STRUCTURING FEE AGREEMENT
November [ ], 2012
X.X. Xxxxxxxx & Co.
0 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated November [ ], 2012
(the "Underwriting Agreement"), by and among First Trust MLP and Energy Income
Fund (the "Fund"), First Trust Advisors L.P. (the "Adviser"), Energy Income
Partners, LLC (the "Sub-Adviser," and together with the Adviser, the "Advisers")
and each of the Underwriters named in Schedule I thereto, severally, with
respect to the issue and sale of the Fund's Common Shares (the "Offering"), as
described therein. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Underwriting Agreement.
1. Fee. In consideration of your services in offering advice relating to
the structure, design and organization of the Fund and the distribution of the
Fund's common shares of beneficial interest, par value $0.01 per share, which
may but need not necessarily include views from an investor market and
distribution perspective on (i) diversification, proportion and concentration
approaches for the Fund's investments in light of current market conditions,
(ii) marketing issues with respect to the Fund's investment policies and
proposed investments, (iii) the proportion of the Fund's assets to invest in the
Fund's strategies and (iv) the overall marketing and positioning thesis for the
Offering, the Advisers shall pay a fee to you in the aggregate amount of $[ ]
(the "Fee"), $[ ] of which will be paid by the Adviser, and $[ ] of which will
be paid by the Sub-Adviser. The Fee shall be paid on or before the Closing Date.
The payment shall be made by wire transfer to the order of X.X. Xxxxxxxx & Co.
The Advisers acknowledge that the Fee is in addition to any compensation you
earn in connection with your role as an underwriter to the Fund in the Offering,
which services are distinct from and in addition to the marketing and
structuring services described above. In the event the Offering does not
proceed, you will not receive any fees under this Agreement; however, for the
avoidance of doubt, accountable expenses actually incurred may be payable to you
pursuant to the terms of the Underwriting Agreement.
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 Advisers agree 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 Adviser; No Fiduciary Duty. The Advisers acknowledge
that you are 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 you, and
you are 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. Neither this Agreement nor the performance of the
services contemplated hereunder shall be considered to constitute a partnership,
association or joint venture between you and the Advisers. In addition, nothing
in this Agreement shall be construed to constitute you as the agent or employee
of the Advisers or the Advisers as your agent or employee, and no party shall
make any representation to the contrary. It is understood that you are engaged
hereunder as an independent contractor solely to provide the services described
above to the Advisers and that you are not acting as an agent or fiduciary of,
and you shall not have any duties or liability to, the current or future
partners, members or equity owners of the Advisers or any other third party in
connection with its engagement hereunder, all of which are hereby expressly
waived to the extent the Advisers have the authority to waive such duties and
liabilities. Furthermore, the Advisers agree that they are solely responsible
for making their own judgments in connection with the matters covered by this
Agreement (irrespective of whether you have advised or are currently advising
the Advisers on related or other matters).
5. Not Exclusive. Nothing herein shall be construed as prohibiting you or
your affiliates from acting as an underwriter or financial adviser or in any
other capacity for any other persons (including other registered investment
companies or other investment managers).
6. Assignment. This Agreement may not be assigned by any party without the
prior written consent of the other parties.
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.
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.
[END OF TEXT]
2
This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By:
-----------------------------
Name:
Title:
ENERGY INCOME PARTNERS, LLC
By:
-----------------------------
Name:
Title:
Agreed and Accepted:
X.X. XXXXXXXX & CO.
By:
-----------------------------
Name:
Title:
INDEMNIFICATION AGREEMENT
November [ ], 2012
X.X. Xxxxxxxx & Co.
0 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of X.X. Xxxxxxxx & Co. (the "Bank") to
advise and assist the undersigned, First Trust Advisors L.P., together with its
affiliates and subsidiaries (the "Adviser") and Energy Income Partners, LLC (the
"Sub-Adviser," and together with the Adviser, the "Companies") with respect to
the matters set forth in the Structuring Fee Agreement dated November [ ], 2012
between the Companies and the Bank (the "Agreement"), in the event that the
Bank, any of its affiliates, each other person, if any, controlling the Bank or
any of its affiliates, their respective officers, current and former directors,
employees and agents or the successors or assigns of any of the foregoing
persons (the Bank and each such other person or entity being referred to as an
"Indemnified Party") 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") with respect to the services performed pursuant to and in
accordance with the Agreement, the Companies agree to indemnify, defend and hold
each Indemnified Party harmless to the fullest extent permitted by law, from and
against any losses, claims, damages, liabilities and expenses, including
reasonably incurred fees and expenses of counsel to the Indemnified Parties,
with respect to the services performed pursuant to and in accordance with 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 primarily from the gross negligence or willful
misconduct of such Indemnified Party. In addition, in the event that an
Indemnified Party becomes involved in any capacity in any Proceeding with
respect to the services performed pursuant to and in accordance with the
Agreement, the Companies will reimburse such Indemnified Party for legal and
other expenses (including the cost of any investigation and preparation) as such
expenses are reasonably incurred by such Indemnified Party in connection
therewith; provided that in any Proceeding, the Indemnified Party shall have the
right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonably incurred fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the Indemnified Party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such Proceeding include both the Indemnified Party and the
indemnifying party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it and/or other Indemnified
Parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of the institution of such Proceeding or (iv) the
indemnifying party shall authorize the Indemnified Party to employ separate
counsel at the expense of the indemnifying party. Promptly as reasonably
practicable after receipt by an Indemnified Party of notice of the commencement
of any Proceeding, such Indemnified Party will, if a claim in respect thereof is
to be made under this paragraph, notify the Companies in writing of the
commencement thereof; but the failure so to notify the Companies (i) will not
relieve the Companies from liability under this paragraph to the extent they are
not materially prejudiced as a result thereof and (ii) in any event shall not
relieve the Companies from any liability which they may have otherwise than on
account of this Indemnification Agreement. Counsel to the Indemnified Parties
shall be selected by the Bank. The Companies may participate at their own
expense in the defense of any such action; provided, however, that counsel to
the Companies shall not (except with the consent of the Indemnified Parties)
also be counsel to the Indemnified Parties.
If such indemnification were not to be available for any reason, the
Companies agree 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 Adviser and its partners and
affiliates and the Sub-Adviser and its members and affiliates, on the one hand,
and the Indemnified Parties, 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 Adviser and its partners and affiliates and
the Sub-Adviser and its members and affiliates, on the one hand, and the
Indemnified Parties, on the other hand, as well as any other relevant equitable
considerations. The Companies agree that for the purposes of this paragraph the
relative benefits received, or sought to be received, by the Adviser and its
partners and affiliates and the Sub-Adviser and its members and affiliates, on
the one hand, and the Indemnified Parties, on the other hand, of a transaction
as contemplated shall be deemed to be in the same proportion that the total
value received by or paid to or contemplated to be received by or paid to the
Adviser and its partners and affiliates and the Sub-Adviser and its members and
affiliates, as the case may be, as a result of or in connection with the
transaction (whether or not consummated) for which the Bank has been retained to
perform services bears to the fees paid to the Bank under the Agreement;
provided, that in no event shall the Companies contribute less than the amount
necessary to assure that the Indemnified Parties are not liable for losses,
claims, damages, liabilities and expenses in excess of the amount of fees
actually received by the Bank 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 Companies or other conduct by the Companies (or their employees
or other agents), on the one hand, or by the Bank, on the other hand.
Notwithstanding the provisions of this paragraph, an Indemnified Party shall not
be entitled to contribution from the Companies if it is determined that such
Indemnified Party was guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933, as amended) and the Companies
were not guilty of such fraudulent misrepresentation. The Companies will not
settle any Proceeding in respect of which indemnity may be sought hereunder,
whether or not an Indemnified Party is an actual or potential party to such
Proceeding, without the Bank's prior written consent (which consent shall not be
unreasonably withheld). The foregoing indemnity and contribution agreement shall
be in addition to any rights that any Indemnified Party may have at common law
or otherwise.
2
The Companies agree that no Indemnified Party shall have any liability to
the Companies or any person asserting claims on behalf of or in right of the
Companies with respect to the services performed pursuant to and in accordance
with 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 Companies resulted primarily from the
gross negligence or willful misconduct of the Bank 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 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 COMPANIES AND THE INDEMNIFIED PARTIES
CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT
THERETO. THE COMPANIES HEREBY CONSENT TO PERSONAL JURISDICTION, SERVICE AND
VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO
THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST THE BANK OR
ANY INDEMNIFIED PARTY. EACH INDEMNIFIED PARTY AND THE COMPANIES WAIVE 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 INDEMNIFICATION
AGREEMENT. THE COMPANIES AGREE THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT
IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANIES AND MAY BE
ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANIES ARE OR
MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
3
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Bank's engagement under the
Agreement. 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,
FIRST TRUST ADVISORS L.P.
By:
-----------------------------
Name:
Title:
ENERGY INCOME PARTNERS, LLC
By:
-----------------------------
Name:
Title:
Agreed and Accepted:
X.X. XXXXXXXX & CO.
By:
-----------------------------
Name:
Title:
