EXHIBIT K.4
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
AUCTION AGENCY AGREEMENT
dated as of _____, 2005
relating to the
AUCTION RATE SENIOR NOTES
[__________] SERIES C, DUE ________, ____
The Bank of New York
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of _____,
2005, is between Tortoise Energy Infrastructure Corporation (the "Company") and
The Bank of New York.
The Company proposes to offer $[__________] aggregate principal amount
of auction rate senior notes Series C (the "Tortoise Notes"), authorized by, and
subject to the terms and conditions of, the Supplemental Indenture of Trust by
and between the Company and BNY Midwest Trust Company, in its capacity as
trustee (the "Trustee"), dated _____, 2005 (the "Supplemental Indenture"), which
supplements the Indenture dated July 13, 2004 by and between the Company and the
Trustee.
The Company desires that The Bank of New York perform certain duties as
agent in connection with each Auction of Tortoise Notes (in such capacity, the
"Auction Agent"), upon the terms and conditions set forth in this Agreement, and
the Company hereby appoints The Bank of New York as said Auction Agent in
accordance with those terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Supplemental Indenture.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Supplemental Indenture.
1.2 Certain Defined Terms.
As used herein and in the Settlement Procedures, the following terms
shall have the following meanings, unless the context otherwise requires:
(a) "Agent Member" shall mean a member of, or participant
in, the Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section
2.1 hereof.
(c) "Auction Procedures" shall mean the procedures as
from time to time in effect for conducting Auctions that are set forth in
Appendix A of the Supplemental Indenture.
(d) "Authorized Officer" shall mean (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 Trustee, (ii) in the case of the Company, its
Treasuer and every other officer or employee of the Company designated an
"Authorized Officer" for
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purposes hereof in a written communication delivered to the Auction Agent and
(iii) in the case of the Trustee, every officer or employee of the Trustee
designated as an "Authorized Officer" for purposes hereof in a written
communication delivered to the Auction Agent.
(e) "Broker-Dealer Agreement" shall mean each agreement
between the Auction Agent and a broker-dealer substantially in the form attached
hereto as Exhibit A.
(f) "Closing" shall mean the date the Company consummates
the transactions for the issuance and sale of the Tortoise Notes.
(g) "Company Officer" shall mean the President, each Vice
President (whether or not designated by a number or word or words added before
or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Secretary and each Assistant Treasurer of the Company and every other
officer or employee of the Company designated as a "Company Officer" for
purposes hereof in a notice from the Company to the Auction Agent.
(h) "Holder" means, with respect to Tortoise Notes, the
registered holder of Tortoise Notes as the same appears on the records of the
Company.
(i) "Rate Multiple" shall have the meaning assigned to it
in Section 2.8.
(j) "Supplemental Indenture" shall mean the Supplemental
Indenture of Trust by and between the Company and BNY Midwest Trust Company,
dated _____, 2005, as amended or supplemented.
(k) "Settlement Procedures" shall mean the Settlement
Procedures attached as Exhibit A to the Broker-Dealer Agreement.
(l) "Submission Deadline" shall mean 1:00 P.M. (11:00
A.M. in the case of a daily Auction Rate) on any Auction Date or such other time
on any Auction Date by which the Broker-Dealers are required to submit Orders to
the Auction Agent as specified by the Auction Agent from time to time.
(m) "Submission Processing Deadline" shall mean the
earlier of (i) forty (40) minutes after the Submission Deadline and (ii) the
time when the Auction Agent begins to disseminate the results of the Auction to
the Broker-Dealers.
(n) "Submission Processing Representation" shall have the
meaning prescribed by Section 2.9.
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.
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(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. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Board of Directors of the Company has adopted a
resolution appointing The Bank of New York as Auction Agent for purposes of the
Auction Procedures. The Auction Agent hereby accepts such appointment and agrees
that, on each Auction Date, it shall follow (i) the procedures set forth in this
Section 2 and (ii) the Auction Procedures for the purpose of determining the
Applicable Rate for the Tortoise Notes for the next Rate Period. Each periodic
operation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction
Procedures and in the Settlement Procedures are incorporated herein by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were set forth fully herein. In the case of any
conflict between the terms of any document incorporated herein by reference and
the terms hereof, the terms in this agreement shall control.
2.2 Preparation for Each Auction; Maintenance of Registry of
Existing Holders.
(a) As of the date hereof, the Company shall provide the
Auction Agent with a list of the Broker-Dealers and shall deliver to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by
each such Broker-Dealer. Not later than five Business Days prior to any Auction
Date for which any change in such list of Broker-Dealers is to be effective, the
Company shall notify the Auction Agent in writing of such change and, if any
such change is the addition of a Broker-Dealer to such list, the Company shall
cause to be delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall
have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the
participation of any such Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction
shall be changed after the Auction Agent shall have given the notice referred to
in paragraph (a) of the Settlement Procedures, the Auction Agent, by such means
as the Auction Agent reasonably deems practicable, shall give notice of such
change to the Broker-Dealers not later than the earlier of 9:15 a.m. on the new
Auction Date or 9:15 a.m. on the old Auction Date.
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(c) The provisions contained in Section 2.04 of the
Supplemental Indenture concerning Special Rate Periods and the notification of a
Special Rate Period will be followed by the Company and, to the extent
applicable, the Auction Agent, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
(d) (i) On each Auction Date, the Auction Agent
shall determine the Maximum Rate. Not later than 9:30 a.m. on each Auction Date,
the Auction Agent shall notify the Company and the Broker-Dealers of the Maximum
Rate.
(ii) If the Reference Rate is the applicable "AA"
Composite Commercial Paper Rate and such rate is to be based on rates supplied
by Commercial Paper Dealers and one or more of the Commercial Paper Dealers
shall not provide a quotation for the determination of the applicable "AA"
Composite Commercial Paper Rate, the rate shall be determined on the basis of
the quotations (or quotation) furnished by the remaining Commercial Paper
Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a
nationally recognized dealer in commercial paper of such issuers then making
such quotations selected by the Company.
(e) (i) The Auction Agent shall maintain a registry
of the Existing Holders of the Tortoise Notes (the "Tortoise Note 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 Tortoise
Notes. The Auction Agent may consider a Broker-Dealer which has submitted an
Order as the Existing Holder for the purposes of the Tortoise Note 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 Tortoise
Notes, 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 Tortoise Notes 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 Tortoise Notes) from the accounts of which Tortoise Notes have been called
for redemption and the person or department at such Agent Member to contact
regarding such redemption. At least two Business Days prior to the Auction
preceding the date of redemption, the Auction Agent shall request each Agent
Member so identified to disclose to the Auction Agent (upon selection by such
Agent Member of the Existing Holders whose Tortoise Notes are to be redeemed)
the number of Tortoise Notes of each such Existing Holder, if any, to be
redeemed by the Company, provided that the Auction Agent has been furnished with
the name and telephone number of a person or department at such Agent Member
from which it is to request such information. In the absence of receiving any
such information with respect to an Existing Holder, from such Existing Holder's
Agent Member or otherwise, the Auction Agent may continue to treat such Existing
Holder as having ownership of the number of Tortoise Notes shown in the Auction
Agent's registry of Existing Holders.
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(iii) The Auction Agent shall register a transfer of the
ownership of Tortoise Notes from an Existing Holder to another Existing Holder,
or to another Person if permitted by the Company, only if (A) such transfer is
made pursuant to an Auction or (B) if such transfer is made other than pursuant
to an Auction, the Auction Agent has been notified of such transfer in writing,
in a notice substantially in the form of Exhibit C to the Broker-Dealer
Agreement, by such Existing Holder or by the Agent Member of such Existing
Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer
Agreement with the Auction Agent and the Company or other persons as the Company
permits. The Auction Agent is not required to accept any notice of transfer
delivered for an Auction unless it is received by the Auction Agent by 3:00 p.m.
on the Business Day preceding the Auction. The Auction Agent shall rescind a
transfer made on the registry of the Existing Holders of any Tortoise Notes if
the Auction Agent has been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the
Broker-Dealer of any Person that (i) purchased any Tortoise Notes and the seller
failed to deliver such Tortoise Notes or (ii) sold any Tortoise Notes and the
purchaser failed to make payment to such Person upon delivery to the purchaser
of such Tortoise Notes.
(f) The Auction Agent may, but shall have no obligation to,
request that the Broker-Dealers, as set forth in Section 3.2(c) of the
Broker-Dealer Agreements, provide the Auction Agent with a list of their
respective customers that such Broker-Dealers believe are Beneficial Owners of
Tortoise Notes. The Auction Agent shall keep confidential any such information
and shall not disclose any such information so provided to any Person other than
the relevant Broker-Dealer and the Company, provided that the Auction Agent
reserves the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory body, judicial or
quasi-judicial agency or authority having the authority to compel such
disclosure, (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 Rate Period in accordance with the
schedule set forth below. Such schedule may be changed by the Auction Agent with
the consent of the Company, which consent shall not be withheld unreasonably.
The Auction Agent shall give notice of any such change to each Broker-Dealer.
Such notice shall be received prior to the first Auction Date on which any such
change shall be effective.
Time Event
--------------------------------- ------------------------------------------
By 9:30 a.m. The Auction Agent shall advise the Company
and the Broker-Dealers of the Reference Rate
and the Maximum Rate as set forth in Section
2.2(d) hereof.
9:30 a.m. - 1:00 p.m. The Broker-Dealers shall assemble
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information received from each Bidder
(Existing Holders or Potential Beneficial
Owners) and any internally initiated
Broker-Dealers' Bids in accordance with
Section 2 of Appendix A of the Supplemental
Indenture.
Not earlier than the Submission The Auction Agent shall accept any Orders
Processing Deadline submitted subject to a Submission Processing
Representation and shall make determinations
pursuant to Section 3 of Appendix A of the
Supplemental Indenture.
By approximately 3:00 p.m. The Auction Agent shall advise the Company
of the results of the Auction as provided in
Section 3(b) of Appendix A of the
Supplemental Indenture. Submitted Bid Orders
and Submitted Sell Orders will be accepted
and rejected in whole or in part and
Tortoise Notes will be allocated as provided
in Section 4 of Appendix A of the
Supplemental Indenture.
The Auction Agent shall give notice of the
Auction results as set forth in Section 2.4
hereof.
The Auction Agent will follow the Bond Market Association's Market
Practice U.S. Holiday Recommendations for shortened trading days for the bond
markets (the "BMA Recommendation") unless the Auction Agent is instructed
otherwise. In the event of a BMA Recommendation on an Auction Date, the
Submission Deadline will be 11:30 a.m., instead of 1:00 p.m., and as a result
the notice set forth in Section 2.4 will occur earlier.
2.4 Notice of Auction Results.
The Auction Agent will advise each Broker-Dealer who submitted a Bid or
Sell Order in an Auction whether such Bid or Sell Order was accepted or rejected
in whole or in part and of the Applicable Rate for the next Rate Period for the
related Tortoise Notes by telephone or other electronic means acceptable to the
parties. The Auction Agent, unless instructed otherwise in writing by the
Company, is authorized to release the Winning Bid Rate after each auction for
public dissemination.
2.5 Broker-Dealers.
(a) On each Interest Payment Date, the Auction Agent
shall, promptly after its receipt of funds from the Company pay to each
Broker-Dealer, a service charge in the amount equal to: (i) in the case of any
Auction immediately preceding a Rate Period of less than one
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year, the product of (A) a fraction the numerator of which is the number of days
in the Rate Period (calculated by counting the first day of such Rate Period but
excluding the last day thereof) and the denominator of which is 360, times (B)
1/4 of 1%, times (C) $25,000 times (D) the sum of the aggregate number of
Tortoise Notes placed by such Broker-Dealer, or (ii) the amount mutually agreed
upon by the Company and the Broker-Dealers in the case of any Auction
immediately preceding a Rate Period of one year or longer. For the purposes of
the preceding sentence, the Tortoise Notes shall be placed by a Broker-Dealer if
such notes were (1) the subject of Hold Orders deemed to have been submitted to
the Auction Agent by the Broker-Dealer and were acquired by the Broker-Dealer
for its own account or were acquired by the Broker-Dealer for its customers who
are Beneficial Owners or (2) the subject of an order submitted by the
Broker-Dealer that is (a) a Submitted Bid of an Existing Holder that resulted in
the Existing Holder continuing to hold the notes as a result of the Auction or
(b) a Submitted Bid of a Potential Holder that resulted in the Potential Holder
purchasing the notes as a result of the Auction or (3) the subject of a valid
Hold Order. For the avoidance of doubt, only one Broker-Dealer shall be
considered to have placed a particular Tortoise Note at any particular Auction
for purposes of this Section 2.5(a).
(b) The Company shall not designate any Person to act as
a Broker-Dealer, or permit an Existing Holder or a Potential Beneficial Owner to
participate in Auctions through any Person other than a Broker-Dealer, without
the prior approval of the Auction Agent, which approval shall not be withheld
unreasonably. Notwithstanding the foregoing, the Company may designate an
Affiliate or ▇▇▇▇▇▇ Brothers Inc. to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Company.
(d) Subject to Section 2.5(b) hereof, the Auction Agent
from time to time shall enter into such Broker-Dealer Agreements as the Company
shall request in writing.
(e) The Auction Agent shall maintain a list of Broker-
Dealers.
2.6 Ownership of Tortoise Notes and Submission of Bids by the
Company and Its Affiliates.
Neither the Company nor any Affiliate of the Company may submit an
Order in any Auction, except that an Affiliate of the Company that is a
Broker-Dealer may submit an Order. The Company shall notify the Auction Agent if
the Company or, to the best of the Company's knowledge, any Affiliate of the
Company becomes a Beneficial Owner of any Tortoise Notes. The restrictions in
this Section 2.6 shall in no way limit the activities of the Auction Agent. The
Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, at reasonable times during normal business
hours, to review and make extracts or copies of (at the Company's sole cost and
expense), access to all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
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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.
2.8 Information Concerning Rates.
If there is any change in the credit rating of Tortoise Notes by a
rating agency (or substitute or successor rating agencies) then rating the
Tortoise Notes that results in any change in the applicable percentage of the
"AA" Composite Commercial Paper Rate used to determine the Maximum Rate for
Tortoise Notes (the "Rate Multiple"), the Company shall notify the Auction Agent
of such change in the Rate Multiple 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 Tortoise Notes of which it has most recently received notice from
the Company.
2.9 Submission of Order After Submission Deadline.
Broker-Dealer may submit an Order after the Submission Deadline and
prior to the Submission Processing Deadline if the Order was (i) received by the
Broker-Dealer from Existing Holders or Potential Beneficial Owners prior to the
Submission Deadline or (ii) initiated internally by the Broker-Dealer for its
own account prior to the Submission Deadline. Each Order submitted to the
Auction Agent after the Submission Deadline and prior to the Submission
Processing Deadline shall constitute a representation by the Broker-Dealer that
such Order was (i) received from Existing Holders or Potential Beneficial Owners
prior to the Submission Deadline or (ii) initiated internally by the
Broker-Dealer for its own account prior to the Submission Deadline (the
"Submission Processing Representation").
III. REPRESENTATIONS AND WARRANTIES.
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3.1 Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the Company has been duly organized and is validly
existing as a corporation under the laws of the State of Maryland, and has full
power to execute and deliver this Agreement and to authorize, create and issue
the Tortoise Notes;
(ii) the Company is registered with the Commission under
the Investment Company Act as a closed-end, nondiversified, management
investment company;
(iii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equitable principles;
(iv) the form of the certificate evidencing the Tortoise
Notes complies with all applicable state and federal laws;
(v) the Tortoise Notes have been duly and validly
authorized by the Company and, upon completion of the initial sale of the
Tortoise Notes and receipt of payment therefor, will be validly issued by the
Company, fully paid and nonassessable;
(vi) at the time of the offering of the Tortoise Notes,
the Tortoise Notes offered will be registered under the Securities Act and no
further action by or before any governmental body or authority of the United
States or of any state thereof is required in connection with the execution and
delivery of this Agreement or will be required in connection with the issuance
of the Tortoise Notes, except such action as required by applicable state
securities laws;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the Tortoise Notes do not and will not conflict with,
violate or result in a breach of the terms, conditions or provisions of, or
constitute a default under, the Articles of Incorporation or by-laws of the
Company, any order or decree of any court or public authority having
jurisdiction over the Company or any mortgage, indenture, contract, agreement or
undertaking to which the Company is a party or by which it is bound the effect
of which conflict, violation, breach or default would be material to the
Company; and
(viii) no taxes are payable upon or in respect of the
execution of this Agreement or will be payable upon or in respect of the
issuance of the Tortoise Notes.
3.2 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
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(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.
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.
4.2 Rights of the Auction Agent.
(a) The Auction Agent may rely conclusively upon, and
shall be fully protected in acting or refraining from acting in accordance with,
any communication authorized by this Agreement and any proper written
instruction, notice, request, direction, consent, report, certificate,
certificate or other instrument, paper or document reasonably believed by it to
be genuine and appropriately authorized. The Auction Agent shall not be liable
for acting upon any telephone communication authorized by this Agreement which
the Auction Agent reasonably believes in good faith, after reasonable inquiry,
to have been given by the Company or by a Broker-Dealer. The Auction Agent may
record telephone communications with the Company or with the Broker-Dealers or
with both.
(b) The Auction Agent may consult with counsel of its
choice and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by the
Auction Agent hereunder in good faith and in reasonable reliance thereon.
(c) The Auction Agent shall not be required to advance,
expend or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder. Unless otherwise
instructed by the Company in writing, the Auction Agent (i) shall not be
obligated to invest any money received by it hereunder and (ii) shall be under
no liability for interest on any money received by it hereunder.
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(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.
(h) All the rights, privileges, immunities and
protections granted to the Auction Agent herein are deemed granted to BNY
Midwest Trust Company, as Paying Agent, in any of the capacities it undertakes
in connection with this Agreement.
(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
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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.
4.3 Compensation, Expenses and Indemnification.
(a) The Company shall pay to the Auction Agent from time
to time reasonable compensation for all services rendered by it under this
Agreement and under the Broker-Dealer Agreements as shall be set forth in a
separate writing signed by the Company and the Auction Agent, subject to
adjustments if the Tortoise Notes no longer are held of record by the Securities
Depository or its nominee or if there shall be such other change as shall
increase or decrease materially the Auction Agent's obligations hereunder or
under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Auction Agent in accordance with any provision of this Agreement and
of the Broker-Dealer Agreements (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any expense, disbursement
or advance attributable to the Auction Agent's gross negligence or bad faith,
upon submission to the Company of reasonable documentation thereof. In no event
shall the Auction Agent be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(c) The Company shall indemnify the Auction Agent and its
officers, directors, employees and agents for, and hold them harmless against,
any loss, liability or expense incurred without negligence or bad faith on the
part of the Auction Agent arising out of or in connection with its agency under
this Agreement and under the Broker-Dealer Agreements, including the costs and
expenses of defending themselves against any claim of liability in connection
with their exercise or performance of any of their duties hereunder and
thereunder, except such as may result from its gross negligence or bad faith.
4.4 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or
adequacy of the Agreement, the Broker-Dealer Agreements or the Tortoise Notes
except to the extent otherwise set forth in Section 3.2 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.
V. MISCELLANEOUS.
5.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it
shall be terminated as provided in this Section 5.1. The Company may terminate
this Agreement at any time by so notifying the Auction Agent, provided that, if
any Tortoise Notes remain outstanding, the Company shall have entered into an
agreement with a successor auction agent. The Auction Agent may terminate this
Agreement upon prior notice to the Company on the date specified in
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such notice, which date shall be no earlier than 60 days after delivery of such
notice. If the Auction Agent terminates this Agreement while any Tortoise Notes
remain outstanding, the Company shall use its best efforts to enter into an
agreement with a successor auction agent containing substantially the same terms
and conditions as this Agreement.
(b) Except as otherwise provided in this Section 5.1(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 3.1 hereof shall survive the termination hereof. The Auction
Agent's representations, warranties, covenants and obligations under Section 3.2
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 pursuant to this Agreement which have not been distributed previously by
the Auction Agent in accordance with this Agreement.
5.2 Communications.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Company,
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: (▇▇▇) ▇▇▇-▇▇▇▇
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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.
5.3 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.
5.4 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.
5.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged.
(b) Failure of either party hereto to exercise any right
or remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
5.6 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.
5.7 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.
5.8 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.
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5.9 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.
5.10 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:
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EXHIBIT A
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FORM OF BROKER-DEALER AGREEMENT
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