TORTOISE ENERGY INFRASTRUCTURE CORPORATION AUCTION AGENCY AGREEMENT dated as of ________, 2007 relating to the AUCTION RATE SENIOR NOTES $________ SERIES __, DUE ________, ____ [Auction Agent] as Auction Agent
EXHIBIT
k.5
dated
as
of ________, 2007
relating
to the
AUCTION
RATE SENIOR NOTES
$________
SERIES __, DUE ________, ____
[Auction
Agent]
as
Auction Agent
This
Auction Agency Agreement (this “Agreement”), dated as of ________, 2007, is
between Tortoise Energy Infrastructure Corporation (the “Company”) and [Auction
Agent].
The
Company proposes to offer $________ aggregate principal amount of auction rate
senior notes Series __ (the “Tortoise Notes”), authorized by, and subject to the
terms and conditions of, the Supplemental Indenture of Trust by and between
the
Company and BNY Midwest Trust Company, in its capacity as trustee (the
“Trustee”), dated ________, 2007 (the “Supplemental Indenture”), which
supplements the Indenture dated July 13, 2004 by and between the Company
and the Trustee.
The
Company desires that [Auction Agent] perform certain duties as agent in
connection with each Auction of Tortoise Notes (in such capacity, the “Auction
Agent”), upon the terms and conditions set forth in this Agreement, and the
Company hereby appoints [Auction Agent] as said Auction Agent in accordance
with
those terms and conditions.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS
AND RULES OF CONSTRUCTION.
1.1 Terms
Defined by Reference to the Supplemental Indenture.
Capitalized
terms used herein but not defined herein shall have the respective meanings
specified in the Supplemental Indenture.
1.2 Certain
Defined Terms.
As
used
herein and in the Settlement Procedures, the following terms shall have the
following meanings, unless the context otherwise requires:
(a) “Agent
Member” shall mean a member of, or participant in, the Securities Depository
that will act on behalf of a Bidder.
(b) “Auction”
shall have the meaning specified in Section 2.1 hereof.
(c) “Auction
Procedures” shall mean the procedures as from time to time in effect for
conducting Auctions that are set forth in Appendix A of the Supplemental
Indenture.
(d) “Authorized
Officer” shall mean (i) in the case of the Auction Agent, each Vice
President, Assistant Vice President and Assistant Treasurer of the Auction
Agent
assigned to the Dealing and Trading Group of its Corporate Trust Division and
every other officer or employee of the Auction Agent designated an “Authorized
Officer” for purposes hereof in a written communication delivered to the
Trustee, (ii) in the case of the Company, its Treasuer and every other
officer or employee of the Company designated an “Authorized Officer” for
purposes hereof in a written communication delivered to the Auction Agent and
(iii) in the case
1
of
the
Trustee, every officer or employee of the Trustee designated as an “Authorized
Officer” for purposes hereof in a written communication delivered to the Auction
Agent.
(e) “Broker-Dealer
Agreement” shall mean each agreement between the Auction Agent and a
broker-dealer substantially in the form attached hereto as Exhibit
A.
(f) “Closing”
shall mean the date the Company consummates the transactions for the issuance
and sale of the Tortoise Notes.
(g) “Company
Officer” shall mean the President, each Vice President (whether or not
designated by a number or word or words added before or after the title “Vice
President”), the Secretary, the Treasurer, each Assistant Secretary and each
Assistant Treasurer of the Company and every other officer or employee of the
Company designated as a “Company Officer” for purposes hereof in a notice from
the Company to the Auction Agent.
(h) “Holder”
means, with respect to Tortoise Notes, the registered holder of Tortoise Notes
as the same appears on the records of the Company.
(i) “Rate
Multiple” shall have the meaning assigned to it in Section 2.8.
(j) “Supplemental
Indenture” shall mean the Supplemental Indenture of Trust by and between the
Company and BNY Midwest Trust Company dated ________, 2007, as amended or
supplemented.
(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.
2
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 [Auction Agent]
as Auction Agent for purposes of the Auction Procedures. The Auction Agent
hereby accepts such appointment and agrees that, on each Auction Date, it shall
follow (i) the procedures set forth in this Section 2 and (ii) the Auction
Procedures for the purpose of determining the Applicable Rate for the Tortoise
Notes for the next Rate Period. Each periodic operation of such procedures
is
hereinafter referred to as an “Auction.”
(b) All
of
the provisions contained in the Auction Procedures and in the Settlement
Procedures are incorporated herein by reference in their entirety and shall
be
deemed to be a part of this Agreement to the same extent as if such provisions
were set forth fully herein. In the case of any conflict between the terms
of
any document incorporated herein by reference and the terms hereof, the terms
in
this agreement shall control.
2.2 Preparation
for Each Auction; Maintenance of Registry of Existing Holders.
(a) As
of the
date hereof, the Company shall provide the Auction Agent with a list of the
Broker-Dealers and shall deliver to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer.
Not
later than five Business Days prior to any Auction Date for which any change
in
such list of Broker-Dealers is to be effective, the Company shall notify the
Auction Agent in writing of such change and, if any such change is the addition
of a Broker-Dealer to such list, the Company shall cause to be delivered to
the
Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement
signed by such Broker-Dealer. The Auction Agent shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation
of
any such Broker-Dealer in any Auction.
(b) In
the
event that the Auction Date for any Auction shall be changed, 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 Company and, to the extent applicable, the Auction Agent, and
the provisions contained therein are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions were set forth fully herein.
(d) (i) On
each
Auction Date, the Auction Agent shall determine the Maximum Rate. Not later
than
9:30 a.m. on each Auction Date, the Auction Agent shall notify the Company
and
the Broker-Dealers of the Reference Rate and the Maximum Rate in effect on
such
Auction Date.
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(ii) If
the
Reference Rate is the applicable “AA” Composite Commercial Paper Rate and such
rate is to be based on rates supplied by Commercial Paper Dealers and one or
more of the Commercial Paper Dealers shall not provide a quotation for the
determination of the applicable “AA” Composite Commercial Paper Rate, the rate
shall be determined on the basis of the quotations (or quotation) furnished
by
the remaining Commercial Paper Dealer(s), if any, or, if there are no such
Commercial Paper Dealers, by a nationally recognized dealer in commercial paper
of such issuers then making such quotations selected by the
Company.
(e) (i) The
Auction Agent shall maintain a registry of the Existing Holders of the Tortoise
Notes (the “Tortoise Note Register”) for purposes of Auctions and shall indicate
thereon the identity of the Broker-Dealer that submitted the most recent Order
in any Auction, which resulted in such Existing Holder continuing to hold or
purchase such Tortoise Notes. The Auction Agent may consider a Broker-Dealer
which has submitted an Order as the Existing Holder for the purposes of the
Tortoise Note Register; provided, that the Auction Agent may request the
Broker-Dealer to provide a list of its customers if in its sole discretion
it
determines to do so. The Auction Agent may conclusively rely upon the
information furnished to the Auction Agent by the Broker-Dealer and notices
from
the Securities Depository regarding the results of redemptions or mandatory
tenders.
(ii) In
the
event of any partial redemption of Tortoise Notes, upon notice by the Company
to
the Trustee of such partial redemption (delivered at least one day prior to
the
date a notice of redemption is required to be given to the Holders of Tortoise
Notes to be redeemed), the Trustee promptly shall request the Securities
Depository to notify it of the identities of the Agent Members (and the
respective numbers of Tortoise Notes) from the accounts of which Tortoise Notes
have been called for redemption and the person or department at such Agent
Member to contact regarding such redemption. At least two Business Days prior
to
the the date of redemption, the Trustee shall request each Agent Member so
identified to disclose to it (upon selection by such Agent Member of the
Existing Holders whose Tortoise Notes are to be redeemed) the number of Tortoise
Notes of each such Existing Holder, if any, to be redeemed by the Company,
provided that the Trustee 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. Promptly upon its receipt of such information, the Trustee shall
provide such information to the Auction Agent in writing. In the absence of
receiving any such information with respect to an Existing Holder, from such
Existing Holder’s Agent Member or otherwise, the Auction Agent may continue to
treat such Existing Holder as having ownership of the number of Tortoise Notes
shown in the Auction Agent’s registry of Existing Holders.
(iii) The
Auction Agent shall register a transfer of the ownership of Tortoise Notes
from
an Existing Holder to another Existing Holder, or to another Person if permitted
by the Company, only if (A) such transfer is made pursuant to an Auction or
(B)
if such transfer is made other than pursuant to an Auction, the Auction Agent
has been notified of such transfer in writing, in a notice substantially in
the
form of Exhibit C to the Broker-Dealer Agreement, by such Existing Holder or
by
the Agent Member of such Existing Holder only to or through a Broker-Dealer
that
has entered into a Broker-Dealer Agreement with the Auction Agent and the
Company or other persons as the Company permits. The Auction Agent is not
required to accept any notice of transfer delivered for an Auction unless it
is
received by the Auction Agent by 3:00 p.m. on the Business Day preceding the
Auction. The Auction Agent shall rescind a transfer
4
made
on
the registry of the Existing Holders of any Tortoise Notes if the Auction Agent
has been notified in writing, in a notice substantially in the form of Exhibit
D
to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of
any
Person that (i) purchased any Tortoise Notes and the seller failed to deliver
such Tortoise Notes or (ii) sold any Tortoise Notes and the purchaser failed
to
make payment to such Person upon delivery to the purchaser of such Tortoise
Notes.
(f) The
Auction Agent may, but shall have no obligation to, request that the
Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements,
provide the Auction Agent with a list of their respective customers that such
Broker-Dealers believe are Beneficial Owners of Tortoise Notes. The Auction
Agent shall keep confidential any such information and shall not disclose any
such information so provided to any Person other than the relevant Broker-Dealer
and the Company, provided that the Auction Agent reserves the right to disclose
any such information if (a) it is ordered to do so by a court of competent
jurisdiction or a regulatory body, judicial or quasi-judicial agency or
authority having the authority to compel such disclosure, (b) it is advised
by
its counsel in writing that its failure to do so would be unlawful, or
(c) it is advised by its counsel in writing that failure to do so could
expose the Auction Agent to loss liability, claim or damage for which it has
not
received indemnity or security satisfactory to it.
2.3 Auction
Schedule.
The
Auction Agent shall conduct Auctions on the Business Day immediately prior
to
the start of each Rate Period in accordance with the schedule set forth below.
Such schedule may be changed by the Auction Agent with the consent of the
Company, which consent shall not be withheld unreasonably. The Auction Agent
shall give notice of any such change to each Broker-Dealer. Such notice shall
be
received prior to the first Auction Date on which any such change shall be
effective.
|
Time
|
Event
|
|
By
9:30 a.m.
|
The
Auction Agent shall advise the Company and the Broker-Dealers of
the
Reference Rate and the Maximum Rate as set forth in Section 2.2(d)
hereof.
|
|
9:30
a.m. - 1:00 p.m.
|
The
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.
|
|
Not
earlier than 1:00 p.m.
|
The
Auction Agent shall make determinations pursuant to Section 4 of
Appendix A of the Supplemental Indenture.
|
|
By
approximately 3:00 p.m.
|
The
Auction Agent shall advise the
|
5
| Company of the results of the Auction as provided in Section 4(b) of Appendix A of the Supplemental Indenture. Submitted Bid Orders and Submitted Sell Orders will be accepted and rejected in whole or in part and Tortoise Notes will be allocated as provided in Section 5 of Appendix A of the Supplemental Indenture. | |
|
The
Auction Agent shall give notice of the Auction results as set forth
in
Section 2.4 hereof.
|
The
Auction Agent will follow the Bond Market Association’s Market Practice U.S.
Holiday Recommendations for shortened trading days for the bond markets (the
“BMA Recommendation”) unless the Auction Agent is instructed otherwise. In the
event of a BMA Recommendation on an Auction Date, the Submission Deadline will
be 11:30 a.m., instead of 1:00 p.m., and as a result, the notice set forth
in
Section 2.4 will occur earlier.
2.4 Notice
of Auction Results.
The
Auction Agent will advise each Broker-Dealer who submitted a Bid or Sell Order
in an Auction whether such Bid or Sell Order was accepted or rejected in whole
or in part and of the Applicable Rate for the next Rate Period for the related
Tortoise Notes by telephone or other electronic means acceptable to the parties.
The Auction Agent, unless instructed otherwise in writing by the Company, is
authorized to release the Winning Bid Rate after each Auction for public
dissemination.
2.5 Broker-Dealers.
(a) On
each
Interest Payment Date, the Auction Agent shall, promptly after its receipt
of
funds from the Company, pay to each Broker-Dealer a service charge in the amount
equal to: (i) in the case of any Auction immediately preceding a Rate Period
of
less than one 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) ¼ of 1%, times (C) $25,000 times (D) the sum of the aggregate
number of Tortoise Notes placed by such Broker-Dealer, or (ii) the amount
mutually agreed upon by the Company and the Broker-Dealers in the case of any
Auction immediately preceding a Rate Period of one year or longer. For the
purposes of the preceding sentence, the Tortoise Notes shall be placed by a
Broker-Dealer if such notes were (1) the subject of Hold Orders deemed to have
been submitted to the Auction Agent by the Broker-Dealer and were acquired
by
the Broker-Dealer for its own account or were acquired by the Broker-Dealer
for
its customers who are Beneficial Owners or (2) the subject of an Order submitted
by the Broker-Dealer that is (a) a Submitted Bid of an Existing Holder that
resulted in the Existing Holder continuing to hold the notes as a result of
the
Auction or (b) a Submitted Bid of a Potential Holder that resulted in the
Potential Holder purchasing the notes as a result of the Auction or (3) the
subject of a valid Hold Order. For the avoidance of doubt, only one
Broker-
6
Dealer
shall be considered to have placed a particular Tortoise Note at any particular
Auction for purposes of this Section 2.5(a).
(b) The
Company shall not designate any Person to act as a Broker-Dealer, or permit
an
Existing Holder or a Potential Beneficial Owner to participate in Auctions
through any Person other than a Broker-Dealer, without the prior approval of
the
Auction Agent, which approval shall not be withheld unreasonably.
Notwithstanding the foregoing, the Company may designate an Affiliate of ▇▇▇▇▇▇
Brothers Inc. to act as a Broker-Dealer.
(c) The
Auction Agent shall terminate any Broker-Dealer Agreement as set forth therein
if so directed by the Company.
(d) Subject
to Section 2.5(b) hereof, the Auction Agent from time to time shall enter into
such Broker-Dealer Agreements as the Company shall request in
writing.
(e) The
Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership
of Tortoise Notes and Submission of Bids by the Company and Its
Affiliates.
Neither
the Company nor any Affiliate of the Company may submit an Order in any Auction,
except that an Affiliate of the Company that is a Broker-Dealer may submit
an
Order. The Company shall notify the Auction Agent if the Company or, to the
best
of the Company’s knowledge, any Affiliate of the Company becomes a Beneficial
Owner of any Tortoise Notes. The restrictions in this Section 2.6 shall in
no
way limit the activities of the Auction Agent. The Auction Agent shall have
no
duty or liability with respect to enforcement of this Section 2.6.
2.7 Access
to and Maintenance of Auction Records.
The
Auction Agent shall afford to the Company, its agents, independent public
accountants and counsel, at reasonable times during normal business hours,
access to all books, records, documents and other information concerning the
conduct and results of Auctions, to review and make extracts or copies of (at
the Company’s sole cost and expense), 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
7
written
consent of the applicable Broker-Dealer, provided that such agent, accountant
or
counsel may reserve the right to disclose any such information if it is ordered
to do so by a court of competent jurisdiction or a regulatory body, judicial
or
quasi-judicial agency or authority having authority to compel such disclosure,
or if it is advised by its counsel that its failure to do so would be
unlawful.
2.8 Information
Concerning Rates.
If
there
is any change in the credit rating of Tortoise Notes by a Rating Agency (or
substitute or successor Rating Agencies) then rating the Tortoise Notes that
results in any change in the applicable percentage of the “AA” Composite
Commercial Paper Rate used to determine the Maximum Rate for Tortoise Notes
(the
“Rate Multiple”), the Company shall notify the Auction Agent of such change in
the Rate Multiple by no later than the Business Day immediately preceding the
next Auction Date. In determining the Maximum Rate on any Auction Date, the
Auction Agent shall be entitled to rely on the last Rate Multiple for Tortoise
Notes of which it has most recently received notice from the Company.
III. REPRESENTATIONS
AND WARRANTIES.
3.1 Representations
and Warranties of the Company.
The
Company represents and warrants to the Auction Agent that:
(i) the
Company has been duly organized and is validly existing as a corporation under
the laws of the State of Maryland, and has full power to execute and deliver
this Agreement and to authorize, create and issue the Tortoise Notes;
(ii) the
Company is registered with the Commission under the Investment Company Act
as a
closed-end, nondiversified, management investment company;
(iii) this
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general equitable
principles;
(iv) the
form
of the certificate evidencing the Tortoise Notes complies with all applicable
state and federal laws;
(v) the
Tortoise Notes have been duly and validly authorized by the Company and, upon
completion of the initial sale of the Tortoise Notes and receipt of payment
therefor, will be validly issued by the Company, fully paid and
nonassessable;
(vi) at
the
time of the offering of the Tortoise Notes, the Tortoise Notes offered will
be
registered under the Securities Act and no further action by or before any
governmental body or authority of the United States or of any state thereof
is
required in connection with the execution and delivery of this Agreement or
will
be required in connection with the issuance of the Tortoise Notes, except such
action as required by applicable state securities laws;
8
(vii) the
execution and delivery of this Agreement and the issuance and delivery of the
Tortoise Notes do not and will not conflict with, violate or result in a breach
of the terms, conditions or provisions of, or constitute a default under, the
Articles of Incorporation or by-laws of the Company, any order or decree of
any
court or public authority having jurisdiction over the Company or any mortgage,
indenture, contract, agreement or undertaking to which the Company is a party
or
by which it is bound the effect of which conflict, violation, breach or default
would be material to the Company; and
(viii) no
taxes
are payable upon or in respect of the execution of this Agreement or will be
payable upon or in respect of the issuance of the Tortoise Notes.
3.2 Representations
and Warranties of the Auction Agent.
The
Auction Agent represents and warrants to the Company that:
(i) the
Auction Agent is duly organized and is validly existing as a banking corporation
in good standing under the laws of the State of New York and has the corporate
power to enter into and perform its obligations under this Agreement;
and
(ii) this
Agreement has been duly and validly authorized, executed and delivered by the
Auction Agent and constitutes the legal, valid and binding obligation of the
Auction Agent, enforceable against the Auction Agent in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization and other laws
of
general applicability relating to or affecting creditors’ rights and to general
equitable principles.
IV. THE
AUCTION AGENT.
4.1 Duties
and Responsibilities.
(a) The
Auction Agent is acting solely as non-fiduciary agent for the Company hereunder,
has only the duties expressly set forth herein, and owes no duties, fiduciary
or
otherwise, to any Person by reason of this Agreement and no implied duties,
fiduciary or otherwise, shall be read into this Agreement against the Auction
Agent.
(b) The
Auction Agent undertakes to perform such duties and only such duties as are
set
forth specifically in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Auction Agent.
(c) In
the
absence of bad faith or gross negligence on its part, the Auction Agent shall
not be liable for any action taken, suffered or omitted by it, or for any error
of judgment made by it in the performance of its duties under this Agreement.
The Auction Agent shall not be liable for any error of judgment made in good
faith unless the Auction Agent shall have been grossly negligent in ascertaining
(or failing to ascertain) the pertinent facts.
4.2 Rights
of the Auction Agent.
(a) The
Auction Agent may rely conclusively upon, and shall be fully protected in acting
or refraining from acting in accordance with, any communication authorized
9
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 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.
10
(h) All
the
rights, privileges, immunities and protections granted to the Auction Agent
herein are deemed granted to [Paying Agent], as Paying Agent, in any of the
capacities it undertakes in connection with this Agreement.
(i) Whenever
in the administration of the provisions of this Agreement, the Auction Agent
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action to be taken hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of gross negligence or bad faith on the part of the Auction
Agent, be deemed to be conclusively proved and established by a certificate
describing such action as requested by the Company or the Broker-Dealer, signed
by the Company or the Broker-Dealer, respectively, and delivered to the Auction
Agent and such certificate, in the absence of gross negligence or bad faith
on
the part of the Auction Agent, shall be full warrant to the Auction Agent for
any action taken or omitted by it under the provisions of this Agreement upon
the faith thereof. Upon receipt of any such certificate signed by the Company
or
the Broker-Dealer, the Auction Agent shall promptly provide a copy of said
certificate to the Broker-Dealer or the Company, respectively. The Auction
Agent
shall not be bound to make any investigation into the facts or matters stated
in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement, order, approval or other paper or document
furnished by the Company or the Broker-Dealer, except to the extent that such
failure to investigate would be deemed gross negligence.
4.3 Compensation,
Expenses and Indemnification.
(a) The
Company shall pay to the Auction Agent from time to time reasonable compensation
for all services rendered by it under this Agreement and under the Broker-Dealer
Agreements as shall be set forth in a separate writing signed by the Company
and
the Auction Agent, subject to adjustments if the Tortoise Notes no longer are
held of record by the Securities Depository or its nominee or if there shall
be
such other change as shall increase or decrease materially the Auction Agent’s
obligations hereunder or under the Broker-Dealer Agreements.
(b) The
Company shall reimburse the Auction Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Auction Agent
in
accordance with any provision of this Agreement and of the Broker-Dealer
Agreements (including the reasonable compensation, expenses and disbursements
of
its agents and counsel), except any expense, disbursement or advance
attributable to the Auction Agent’s gross negligence or bad faith, upon
submission to the Company of reasonable documentation thereof. In no event
shall
the Auction Agent be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(c) The
Company shall indemnify the Auction Agent and its officers, directors, employees
and agents for, and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Auction Agent
arising out of or in connection with its agency under this Agreement and under
the Broker-Dealer Agreements, including the costs and expenses of defending
themselves against any claim of liability in
11
connection
with their exercise or performance of any of their duties hereunder and
thereunder, except such as may result from its gross negligence or bad
faith.
4.4 Auction
Agent’s Disclaimer.
The
Auction Agent makes no representation as to the validity or adequacy of the
Agreement, the Broker-Dealer Agreements or the Tortoise Notes except to the
extent otherwise set forth in Section 3.2 and except that the Auction Agent
hereby represents that the Agreement has been duly authorized, executed and
delivered by the Auction Agent and constitutes a legal and binding obligation
of
the Auction Agent.
V. MISCELLANEOUS.
5.1 Term
of Agreement.
(a) The
term
of this Agreement is unlimited unless it shall be terminated as provided in
this
Section 5.1. The Company may terminate this Agreement at any time by so
notifying the Auction Agent, provided that, if any Tortoise Notes remain
outstanding, the Company shall have entered into an agreement with a successor
auction agent. The Auction Agent may terminate this Agreement upon prior notice
to the Company on the date specified in such notice, which date shall be no
earlier than 60 days after delivery of such notice. If the Auction Agent
terminates this Agreement while any Tortoise Notes remain outstanding, the
Company shall use its best efforts to enter into an agreement with a successor
auction agent containing substantially the same terms and conditions as this
Agreement.
(b) Except
as
otherwise provided in this Section 5.1(b), the respective rights and duties
of
the Company and the Auction Agent under this Agreement shall cease upon
termination of this Agreement. The Company’s representations, warranties,
covenants and obligations to the Auction Agent under Section 3.1 hereof shall
survive the termination hereof. The Auction Agent’s representations, warranties,
covenants and obligations under Section 3.2 hereof shall survive the termination
hereof. Upon termination of this Agreement, the Auction Agent shall (i) resign
as Auction Agent under the Broker-Dealer Agreements, (ii) at the Company’s
written request, deliver promptly to the Company or to another authorized party
copies of all books and records maintained by it in connection with its duties
hereunder, and (iii) at the written request of the Company, transfer promptly
to
the Company or to any successor auction agent any funds deposited by the Company
with the Auction Agent pursuant to this Agreement which have not been
distributed previously by the Auction Agent in accordance with this
Agreement.
5.2 Communications.
Except
for (i) communications authorized to be made by telephone pursuant to this
Agreement or the Auction Procedures and (ii) communications in connection with
Auctions (other than those expressly required to be in writing), all notices,
requests and other communications to any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given to such party at
its
address or telecopier number set forth below:
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|
If
to the Company,
addressed
to:
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
If
to the Auction Agent,
addressed
to:
[Auction
Agent]
[Address]
Attention:
Telephone:
Facsimile:
|
|
or
such
other address or telecopier number as such party hereafter may specify for
such
purpose by notice to the other party. Each such notice, request or communication
shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer
and
on behalf of the Auction Agent by an Authorized Officer.
5.3 Entire
Agreement.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or implied, between the
parties relating to the subject matter hereof, except for written agreements
relating to the compensation of the Auction Agent.
5.4 Benefits.
Nothing
herein, express or implied, shall give to any Person, other than the Company,
the Auction Agent and their respective successors and assigns, any benefit
of
any legal or equitable right, remedy or claim hereunder.
5.5 Amendment;
Waiver.
(a) This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
(b) Failure
of either party hereto to exercise any right or remedy hereunder in the event
of
a breach hereof by the other party shall not constitute a waiver of any such
right or remedy with respect to any subsequent breach.
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5.6 Successors
and Assigns.
This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by,
the respective successors and permitted assigns of each of the Company and
the
Auction Agent. This Agreement may not be assigned by either party hereto absent
the prior written consent of the other party, which consent shall not be
withheld unreasonably.
5.7 Severability.
If
any
clause, provision or section hereof shall be ruled invalid or unenforceable
by
any court of competent jurisdiction, the invalidity or unenforceability of
such
clause, provision or section shall not affect any of the remaining clauses,
provisions or sections hereof.
5.8 Execution
in Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
5.9 Governing
Law, Jurisdiction, Waiver of Trial By Jury.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING
TO
CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF
NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND PROCEEDINGS ARISING
OUT
OF THIS AUCTION AGENCY AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK,
STATE OF NEW YORK.
EACH
PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK
AND
STATE OF NEW YORK WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD
OR CLAIM THE SAME. EACH OF THE PARTIES HERETO ALSO IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.10 Limitation
of Liability.
A
copy of
the Articles of Incorporation of the Company is on file with the Secretary
of
State of the State of Maryland. This Agreement has been executed on behalf
of
the Company by an officer of the Company in such capacity and not individually
and the obligations of the Company under this Agreement are not binding upon
such officer or the shareholders of the Company individually but are binding
only upon the assets and property of the Company.
[Signature
page follows]
14
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.
|
By:___________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Treasurer
|
|
|
[AUCTION
AGENT]
By:___________________________________________
Name:
Title:
|
15
EXHIBIT
A
FORM
OF
BROKER-DEALER AGREEMENT
16