STRUCTURING FEE AGREEMENT
November 27, 2012
Xxxxxxxxxxx & Co. Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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, 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
Xxxxxxxxxxx & Co. 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
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]
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:
XXXXXXXXXXX & CO. INC.
By: ______________________________
Name:
Title:
INDEMNIFICATION AGREEMENT
November [ ], 2012
Xxxxxxxxxxx & Co. Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxxxxxx & Co. Inc. (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 Agreement, 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, 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 Agreement, 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; 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. The Companies shall not, without the prior written consent
of the Indemnified Parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
hereunder (whether or not the Indemnified Parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such litigation, investigation, proceeding or claim 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 Indemnified Party.
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
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.
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 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 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.
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:
XXXXXXXXXXX & CO. INC.
By: ______________________________
Name:
Title:
