BROKER-DEALER AGREEMENT
EXHIBIT
k.6
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 issue an aggregate of _____ shares of its Series __ Tortoise
Auction Preferred Shares, $0.001 par value per share, liquidation preference
of
$25,000 per share, authorized by, and subject to the terms and conditions of,
the Articles Supplementary of Series __ Tortoise Auction Preferred Shares (the
“Articles Supplementary”).
The
Articles Supplementary provide that for each Dividend Period of outstanding
Tortoise Auction Preferred Shares following the initial Dividend Period, the
Applicable Rate for Tortoise Auction Preferred Shares shall equal the rate
per
annum that results from an Auction for outstanding Tortoise Auction Preferred
Shares. 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 Articles Supplementary.
Capitalized
terms used herein but not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2 Terms
Defined Herein.
As
used
herein, the following terms shall have the following meanings, unless the
context otherwise requires:
(a) “Articles
Supplementary” shall mean the Articles Supplementary of Tortoise Auction
Preferred Shares of the Company dated _________, ____, specifying the powers,
preferences and rights of the Tortoise Auction Preferred Shares.
(b) “Auction”
shall have the meaning specified in Section 3.1(a) hereof.
(c) “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.
(d) “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
other
officer or employee of the Auction Agent designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Company and
(ii) in the case of the Company, its Chief Financial Officer and every
other officer or employee of the Company designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Auction
Agent.
(e) “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.
(f) “Broker-Dealer
Agreement” shall mean this Agreement and any substantially similar agreement
between the Auction Agent and a Broker-Dealer.
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 DIVIDEND PERIOD.
The
provisions contained in Section 4 of Part I of the Articles Supplementary
concerning the notification of a Special Dividend 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.
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
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Tortoise
Auction Preferred Shares for the next Dividend Period. Each periodic operation
of such procedures is hereinafter referred to as an “Auction.”
(b) All
of the provisions contained in the Auction Procedures 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 Section 17 of Part I of the
Articles Supplementary 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 Auction
Preferred Shares, 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 Auction Preferred
Shares 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 Auction Preferred
Shares. 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
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
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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 Auction Preferred
Shares 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.
(d) If
either of the Company or the Broker-Dealer requests that the Auction Agent
reconcile the number of Tortoise Auction Preferred Shares for which a
Broker-Dealer is listed as the Broker-Dealer in the Tortoise Auction Preferred
Share Register maintained by the Auction Agent pursuant to Section 2.2(e)
of the Auction Agreement with the records of the Broker-Dealers, the Auction
Agent may, but shall not be required to, perform such reconciliation with the
consent of the Company. Any such reconciliation shall be based upon
information provided by the Broker-Dealers and/or the Securities
Depository. If the Auction Agent requires information from the
Securities Depository in order to perform such reconciliation, the Company
shall
request such information from the Securities Depository or authorize the Auction
Agent to request and obtain such information from the Securities
Depository. The fees for services rendered and expenses (including
any charges of the Securities Depository) incurred by the Auction Agent in
performing any such reconciliation shall be paid by the Company; provided,
however, that if such reconciliation was requested by a Broker-Dealer, such
fees
and expenses shall be paid by such Broker-Dealer. If as a result of
any such reconciliation a discrepancy is discovered between the records of
the
Broker-Dealers and the Tortoise Auction Preferred Share Register maintained
by
the Auction Agent pursuant to Section 2.2(e) of the Auction Agreement, such
stock register shall be adjusted to conform to the records of the
Broker-Dealers. If as a result of such reconciliation it is
discovered that there are Tortoise Auction Preferred Shares for which no
Broker-Dealer has made known to the Auction Agent a Securities Depository
participant account, such Tortoise Auction Preferred Shares will be reflected
in
the Tortoise Auction Preferred Share Register maintained by the Auction Agent
pursuant to Section 2.2(e) of the Auction Agreement as belonging to
[Broker-Dealer]. The result of any reconciliation shall be final and
binding upon the Company, the Broker-Dealers and the Auction Agent, absent
manifest error; and, in no event, shall the Auction Agent incur any liability
for any determination or adjustment made in connection with any reconciliation
hereunder.
3.3 Auction
Schedule; Method of Submission of Orders.
(a) The
Company and the Auction Agent shall conduct Auctions for the Tortoise Auction
Preferred Shares 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
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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.
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Time
|
Event
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|
By
10:30 a.m.
|
The
Auction Agent shall advise the Company and the Broker-Dealers of
the
Reference Rate and the Maximum Rate as set forth in Section 3.2(a)
hereof.
|
|
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 Part II of the
Articles Supplementary.
Submission
Deadline is 1:00 p.m.
|
|
Not
earlier than 1:00 p.m.
|
The
Auction Agent shall make determinations pursuant to Section 4 of
Part II of the Articles Supplementary.
|
|
By
approximately 3:00 p.m.
|
The
Auction Agent shall advise the Company of the results of the Auction
as
provided in Section 4(b) of Part II of the Articles
Supplementary. Submitted Bids and Submitted Sell Orders will be
accepted and rejected in whole or in part and Tortoise Auction Preferred
Shares will be allocated as provided in Section 5 of Part II of
the Articles Supplementary.
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| The Auction Agent shall give notice of the Auction results as set forth in Section 3.4(a) hereof. |
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 Part II of the Articles
Supplementary.
(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
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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 Auction
Preferred Shares, 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 Auction Preferred Shares to be transferred to or by any Person that
purchased or sold Tortoise Auction Preferred Shares 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
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 Auction Preferred Shares
in
an Auction fails to deliver such Tortoise Auction Preferred Shares, the
Broker-Dealer of any Person that was to have purchased Tortoise Auction
Preferred Shares in such Auction may deliver to such Person a number of whole
Tortoise Auction Preferred Shares that is less than the number of Tortoise
Auction Preferred Shares that otherwise was to be purchased by such Person.
In
such event, the number of Tortoise Auction Preferred Shares to be so delivered
shall be determined by such Broker-Dealer. Delivery of such lesser number of
Tortoise Auction Preferred Shares shall constitute good delivery. Upon the
occurrence of any such failure to deliver Tortoise Auction Preferred Shares,
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 Auction Preferred
Shares 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.
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3.5 Service
Charge to be Paid to Broker-Dealer.
On
each
Dividend 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
Dividend Period of less than one year, the product of (A) a fraction the
numerator of which is the number of days in the Dividend Period (calculated
by
counting the first day of such Dividend Period but excluding the last day
thereof) and the denominator of which is 360, times (B) ¼ of 1%, times
(C) $25,000 times (D) the sum of the aggregate number of Tortoise
Auction Preferred Shares placed by such Broker-Dealer, or (ii) the amount
mutually agreed upon by the Company and the Broker-Dealers in the case of any
Auction immediately preceding a Dividend Period of one year or longer. For
the
purposes of the preceding sentence, the Tortoise Auction Preferred Shares shall
be placed by a Broker-Dealer if such shares were (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 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 (iii) a valid Hold Order. For the avoidance of
doubt, only one Broker-Dealer shall be considered to have placed a particular
Tortoise Auction Preferred Share at any particular Auction for purposes of
this
Section 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.
(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.
(d) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Auction
Agent be liable for special, indirect, punitive or consequential
damage
7
(or
loss)
of any kind whatsoever (including but not limited to lost profits), even if
the
Auction Agent has been advised of the likelihood of such damage (or loss)
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, 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 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 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.
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(g) All
the rights, privileges, immunities and protections granted to the Auction Agent
herein are deemed granted to the Paying Agent and the Auction Agent in any
of
the capacities it undertakes in connection with this Agreement.
(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; provided, however, that the Broker-Dealer may suspend its
duties hereunder immediately if it determines, in its reasonable judgment,
that
for any reason, including, without limitation, (a) a pending or proposed
change in applicable tax laws, (b) a material adverse change in the
financial condition of the Company, (c) hostilities involving the United
States, (d) a down-rating of the Tortoise Auction Preferred Shares, or
(e) an imposition of material restrictions on the Tortoise Auction
Preferred Shares or similar securities or obligations, it is not advisable
to
attempt to auction the Tortoise Auction Preferred Shares. This
Agreement shall automatically terminate upon the redemption of all outstanding
Tortoise Auction Preferred Shares 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
9
consistent
with accepted practices in the banking industry to resume performance as soon
as
practicable under the circumstances.
5.3 Participant
in Securities Depository; Payment of Dividends 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 dividend payments on the Tortoise Auction Preferred
Shares available in same-day funds on each Dividend 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:
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If
to the Auction Agent, addressed to:
|
[Auction
Agent]
[Address]
________________________
________________________
Attention: __________________________
Telephone: ________________
Facsimile: ________________
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|
If
to the Broker-Dealer, addressed to:
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[Broker-Dealer]
[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 Broker-
10
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.
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
11
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 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]
12
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 | |||
13
EXHIBIT A
SETTLEMENT
PROCEDURES
Capitalized
terms used herein shall have the respective meanings specified in the Articles
Supplementary.
(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 Dividend 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 Auction Preferred
Shares, 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 Auction Preferred Shares,
if
any, to be purchased by such Potential Beneficial Owner;
(v) if
the aggregate number of Tortoise Auction Preferred Shares 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 Auction Preferred Shares 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 Auction Preferred
Shares and the number of such Tortoise Auction Preferred Shares 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 Auction Preferred Shares to be purchased by
all
Potential Beneficial Owners on whose behalf such Broker-Dealer submitted a
Bid
exceeds the aggregate number of Tortoise Auction Preferred Shares 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 Auction Preferred
Shares and the number of such Tortoise Auction Preferred Shares 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
A-1
(vii) the
Auction Date of the next succeeding Auction with respect to the Tortoise Auction
Preferred Shares.
(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 Auction Preferred Shares to be purchased pursuant to such Bid against
receipt of such Tortoise Auction Preferred Shares and advise such Potential
Beneficial Owner of the Applicable Rate for the next succeeding Dividend
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 Auction Preferred Shares to be sold pursuant to such Order against
payment therefor and advise any such Beneficial Owner that will continue to
hold
Tortoise Auction Preferred Shares of the Applicable Rate for the next succeeding
Dividend Period;
(iii) advise
each Beneficial Owner on whose behalf such Broker-Dealer submitted a Hold Order
of the Applicable Rate for the next succeeding Dividend 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 Auction Preferred Shares
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;
A-2
(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 Auction Preferred
Shares to such Broker-Dealer pursuant to (b)(ii) above the amount necessary
to
purchase such Tortoise Auction Preferred Shares against receipt of such Tortoise
Auction Preferred Shares, and (B) deliver such Tortoise Auction Preferred
Shares through the Securities 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 Auction Preferred Shares
to
be purchased pursuant to (b)(i) above against receipt of such Tortoise Auction
Preferred Shares, and (B) deliver such Tortoise Auction Preferred Shares
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 Auction Preferred Shares in an Auction fails
to deliver such Tortoise Auction Preferred Shares (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 Auction
Preferred Shares that is less than the number of Tortoise Auction Preferred
Shares that otherwise was to be purchased by such Potential Beneficial Owner.
In
such event, the number of Tortoise Auction Preferred Shares to be so delivered
shall be determined solely by such Broker-Dealer. Delivery of such lesser number
of Tortoise Auction Preferred Shares shall constitute good delivery.
Notwithstanding the foregoing terms of this paragraph (f), any delivery or
non-delivery of Tortoise Auction Preferred Shares 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
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Submit
To:
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Issue:
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Tortoise
Auction Preferred Shares of Tortoise
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Energy
Infrastructure Corporation
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The
undersigned Broker-Dealer submits the following Order on behalf of the Bidder
listed below:
Name
of
Bidder: _______________________________________
BENEFICIAL
OWNER
Shares
now held ____________________ HOLD _________________________
BID
at
rate of ________________________
SELL
______________________________
POTENTIAL
BENEFICIAL OWNER
#
of
Preferred Shares __________________
:
BID
at
rate of ________________________
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(1)
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If
submitting more than one Bid for one Bidder, use additional Auction
Bid
Forms.
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(2)
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If
one or more Bids covering in the aggregate more than the number of
outstanding Tortoise Auction Preferred Shares 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.
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(3)
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A
Hold or Sell Order may be placed only by a Beneficial Owner covering
a
number of Tortoise Auction Preferred Shares not greater than the
number of
Tortoise Auction Preferred Shares currently
held.
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(4)
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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.
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(5)
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Bids
may contain no more than three figures to the right of the decimal
point
(.001 of 1%). Fractions will not be
accepted.
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(6)
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An
Order must be submitted in whole Tortoise Auction Preferred Shares
having
an aggregate liquidation preference of $25,000 or integral increments
in
excess thereof.
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B-1
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| 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:
_____________________________________________________________
(“Tortoise
Auction Preferred Shares”)
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
Auction Preferred Shares to ______________________________
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| (Name of Existing Holder) | |||
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| (Name of Broker-Dealer) | |||
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| (Name of Agent Member) | |||
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By:
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Printed Name: | |
| Title: |
C-1
EXHIBIT D
(Note:
To
be used only for failures to deliver or to pay for Tortoise Auction Preferred
Shares sold pursuant to an Auction)
NOTICE
OF
A FAILURE TO DELIVER
We
are a
Broker-Dealer for _______________ (the [“Purchaser”] [“Seller”]), which
[purchased] [sold] _____ Tortoise Auction Preferred Shares of
____________________ in the Auction held on ____________________ from the
[seller] [purchaser] of such Tortoise Auction Preferred Shares.
We
hereby
notify you that (check one):
the
Seller failed to deliver such Tortoise Auction Preferred Shares to the
Purchaser. _______________
the
Purchaser failed to make payment to the Seller upon delivery of ___________
such
Tortoise Auction Preferred Shares.
| Name: ____________________________________ |
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By:
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| Printed Name: | |||
| Title: | |||
D-1
