STRUCTURING FEE AGREEMENT
Exhibit 99(h)(iv)(iii)
STRUCTURING FEE AGREEMENT (the “Agreement”), dated as
of January [ • ], 2011, between
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (“Xxxxxxx Xxxxx”) and Gabelli Funds, LLC
(the “Adviser”).
WHEREAS, The Gabelli Natural Resources, Gold & Income
Trust (including any successor by merger or otherwise, the
“Trust”) is a non-diversified, closed-end management
investment company registered under the Investment Company Act
of 1940, as amended (the “1940 Act”), and its common
shares are registered under the Securities Act of 1933, as
amended;
WHEREAS, the Trust and the Adviser have entered into an
underwriting agreement (the “Underwriting Agreement”),
dated January [ • ], 2011 with Xxxxxxx Xxxxx and
the other underwriters named therein (the
“Underwriters”);
WHEREAS, Gabelli Funds, LLC is the investment adviser of the
Trust;
WHEREAS, Xxxxxxx Xxxxx is acting an underwriter in an offering
of the Trust’s common shares; and
WHEREAS, the Adviser desires to provide a structuring fee to
Xxxxxxx Xxxxx for providing the advice and services described
below;
NOW, THEREFORE, in consideration of the mutual terms and
conditions set forth below, the parties hereto agree as follows:
1. In consideration of Xxxxxxx Xxxxx’x providing
advice relating to the structure and design and the organization
of the Trust as well as services related to the sale and
distribution of the Trust’s common shares, the Adviser
shall pay Xxxxxxx Xxxxx an aggregate fee equal to
[ • ]% of the total price to the public of the
Trust’s common shares sold by Xxxxxxx Xxxxx pursuant to the
prospectus dated January [ • ], 2011 (the
“Prospectus”) (including all Initial Securities and
Option Securities as such terms are described in the
Underwriting Agreement) (the “Fee”),
$[ • ]. The Fee shall be paid within 30 days
of the Closing Date (as defined in the Underwriting Agreement)
and any Date of Delivery (as defined in the Underwriting
Agreement), if applicable, in an aggregate amount equal to
[ • ]% of the total price to the public of the
common shares sold by Xxxxxxx Xxxxx on such Closing Date or Date
of Delivery, as the case may be, or as otherwise agreed to by
the parties. The sum total of all compensation to or
reimbursement of underwriters in connection with the offering,
including sales load and all forms of additional compensation,
shall not exceed 9.0% of the total price of the Trust’s
common shares sold in the offering. In the event the offering
does not proceed, you will not receive any fees under this
Agreement; however, for the avoidance of doubt, accountable
expenses actually incurred may be payable to you pursuant to the
terms of the Underwriting Agreement.
2. Nothing herein shall be construed as prohibiting Xxxxxxx
Xxxxx or its affiliates from acting as an underwriter to any
other client (including other registered investment companies).
3. The Adviser acknowledges that Xxxxxxx Xxxxx did not
provide and is not providing any advice hereunder as to the
value of securities or regarding the advisability of purchasing
or selling any securities for the Trust’s portfolio. No
provision of this Agreement shall be considered as creating, nor
shall any provision create, any obligation on the part of
Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx is not hereby agreeing, to:
(i) furnish any advice or make any recommendations
regarding the purchase or sale of portfolio securities or
(ii) render any opinions, valuations or recommendations of
any kind or to perform any such similar services in connection
with acting as lead underwriter in an offering of the
Trust’s common shares.
4. This Agreement shall terminate upon the payment of the
entire amount of the Fee, as specified in Paragraph 1
hereof.
5. The Adviser will xxxxxxx Xxxxxxx Xxxxx with such
information as Xxxxxxx Xxxxx believes appropriate to its
assignment hereunder (all such information so furnished being
the “Information”). The Adviser recognizes and
confirms that Xxxxxxx Xxxxx (a) has used and relied
primarily on the Information and on information available from
generally recognized public sources in performing the services
contemplated by this Agreement without having independently
verified the same and (b) does not assume responsibility
for the accuracy or completeness of the Information and such
other information. To the best of the Adviser’s knowledge,
the Information
furnished by the Adviser, when delivered, was true and correct
in all material respects and did not contain any material
misstatement of fact or omit to state any material fact
necessary to make the statements contained therein not
misleading. The Adviser will promptly notify Xxxxxxx Xxxxx if it
learns of any material inaccuracy or misstatement in, or
material omission from, any Information delivered to Xxxxxxx
Xxxxx.
6. The Adviser agrees that Xxxxxxx Xxxxx shall have no
liability to the Adviser or the Trust for any act or omission to
act by Xxxxxxx Xxxxx in the course of its performance under this
Agreement, in the absence of gross negligence or willful
misconduct on the part of Xxxxxxx Xxxxx. The Adviser agrees to
the terms set forth in the Indemnification Agreement attached
hereto, the provisions of which are incorporated herein by
reference and shall survive the termination, expiration or
supersession of this Agreement.
7. This Agreement and any claim, counterclaim or dispute of
any kind or nature whatsoever arising out of or in any way
relating to this Agreement (“Claim”) shall be governed
by and construed in accordance with the laws of the State of New
York.
8. No Claim may be commenced, prosecuted or continued in
any court other than the courts of the State of New York
located in the City and County of New York or in the United
States District Court for the Southern District of New York,
which courts shall have exclusive jurisdiction over the
adjudication of such matters, and Gabelli Funds, LLC and Xxxxxxx
Xxxxx consent to the jurisdiction of such courts and personal
service with respect thereto. Each of Xxxxxxx Xxxxx and the
Adviser waives all right to trial by jury in any proceeding
(whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Adviser agrees
that a final judgment in any proceeding or counterclaim brought
in any such court shall be conclusive and binding upon the
Adviser and may be enforced in any other courts to the
jurisdiction of which the Adviser is or may be subject, by suit
upon such judgment.
9. This Agreement may not be assigned by any parties
without the prior written consent of the other parties.
10. This Agreement (including the attached Indemnification
Agreement) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect
such provision in any other respect or any other provision of
this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived
except by an instrument in writing signed by Xxxxxxx Xxxxx and
the Adviser.
11. All notices required or permitted to be sent under this
Agreement shall be sent, if to Gabelli Funds, LLC:
Gabelli Funds, LLC
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx
00000-0000
Attention: [ • ]
or if to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
or such other name or address as may be given in writing to the
other parties. Any notice shall be deemed to be given or
received on the third day after deposit in the U.S. mail
with certified postage prepaid or when actually received,
whether by hand, express delivery service or facsimile
electronic transmission, whichever is earlier.
12. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all
of which taken together constitute one and the same agreement.
[signatures
on following page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Structuring Fee Agreement as of the date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
| By: |
Name:
Title:
GABELLI FUNDS, LLC
| By: |
Name:
Title:
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Xxxxxxx
Xxxxx & Co. Indemnification Agreement
January
[ • ], 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (“Xxxxxxx
Xxxxx”) to advise and assist the undersigned (together with
their affiliates and subsidiaries, each referred to as a
“Company” and, together, the “Companies”)
with the matters set forth in the Structuring Fee Agreement
dated January [ • ], 2011 among each of the
Companies and Xxxxxxx Xxxxx (the “Agreement”), in the
event that Xxxxxxx Xxxxx becomes involved in any capacity in any
claim, suit, action, proceeding, investigation or inquiry
(including, without limitation, any shareholder or derivative
action or arbitration proceeding) (collectively, a
“Proceeding”) in connection with any matter in any way
relating to or referred to in the Agreement or arising out of
the matters contemplated by the Agreement, the Companies agree
to jointly and severally indemnify, defend and hold
Xxxxxxx Xxxxx harmless to the fullest extent permitted by
law, from and against any losses, claims, damages, liabilities
and expenses in connection with any matter in any way relating
to or referred to in the Agreement or arising out of the matters
contemplated by the Agreement, except to the extent that it
shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject
to appeal or other review, that such losses, claims, damages,
liabilities and expenses resulted solely from the gross
negligence or willful misconduct of Xxxxxxx Xxxxx. In addition,
in the event that Xxxxxxx Xxxxx becomes involved in any capacity
in any Proceeding in connection with any matter in any way
relating to or referred to in the Agreement or arising out of
the matters contemplated by the Agreement, the Companies shall
jointly and severally reimburse Xxxxxxx Xxxxx for its reasonable
legal and other expenses (including the cost of any
investigation and preparation) as such expenses are incurred by
Xxxxxxx Xxxxx in connection therewith, except to the extent that
it shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject
to appeal or other review, that such legal and other expenses
resulted from the gross negligence or willful misconduct of
Xxxxxxx Xxxxx. Promptly as reasonably practicable after receipt
by Xxxxxxx Xxxxx of notice of the commencement of any
Proceeding, Xxxxxxx Xxxxx will, if a claim in respect thereof is
to be made under this paragraph, notify the Companies in writing
of the commencement thereof; but the failure to so notify the
Companies (i) will not relieve the Companies from liability
under this paragraph to the extent it is not materially
prejudiced as a result thereof and (ii) in any event shall
not relieve the Companies from any liability which it may have
otherwise than on account of this Indemnification Agreement.
If such indemnification were not to be available for any reason,
each Company agrees to, jointly and severally with the each
other Company, contribute to the losses, claims, damages,
liabilities and expenses involved (i) in the proportion
appropriate to reflect the relative benefits received or sought
to be received by that Company and its stockholders and
affiliates and other constituencies, on the one hand, and
Xxxxxxx Xxxxx, on the other hand, in the matters contemplated by
the Agreement or (ii) if (but only if and to the extent)
the allocation provided for in clause (i) is for any reason
held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits referred to in
clause (i) but also the relative fault of that Company and
its stockholders and affiliates, on the one hand, and the party
entitled to contribution, on the other hand, as well as any
other relevant equitable considerations. Each Company agrees
that for the purposes of this paragraph the relative benefits
received, or sought to be received, by that Company and its
stockholders and affiliates, on the one hand, and the party
entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that
the total value received or paid or contemplated to be received
or paid by the Company or its stockholders or affiliates, as the
case may be, as a result of or in connection with the
transaction (whether or not consummated) for which Xxxxxxx Xxxxx
has been retained to perform services bears to the fees paid to
Xxxxxxx Xxxxx under the Agreement; provided, that in no event
shall the Company
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contribute less than the amount necessary to assure that Xxxxxxx
Xxxxx is not liable for losses, claims, damages, liabilities and
expenses in excess of the amount of fees actually received by
Xxxxxxx Xxxxx pursuant to the Agreement. Relative fault shall be
determined by reference to, among other things, whether any
alleged untrue statement or omission or any other alleged
conduct relates to information provided by a Company or other
conduct by that Company (or its employees or other agents), on
the one hand, or by Xxxxxxx Xxxxx, on the other hand.
Notwithstanding the provisions of this paragraph, Xxxxxxx Xxxxx
shall not be entitled to contribution from the Companies if it
is determined that Xxxxxxx Xxxxx was guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933, as amended) and the Companies were
not guilty of such fraudulent misrepresentation.
No Company will settle any Proceeding in respect of which
indemnity may be sought hereunder, whether or not Xxxxxxx Xxxxx
is an actual or potential party to such Proceeding, without
Xxxxxxx Xxxxx’x prior written consent (which consent will
not be unreasonably withheld). For purposes of this
Indemnification Agreement, Xxxxxxx Xxxxx shall include Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, any of its
affiliates, each other person, if any, controlling Xxxxxxx Xxxxx
or any of its affiliates, their respective officers, current and
former directors, employees and agents, and the successors and
assigns of all of the foregoing persons. The foregoing indemnity
and contribution agreement shall be in addition to any rights
that any indemnified party may have at common law or otherwise.
The Companies agree that neither Xxxxxxx Xxxxx nor any of its
affiliates, directors, agents, employees or controlling persons
shall have any liability to the Companies or any person
asserting claims on behalf of or in right of the Companies in
connection with or as a result of either Xxxxxxx Xxxxx’x
engagement under the Agreement or any matter referred to in the
Agreement, including, without limitation, related services and
activities prior to the date of the Agreement, except to the
extent that it shall be determined by a court of competent
jurisdiction in a judgment that has become final in that it is
no longer subject to appeal or other review that any losses,
claims, damages, liabilities or expenses incurred by the
Companies resulted solely from the gross negligence or willful
misconduct of Xxxxxxx Xxxxx in performing the services that are
the subject of the Agreement.
For clarification, the parties to this Indemnification Agreement
agree that the term “affiliate” as used in the
definition of “Company” herein does not include any
registered investment company, except for the Trust, for which
such Company or any of its affiliates serves as investment
adviser.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR
DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN
ANY WAY RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY
OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH
BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY
COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN
THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL
HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH
MATTERS, AND THE COMPANIES AND XXXXXXX XXXXX CONSENT TO THE
JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT
THERETO. THE COMPANIES HEREBY CONSENT TO PERSONAL JURISDICTION,
SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF
OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD
PARTY AGAINST XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY. EACH OF
XXXXXXX XXXXX AND THE COMPANIES WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT. EACH COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND
BINDING UPON THAT COMPANY AND MAY BE ENFORCED IN ANY OTHER
COURTS TO THE JURISDICTION OF WHICH THAT COMPANY IS OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full
force and effect notwithstanding any termination of Xxxxxxx
Xxxxx’x engagement. This Indemnification Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and
the same agreement.
Very truly yours,
GABELLI FUNDS, LLC
| By: |
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
| By |
Name:
Title:
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