EXHIBIT K.4
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
__________________
AUCTION AGENCY AGREEMENT
dated as of ________ __, 2004
relating to the
MONEY MARKET CUMULATIVE PREFERRED(R) SHARES
The Bank of New York
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of ________
__, 2004, is between Tortoise Energy Infrastructure Corporation (the "Company")
and The Bank of New York.
The Company proposes to issue an aggregate of _,000 shares of its Money
Market Cumulative Preferred(R) 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(R) Shares (the "Articles Supplementary").
The Company desires that The Bank of New York 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 The Bank of New York as said Auction Agent and
Paying Agent in accordance with those terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Articles Supplementary.
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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 of Money Market Cumulative Preferred(R) Shares of the
Company dated ____________, 2004, 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
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to the Dealing and Trading Group of its Corporate Trust Division and
every other officer or employee of the Auction Agent designated an
"Authorized Officer" for purposes hereof in a written communication
delivered to the 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. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
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Settlement Procedures.
----------------------
(a) The Board of Directors of the Company has adopted a
resolution appointing The Bank of New York as Auction Agent for
purposes of the Auction Procedures. The Auction Agent hereby accepts
such appointment and agrees that, on each Auction Date, it shall follow
(i) the procedures set forth in this Section 2 and (ii) the Auction
Procedures for the purpose of determining the Applicable Rate for the
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
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Holders.
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(a) As of the date hereof, the Company shall provide the
Auction Agent with a list of the Broker-Dealers and shall deliver to
the Auction Agent for execution by the Auction Agent a Broker-Dealer
Agreement signed by each such Broker-Dealer. Not later than five
Business Days prior to any Auction Date for which any change in such
list of Broker-Dealers is to be effective, the Company shall notify the
Auction Agent in writing of such change and, if any such change is the
addition of a Broker-Dealer to such list, the Company shall cause to be
delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent
shall have entered into a Broker-Dealer Agreement with each
Broker-Dealer prior to the participation of any such Broker-Dealer in
any Auction.
(b) In the event that the Auction Date for any Auction shall
be changed after the Auction Agent shall have given the notice referred
to in paragraph (a) of the Settlement Procedures, the Auction Agent, by
such means as the Auction Agent reasonably deems practicable, shall
give notice of such change to the Broker-Dealers not later than the
earlier of 9:15 a.m. on the new Auction Date or 9:15 a.m. on the old
Auction Date.
(c) The provisions contained in Section 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 mailed 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 Auction preceding the date of redemption, the Auction
Agent shall request each Agent Member so identified to
disclose to the Auction Agent (upon selection by such Agent
Member of the Existing Holders whose 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. The Auction
Agent shall rescind a transfer made on the registry of the
Existing Holders of any MMP Shares if the Auction Agent has
been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent
Member or the Broker-Dealer of any Person that (i) purchased
any MMP Shares and the seller failed to deliver such MMP
Shares or (ii) sold any MMP Shares and the purchaser failed to
make payment to such Person upon delivery to the purchaser of
such MMP Shares.
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(f) The Auction Agent may, but shall have no obligation to,
request that the Broker-Dealers, as set forth in Section 3.2(c) of the
Broker-Dealer Agreements, provide the Auction Agent with a list of
their respective customers that such Broker-Dealers believe are
Beneficial Owners of 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
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.
Time Event
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By 9:30 a.m. The Auction Agent shall advise the Company
and the Broker-Dealers of the Reference
Rate and the Maximum Rate as set forth in
Section 2.2(d) hereof.
9:30 a.m. - 1:00 p.m. The Auction Agent shall assemble
information communicated to it by
Broker-Dealers as provided in Section 2
of 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 3 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 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
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Articles Supplementary.
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.
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(a) 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) 1/4 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
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approval shall not be withheld unreasonably. Notwithstanding the
foregoing, the Company may designate an Affiliate or ▇▇▇▇▇▇ 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
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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, to review and make extracts or copies of (at the Company's sole cost and
expense), access to all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
Company requesting that the Auction Agent afford such person access. The Auction
Agent shall maintain records relating to any Auction for a period of at least
six years after such Auction, and such records, in reasonable detail, shall
reflect accurately and fairly the actions taken by the Auction Agent hereunder.
The Company agrees to keep confidential any information regarding the customers
of any Broker-Dealer received from the Auction Agent in connection with this
Agreement or any Auction, and shall not disclose such information or permit the
disclosure of such information without the prior 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 such 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.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
-----------------
The Board of Directors of the Company has adopted resolutions
appointing The Bank of New York as Auction Agent and Paying Agent. The Paying
Agent hereby accepts such appointment and agrees to act in accordance with its
standard procedures and the provisions of the 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 each Holder of MMP
Shares being redeemed and to the Paying Agent pursuant to Section 3(b) of Part I
of the Articles Supplementary.
3.3 The Company to Provide Funds for Dividends and Redemptions.
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(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 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
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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.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
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.
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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 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, 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.
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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.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Company.
----------------------------------------------
The Company represents and warrants to the Auction Agent that:
(i) the Company has been duly organized and is
validly existing as a corporation under the laws of the State
of Maryland, and has full power to execute and deliver this
Agreement and to authorize, create and issue the 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;
(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;
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(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.
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.
(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
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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.
(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.
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(h) All the rights, privileges, immunities and protections
granted to the Auction Agent herein are deemed granted to the Paying
Agent and The Bank of New York in any of the capacities it undertakes
in connection with this Agreement.
(i) Whenever in the administration of the provisions of this
Agreement, the Auction Agent shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering any
action to be taken hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence
of 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.
(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
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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.
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 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:
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If to the Company,
addressed to:
Tortoise Energy Infrastructure Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Auction Agent, addressed to:
The Bank of New York
Corporate Trust Department
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Dealing & Trading Group - Auction Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
-----------------------------
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
7.3 Entire Agreement.
-----------------
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof, except for written
agreements relating to the compensation of the Auction Agent.
7.4 Benefits.
---------
Nothing herein, express or implied, shall give to any Person, other
than the Company, the Auction Agent and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim hereunder.
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.
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(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such right or remedy with respect
to any subsequent breach.
7.6 Successors and Assigns.
-----------------------
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by, the respective successors and permitted assigns of each of the
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
7.7 Severability.
-------------
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts.
--------------------------
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
7.9 Governing Law, Jurisdiction, Waiver of Trial By Jury.
-----------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND
PROCEEDINGS ARISING OUT OF THIS AUCTION AGENCY AGREEMENT OR ANY TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF
MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK.
EACH PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF
NEW YORK AND STATE OF NEW YORK WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME. EACH OF THE PARTIES HERETO ALSO IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17
7.10 Limitation of Liability. A copy of the Articles of Incorporation
of the Company is on file with the Secretary of State of the State of Maryland.
This Agreement has been executed on behalf of the Company by an officer of the
Company in such capacity and not individually and the obligations of the Company
under this Agreement are not binding upon such officer or the shareholders of
the Company individually but are binding only upon the assets and property of
the Company.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THE BANK OF NEW YORK
By:_______________________________________
Name:
Title:
19
EXHIBIT A
---------
FORM OF BROKER-DEALER AGREEMENT
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