FORM OF
INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT made this __ day of September, 2011, by
and between FIRST TRUST ENERGY INFRASTRUCTURE FUND, a Massachusetts business
trust (the "Trust"), and FIRST TRUST ADVISORS L.P., an Illinois limited
partnership (the "Adviser") and registered under the Investment Advisors Act of
1940, as amended (the "Advisers Act").
WITNESSETH:
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Trust hereby engages the Adviser to act as the investment adviser
for, and to manage the investment and reinvestment of the assets of, the Trust
in accordance with the Trust's investment objectives and policies and
limitations, and to administer the Trust's affairs to the extent requested by
and subject to the supervision of the Board of Trustees of the Trust (the "Board
of Trustees") for the period and upon the terms herein set forth. The investment
of the Trust's assets shall be subject to the Trust's policies, restrictions and
limitations with respect to portfolio investments as set forth in the Trust's
then current registration statement under the Investment Company Act of 1940
(the "1940 Act"), and all applicable laws and the regulations of the Securities
and Exchange Commission ("SEC") relating to the management of registered
closed-end management investment companies.
The Adviser accepts such employment and agrees during such period to
render such services, to furnish office facilities and equipment and clerical,
bookkeeping and administrative services (other than such services, if any,
provided by the Trust's transfer agent, administrator or other service
providers) for the Trust, to permit any of its officers or employees to serve
without compensation as trustees or officers of the Trust if elected or
appointed to such positions, and to assume the obligations herein set forth for
the compensation herein provided. The Adviser shall at its own expense furnish
all executive and other personnel, office space, and office facilities required
to render the investment management and administrative services set forth in
this Agreement. In the event that the Adviser pays or assumes any expenses of
the Trust not required to be paid or assumed by the Adviser under this
Agreement, the Adviser shall not be obligated hereby to pay or assume the same
or similar expense in the future; provided that nothing contained herein shall
be deemed to relieve the Adviser of any obligation to the Trust under any
separate agreement or arrangement between the parties.
2. The Adviser shall, for all purposes herein provided, be deemed to be
an independent contractor and, unless otherwise expressly provided or
authorized, shall neither have the authority to act for nor represent the Trust
in any way, nor otherwise be deemed an agent of the Trust.
3. For the services rendered, facilities provided and charges assumed and
paid by the Adviser hereunder, the Trust will pay to the Adviser, at the end of
each calendar month, and the Adviser agrees to accept as full compensation
therefor, an investment management fee equal to the annual rate of 1.00% of the
Trust's Managed Assets, as such term is defined herein. For purposes of
calculating the management fee, "Managed Assets" means the average daily gross
asset value of the Trust (which includes assets attributable to the Trust's
Preferred Shares (as such term is defined in the Trust's prospectus), if any,
and the principal amount of any borrowings), minus the sum of the Trust's
accrued and unpaid dividends on any outstanding Preferred Shares and accrued
liabilities (other than the principal amount of any borrowings of money
incurred, or of commercial paper or notes issued by the Trust). For purposes of
determining Managed Assets, the liquidation preference of any outstanding
Preferred Shares of the Trust is not treated as a liability.
For the month and year in which this Agreement becomes effective, or
terminates, there shall be an appropriate proration on the basis of the number
of days that the Agreement shall have been in effect during the month and year,
respectively. The services of the Adviser to the Trust under this Agreement are
not to be deemed exclusive, and the Adviser shall be free to render similar
services or other services to others so long as its services hereunder are not
impaired thereby.
4. The Adviser shall arrange for suitably qualified officers or employees
of the Adviser to serve, without compensation from the Trust, as trustees,
officers or agents of the Trust, if duly elected or appointed to such positions,
and subject to their individual consent and to any limitations imposed by law.
5. For purposes of this Agreement, brokerage commissions paid by the
Trust upon the purchase or sale of the Trust's portfolio securities shall be
considered a cost of securities of the Trust and shall be paid by the Trust.
6. The Adviser is authorized to select the brokers or dealers that will
execute the purchases and sales of the Trust's securities on behalf of the
Trust, and is directed to use its commercially reasonable efforts to obtain best
execution, which includes most favorable net results and execution of the
Trust's orders, taking into account all appropriate factors, including price,
dealer spread or commission, size and difficulty of the transaction and research
or other services provided. Subject to approval by the Trust's Board of Trustees
and to the extent permitted by and in conformance with applicable law and the
rules and regulations thereunder (including Rule 17e-1 under the 1940 Act), the
Adviser may select brokers or dealers affiliated with the Adviser. It is
understood that the Adviser will not be deemed to have acted unlawfully, or to
have breached a fiduciary duty to the Trust, or be in breach of any obligation
owing to the Trust under this Agreement, or otherwise, solely by reason of its
having caused the Trust to pay a member of a securities exchange, a broker or a
dealer a commission for effecting a securities transaction for the Trust in
excess of the amount of commission another member of an exchange, broker or
dealer would have charged if the Adviser determines in good faith that the
commission paid was reasonable in relation to the brokerage or research services
provided by such member, broker or dealer, viewed in terms of that particular
transaction or the Adviser's overall responsibilities with respect to its
accounts, including the Trust, as to which it exercises investment discretion.
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In addition, the Adviser may, to the extent permitted by applicable law
and the rules and regulations thereunder, aggregate purchase and sale orders of
securities with similar orders being made simultaneously for other accounts
managed by the Adviser or its affiliates, if in the Adviser's reasonable
judgment such aggregation shall result in an overall economic benefit to the
Trust, taking into consideration the selling or purchase price, brokerage
commissions and other expenses. In the event that a purchase or sale of an asset
of the Trust occurs as part of any aggregate sale or purchase orders, the
objective of the Adviser and any of its affiliates involved in such transaction
shall be to allocate the securities so purchased or sold, as well as expenses
incurred in the transaction, among the Trust and other accounts in an equitable
manner. Nevertheless, the Trust acknowledges that under some circumstances, such
allocation may adversely affect the Trust with respect to the price or size of
the securities positions obtainable or salable. Whenever the Trust and one or
more other investment advisory clients of the Adviser have available funds for
investment, investments suitable and appropriate for each will be allocated in a
manner believed by the Adviser to be equitable to each, although such allocation
may result in a delay in one or more client accounts being fully invested that
would not occur if such an allocation were not made. Moreover, it is possible
that due to differing investment objectives or for other reasons, the Adviser
and its affiliates may purchase securities of an issuer for one client and at
approximately the same time recommend selling or sell the same or similar types
of securities for another client.
The Adviser will not arrange purchases or sales of securities between the
Trust and other accounts advised by the Adviser or its affiliates unless (a)
such purchases or sales are in accordance with applicable law and the rules and
regulations thereunder (including Rule 17a-7 under the 0000 Xxx) and the Trust's
policies and procedures, (b) the Adviser determines the purchase or sale is in
the best interests of the Trust, and (c) the Trust's Board of Trustees has
approved these types of transactions.
To the extent the Trust seeks to adopt, amend or eliminate any objectives,
policies, restrictions or procedures in a manner that modifies or restricts the
Adviser's authority regarding the execution of the Trust's portfolio
transactions, the Trust agrees to use commercially reasonable efforts to consult
with the Adviser regarding the modifications or restrictions prior to such
adoption, amendment or elimination.
The Adviser will communicate to the officers and trustees of the Trust
such information relating to transactions for the Trust as they may reasonably
request. In no instance will portfolio securities be purchased by or sold to the
Adviser or any affiliated person of either the Trust or the Adviser, except as
may be permitted under the 1940 Act, the rules and regulations thereunder or any
applicable exemptive orders.
The Adviser further agrees that it:
(a) will use the same degree of skill and care in providing such
services as it uses in providing services to fiduciary accounts for which
it has investment responsibilities;
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(b) will (i) conform in all material respects to all applicable
rules and regulations of the SEC, (ii) comply in all material respects
with all policies and procedures adopted by the Board of Trustees for the
Trust and communicated to the Adviser and, (iii) conduct its activities
under this Agreement in all material respects in accordance with any
applicable regulations of any governmental authority pertaining to its
investment advisory activities;
(c) will report regularly to the Board of Trustees (generally on a
quarterly basis) and will make appropriate persons available for the
purpose of reviewing with representatives of the Board of Trustees on a
regular basis at reasonable times the management of the Trust, including,
without limitation, review of the general investment strategies of the
Trust, the performance of the Trust's investment portfolio in relation to
relevant standard industry indices and general conditions affecting the
marketplace and will provide various other reports from time to time as
reasonably requested by the Board of Trustees; and
(d) will prepare and maintain such books and records with respect
to the Trust's securities and other transactions as required under
applicable law and will prepare and furnish the Trust's Board of Trustees
such periodic and special reports as the Board of Trustees may reasonably
request. The Adviser further agrees that all records which it maintains
for the Trust are the property of the Trust and the Adviser will surrender
promptly to the Trust any such records upon the request of the Trust
(provided, however, that Adviser shall be permitted to retain copies
thereof); and shall be permitted to retain originals (with copies to the
Trust) to the extent required under Rule 204-2 under the Investment
Advisers Act of 1940 or other applicable law and the rules and regulations
thereunder.
7. The Adviser agrees to pay (i) all organization costs and (ii) all
offering costs of the Trust (other than sales load but including the
reimbursement of underwriting expenses as described in the Trust's prospectus)
that exceed $.04 per Common Share (as described in the Trust's prospectus). The
terms "organization costs" and "offering costs" shall have the meanings ascribed
to them in Sections 8.17-8.25 of the AICPA Audit and Accounting Guide, Audits
for Investment Companies, with Conforming Changes as of May 1, 2007.
8. Subject to applicable statutes and regulations, it is understood that
officers, trustees, or agents of the Trust are, or may be, interested persons
(as such term is defined in the 1940 Act and rules and regulations thereunder)
of the Adviser as officers, directors, agents, shareholders or otherwise, and
that the officers, directors, shareholders and agents of the Adviser may be
interested persons of the Trust otherwise than as trustees, officers or agents.
9. The Adviser shall not be liable for any loss sustained by reason of
the purchase, sale or retention of any security, whether or not such purchase,
sale or retention shall have been based upon the investigation and research made
by any other individual, firm or corporation, if such recommendation shall have
been selected with due care and in good faith, except loss resulting from
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willful misfeasance, bad faith, or gross negligence on the part of the Adviser
in the performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
10. Subject to obtaining the initial and periodic approvals required under
Section 15 of the 1940 Act (provided shareholder approval will not be required
if an exemption by rule, order or other applicable law is available), the
Adviser may retain one or more sub-advisers at the Adviser's own cost and
expense for the purpose of furnishing one or more of the services described in
Section 1 hereof with respect to the Trust. Retention of a sub-adviser shall in
no way reduce the responsibilities or obligations of the Adviser under this
Agreement and the Adviser shall be responsible to the Trust for all acts or
omissions of any sub-adviser in connection with the performance of the Adviser's
duties hereunder.
11. The Trust acknowledges that the Adviser now acts, and intends in the
future to act, as an investment adviser to other managed accounts and as
investment adviser or investment sub-adviser to one or more other investment
companies. In addition, the Trust acknowledges that the persons employed by the
Adviser to assist in the Adviser's duties under this Agreement will not devote
their full time to such efforts. It is also agreed that the Adviser may use any
supplemental research obtained for the benefit of the Trust in providing
investment advice to its other investment advisory accounts and for managing its
own accounts.
12. This Agreement shall be effective on the date provided above, provided
it has been approved in the manner required by the 1940 Act. This Agreement
shall continue in effect until the two-year anniversary of the date of its
effectiveness, unless and until terminated by either party as hereinafter
provided, and shall continue in force from year to year thereafter, but only as
long as such continuance is specifically approved, at least annually, in the
manner required by the 1940 Act.
This Agreement shall automatically terminate in the event of its
assignment, and may be terminated at any time without the payment of any penalty
by the Trust or by the Adviser upon sixty (60) days' written notice to the other
party. The Trust may effect termination by action of the Board of Trustees or by
vote of a majority of the outstanding voting securities of the Trust,
accompanied by appropriate notice. This Agreement may be terminated, at any
time, without the payment of any penalty, by the Board of Trustees, or by vote
of a majority of the outstanding voting securities of the Trust, in the event
that it shall have been established by a court of competent jurisdiction that
the Adviser, or any officer or director of the Adviser, has taken any action
which results in a breach of the material covenants of the Adviser set forth
herein. Termination of this Agreement shall not affect the right of the Adviser
to receive payments on any unpaid balance of the compensation, described in
Section 3, earned prior to such termination and for any additional period during
which the Adviser serves as such for the Trust, subject to applicable law. The
terms "assignment" and "vote of the majority of outstanding voting securities"
shall have the same meanings set forth in the 1940 Act and the rules and
regulations thereunder.
13. This Agreement may be amended or modified only by a written instrument
executed by both parties.
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14. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder shall not be thereby
affected.
15. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for receipt of such notice.
16. All parties hereto are expressly put on notice of the Trust's
Declaration of Trust and all amendments thereto, a copy of which is on file with
the Secretary of the Commonwealth of Massachusetts and the limitation of
shareholder and trustee liability contained therein. This Agreement is executed
on behalf of the Trust by the Trust's officers as officers and not individually
and the obligations imposed upon the Trust by this Agreement are not binding
upon any of the Trust's Trustees, officers or shareholders individually but are
binding only upon the assets and property of the Trust, and persons dealing with
the Trust must look solely to the assets of the Trust for the enforcement of any
claims.
17. This Agreement shall be construed in accordance with applicable
federal law and (except as to Section 16 hereof, which shall be construed in
accordance with the laws of Massachusetts) the laws of the State of Illinois.
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IN WITNESS WHEREOF, the Trust and the Adviser have caused this Agreement
to be executed on the day and year above written.
FIRST TRUST ENERGY INFRASTRUCTURE FUND
By: __________________________
Name: Xxxxx X. Xxxxx
Title: President
ATTEST: _________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
FIRST TRUST ADVISORS L.P.
By: __________________________
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
ATTEST: _________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
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