STRUCTURING FEE AGREEMENT
This STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of March [ ],
2005, between X.X. Xxxxxxx & Sons, Inc. ("X.X. Xxxxxxx") and Nuveen
Tax-Advantaged Floating Rate Fund ("xxx Xxxx").
WHEREAS, The Fund is registered under the Investment Company Act of 1940
(the "1940 Act") as a diversified, closed-end management investment company and
has filed for the registration of its common shares of beneficial interest, par
value $0.01 per share (the "Common Shares") under the Securities Act of 1933;
WHEREAS, X.X. Xxxxxxx has provided to the Fund certain services relating to
the development of the Fund, including: (i) advice relating to the structure and
design of the Fund and its investment objectives and policies, including, but
not limited to, the Fund's prospective investments in Preferred Stock of Middle
Market Banking Companies (as such terms are defined in the Fund's registration
statement) and (ii) and the impact of such investment objectives and policies on
various accounting, tax and trading aspects of the Fund; and
WHEREAS, the Fund desires to provide compensation to X.X. Xxxxxxx for
providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. In consideration for the services provided by X.X. Xxxxxxx relating to the
development of the Fund, the Fund shall pay a structuring fee to X.X.
Xxxxxxx in the aggregate amount of $[ ] (the "Structuring Fee"). The
Structuring Fee shall be paid at the same time as the delivery of the
Common Shares to the underwriters in the initial public offering (the
"Offering") of the Common Shares and shall be made by wire transfer to the
order of X.X. Xxxxxxx & Sons, Inc. The total amount of the fee hereunder
will not exceed [ ]% of the total price to the public of the Common Shares
sold in the Offering.
2. The Fund acknowledges that the services provided by X.X. Xxxxxxx hereunder
do not include any advice as to the value of securities or regarding the
advisability of purchasing or selling any securities, in each case for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of
X.X. Xxxxxxx, and X.X. Xxxxxxx is not agreeing, to: (i) furnish any advice
or make any recommendations regarding the purchase or sale of portfolio
securities or (ii) render any opinions, valuations of portfolio securities
or recommendations of any kind in connection with providing the services
described herein, to the extent that any such services would constitute
investment advisory or investment banking services, it being understood
between the parties hereto that any such investment advisory or investment
banking services if, and to the extent, agreed to be performed by X.X.
Xxxxxxx, shall be the subject of a separate agreement with the Fund.
3. Nothing herein shall be construed as prohibiting X.X. Xxxxxxx or any of its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment
managers), so long as X.X. Xxxxxxx'x services to the Fund are not impaired
thereby. Neither this Agreement nor the performance of the services
contemplated hereunder shall be considered to constitute a partnership,
association or joint venture between X.X. Xxxxxxx and the Fund. In
addition, nothing in this Agreement shall be construed to
constitute X.X. Xxxxxxx as the agent or employee of the Fund or the Fund as
the agent or employee of X.X. Xxxxxxx, and neither party shall make any
representation to the contrary. It is understood that X.X. Xxxxxxx is
engaged hereunder solely to provide the services described above to the
Fund and that X.X. Xxxxxxx is not acting as an agent or fiduciary of, and
X.X. Xxxxxxx shall not have any duties or liability to, the current or
future shareholders of the Fund or any other third party in connection with
its engagement hereunder, all of which are hereby expressly waived to the
extent the Fund has the authority to waive such duties and liabilities.
4. This Agreement shall terminate upon the payment of the entire amount of the
Structuring Fee, as specified in Section 1 hereof or upon the termination
of the Underwriting Agreement with respect to the Fund without Common
Shares having been delivered and paid for.
5. The Fund agrees that X.X. Xxxxxxx shall not have any liability to the Fund
for any act or omission to act by X.X. Xxxxxxx in the course of its
performance under this Agreement, in the absence of gross negligence or
willful misconduct on the part of X.X. Xxxxxxx. The Fund agrees that it
shall provide indemnification to X.X. Xxxxxxx as set forth in the
Indemnification Agreement appended hereto.
6. 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.
7. 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 Fund and X.X. Xxxxxxx consent to the
jurisdiction of such courts and personal service with respect thereto. Each
of the Fund and X.X. Xxxxxxx 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. Each of the Fund and X.X.
Xxxxxxx agrees that a final judgment in any proceeding or counterclaim
brought in any such court shall be conclusive and binding upon such party
and may be enforced in any other courts to the jurisdiction of which such
party is or may be subject, by suit upon such judgment.
8. This Agreement may not be assigned by either party without the prior
written consent of the other party.
9. This 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 the Fund and X.X. Xxxxxxx.
10. All notices required or permitted to be sent under this Agreement shall be
sent, if to the Fund:
Nuveen Tax-Advantaged Floating Rate Fund
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
or if to X.X. Xxxxxxx:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Investment Banking--Corporate Finance
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
transmission, whichever is earlier.
11. 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.
12. The Fund's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. This Agreement is executed on behalf of the
Fund by the Fund's officers as officers and not individually and the
obligations imposed upon the Fund by this Agreement are not binding upon
any of the Fund's Trustees, officers or shareholders individually but are
binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have duly executed this Structuring
Fee Agreement as of the date first above written.
NUVEEN TAX-ADVANTAGED FLOATING X.X. XXXXXXX & SONS, INC.
RATE FUND
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
Indemnification Agreement
-------------------------
March [ ], 2005
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of X.X. Xxxxxxx & Sons, Inc. (the
"Service Provider") to provide services to the undersigned (the "Company") in
connection with the matters set forth in the Structuring Fee Agreement dated
March [ ], 2005 (the "Agreement"), between the Company and the Service Provider,
in the event that the Service Provider 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, including, without limitation, related services and activities
prior to the date of the Agreement (other than services and activities performed
pursuant to the underwriting agreement between the parties and dated even
herewith), the Company agrees to indemnify, defend and hold the Service Provider
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, 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
such losses, claims, damages, liabilities and expenses resulted from the gross
negligence or willful misconduct of the Service Provider. In addition, in the
event that the Service Provider 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,
including, without limitation, related services and activities prior to the date
of the Agreement (other than services and activities performed pursuant to the
underwriting agreement between the parties and dated even herewith), the Company
will reimburse the Service Provider for its legal and other expenses (including
the cost of any investigation and preparation) as such expenses are reasonably
incurred by the Service Provider 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 shareholders and other
constituencies, on the one hand, and the Service Provider, 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 shareholders and affiliates and other constituencies, 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 shareholders 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
shareholders or affiliates and other constituencies, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which the Service Provider has been retained to perform services bears to the
fees paid to the Service Provider under the Agreement; provided, that in no
event shall the Company contribute less than the amount necessary to assure that
the Service Provider is not liable for losses, claims, damages, liabilities and
expenses in excess of the amount of fees actually
received by the Service Provider 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 the Service Provider, on the other hand.
The Company shall not be liable under this Indemnification Agreement to the
Service Provider regarding any settlement or compromise or consent to the entry
of any judgment with respect to any Proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Company is an actual or potential party to such Proceeding) unless such
settlement, compromise or judgment is consented to by the Company. The Company
shall not, without the prior written consent of the Service Provider, settle or
compromise or consent to the entry of any judgment with respect to any
Proceeding in respect of which indemnification or contribution could be sought
under this Indemnification Agreement (whether or not the Service Provider is an
actual or potential party thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of the Service Provider from all
liability arising out of such Proceeding and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of the Service Provider. For purposes of this Indemnification Agreement, the
Service Provider shall include any of its affiliates, each other person, if any,
controlling the Service Provider or any of its affiliates, their respective
officers, current and former directors, employees and agents, and the successors
and assignees 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 the Service Provider 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 either the Service
Provider's 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 from the gross
negligence or willful misconduct of the Service Provider in performing the
services that are the subject of the Agreement.
Notwithstanding any provision contained herein, in no event shall the
Service Provider be entitled to indemnification by the Company hereunder from
and against any losses, claims, damages, liabilities or expenses in respect of
which indemnity may be sought under Section 9 of the Underwriting Agreement.
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 COMPANY AND THE SERVICE PROVIDER 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 THE SERVICE PROVIDER OR ANY INDEMNIFIED PARTY. THE SERVICE PROVIDER 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. 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 THE COMPANY AND MAY BE ENFORCED IN
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT,
BY SUIT UPON SUCH JUDGMENT.
The Company's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. This Agreement is executed on behalf of the
Company by the Company's officers as officers and not individually and the
obligations imposed upon the Company by this Agreement are not binding upon any
of the Company's Trustees, officers or shareholders individually but are binding
only upon the assets and property of the Company.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Service Provider's 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,
NUVEEN TAX-ADVANTAGED FLOATING RATE
FUND
By: _________________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
X.X. XXXXXXX & SONS, INC.
By: ________________________________________
Name:
Title:
