MARKETING AND STRUCTURING FEE AGREEMENT
Exhibit (2)(h)(3)
FEE AGREEMENT
__, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Swank Energy Income Advisors, LP (the “Company”) and Xxxxxx
Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) with respect to the The Xxxxxxx MLP Total
Return Fund (the “Fund”).
1. Fee. (a) In consideration of advice to the Company relating to, but not limited
to, the design and structuring of, and marketing assistance with respect to, the Fund and the
distribution of its shares of common stock, $0.001 par value per share (the “Shares”), the
Company shall pay a fee to Xxxxxx Xxxxxxx calculated at 1.25% of the aggregate price to the public
of the Shares sold by Xxxxxx Xxxxxxx in the Fund’s initial public offering (the “Offering”)
(including any Shares over-allotted by Xxxxxx Xxxxxxx in the Offering regardless of whether the
over-allotment option in the Offering is exercised), equal to
$___ (the “Fee”). Subject
to paragraph (b), the Fee paid to Xxxxxx Xxxxxxx shall not exceed 1.25% of the total price to the
public of the Shares sold by the Fund in the Offering.
(b) Notwithstanding paragraph (a), in the event that the Company (or the Fund or any person or
entity affiliated with the Company, the Fund or any subadviser to the Fund or acting on behalf of
or at the direction of any of the foregoing) compensates or agrees to compensate any other broker
or dealer participating in the Offering (each, an “Other Broker”) for any services or
otherwise in connection with the Offering or with respect to the Fund or its Shares (excluding for
this purpose any compensation paid directly to the entire underwriting syndicate, as a group,
pursuant to the principal underwriting agreement (the “Underwriting Agreement”) relating to
the Offering), whether such compensation be denominated a fee, an expense reimbursement, a set-off,
a credit or otherwise (such compensation with respect to any Other Broker, such Other Broker’s
“Other Compensation”), then the amount of the Fee shall be increased as and to the extent
necessary so that the Fee payable to Xxxxxx Xxxxxxx hereunder, expressed as a percentage of the
aggregate price to the public of the Shares sold by Xxxxxx Xxxxxxx in the Offering (including any
Shares over-allotted by Xxxxxx Xxxxxxx in the Offering regardless of whether the over-allotment
option in the Offering is exercised), is no less than the Other Compensation, expressed as a
percentage of the aggregate price to the public of the Shares sold by such Other Broker in the
Offering.
(c) The Company shall pay the Fee to Xxxxxx Xxxxxxx before the closing of the purchase and
sale of the Shares pursuant to the Underwriting Agreement on ___, 2007 by wire transfer to the order
of Xxxxxx Xxxxxxx. The Company acknowledges that the Fee is in addition to any compensation Xxxxxx
Xxxxxxx earns in connection with its role as an underwriter to the Fund in its initial public
offering, which services are distinct from and in addition to the marketing and structuring
services described above.
2. Term. This Agreement shall terminate upon 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. Not an Investment Advisor. The Company acknowledges that Xxxxxx Xxxxxxx is not
providing any advice hereunder as to the value of securities or regarding the advisability of
purchasing or selling any securities 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
Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx is not agreeing hereby, 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.
5. Not Exclusive. Nothing herein shall be construed as prohibiting Xxxxxx Xxxxxxx or
its 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).
Neither this Agreement nor the performance of the services contemplated hereunder shall be
considered to constitute a partnership, association or joint venture between Xxxxxx Xxxxxxx and the
Company. In addition, nothing in this Agreement shall be construed to constitute Xxxxxx Xxxxxxx as
the agent or employee of the Company or the Company as the agent or employee of Xxxxxx Xxxxxxx, and
neither party shall make any representation to the contrary. It is understood that Xxxxxx Xxxxxxx
is engaged hereunder solely to provide the services described above to the Company and that Xxxxxx
Xxxxxxx is not acting as an agent or fiduciary of, and Xxxxxx Xxxxxxx shall not have any duties or
liability to, the current or future partners, members or equity owners of the Company or any other
third party in connection with its engagement hereunder, all of which are hereby expressly waived
to the extent the Company has the authority to waive such duties and liabilities.
6. Assignment. This Agreement may not be assigned by either party without prior
written consent of the other party.
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7. Amendment; Waiver. No provision of this Agreement may be amended or waived except
by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts executed in and to be performed in
that state.
9. 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.
| Very truly yours, | ||||||
| SWANK ENERGY INCOME ADVISORS, LP | ||||||
| By: | ||||||
| Title: | ||||||
Accepted and agreed to as of the date first
above written:
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By: |
||||
| Title: | ||||
