directors of the Company has adopted resolutions appointing [Auction-Agent]
as Auction Agent and Paying Agent. The Paying Agent hereby accepts such
appointment and agrees to act in accordance with its standard procedures
and the
provisions of the Articles Supplementary which are specified herein with
respect
to the MMP Shares and as set forth in this Section 3.
3.2 The
Company's Notices to the Paying Agent.
Whenever
any MMP Shares are to be redeemed, the Company shall mail a Notice of Redemption
by first-class mail, postage prepaid, to the Paying Agent and the Paying
Agent
shall mail such notice by first class mail, postage prepaid, to each Holder
of
MMP Shares being redeemed and pursuant to Section 3(b) of Part I of the Articles
Supplementary.
3.3 The
Company to Provide Funds for Dividends and Redemptions.
(a) Not
later
than 3:00 p.m. on the Business Day preceding each Dividend Payment Date,
the
Company shall deposit with the Paying Agent an aggregate amount of federal
funds
or similar same-day funds equal to the declared dividends to be paid to Holders
on such Dividend Payment Date and shall give the Paying Agent irrevocable
instructions to apply such funds to the payment of such dividends on such
Dividend Payment Date.
(b) If
the
Company shall give a Notice of Redemption, then by 12:00 noon on the date
fixed
for redemption, the Company shall deposit in trust with the Paying Agent
an
aggregate amount of federal funds or similar same-day funds sufficient to
redeem
such MMP Shares called for redemption and shall give the Paying Agent
irrevocable instructions and authority to pay the redemption price to the
Holders of MMP Shares called for redemption upon surrender of the certificate
or
certificates therefor.
3.4 Disbursing
Dividends and Redemption Price.
After
receipt of the federal funds or similar same-day funds and instructions from
the
Company described in Section 3.3 above, the Paying Agent shall pay to the
Holders (or former
8
Holders)
entitled thereto (i) on each corresponding Dividend Payment Date, dividends
on
the MMP Shares, and (ii) on any date fixed for redemption, the redemption
price
of any MMP Shares called for redemption. The amount of dividends for any
Dividend Period to be paid by the Paying Agent to Holders will be determined
by
the Company as set forth in Section 2 of Part I of the Articles Supplementary.
The redemption price to be paid by the Paying Agent to the Holders of any
MMP
Shares called for redemption will be determined as set forth in Section 3
of
Part I of the Articles Supplementary. The Paying Agent shall have no duty
to
determine the redemption price and may rely conclusively on the amount thereof
set forth in the Notice of Redemption.
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IV.
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THE
PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
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4.1 Original
Issue of MMP Share Certificates.
On
the
Original Issue Date for any MMP Share, one certificate for MMP Shares shall
be
issued by the Company and registered in the name of Cede & Co., as nominee
of the Securities Depository, and countersigned by the Paying
Agent.
4.2 Registration
of Transfer or Exchange of MMP Shares.
Except
as
provided in this Section 4.2, the MMP Shares shall be registered solely in
the
name of the Securities Depository or its nominee. If the Securities Depository
shall give notice of its intention to resign as such, and if the Company
shall
not have selected a substitute Securities Depository acceptable to the Paying
Agent prior to such resignation, then, upon such resignation of the Securities
Depository, the MMP Shares, at the Company's request and expense, may be
registered for transfer or exchange, and new certificates thereupon shall
be
issued in the name of the designated transferee or transferees, upon surrender
of the old certificate in form deemed by the Paying Agent to be endorsed
properly for transfer with (a) all necessary endorsers' signatures guaranteed
in
such manner and form and by such guarantor as the Paying Agent may reasonably
require, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement and (c) satisfactory evidence of compliance with all applicable
laws
relating to the collection of taxes in connection with any registration of
transfer or exchange or funds necessary for the payment of such taxes. If
there
is no Securities Depository, at the Company's option and upon its receipt
of
such documents as it deems appropriate, any MMP Shares may be registered
in the
stock register in the name of the Beneficial Owner thereof, and such Beneficial
Owner thereupon will be entitled to receive certificates therefor and required
to deliver certificates thereof upon transfer or exchange thereof at the
Company's expense.
4.3 Removal
of Legend.
Any
request for removal of a legend indicating a restriction on transfer from
a
certificate evidencing MMP Shares shall be accompanied by an opinion of counsel
stating that such legend may be removed and such MMP Shares may be transferred
free of the restriction described in such legend, said opinion to be delivered
under cover of a letter from a Company Officer authorizing the Paying Agent
to
remove the legend on the basis of said opinion.
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4.4 Lost,
Stolen or Destroyed MMP Share Certificates.
The
Paying Agent shall, at the Holder's expense, issue and register replacement
certificates for certificates represented to have been lost, stolen or
destroyed, upon the fulfillment of such requirements as shall be deemed
appropriate by the Company and by the Paying Agent, subject at all times
to
provisions of law, the Articles Supplementary governing such matters and
resolutions adopted by the Board of Directors of the Company with respect
to
lost, stolen or destroyed securities. The Paying Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Company to the Paying Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed
to
be a representation and warranty by the Company to the Paying Agent that
such
issuance will comply with provisions of applicable law and the Articles
Supplementary and resolutions of the Company.
4.5 Disposition
of Canceled Certificates; Record Retention.
The
Paying Agent shall retain share certificates which have been canceled and
any
accompanying documentation thereto in accordance with applicable rules and
regulations of the Commission for at least six calendar years from the date
of
such cancellation. The Paying Agent, upon written request by the Company,
shall
afford to the Company, its agents and counsel access at reasonable times during
normal business hours to review and make extracts or copies (at the Company's
sole cost and expense) of such certificates and accompanying documentation.
Upon
the expiration of this six-year period, the Paying Agent, upon written request
by the Company, shall deliver to the Company the canceled certificates and
any
accompanying documentation. In the event that the Commission requests that
any
or all such records be furnished to it, the Paying Agent shall provide the
Company with prompt written notice of such request so that the Company may
appeal such request and the Paying Agent shall cooperate with the Company
in any
such appeal. In the event that such appeal is unsuccessful, the Paying Agent
shall be permitted to furnish to the Commission, either at its principal
office
or at any regional office, complete, correct and current hard copies of any
and
all records that were requested by the Commission provided that the Paying
Agent
shall exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded to such records. Thereafter, such records shall
not
be destroyed by the Company without the approval of the Paying Agent, which
approval shall not be withheld unreasonably, but will be safely stored for
possible future reference.
4.6 Share
Register.
The
Paying Agent shall maintain the share register, which shall contain a list
of
the Holders, the number of MMP Shares held by each Holder and the address
of
each Holder. The Paying Agent shall record in the share register any change
of
address of a Holder upon notice by such Holder. In case of any written request
or demand for the inspection of the share register or any other books of
the
Company in the possession of the Paying Agent, the Paying Agent will notify
the
Company and secure instructions as to permitting or refusing such inspection.
The Paying Agent reserves the right, however, to exhibit the share register
or
other records to any person in case it is (a) ordered to do so by a court
of
competent jurisdiction or a regulatory body,
10
judicial
or quasi-judicial agency or authority having the authority to compel such
disclosure or (b) advised by its counsel that its failure to do so would
be
unlawful.
4.7 Return
of Funds.
Any
funds
paid to the Paying Agent for the paying of dividends but not applied to the
payment of dividends, including interest earned on such moneys, will, to
the
extent permitted by law, be repaid to the Company at the end of 90 days from
the
date on which such moneys were to have been so applied. Upon written request,
the Company shall be entitled to receive from the Paying Agent, promptly
after
the date fixed for redemption, any cash deposited with the Paying Agent in
excess of (i) the aggregate redemption price of the MMP Shares called for
redemption on such date and (ii) such other amounts, if any, to which Holders
of
MMP Shares called for redemption may be entitled. Any funds so deposited
that
are unclaimed at the end of two years from such redemption date shall, to
the
extent permitted by law, be paid to the Company upon its written request
whereupon the Company shall assume all responsibility and liability for
compliance with any abandoned or unclaimed property law or regulation. Funds,
while deposited with the Auction Agent, will be held in trust for the payment
of
the applicable dividend, redemption price or, as may be applicable under
the
Articles Supplementary, other charges.
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V.
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REPRESENTATIONS
AND WARRANTIES.
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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 MMP Shares;
(ii) the
Company is registered with the Commission under the 1940 Act as a closed-end,
nondiversified, management investment company;
(iii) this
Agreement has been duly and validly authorized, executed and delivered by
the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(iv) the
form
of the certificate evidencing the MMP Shares complies with all applicable
state
and federal laws;
(v) the
MMP
Shares have been duly and validly authorized by the Company and, upon completion
of the initial sale of the MMP Shares and receipt of payment therefor, will
be
validly issued by the Company, fully paid and nonassessable;
11
(vi) at
the
time of the offering of the MMP Shares, the MMP Shares offered will be
registered under the Securities Act and no further action by or before any
governmental body or authority of the United States or of any state thereof
is
required in connection with the execution and delivery of this Agreement
or will
be required in connection with the issuance of the MMP Shares, except such
action as required by applicable state securities laws;
(vii) the
execution and delivery of this Agreement and the issuance and delivery of
the
MMP Shares do not and will not conflict with, violate or result in a breach
of
the terms, conditions or provisions of, or constitute a default under, the
Articles of Incorporation or by-laws of the Company, any order or decree
of any
court or public authority having jurisdiction over the Company or any mortgage,
indenture, contract, agreement or undertaking to which the Company is a party
or
by which it is bound the effect of which conflict, violation, breach or default
would be material to the Company; and
(viii) no
taxes
are payable upon or in respect of the execution of this Agreement or will
be
payable upon or in respect of the issuance of the MMP Shares.
5.2 Representations
and Warranties of the Auction Agent.
The
Auction Agent represents and warrants to the Company that:
(i) the
Auction Agent is duly organized and is validly existing as a banking corporation
in good standing under the laws of the State of New York and has the corporate
power to enter into and perform its obligations under this Agreement;
and
(ii) this
Agreement has been duly and validly authorized, executed and delivered by
the
Auction Agent and constitutes the legal, valid and binding obligation of
the
Auction Agent, enforceable against the Auction Agent in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization and other laws
of
general applicability relating to or affecting creditors' rights and to general
equitable principles.
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VI.
|
THE
AUCTION AGENT.
|
6.1 Duties
and Responsibilities.
(a) The
Auction Agent is acting solely as non-fiduciary agent for the Company hereunder,
has only the duties expressly set forth herein, and owes no duties, fiduciary
or
otherwise to any Person by reason of this Agreement and no implied duties,
fiduciary or otherwise, shall be read into this Agreement against the Auction
Agent.
(b) The
Auction Agent undertakes to perform such duties and only such duties as are
set
forth specifically in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Auction Agent.
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(c) In
the
absence of bad faith or gross negligence on its part, the Auction Agent shall
not be liable for any action taken, suffered or omitted by it, or for any
error
of judgment made by it in the performance of its duties under this Agreement.
The Auction Agent shall not be liable for any error of judgment made in good
faith unless the Auction Agent shall have been grossly negligent in ascertaining
(or failing to ascertain) the pertinent facts.
6.2 Rights
of the Auction Agent.
(a) The
Auction Agent may rely conclusively upon, and shall be fully protected in
acting
or refraining from acting in accordance with, any communication authorized
by
this Agreement and any proper written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper
or
document reasonably believed by it to be genuine and appropriately authorized.
The Auction Agent shall not be liable for acting upon any telephone
communication authorized by this Agreement which the Auction Agent reasonably
believes in good faith, after reasonable inquiry, to have been given by the
Company or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Company or with the Broker-Dealers or with both.
(b) The
Auction Agent may consult with counsel of its choice and the advice of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by the Auction Agent hereunder in good
faith and in reasonable reliance thereon.
(c) The
Auction Agent shall not be required to advance, expend or risk its own funds
or
otherwise incur or become exposed to financial liability in the performance
of
its duties hereunder. Unless otherwise instructed by the Company in writing,
the
Auction Agent (i) shall not be obligated to invest any money received by
it
hereunder and (ii) shall be under no liability for interest on any money
received by it hereunder.
(d) The
Auction Agent may perform its duties and exercise its rights hereunder either
directly or by or through agents or attorneys and shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
by
it with due care hereunder.
(e) The
Auction Agent shall not be responsible or liable for any failure or delay
in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; acts of terrorism;
interruptions, loss or malfunctions of 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.
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(f) The
Auction Agent shall not be required to, and does not, make any representations
as to the validity, accuracy, value or genuineness of any signatures or
endorsements, other than its own and those of its authorized
officers.
(g) Any
corporation into which the Auction Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Auction Agent shall be a party,
or any
corporation succeeding to the dealing and trading business of the Auction
Agent
shall be the successor of the Auction Agent hereunder, with the consent of
the
Company but without the execution or filing of any paper with any party hereto
or any further act on the part of any of the parties hereto, except where
any
instrument of transfer or assignment may be required by law to effect such
succession, anything herein to the contrary notwithstanding.
(h) All
the
rights, privileges, immunities and protections granted to the Auction Agent
herein are deemed granted to the Paying Agent and [Auction-Agent] in any
of the
capacities it undertakes in connection with this Agreement.
(i) Whenever
in the administration of the provisions of this Agreement, the Auction Agent
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action to be taken hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of gross negligence or bad faith on the part of the Auction
Agent, be deemed to be conclusively proved and established by a certificate
describing such action as requested by the Company or the Broker-Dealer,
signed
by the Company or the Broker-Dealer, respectively, and delivered to the Auction
Agent and such certificate, in the absence of gross negligence or bad faith
on
the part of the Auction Agent, shall be full warrant to the Auction Agent
for
any action taken or omitted by it under the provisions of this Agreement
upon
the faith thereof. Upon receipt of any such certificate signed by the Company
or
the Broker-Dealer, the Auction Agent shall promptly provide a copy of said
certificate to the Broker-Dealer or the Company, respectively. The Auction
Agent
shall not be bound to make any investigation into the facts or matters stated
in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement, order, approval or other paper or document
furnished by the Company or the Broker-Dealer, except to the extent that
such
failure to investigate would be deemed gross negligence.
6.3 Compensation,
Expenses and Indemnification.
(a) The
Company shall pay to the Auction Agent from time to time reasonable compensation
for all services rendered by it under this Agreement and under the Broker-Dealer
Agreements as shall be set forth in a separate writing signed by the Company
and
the Auction Agent, subject to adjustments if the MMP Shares no longer are
held
of record by the Securities Depository or its nominee or if there shall be
such
other change as shall increase or decrease materially the Auction Agent's
obligations hereunder or under the Broker-Dealer Agreements.
14
(b) The
Company shall reimburse the Auction Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Auction Agent
in
accordance with any provision of this Agreement and of the Broker-Dealer
Agreements (including the reasonable compensation, expenses and disbursements
of
its agents and counsel), except any expense, disbursement or advance
attributable to the Auction Agent's gross negligence or bad faith, upon
submission to the Company of reasonable documentation thereof. In no event
shall
the Auction Agent be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(c) The
Company shall indemnify the Auction Agent and its officers, directors, employees
and agents for, and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Auction Agent
arising out of or in connection with its agency under this Agreement and
under
the Broker-Dealer Agreements, including the costs and expenses of defending
themselves against any claim of liability in connection with their exercise
or
performance of any of their duties hereunder and thereunder, except such
as may
result from its gross negligence or bad faith.
6.4 Auction
Agent's Disclaimer.
The
Auction Agent makes no representation as to the validity or adequacy of the
Agreement, the Broker-Dealer Agreements or the MMP Shares except to the extent
otherwise set forth in Section 5.2 and except that the Auction Agent hereby
represents that the Agreement has been duly authorized, executed and delivered
by the Auction Agent and constitutes a legal and binding obligation of the
Auction Agent.
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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 MMP Shares remain
outstanding, the Company shall have entered into an agreement with a successor
auction agent. The Auction Agent may terminate this Agreement upon prior
notice
to the Company on the date specified in such notice, which date shall be
no
earlier than 60 days after delivery of such notice. If the Auction Agent
terminates this Agreement while any MMP Shares remain outstanding, the Company
shall use its best efforts to enter into an agreement with a successor auction
agent containing substantially the same terms and conditions as this Agreement.
(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
15
termination
hereof. The Auction Agent's representations, warranties, covenants and
obligations under Section 5.2 hereof shall survive the termination hereof.
Upon
termination of this Agreement, the Auction Agent shall (i) resign as Auction
Agent under the Broker-Dealer Agreements, (ii) at the Company's written request,
deliver promptly to the Company or to another authorized party copies of
all
books and records maintained by it in connection with its duties hereunder,
and
(iii) at the written request of the Company, transfer promptly to the Company
or
to any successor auction agent any funds deposited by the Company with the
Auction Agent (whether in its capacity as Auction Agent or as Paying Agent)
pursuant to this Agreement which have not been distributed previously by
the
Auction Agent in accordance with this Agreement.
7.2 Communications.
Except
for (i) communications authorized to be made by telephone pursuant to this
Agreement or the Auction Procedures and (ii) communications in connection
with
Auctions (other than those expressly required to be in writing), all notices,
requests and other communications to any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given to such party
at its
address or telecopier number set forth below:
If
to the
Company, Tortoise
Energy Infrastructure Corporation
addressed
to:
00000
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000
Attention:
Xxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to the
Auction Agent, [Auction-Agent]
addressed
to:
[Address]
Attention:
Telephone:
Facsimile:
or
such
other address or telecopier number as such party hereafter may specify for
such
purpose by notice to the other party. Each such notice, request or communication
shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer
and
on behalf of the Auction Agent by an Authorized Officer.
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.
16
7.4 Benefits.
Nothing
herein, express or implied, shall give to any Person, other than the Company,
the Auction Agent and their respective successors and assigns, any benefit
of
any legal or equitable right, remedy or claim hereunder.
7.5 Amendment;
Waiver.
(a) This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
(b) Failure
of either party hereto to exercise any right or remedy hereunder in the event
of
a breach hereof by the other party shall not constitute a waiver of any such
right or remedy with respect to any subsequent breach.
7.6 Successors
and Assigns.
This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by,
the respective successors and permitted assigns of each of the Company and
the
Auction Agent. This Agreement may not be assigned by either party hereto
absent
the prior written consent of the other party, which consent shall not be
withheld unreasonably.
7.7 Severability.
If
any
clause, provision or section hereof shall be ruled invalid or unenforceable
by
any court of competent jurisdiction, the invalidity or unenforceability of
such
clause, provision or section shall not affect any of the remaining clauses,
provisions or sections hereof.
7.8 Execution
in Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be
an
original and all of which shall constitute but one and the same
instrument.
7.9 Governing
Law, Jurisdiction, Waiver of Trial By Jury.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING
TO
CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF
NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND PROCEEDINGS ARISING
OUT
OF THIS AUCTION AGENCY AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY
SHALL
BE BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW
YORK,
STATE OF NEW YORK.
EACH
PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK
AND
STATE OF NEW YORK WAS
17
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.
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.
|
[AUCTION
AGENT]
|
||
| By: |
| Name: | ||
| Title: |
19
EXHIBIT
A
FORM
OF
BROKER-DEALER AGREEMENT
20
