Exhibit k.4
STRUCTURING FEE AGREEMENT
This STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of March 31,
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;
WHEREAS, as of the date of this Agreement, the Fund has completed the
initial public offering (the "Offering") of 13,000,000 of its Common Shares and,
in connection with the Offering has granted an option to the underwriters in the
Offering to purchase, for a period of 45 days following the date of this
Agreement (the "Option Period") up to 1,950,000 additional Common Shares (the
"Additional Shares") solely to cover over-allotments; 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, as of the date of this
Agreement, a structuring fee to X.X. Xxxxxxx in the aggregate amount of
$515,000 (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 Offering of the Common Shares and shall be made by wire transfer
to the order of X.X. Xxxxxxx & Sons, Inc. In the event the Fund issues
any Additional Shares, the Fund shall pay an additional structuring fee
to X.X. Xxxxxxx, in an amount up to $75,000, determined with reference
to the aggregate number of Additional Shares, if any, issued by the Fund
and the total number of Additional Shares. The amount of any such
additional structuring fee shall be in the amount as mutually agreed
upon by the Fund and X.X. Xxxxxxx and shall be payable on the last day
of the Option Period (or such earlier date as may be agreed upon by the
Fund and X.X. Xxxxxxx) by wire transfer to the order of X.X. Xxxxxxx &
Sons, Inc. The total amount of the Structuring Fee hereunder will not
exceed $590,000 (which amount will not exceed 0.30% 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 RATE FUND X.X. XXXXXXX & SONS, INC.
By: By:
------------------------------------ ------------------------------------
Name: Name: Xxxxxxx X. Xxxx
Title: Title: Director
INDEMNIFICATION AGREEMENT
March 31, 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 31, 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: Xxxxxxx X. Xxxx
Title: Director
