Exhibit (k)(5)
STRUCTURING FEE AGREEMENT
STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of [ ], 2006,
between Xxxxx Xxxxx Management ("Xxxxx Xxxxx") and UBS Securities LLC ("UBS
Securities").
WHEREAS, Xxxxx Xxxxx has endeavored to sponsor and organize Xxxxx Xxxxx
Credit Opportunities Fund (the "Fund"), a closed-end, diversified management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), of which shares of beneficial interest are registered
under the Securities Act of 1933, as amended; and
WHEREAS, Xxxxx Xxxxx is the investment adviser and the administrator of
the Fund; and
WHEREAS, UBS Securities has provided certain services relating to the
structure and design of the Fund and the organization of the Fund as well as
services related to the sale and distribution of the Fund's Common Shares (the
"Services"); and
WHEREAS, Xxxxx Xxxxx desires to provide compensation to UBS Securities 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 UBS Securities hereunder,
Xxxxx Xxxxx shall pay a fee to UBS Securities 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
Offering and shall be made by wire transfer to the order of UBS
Securities, LLC. The total amount of the fee hereunder will not exceed []%
of the aggregate offering price in the initial public offering of the
common shares of the Fund (the "Offering").
2. Xxxxx Xxxxx acknowledges that the Services provided by UBS Securities
hereunder do not include any advice 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
UBS Securities, and UBS Securities 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 providing the Services, it being understood between the
parties hereto that any such advice, recommendations or such similar
activities if, and to the extent, agreed to be performed by UBS Securities
shall be the subject of a separate agreement with Xxxxx Xxxxx, including,
but not limited to, separate agreements with respect to any
indemnification of UBS Securities.
Except to the extent legally required (after consultation with UBS
Securities and its counsel, if reasonably possible), neither (i) the name
of UBS Securities nor (ii) any advice rendered by UBS Securities to Xxxxx
Xxxxx or the Fund in connection with the services performed by UBS
Securities pursuant to this Agreement will be quoted or referred to orally
or in writing, or in the case of (ii), reproduced or disseminated, by the
Fund or any of its affiliates or any of their agents, without the prior
written consent of UBS Securities, which consent will not be unreasonably
withheld.
3. Nothing herein shall be construed as prohibiting UBS Securities or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment
advisers), so long as Services provided by UBS Securities to Xxxxx Xxxxx
and the Fund are not impaired thereby. In addition, nothing herein shall
be construed as prohibiting UBS Securities and its affiliates, in the
ordinary course of business, from trading the securities of the Fund for
its own account and for the accounts of customers or from holding at any
time a long or short position in such securities. Neither this Agreement
nor the performance of the Services hereunder shall be considered to
constitute a partnership, association or joint venture between UBS
Securities and Xxxxx Xxxxx. In addition, nothing herein shall be construed
to constitute UBS Securities as the agent or employee of Xxxxx Xxxxx or
Xxxxx Xxxxx as the agent or employee of UBS Securities, and neither party
shall make any representation to the contrary.
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 without Common Shares having
been delivered and paid for. This Agreement may not be assigned, except by
operation of law or in connection with the sale of all or substantially
all of the assets or of the equity securities of one of the parties
hereto, without the other party's prior consent.
5. It is understood that UBS Securities is engaged hereunder as an
independent contractor solely to provide the Services described above to
Xxxxx Xxxxx and to the Fund and that UBS Securities is not acting as a
fiduciary of any person, and shall have no duties or liability to the
current or future shareholders of Xxxxx Xxxxx or any other third party in
connection with its engagement hereunder, all of which are hereby
expressly waived.
6. Xxxxx Xxxxx agrees that UBS Securities shall have no liability to Xxxxx
Xxxxx or the Fund for any act or omission to act by UBS Securities in the
course of its performance under this Agreement, in the absence of bad
faith, gross negligence or willful misconduct on the part of UBS
Securities. Xxxxx Xxxxx 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.
7. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND WITHOUT
REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
8. EACH OF XXXXX XXXXX AND UBS SECURITIES AGREE THAT ANY ACTION OR PROCEEDING
BASED HEREON, OR ARISING OUT OF UBS SECURITIES' ENGAGEMENT HEREUNDER,
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX
XXX XXXX LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. XXXXX XXXXX
AND UBS SECURITIES EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW
YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH
ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH ACTION OR PROCEEDING. EACH OF XXXXX XXXXX AND UBS
SECURITIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING
OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
9. Xxxxx Xxxxx and UBS Securities each hereby irrevocably waive any right
they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
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 both UBS Securities and Xxxxx
Xxxxx.
11. All notices required or permitted to be sent under this Agreement
shall be sent, if to Xxxxx Xxxxx:
Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Legal Officer
or if to UBS Securities:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Investment Banking -- Financial Institutions
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
transmission, whichever is earlier.
12. This Agreement may be exercised on separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one
and the same agreement.
13. A copy of the Agreement and Declaration of Trust of Xxxxx Xxxxx is on file
with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Agreement is executed on behalf of the
Trustees of Xxxxx Xxxxx as Trustees and not individually and that the
obligations or arising out of this Agreement are not binding upon any of
the Trustees or beneficiaries individually but are binding only upon the
assets and properties of Xxxxx Xxxxx.
IN WITNESS WHEREOF, the parties hereto have duly executed this Structuring
Fee Agreement as of the date first above written.
XXXXX XXXXX MANAGEMENT
By: _____________________________
Name:
Title:
UBS SECURITIES LLC
By: _____________________________
By:
Title:
By: ____________________________
By:
Title:
UBS Securities LLC Indemnification Agreement
[ ], 2006
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS Securities")
to provide the Services to the undersigned (the "Company") as set forth in the
Structuring Fee Agreement dated [ ], 2006, between the Company and UBS
Securities (the "Agreement"), in the event that UBS Securities 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") (i) in connection with or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in information with respect to the Fund made public by or as
authorized by the Fund (except for information regarding UBS Securities itself
that UBS Securities specifically provided to the Fund in writing for inclusion
in such information) or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii) otherwise in
connection with or arising out of the Agreement or the Services to be provided
thereunder, the Company agrees to indemnify, defend and hold UBS Securities
harmless to the fullest extent permitted by law, from and against any losses,
claims, damages, liabilities and expenses in connection with or arising out of
the Agreement or the Services to be provided thereunder (a "Covered Claim"),
except, in the case of clause (ii) above only, 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, bad faith or willful misconduct of UBS Securities. In addition, in
the event that UBS Securities becomes involved in any capacity in any Proceeding
which relates to a Covered Claim, the Company will reimburse UBS Securities for
its legal and other expenses (including the reasonable cost of any investigation
and preparation) as such expenses are incurred by UBS Securities 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,
on the one hand, and UBS Securities, 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, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations; provided,
that in no event shall the Company contribute less than the amount necessary to
assure that UBS Securities is not liable for losses, claims, damages,
liabilities and expenses in excess of the amount of fees actually received by
UBS Securities 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 Securities, on the other hand. The
Company will not settle any Proceeding in respect of which indemnity may be
sought hereunder, whether or not UBS Securities is an actual or potential party
to such Proceeding, without UBS Securities's prior written consent. For purposes
of this Indemnification Agreement, UBS Securities shall include UBS Securities
LLC, any of its affiliates, each other person, if any, controlling UBS
Securities 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.
If any Proceeding is brought against UBS Securities in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
UBS Securities shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to UBS Securities
and payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to UBS Securities or otherwise, unless and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the Company. UBS Securities shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of UBS Securities unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or UBS Securities shall have reasonably concluded that there may
be defenses available to it which are different from, additional to or in
conflict with those available to the Company (in which case the Company shall
not have the right to direct the defense of such Proceeding on behalf of UBS
Securities), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless UBS Securities from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time UBS
Securities shall have requested the Company to reimburse UBS Securities for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the Company agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by the Company of the
aforesaid request, (ii) the Company shall not have reimbursed UBS Securities in
accordance with such request prior to the date of such settlement and (iii) UBS
Securities shall have given the Company at least 30 days' prior notice of its
intention to settle.
The Company agrees that neither UBS Securities 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 a Covered Claim, 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 solely from the gross negligence, bad faith or willful
misconduct of UBS Securities in performing the Services.
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 UBS SECURITIES 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 AND THIRD PARTY
AGAINST UBS SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF UBS SECURITIES 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 foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS Securities'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,
XXXXX XXXXX MANAGEMENT
By: ___________________________
Name:
Title:
Accepted and agreed to as of the date first above written:
UBS SECURITIES LLC
By: ___________________________
By:
Title:
By: ___________________________
By:
Title:
