ENERGY INCOME AND GROWTH FUND
-----------------------
AUCTION AGENCY AGREEMENT
dated as of January __, 2005
relating to the
Series __ Energy Notes, Due 20__
of
ENERGY INCOME AND GROWTH FUND
Deutsche Bank Trust Company Americas
as Auction Agent
Cover Page
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of January __,
2005, is between Energy Income and Growth Fund (the "Fund") and Deutsche Bank
Trust Company Americas.
The Fund proposes to issue [____________] aggregate principal amount of
Series ___ Energy Notes (the "Energy Notes"), authorized by, and subject to the
terms and conditions of the Supplemental Indenture of Trust by and between the
Fund and Deutsche Bank Trust Company Americas, in its capacity as trustee (the
"Trustee"), dated January __, 2005 (the "Supplemental Indenture"), which
supplements the Indenture dated January __, 2005 by and between the Fund and the
Trustee.
The Fund desires that Deutsche Bank Trust Company Americas perform certain
duties as agent in connection with each Auction of Energy Notes (in such
capacity, the "Auction Agent"), and as the transfer agent, registrar, interest
paying agent and redemption agent with respect to the Energy Notes (in such
capacity, the "Paying Agent"), upon the terms and conditions set forth in this
Agreement, and the Fund hereby appoints Deutsche Bank Trust Company Americas 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 Fund 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 Beneficial Owner of one
or more Energy Notes or on behalf of a Potential Beneficial Owner.
(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 each Vice President, Assistant
Vice President and Assistant Treasurer of the Auction Agent and every other
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officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a written communication from the Auction
Agent to the Fund.
(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 Fund consummates the
transactions for the issuance and sale of the Energy Notes.
(g) "Fund 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 Fund and every
other officer or employee of the Fund designated as a "Fund Officer" for
purposes hereof in a notice from the Fund to the Auction Agent.
(h) "Holder" means, with respect to Energy Notes, the registered
holder of Energy Notes as the same appears on the records of the Fund.
(i) "Rate Multiple" shall have the meaning assigned to it in Section
2.8.
(j) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
(k) "Supplemental Indenture" shall mean the Supplemental Indenture of
Trust by and between the Fund and Deutsche Bank Trust Company Americas,
dated January __, 2005, as amended or supplemented.
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.
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(a) The Board of Trustees of the Fund has adopted a resolution
appointing Deutsche Bank Trust Company Americas 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 Energy 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.
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(a) As of the date hereof, the Fund 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. The Auction Agent shall keep such list current and
accurate and shall indicate thereon the identity of each Existing Holder,
if any, whose most recent Order was submitted and resulted in such Existing
Holder continuing to hold or purchase Energy Notes. 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 Fund 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 Fund 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
clause (vii) of 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 2.04 of the Supplemental
Indenture concerning Special Rate Periods and the notification of a Special
Rate Period will be followed by the Fund 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
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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 Fund 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 Fund.
(e) (i) The Auction Agent shall maintain a current registry of the
Existing Holders of the Energy Notes for purposes of each individual
Auction based on the information provided to it from time to time by the
Broker-Dealer(s). The Fund shall use commercially reasonable efforts to
provide or cause to be provided to the Auction Agent within ten Business
Days following the date of the Closing a list of the initial Existing
Holders of Energy Notes, the number of notes purchased by each such
Existing Holder and the respective Broker-Dealer of each such Existing
Holder through which such Existing Holder purchased such Energy Notes. The
Auction Agent may rely upon, as conclusive evidence of the identities of
the Existing Holders, such list, the results of each Auction and notices
from any Existing Holder, the Agent Member of any Existing Holder or the
Broker-Dealer of any Existing Holder with respect to such Existing Holder's
transfer of any Energy Notes to another Person.
(ii) In the event of any partial redemption of Energy Notes, upon
notice by the Fund to the Auction Agent of such partial redemption, 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 Energy Notes) from the accounts of which Energy 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
Energy Notes are to be redeemed) the number of Energy Notes of each such
Existing Holder, if any, to be redeemed by the Fund, 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 Energy Notes shown in the Auction Agent's
registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the ownership of
Energy Notes from an Existing Holder to another Existing Holder, or to
another Person if permitted by the Fund, only if (A) such transfer is made
pursuant to an Auction or (B) if such transfer is made other than pursuant
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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 Fund or other
persons as the Fund 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 Energy 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 Energy Notes and the seller failed to deliver
such Energy Notes or (ii) sold any Energy Notes and the purchaser failed to
make payment to such Person upon delivery to the purchaser of such Energy
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 Energy 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 Fund, 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 or (b) it is advised by its counsel in
writing that its failure to do so would be unlawful.
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
Fund, 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 Fund and
the Broker-Dealers of the Reference Rate and
the Maximum Rate as set forth in Section
2.2(d)(i) 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 Appendix A of the
Supplemental Indenture. Submission deadline
is 1:00 p.m.
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Not earlier than 1:00 p.m. The Auction Agent 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 Fund 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 Energy
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 Energy Notes by telephone or other electronic means acceptable to the
parties. The Auction Agent, unless instructed otherwise in writing by the Fund,
is authorized to release the Winning Bid Rate after each auction for public
dissemination.
2.5 Broker-Dealers.
---------------
(a) Not later than 3:00 p.m. on each Interest Payment Date, the
Auction Agent after each Auction will pay to each Broker-Dealer, from funds
provided by the Fund, a service charge in the amount equal to: (i) in the
case of any Auction immediately preceding a Rate Period of less than one
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 Energy Notes placed by such Broker-Dealer, or (ii) the
amount mutually agreed upon by the Fund 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 Energy 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
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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) a valid Hold Order. For the avoidance of
doubt, only one Broker-Dealer shall be considered to have placed a
particular Energy Note at any particular Auction for purposes of this
Section 2.5(a).
(b) The Fund 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 written approval of the Auction Agent, which approval shall not be
withheld unreasonably. Notwithstanding the foregoing, the Fund 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 Fund.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from time to
time shall enter into such Broker-Dealer Agreements as the Fund shall
request in writing.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of Energy Notes and Submission of Bids by the Fund and
Its Affiliates.
----------------------------------------------------------------
Neither the Fund nor any Affiliate of the Fund may submit an Order in any
Auction, except that an Affiliate of the Fund that is a Broker-Dealer may submit
an Order. The Fund shall notify the Auction Agent if the Fund or, to the best of
the Fund's knowledge, any Affiliate of the Fund becomes a Beneficial Owner of
any Energy 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 Fund, its agents, independent public
accountants and counsel, at reasonable times during normal business hours, to
review and make extracts or copies of (at the Fund'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 Fund 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 Fund
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
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audit or review the results of Auctions as permitted by this Section 2.7. The
Fund 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 Energy Notes by a rating
agency (or substitute or successor rating agencies) then rating the Energy Notes
that results in any change in the applicable percentage of the "AA" Composite
Commercial Paper Rate used to determine the Maximum Rate for Energy Notes (the
"Rate Multiple"), the Fund shall notify the Auction Agent of such change in the
Rate Multiple prior to the 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 Energy Notes of which it has most recently received notice from the
Fund.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
-----------------
The Board of Trustees of the Fund has adopted resolutions appointing
Deutsche Bank Trust Company Americas 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 Supplemental Indenture
which are specified herein with respect to the Energy Notes and as set forth in
this Section 3.
3.2 The Fund's Notices to the Paying Agent.
---------------------------------------
Whenever any Energy Notes are to be redeemed, the Fund shall mail a Notice
of Redemption by first-class mail, postage prepaid, to each Holder of Energy
Notes being redeemed and to the Paying Agent pursuant to Section 2.03(b) of the
Supplemental Indentures.
3.3 The Fund to Provide Funds for Interest and Redemptions.
-------------------------------------------------------
(a) Not later than 3:00 p.m. on the Business Day preceding each
Interest Payment Date, the Fund shall deposit with the Paying Agent an
aggregate amount of Federal funds or similar same-day funds equal to the
declared interest to be paid to Holders on such Interest Payment Date and
shall give the Paying Agent irrevocable instructions to apply such funds to
the payment of such interest on such Interest Payment Date.
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(b) If the Fund shall give a Notice of Redemption, then by 12:00 noon
on the date fixed for redemption, the Fund shall deposit in trust with the
Paying Agent an aggregate amount of Federal funds or similar same-day funds
sufficient to redeem such Energy Notes called for redemption and shall give
the Paying Agent irrevocable instructions and authority to pay the
redemption price to the Holders of Energy Notes called for redemption upon
surrender of the certificate or certificates therefor.
3.4 Disbursing Interest and Redemption Price.
-----------------------------------------
After receipt of the Federal funds or similar same-day funds and
instructions from the Fund described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Interest Payment Date, interest on the Energy Notes, and (ii) on
any date fixed for redemption, the redemption price of any Energy Notes called
for redemption. The amount of interest for any Rate Period to be paid by the
Paying Agent to Holders will be determined by the Fund as set forth in Section
2.02 of the Supplemental Indenture. The redemption price to be paid by the
Paying Agent to the Holders of any Energy Notes called for redemption will be
determined as set forth in Section 2.03 of the Supplemental Indenture. 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 Energy Note Authentication Certificates.
----------------------------------------------------------
On the Date of Original Issue for any Energy Note, one certificate for
Energy Notes shall be issued by the Fund 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 Energy Notes.
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Except as provided in this Section 4.2, the Energy Notes 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 Fund 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 Energy Notes, at the Fund'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 properly endorsed 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 Fund's
option and upon its receipt of such documents as it deems appropriate, any
Energy Notes may be registered in the register in the name of the Beneficial
Owner thereof, and such Beneficial Owner thereupon will be entitled to receive
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certificates therefor and required to deliver certificates thereof upon transfer
or exchange thereof at the Fund's expense.
4.3 Removal of Legend.
------------------
Any request for removal of a legend indicating a restriction on transfer
from a certificate evidencing Energy Notes shall be accompanied by an opinion of
counsel stating that such legend may be removed and such Energy Notes may be
transferred free of the restriction described in such legend, said opinion to be
delivered under cover of a letter from a Fund Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed Authenticating 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 Fund and by the Paying Agent, subject at all times to
provisions of law, the Supplemental Indenture governing such matters and
resolutions adopted by the Fund 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 Fund 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 Fund to the
Paying Agent that such issuance will comply with provisions of applicable law
and the Supplemental Indenture and resolutions of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention.
-------------------------------------------------------
The Paying Agent shall retain certificates which have been canceled and
any accompanying documentation thereto in accordance with applicable rules and
regulations of the Securities and Exchange Commission (the "Commission") for at
least six calendar years from the date of such cancellation. The Paying Agent,
upon written request by the Fund, shall afford to the Fund, its agents and
counsel access at reasonable times during normal business hours to review and
make extracts or copies (at the Fund'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 Fund, shall deliver
to the Fund 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 Fund with prompt written notice of such
request so that the Fund may appeal such request and the Paying Agent shall
cooperate with the Fund 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 Fund without the approval
of the Paying Agent, which approval shall not be withheld unreasonably, but will
be safely stored for possible future reference.
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4.6 Register.
---------
The Paying Agent shall maintain the register, which shall contain a list of
the Holders, the number of Energy Notes held by each Holder and the address of
each Holder. The Paying Agent shall record in the 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 register or any other books of the Fund in the
possession of the Paying Agent, the Paying Agent will notify the Fund and secure
instructions as to permitting or refusing such inspection. The Paying Agent
reserves the right, however, to exhibit the 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.
4.7 Return of Funds.
----------------
Any funds paid to the Paying Agent for the payment of interest but not
applied to the payment of interest, including interest earned on such moneys,
will, to the extent permitted by law, be repaid to the Fund at the end of 90
days from the date on which such moneys were to have been so applied. Upon
written request, the Fund 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 Energy Notes called
for redemption on such date and (ii) such other amounts, if any, to which
Holders of Energy Notes called for redemption may be entitled. Any funds so
deposited that are unclaimed at the end of two (2) years from such redemption
date shall, to the extent permitted by law, be paid to the Fund upon its written
request. Funds, while deposited with the Auction Agent, will be held in trust
for the payment of the applicable interest, redemption price or, as may be
applicable under the Supplemental Indenture, other charges.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Fund.
-------------------------------------------
The Fund represents and warrants to the Auction Agent that:
(a) the Fund has been duly organized and is validly existing as a
business trust under the laws of the Commonwealth of Massachusetts, and has
full power to execute and deliver this Agreement and to authorize, create
and issue the Energy Notes;
(b) the Fund is registered with the Commission under the 1940 Act as a
closed-end, diversified, management investment company;
(c) this Agreement has been duly and validly authorized, executed and
delivered by the Fund and constitutes the legal, valid and binding
obligation of the Fund, enforceable against the Fund 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;
Page 11
(d) the form of the certificate evidencing the Energy Notes complies
with all applicable state and federal laws;
(e) the Energy Notes have been duly and validly authorized by the Fund
and, upon completion of the initial sale of the Energy Notes and receipt of
payment therefor, will be validly issued by the Fund, fully paid and
nonassessable;
(f) at the time of the offering of the Energy Notes, the Energy 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 Energy Notes, except such action as required by applicable state
securities laws;
(g) the execution and delivery of this Agreement and the issuance and
delivery of the Energy 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 Declaration of Trust, any order or decree of any court
or public authority having jurisdiction over the Fund or any mortgage,
indenture, contract, agreement or undertaking to which the Fund is a party
or by which it is bound the effect of which conflict, violation, breach or
default would be material to the Fund; and
(h) 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
Energy Notes.
5.2 Representations and Warranties of the Auction Agent.
----------------------------------------------------
The Auction Agent represents and warrants to the Fund that:
(a) 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
(b) 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 agent for the Fund hereunder
and owes no fiduciary duties to any Person.
(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.
Page 12
(c) In the absence of bad faith or 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
negligent in ascertaining (or failing to ascertain) the pertinent facts.
6.2 Rights of the Auction Agent.
----------------------------
(a) The Auction Agent may rely conclusively upon, and shall be fully
protected in acting or refraining from acting in accordance with, any
communication authorized by this Agreement and any proper written
instruction, notice, request, direction, consent, report, certificate 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 Fund or by a Broker-Dealer. The Auction
Agent may record telephone communications with the Fund 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 Fund 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.
Page 13
(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 Fund but without the execution or
filing of any paper with any party hereto or any further act on the part of
any of the parties hereto, except where any instrument of transfer or
assignment may be required by law to effect such succession, anything
herein to the contrary notwithstanding.
(h) All the rights, privileges, immunities and protections granted to
the Auction Agent herein are deemed granted to the Paying Agent and
Deutsche Bank Trust Company Americas 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 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
Fund or the Broker Dealer, signed by the Fund or the Broker Dealer,
respectively, and delivered to the Auction Agent and such certificate, in
the absence of 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 Fund or the Broker-Dealer,
the Auction Agent shall promptly provide a copy of said certificate to the
Broker-Dealer or the Fund, 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 Fund or the Broker-Dealer, except to the extent that such
failure to investigate would be deemed negligent.
6.3 Compensation, Expenses and Indemnification.
-------------------------------------------
(a) The Fund 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 Fund and the Auction Agent, subject to
adjustments if the Energy 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.
Page 14
(b) The Fund 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 negligence or
bad faith, upon submission to the Fund 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 Fund 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 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 Energy Notes 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 Fund may terminate this
Agreement at any time by so notifying the Auction Agent, provided that, if
any Energy Notes remain outstanding, the Fund shall have entered into an
agreement with a successor auction agent. The Auction Agent may terminate
this Agreement (i) upon prior notice to the Fund on the date specified in
such notice, which date shall be no earlier than 45 days after delivery of
such notice or (ii) upon prior notice to the Fund on the date specified in
such notice if the Fund shall have failed to pay the amounts due the
Auction Agent in connection with its agency under this Agreement and under
the Broker-Dealer Agreements within 30 days of invoice. If the Auction
Agent terminates this Agreement while any Energy Notes remain outstanding,
the Fund 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 Fund and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Fund's
Page 15
representations, warranties, covenants and obligations to the Auction Agent
under Sections 5.1 and 6.3 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 Fund's
written request, deliver promptly to the Fund 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 Fund,
transfer promptly to the Fund or to any successor auction agent any funds
deposited by the Fund with the Auction Agent (whether in its capacity as
Auction Agent or as Paying Agent) pursuant to this Agreement which have not
been distributed previously by the Auction Agent in accordance with this
Agreement.
7.2 Communications.
---------------
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Fund,
addressed to:
Attn: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
First Trust Portfolios, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Auction Agent,
addressed to:
Deutsche Bank Trust Company Americas
[Corporate Trust & Agency Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Stop NYC60 2715
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.
Page 16
Communications shall be given on behalf of the Fund by a Fund 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 Fund, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
7.5 Amendment; Waiver.
------------------
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party
to be charged.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any
subsequent breach.
7.6 Successors and Assigns.
-----------------------
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by, the respective successors and permitted assigns of each of the
Fund 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
Page 17
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.
7.10 Limitation of Liability.
------------------------
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of the Commonwealth of Massachusetts. This Agreement has been executed
on behalf of the Fund by an officer of the Fund in such capacity and not
individually and the obligations of the Fund under this Agreement are not
binding upon such officer or any of the trustees or the shareholders of the Fund
individually but are binding only upon the assets and property of the Fund.
[Signature page follows]
Page 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
ENERGY INCOME AND GROWTH FUND
By:_______________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:_______________________________________
Name:
Title:
Page 19
EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT