STRUCTURING FEE AGREEMENT
-------------------------
September [__], 2015
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated September [__], 2015
(the "UNDERWRITING AGREEMENT"), by and among First Trust Dynamic Europe Equity
Income Fund (the "FUND"), First Trust Advisors L.P. (the "ADVISER"), Xxxxxxxxx
Global Investors (North America) Inc. (the "INVESTMENT SUB-ADVISER") , Xxxxxxxxx
Investment Management Limited (the "SUB-SUB-ADVISER," and together with the
Adviser and the Investment Sub-Adviser, the "ADVISERS") and each of the
Underwriters named therein (the "UNDERWRITERS"), severally, with respect to the
issue and sale of the Fund's common shares of beneficial interest, par value
$0.01 (the "COMMON SHARES"), as described therein (the "OFFERING"). 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 assisting with respect 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
Advisers shall pay a fee to you in the aggregate amount of $[__] (the "FEE"), of
which $[__] shall be paid by the Adviser and $[__] shall be paid by the
Investment Sub-Adviser. The Fee shall be paid on or before the Closing Date (as
defined in the Underwriting Agreement). The Fee shall be paid by wire transfer
to the order of Xxxxx Fargo Securities, LLC.
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 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. The Advisers hereby acknowledge that your engagement
under this Agreement is as an independent contractor and not in any other
capacity, including as a fiduciary. Furthermore, each Adviser agrees that it is
solely responsible for making its own judgment 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 advisers).
6. Assignment. This Agreement may not be assigned by either party without
prior written consent of the other party.
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.
This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By:
--------------------------------
Name:
Title:
XXXXXXXXX GLOBAL INVESTORS (NORTH
AMERICA) INC.
By:
--------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT MANAGEMENT
LIMITED
By:
--------------------------------
Name:
Title:
Agreed and Accepted:
XXXXX FARGO SECURITIES, LLC
By:
--------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
[Structuring Fee Agreement]
INDEMNIFICATION AGREEMENT
-------------------------
September [__], 2015
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxx Fargo Securities, LLC (the
"BANK") to assist the undersigned, First Trust Advisors L.P., together with its
affiliates and subsidiaries (the "ADVISER"), Xxxxxxxxx Global Investors (North
America) Inc., together with its affiliates and subsidiaries (the "INVESTMENT
SUB-ADVISER"), and Xxxxxxxxx Investment Management Limited, together with its
affiliates and subsidiaries (the "SUB-SUB-ADVISER," and together with the
Adviser and the Investment Sub Adviser, the "COMPANIES") with respect to the
matters set forth in the Structuring Fee Agreement dated September [(black
circle)], 2015 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, litigation, 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 the 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 its
legal and other expenses (including the cost of any investigation and
preparation) as such expenses are 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 it is not materially prejudiced as
a result thereof and (ii) in any event shall not relieve the Companies from any
liability which it may have otherwise than on account of this Indemnification
Agreement. Counsel to the Indemnified Parties shall be selected by the Bank. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the Indemnified Parties) also be counsel to the
Indemnified Party. No indemnifying party shall, without the prior written
consent of the Indemnified Parties, settle or compromise or consent to the entry
of any judgment with respect to any 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 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 Indemnified Party.
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 Companies and their
stockholders 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 Companies and their stockholders and affiliates, on the one hand, and the
party entitled to contribution, 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
Companies and their stockholders 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 Companies or their
stockholders or 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 agrees 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 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 THE BANK OR ANY INDEMNIFIED
PARTY. EACH INDEMNIFIED PARTY AND THE COMPANIES 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 COMPANIES AGREE
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 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:
XXXXXXXXX GLOBAL INVESTORS (NORTH
AMERICA) INC.
By:
--------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT MANAGEMENT
LIMITED
By:
--------------------------------
Name:
Title:
Agreed and Accepted:
XXXXX FARGO SECURITIES, LLC
By:
--------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
[Indemnification Agreement]
