FEE AGREEMENT
March [ ], 2014
Southwest Securities, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated March [ ], 2014 (the
"Underwriting Agreement"), by and among First Trust New Opportunities MLP &
Energy 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 relating to the sale and
distribution of the Common Shares, 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 the
Closing Date. The payment shall be made by wire transfer to the order of
Southwest Securities, Inc. 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 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, except as provided in
Section 3.
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 your 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 electronic transmission shall be effective as delivery of a
manually executed counterpart hereof.
[END OF TEXT]
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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:
SOUTHWEST SECURITIES, INC.
By:
------------------------------------
Name:
Title:
3
INDEMNIFICATION AGREEMENT
March [ ], 2014
Southwest Securities, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Southwest Securities, Inc. (the
"Broker-Dealer") to 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 Fee Agreement dated
March [ ], 2014 between the Companies and the Broker-Dealer (the "Agreement"),
in the event that the Broker-Dealer, any of its affiliates, each other person,
if any, controlling the Broker-Dealer 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 Broker-Dealer 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) with respect to the Agreement (collectively, a
"Proceeding"), the Companies jointly and severally 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, in connection therewith, 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, the Companies will jointly and severally 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. 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 Broker-Dealer. 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 jointly and severally 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
Broker-Dealer has been retained to perform services bears to the fees paid to
the Broker-Dealer 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 Broker-Dealer
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 Broker-Dealer, 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 Broker-Dealer'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.
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 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 Broker-Dealer
in performing the services that are the subject of the Agreement.
Nothing in this Indemnification Agreement shall be read or construed to
limit any liability or obligation of any party arising under or in connection
with the Underwriting Agreement (as defined in the Agreement).
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THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO 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 BROKER-DEALER 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.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Broker-Dealer'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:
SOUTHWEST SECURITIES, INC.
By:
------------------------------------
Name:
Title:
