CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT
This CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT (the "Agreement"),
dated as of September __, 2003, between Xxxxxxx Xxxxx & Associates, Inc.
("Xxxxxxx Xxxxx") and First Trust Advisors L.P. ("First Trust Advisors").
WHEREAS, First Trust/Four Corners Senior Floating Rate Income Fund (the
"Fund") is a diversified, closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
common shares of beneficial interest, par value $0.01 per share (the "Common
Shares"), are registered under the Securities Act of 1933, as amended;
WHEREAS, Xxxxxxx Xxxxx has acted as lead underwriter in the public
offering of the Fund's Common Shares (the "Offering");
WHEREAS, First Trust Advisors is the investment adviser of the Fund;
WHEREAS, First Trust Advisors desires to retain Xxxxxxx Xxxxx and each
Delegation Party (as defined below), if any, to provide, directly or (in part)
through a Delegation Party, certain corporate finance and consulting services to
First Trust Advisors and to the Fund on an ongoing basis, and Xxxxxxx Xxxxx and
any such Delegation Party will be willing to render such services; and
WHEREAS, First Trust Advisors desires to provide compensation to Xxxxxxx
Xxxxx and, as applicable, any Delegation Party for providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) First Trust Advisors hereby employs Xxxxxxx Xxxxx, for the period
and on the terms and conditions set forth herein, to provide the
following services: (i) Provide relevant information, studies or
reports regarding general trends in the closed-end investment
company and asset management industries, if reasonably obtainable,
and consult with representatives of First Trust Advisors in
connection therewith; (ii) At the request of First Trust Advisors,
provide certain economic research and statistical information and
reports, if reasonably obtainable, on behalf of First Trust Advisors
or the Fund and consult with representatives of First Trust Advisors
or the Fund, and/or Trustees of the Fund in connection therewith,
which information and reports shall include: (a) statistical and
financial market information with respect to the Fund's market
performance; and (b) comparative information regarding the Fund and
other closed-end management investment companies with respect to (x)
the net asset value of their respective shares (as made publicly
available by the Fund and such investment companies), (y) the
respective market performance of the Fund and such other companies,
and (z) other relevant performance indicators; and (iii) Provide
First Trust Advisors with such other services in connection with the
Common Shares relating to the trading price and market price thereof
upon which First Trust Advisors and Xxxxxxx Xxxxx shall, from time
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to time, agree, including after-market services designed to maintain
the visibility of the Fund in the market.
(b) At the request of First Trust Advisors, Xxxxxxx Xxxxx and, as
applicable, any Delegation Party, shall limit or cease any action or
service provided hereunder to the extent and for the time period
requested by First Trust Advisors; provided, however, that pending
termination of this Agreement as provided for in Section 8 hereof,
any such limitation or cessation shall not relieve First Trust
Advisors of its payment obligations pursuant to Section 3 hereof.
(c) Xxxxxxx Xxxxx and, as applicable, any Delegation Party, will
promptly notify First Trust Advisors in writing if it learns of any
material inaccuracy or misstatement in, or material omission from,
any written information provided by Xxxxxxx Xxxxx or any Delegation
Party to First Trust Advisors in connection with the performance of
services by Xxxxxxx Xxxxx or any Delegation Party under this
Agreement. Xxxxxxx Xxxxx and, as applicable, each Delegation Party,
agrees that in performing its services under this Agreement, it
shall comply in all material respects with all applicable laws,
rules and regulations.
2. Xxxxxxx Xxxxx xxx delegate a portion of its rights and obligations under
this Agreement to other persons (each, a "Delegation Party"), certain of
whom may be Underwriters (as defined in the Underwriting Agreement dated
September , 2003 between Xxxxxxx Xxxxx, the Fund, First Trust Advisors,
Four Corners Capital Mangement, LLC and each of the Underwriters named
therein (the "Underwriting Agreement") or other participants, or
affiliates of such participants, in the offering and distribution of the
Common Shares; provided that Xxxxxxx Xxxxx shall have obtained the prior
written consent of First Trust Advisors if such person is not an
Underwriter of the offering and distribution of the Common Shares or an
Affiliate of such an Underwriter. Xxxxxxx Xxxxx shall give notice to First
Trust Advisors of each such delegation and of each such Delegation Party
in the form attached as Annex A hereto. Such notice shall state the
portion of the fees otherwise payable to Xxxxxxx Xxxxx hereunder which
shall instead be payable by First Trust Advisors directly to such
Delegation Party and shall be appended to and become a part of this
Agreement. Each Delegation Party shall not be prohibited by law from
providing services to First Trust Advisors hereunder.
3. First Trust Advisors shall pay to Xxxxxxx Xxxxx (or, as applicable with
respect to a portion of such fee payable instead to a Delegation Party
pursuant to Section 2 above, the appropriate Delegation Party) a fee
payable quarterly in arrears commencing on the date hereof at an
annualized rate of 0.15% of the Fund's average daily net assets for a term
as described in Section 8 hereof (provided, however, that, subject to
Section 8, for a period of two (2) years from the date hereof such
annualized rate shall be 0.125%); provided that the total amount of the
fee hereunder (when taken together with the sales load of $0.90 per share,
the -- expense reimbursement paid to the Underwriters and the Blue Sky and
NASD, Inc. expenses set forth in Sections 13(d) and 13(h) of the
Underwriting Agreement) shall not exceed any sales charge limits (which
the parties hereto currently understand to be 9.0% of the aggregate
offering price of the shares of Common Shares in the Offering) under the
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rules of the NASD, Inc., as then in effect. All quarterly fees payable
hereunder shall be paid to Xxxxxxx Xxxxx or, as applicable, the
appropriate Delegation Party within 15 days following the end of each
quarter.
4. First Trust Advisors shall be permitted to discharge all or a portion of
its payment obligations hereunder upon prepayment in full or in part of
the remaining balance due of the maximum additional compensation amount
described in paragraph 3 above.
5. First Trust Advisors acknowledges that the services of Xxxxxxx Xxxxx (and,
as applicable, any Delegation Party) provided for 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 or otherwise. No provision of this Agreement shall be considered
as creating, nor shall any provision create, any obligation on the part of
Xxxxxxx Xxxxx or any Delegation Party, and neither Xxxxxxx Xxxxx nor any
Delegation Party is 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 in Section 1 hereof, 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 Xxxxxxx Xxxxx or any Delegation Party, shall be the subject of a
separate agreement with First Trust Advisors.
6. Nothing herein shall be construed as prohibiting Xxxxxxx Xxxxx, any
Delegation Party or any of their respective affiliates from providing
similar or other services to any other clients (including other registered
investment companies or other investment advisers), so long as Xxxxxxx
Xxxxx'x or the applicable Delegation Party's services to First Trust
Advisors 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 Xxxxxxx
Xxxxx or any Delegation Party and First Trust Advisors. In addition,
nothing in this Agreement shall be construed to constitute Xxxxxxx Xxxxx
or any Delegation Party as the agent or employee of First Trust Advisors
or First Trust Advisors as the agent or employee of Xxxxxxx Xxxxx or any
Delegation Party, and neither party shall make any representation to the
contrary. It is understood that Xxxxxxx Xxxxx and, as applicable, each
Delegation Party are being engaged hereunder solely to provide the
services described above to First Trust Advisors and that neither Xxxxxxx
Xxxxx nor any Delegation Party is acting as an agent or fiduciary of, and
neither Xxxxxxx Xxxxx nor any Delegation Party shall 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 First Trust Advisors has the
authority to waive such duties and liabilities.
7. First Trust Advisors will xxxxxxx Xxxxxxx Xxxxx and, as applicable, any
Delegation Party with such information as such party reasonably believes
appropriate to the performance of its obligations hereunder (all such
information so furnished being the "Information"). First Trust Advisors
recognizes and confirms that Xxxxxxx Xxxxx and, as applicable, any
Delegation Party (a) will use and rely primarily on the Information and on
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information available from generally recognized public sources in
performing the services contemplated by this Agreement without having
independently verified the same and (b) does not assume responsibility for
the accuracy or completeness of the Information and such other
information. To the best of First Trust Advisors' knowledge, the
Information to be furnished by First Trust Advisors when delivered, will
be true and correct in all material respects and will not contain any
material misstatement of fact or omit to state any material fact. First
Trust Advisors will promptly notify Xxxxxxx Xxxxx and each Delegation
Party if it learns of any material inaccuracy or misstatement in, or
material omission from, any Information delivered to such party.
8. The term of this Agreement shall commence upon the date referred to above
and shall be in effect only so long as First Trust Advisors (or any
affiliate or successor in interest) acts as the investment adviser to the
Fund pursuant to the Advisory Agreement (as such term is defined in the
Underwriting Agreement), as such Advisory Agreement (or other subsequent
advisory agreement with First Trust Advisors or any successor thereto) may
be renewed from time to time pursuant to the 1940 Act.
9. First Trust Advisors agrees that neither Xxxxxxx Xxxxx nor any Delegation
Party shall have any liability to First Trust Advisors or the Fund for any
act or omission to act by Xxxxxxx Xxxxx or any Delegation Party in the
course of its performance under this Agreement, in the absence of gross
negligence or willful misconduct on the part of Xxxxxxx Xxxxx or such
Delegation Party. Xxxxxxx Xxxxx shall have no liability for any acts or
omissions of any Delegation Party. First Trust Advisors agrees that it
shall provide indemnification to Xxxxxxx Xxxxx and each Delegation Party
as set forth in the Indemnification Agreement appended hereto.
10. 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.
11. 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 First Trust Advisors, Xxxxxxx Xxxxx and,
as applicable, each Delegation Party consent to the jurisdiction of such
courts and personal service with respect thereto. Each of First Trust
Advisors, Xxxxxxx Xxxxx and, as applicable, each Delegation Party 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 First Trust Advisors, Xxxxxxx Xxxxx and, as applicable,
each Delegation Party 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.
12. Except as provided in Section 2 hereof, this Agreement may not be assigned
by either party without the prior written consent of the other party.
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13. 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 First Trust Advisors, Xxxxxxx
Xxxxx and, as applicable, each Delegation Party.
14. All notices required or permitted to be sent under this Agreement shall be
sent, if to First Trust Advisors:
First Trust Advisors L.P.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx--General Counsel
or if to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
or if to any Delegation Party, to the name and address specified in the
relevant Notice of Delegation 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.
15. 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Corporate
Finance Services and Consulting Agreement as of the date first above written.
FIRST TRUST ADVISORS X.X. XXXXXXX XXXXX & ASSOCIATES, INC.
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
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ANNEX A
Notice of Delegation
--------------------
Xxxxxxx Xxxxx & Associates, Inc. ("Xxxxxxx Xxxxx") hereby delegates a
portion of its obligations under that certain Corporate Finance Services and
Consulting Agreement (the "Agreement"), dated September __, 2003 between Xxxxxxx
Xxxxx and First Trust Advisors L.P. ("First Trust Advisors"), to __________ (the
"Delegation Party"). The Delegation Party hereby agrees to provide such services
to First Trust/Four Corners Senior Floating Rate Income Fund (the "Fund") as
First Trust Advisors and the Delegation Party shall from time to time agree.
Xxxxxxx Xxxxx hereby agrees to instruct First Trust Advisors to pay to the
Delegation Party [ ]% of the total fees payable under the Agreement to the
Delegation Party. The Delegation Party agrees that by executing this Notice of
Delegation, it shall become a party to the Agreement and shall abide by the
terms and conditions thereof.
All notices required or permitted to be sent under this Notice of
Delegation or the Agreement shall be sent to the Delegation Party at the
following address:
Agreed to and accepted by:
Xxxxxxx Xxxxx & Associates, Inc.
_______________________________ _______________________________
By: By:
Title: Title:
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INDEMNIFICATION AGREEMENT
Xxxxxxx Xxxxx & Associates, Inc.
on behalf of itself and each
Delegation Party
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxx Xxxxx and, as applicable,
each Delegation Party (as defined in the Agreement referred to below) to provide
services to the undersigned (together with its affiliates and subsidiaries,
referred to as the "Company") in connection with the matters set forth in the
Corporate Finance Services and Consulting Agreement dated September , 2003 (the
"Agreement"), between the Company, Xxxxxxx Xxxxx & Associates, Inc. and, as
applicable, each Delegation Party (any Delegation Parties, together with Xxxxxxx
Xxxxx & Associates, Inc., are referred to herein as the "Service Providers"), in
the event that any 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, the Company agrees to indemnify, defend and
hold each 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 such
Service Provider. In addition, in the event that any 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, the Company will reimburse
such Service Provider for its legal and other expenses (including the cost of
any investigation and preparation) as such expenses are reasonably incurred by
such 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 affiliates and other constituencies, on
the one hand, and the Service Providers, 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
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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 Providers have been retained to perform services bears to the fees paid
to the Service Providers under the Agreement; provided, that in no event shall
the Company contribute less than the amount necessary to assure that no Service
Provider is liable for losses, claims, damages, liabilities and expenses in
excess of the amount of fees actually received by such 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
relevant Service Provider, on the other hand. The Company shall not be liable
under this Indemnification Agreement to any 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 each
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 any Service Provider is an actual or potential party thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
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 any Service Provider. For purposes of this
Indemnification Agreement, each Service Provider shall include any of its
affiliates, each other person, if any, controlling such Service Provider 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.
The Company agrees that neither any 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 such 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 such Service Provider in performing the
services that are the subject of the Agreement.
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Notwithstanding any provision contained herein, in no event shall any
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.
For clarification, the parties to this Indemnification Agreement agree
that the term "affiliate" as used in the definition of "Company" herein does not
include any registered investment company for which First Trust Advisors L.P.
serves as investment adviser.
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 EACH 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 ANY SERVICE PROVIDER OR ANY INDEMNIFIED PARTY. EACH 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.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of any 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,
FIRST TRUST ADVISORS L.P.
By:________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXX XXXXX & ASSOCIATES, INC.
By:________________________
Name:
Title:
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