FEE AGREEMENT
December 21, 2016
BB&T Capital Markets, a division of BB&T Securities, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated December 21, 2016
(the "Underwriting Agreement"), by and among First Trust Senior Floating Rate
2022 Target Term Fund (the "Fund"), First Trust Advisors L.P. (the "Adviser")
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 Adviser shall pay a fee to you in the
aggregate amount of $[___] (the "Fee"). The Fee shall be paid on the Closing
Date. The payment shall be made by wire transfer to the order of BB&T Capital
Markets, a division of BB&T Securities, LLC. The Adviser acknowledges 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 Adviser agrees 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 Adviser acknowledges
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 Adviser. In addition, nothing
in this Agreement shall be construed to constitute you as the agent or employee
of the Adviser or the Adviser 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 Adviser 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 or equity owners of the Adviser or any other third party in connection
with your engagement hereunder, all of which are hereby expressly waived to the
extent the Adviser has the authority to waive such duties and liabilities.
Furthermore, the Adviser agrees that it is solely responsible for making its own
judgments in connection with the matters covered by this Agreement (irrespective
of whether you have advised or are currently advising the Adviser 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:
Agreed and Accepted:
BB&T CAPITAL MARKETS, A DIVISION OF BB&T SECURITIES, LLC
By: _____________________
Name:
Title:
Indemnification Agreement
December 21, 2016
BB&T Capital Markets, a division of BB&T Securities, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In connection with the engagement of BB&T Capital Markets, a division of
BB&T Securities, LLC (the "Broker-Dealer") to assist the undersigned, First
Trust Advisors L.P., together with its affiliates and subsidiaries (the
"Adviser") with respect to the matters set forth in the Fee Agreement dated
December 21, 2016 between the Adviser 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 Adviser agrees 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
Adviser will 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 Adviser in
writing of the commencement thereof; but the failure so to notify the Adviser
(i) will not relieve Adviser 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 Adviser 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 Adviser may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the Adviser 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
Adviser 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 Adviser and its partners 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, on the one hand, and the Indemnified
Parties, on the other hand, as well as any other relevant equitable
considerations. The Adviser agrees that for the purposes of this paragraph the
relative benefits received, or sought to be received, by the Adviser and its
partners 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, 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 Adviser 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
Adviser or other conduct by the Adviser (or its 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 Adviser 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 Adviser was not guilty of
such fraudulent misrepresentation. The Adviser 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 Adviser agrees that no Indemnified Party shall have any liability to
the Adviser or any person asserting claims on behalf of or in right of the
Adviser 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 Adviser 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).
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
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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 ADVISER AND THE
INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL
SERVICE WITH RESPECT THERETO. THE ADVISER 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 INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD
PARTY AGAINST THE BROKER-DEALER OR ANY INDEMNIFIED PARTY. EACH INDEMNIFIED PARTY
AND THE ADVISER 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 ADVISER AGREES 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 ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE
JURISDICTION OF WHICH THE ADVISER 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 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:
Agreed and Accepted:
BB&T CAPITAL MARKETS, A DIVISION OF BB&T SECURITIES, LLC
By: _____________________
Name:
Title:
