EXHIBIT k.4
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
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AUCTION AGENCY AGREEMENT
dated as of _____, 2005
relating to the
SERIES II 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 _____,
2005, is between Tortoise Energy Infrastructure Corporation (the "Company") and
The Bank of New York.
The Company proposes to issue an aggregate of _____ shares of its
Series II 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 related to Series II 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.
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
related to Series II Money Market Cumulative Preferred(R) Shares of the Company
dated _____, 2005, 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.
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(e) "Authorized Officer" shall mean (i) in the case of the Auction
Agent, each Vice President, Assistant Vice President and Assistant Treasurer of
the Auction Agent assigned to the Dealing and Trading Group of its Corporate
Trust Division and every 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
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
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.
(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.
(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
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 the Paying Agent
and the Paying Agent shall mail such notice by first-class mail, postage
prepaid, to each Holder of MMP Shares being redeemed pursuant to Section 3(b) of
Part I of the Articles Supplementary.
3.3 The Company to Provide Funds for Dividends and Redemptions.
(a) Not later than 3:00 p.m. on the Business Day preceding each
Dividend Payment Date, the Company shall deposit with the Paying Agent an
aggregate amount of federal funds or similar same-day funds equal to the
declared dividends to be paid to Holders on such Dividend Payment Date and shall
give the Paying Agent irrevocable instructions to apply such funds to the
payment of such dividends on such Dividend Payment Date.
(b) If the Company shall give a Notice of Redemption, then by 12:00
noon on the date fixed for redemption, the Company shall deposit in trust with
the Paying Agent an aggregate amount of federal funds or similar same-day funds
sufficient to redeem such MMP Shares called for redemption and shall give the
Paying Agent irrevocable instructions and authority to pay the redemption price
to the Holders of MMP Shares called for redemption upon surrender of the
certificate or certificates therefor.
3.4 Disbursing Dividends and Redemption Price.
After receipt of the federal funds or similar same-day funds and
instructions from the Company described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the
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MMP Shares, and (ii) on any date fixed for redemption, the redemption price of
any MMP Shares called for redemption. The amount of dividends for any Dividend
Period to be paid by the Paying Agent to Holders will be determined by the
Company as set forth in Section 2 of Part I of the Articles Supplementary. The
redemption price to be paid by the Paying Agent to the Holders of any MMP Shares
called for redemption will be determined as set forth in Section 3 of Part I of
the Articles Supplementary. The Paying Agent shall have no duty to determine the
redemption price and may rely conclusively on the amount thereof set forth in
the Notice of Redemption.
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.
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 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: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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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:
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EXHIBIT A
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FORM OF BROKER-DEALER AGREEMENT
20