STRUCTURING FEE AGREEMENT
Exhibit h.3
July [ ], 2009
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Tortoise Capital Advisors, L.L.C. (the “Company”) and UBS Securities
LLC (“UBS”) with respect to Tortoise Power and Energy Infrastructure Fund, Inc. (the “Fund”).
1. Fee. In consideration of certain financial advisory services that UBS has provided
to the Company in structuring, designing, and organizing the Fund, the Company shall pay a fee to
UBS of $[ ] (the “Fee”). The Fee shall be paid on or before [closing date], 2009, or as otherwise
agreed to by the parties.
2. Term. This Agreement shall terminate upon the payment of the entire amount of the
Fee, as specified in Section 1 hereof.
3. Indemnification. The Company agrees to the indemnification and other agreements
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.
4. Confidential Advice. None of any advice rendered by UBS to the Company or any
communication from UBS in connection with the services performed by UBS pursuant to this Agreement
will be quoted or referred to orally or in writing, or reproduced or disseminated, by the Company
or any of its affiliates or any of their agents, without UBS’ prior written consent, except (i) the
Company may promptly disclose the foregoing to any regulatory authority in response to a regulatory
proceeding, process, inquiry or request provided the Company shall give UBS prompt notice
thereafter of such request and disclosure if, in the view of Company counsel and regulatory
authority, it is legally able to do so, (ii) to the extent otherwise required by law, judicial
process or applicable regulation (after consultation with, and approval (not to be unreasonably
withheld) as to form and substance by UBS and its counsel, unless such consultation is prohibited
by law, order or regulation) and (iii) on a confidential need-to-know basis, to the Fund and its
officers and directors and their legal counsel, auditors and other advisors. This confidentiality
provision will terminate thirty-six months from the date first written above.
5. Information. The Company recognizes and confirms that UBS (a) has used and relied
primarily on the information provided by the Company (the
“Information”) and on information available from generally recognized public sources in
performing the services contemplated by this Agreement without having assumed responsibility for
independently verifying the same, (b) has not assumed responsibility for the accuracy, completeness
or reasonableness of the Information and such other information and (c) has not made an appraisal
of any assets or liabilities (contingent or otherwise) of the Fund.
6. Not an Investment Advisor. The Company acknowledges that you have not provided any
advice hereunder as to the value of securities or regarding the advisability of purchasing or
selling any securities for the Fund’s portfolio. The Company acknowledges and agrees that UBS has
been retained to act solely as an advisor to the Company, and the Company’s engagement of UBS is
not intended to confer rights upon any person (including the Fund or any shareholders, employees or
creditors of the Company or the Fund) not a party hereto as against UBS or its affiliates, or their
respective directors, officers, employees or agents, successors, or assigns. UBS has acted as an
independent contractor under this Agreement, and not in any other capacity including as a
fiduciary, and any duties arising out of its engagement shall be owed solely to the Company.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or your
affiliates from acting as an underwriter or financial advisor or in any other capacity for any
other persons (including other registered investment companies or other investment managers).
8. Amendment; Waiver. No provision of this Agreement may be amended or waived except
by an instrument in writing signed by the parties hereto.
9. Governing Law. 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”), directly or
indirectly, shall be governed by and construed in accordance with the laws of the State of New
York. 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 Company and UBS consent to the jurisdiction of such courts
and personal service with respect thereto. EACH OF UBS AND THE COMPANY WAIVES 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.
10. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all of which, when taken together, shall constitute one
agreement. Delivery of an executed signature page of this Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart hereof.
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This Agreement shall be effective as of the date first written above.
[END OF TEXT]
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| TORTOISE CAPITAL ADVISORS, L.L.C. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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| Title: |
Indemnification Agreement
July [ ], 2009
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the
undersigned (the “Company”) with the matters set forth in the Structuring Fee Agreement dated July
[ ], 2009 between the Company and UBS (the “Agreement”), in the event that UBS 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 relating to or arising out of the Agreement,
including, without limitation, related services and activities prior to the date of the Agreement,
the Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by
law, from and against any losses, claims, damages, liabilities and expenses in connection with any
such Proceeding, 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 primarily from
the gross negligence or willful misconduct of UBS. The indemnification provided hereunder shall
not extend to those matters indemnified under the Underwriting Agreement, dated July [ ], 2009, by
and among Tortoise Power and Energy Infrastructure Fund, Inc. and Tortoise Capital Advisors,
L.L.C., on the one hand, and Xxxxx Fargo Securities, L.L.C. and each of the underwriters named
therein, on the other hand. In addition, in the event that UBS becomes involved in any capacity in
any such Proceeding, the Company will reimburse UBS for its reasonable legal and other expenses
(including the cost of any investigation and preparation) as such expenses are incurred by UBS in
connection therewith. If such indemnification were not to be available for any reason, the Company
agrees to 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 the
Company and its stockholders and the Tortoise Power and Energy Infrastructure Fund, Inc. (the
“Fund”), on the one hand, and UBS, 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 the Company and its stockholders
and the Fund, on the one hand, and the party entitled to contribution, on the other hand, as well
as any other relevant equitable considerations. The Company agrees that for the purposes of this
paragraph the relative benefits received, or sought to be
received, by the Company and its stockholders and the Fund, 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 the Fund, as the case may be, as a result of or in connection
with the transaction (whether or not consummated) for which UBS has been retained to perform
services bears to the fees paid to UBS under the Agreement; provided, that in no event
shall the Company contribute less than the amount necessary to assure that UBS is not liable for
losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received
by UBS 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 the Company or other conduct by the Company (or its employees or other
agents), on the one hand, or by UBS, on the other hand. The Company will not settle any Proceeding
in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential
party to such Proceeding, without UBS’ prior written consent (which shall not be unreasonably
withheld in the case of a settlement involving the payment of money damages). For purposes of this
Indemnification Agreement, “UBS” shall include UBS Securities LLC, any of its affiliates, each
other person, if any, controlling UBS Securities LLC 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 Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or
controlling persons shall have any liability to the Company or any person asserting claims on
behalf of or in right of the Company in connection with or as a result of UBS’ 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 Company resulted primarily from the gross negligence or willful misconduct
of UBS in performing the services that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE 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
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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 COMPANY AND UBS CONSENT TO
THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY
CONSENTS 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 UBS OR ANY
INDEMNIFIED PARTY. EACH OF UBS AND THE COMPANY WAIVES 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 OF UBS AND THE 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 UBS AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY
OTHER COURTS TO THE JURISDICTION OF WHICH UBS AND THE COMPANY ARE 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 UBS’ 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, TORTOISE CAPITAL ADVISORS, L.L.C. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and agreed to as of
the date first above written:
the date first above written:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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| Title: |
{Indemnification Agreement}
