ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of February 5, 2014, by and between BNY MELLON
INVESTMENT SERVICING (US) INC., a Massachusetts corporation ("BNY Mellon") and
FIRST TRUST NEW OPPORTUNITIES MLP & ENERGY FUND, a Massachusetts business trust
(the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain BNY Mellon to provide administration
and accounting services and BNY Mellon wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation
in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by BNY Mellon
from an Authorized Person or from a person reasonably believed by
BNY Mellon to be an Authorized Person. BNY Mellon may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" means the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "Shares" mean the shares of beneficial interest of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by BNY Mellon or (ii) trade
instructions transmitted (and received by BNY Mellon) by means of an
electronic transaction reporting system access to which requires use
of a password or other authorized identifier. The instructions may
be delivered electronically (with respect to sub-item (ii) above) or
by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints BNY Mellon to provide administration
and accounting services to the Fund, in accordance with the terms set
forth in this Agreement. BNY Mellon accepts such appointment and agrees to
furnish such services. BNY Mellon shall be under no duty to take any
action hereunder on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by BNY Mellon and the Fund in a
written amendment hereto. BNY Mellon shall not bear, or otherwise be
responsible for, any fees, costs or expenses charged by any third party
service providers engaged by the Fund or by any other third party service
provider to the Fund.
3. COMPLIANCE WITH RULES AND REGULATIONS.
BNY Mellon undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by BNY Mellon hereunder. Except as specifically set forth herein, BNY
Mellon assumes no responsibility for such compliance by the Fund or other
entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, BNY Mellon shall act
only upon Oral Instructions or Written Instructions.
(b) BNY Mellon shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by BNY Mellon to be an Authorized Person)
pursuant to this Agreement. BNY Mellon may assume that any Oral
Instruction or Written Instruction received hereunder is not in any
way inconsistent with the provisions of organizational documents or
this Agreement or of any vote, resolution or proceeding of the
Fund's board of directors or of the Fund's shareholders, unless and
until BNY Mellon receives Written Instructions to the contrary.
(c) The Fund agrees to forward to BNY Mellon Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by BNY Mellon or its affiliates) so that BNY Mellon
receives the Written Instructions by the close of business on the
same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by BNY Mellon
or differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or BNY Mellon's ability to rely upon such Oral
Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If BNY Mellon is in doubt as to any action it
should or should not take, BNY Mellon may request directions or
advice, including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If BNY Mellon shall be in doubt as to any
question of law pertaining to any action it should or should not
take, BNY Mellon may request advice from counsel of its own choosing
(who may be counsel for the Fund, the Fund's investment adviser or
BNY Mellon, at the option of BNY Mellon). The Fund shall pay the
reasonable cost of any counsel retained by BNY Mellon with prior
notice to the Fund.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions BNY Mellon
receives from the Fund and the advice BNY Mellon receives from
counsel, BNY Mellon may rely upon and follow the advice of counsel.
(d) Protection of BNY Mellon. BNY Mellon shall be indemnified by the
Fund and without liability for any action BNY Mellon takes or does
not take in reliance upon directions or advice or Oral Instructions
or Written Instructions BNY Mellon receives from or on behalf of the
Fund or from counsel and which BNY Mellon believes, in good faith,
to be consistent with those directions or advice and Oral
Instructions or Written Instructions. Nothing in this section shall
be construed so as to impose an obligation upon BNY Mellon (i) to
seek such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund which are in the
possession or under the control of BNY Mellon shall be the property
of the Fund. Such books and records shall be prepared and maintained
as required by the 1940 Act and other applicable securities laws,
rules and regulations provided the Fund provides BNY Mellon with
written notice of such laws, rules and regulations, other than the
1940 Act and the Internal Revenue Code of 1986, as amended, that are
applicable. The Fund and Authorized Persons shall have access to
such books and records at all times during BNY Mellon's normal
business hours upon reasonable advance notice. Upon the reasonable
request of the Fund, copies of any such books and records shall be
provided by BNY Mellon to the Fund or to an Authorized Person, at
the Fund's expense.
(b) BNY Mellon shall keep the following records:
(i) all books and records with respect to the Fund's books of
account;
(ii) records of the Fund's securities transactions; and
(iii) all other books and records as BNY Mellon is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in connection
with the services provided hereunder.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or BNY Mellon and their respective subsidiaries and
affiliated companies; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund or BNY
Mellon a competitive advantage over its competitors; (c) all confidential
or proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if: (a) it is necessary for BNY Mellon to release such information in
connection with the provision of services under this Agreement; (b) it is
already known to the receiving party at the time it is obtained; (c) it is
or becomes publicly known or available through no wrongful act of the
receiving party; (d) it is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (e) it is released by the protected party to a third
party without restriction; (f) it is requested or required to be disclosed
by the receiving party pursuant to a court order, subpoena, governmental
or regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (g) it is Fund information provided by BNY Mellon in
connection with an independent third party compliance or other review; (h)
it is relevant to the defense of any claim or cause of action asserted
against the receiving party; or (i) it has been or is independently
developed or obtained by the receiving party. BNY Mellon acknowledges and
agrees that in connection with its services under this Agreement it
receives non-public confidential portfolio holdings information
("Portfolio Information") with respect to the Fund. BNY Mellon agrees
that, subject to the foregoing provisions of and the exceptions set forth
in this Section 7 (other than the exception set forth above in this
Section 7 as sub-item (a), which exception set forth in sub-item (a) shall
not be applicable to the Fund's Portfolio Information), BNY Mellon will
keep confidential the Fund's Portfolio Information and will not disclose
the Fund's Portfolio Information other than pursuant to a Written
Instruction (which Written Instruction may be a standing Written
Instruction); provided that without the need for such a Written
Instruction and notwithstanding any other provision of this Section 7 to
the contrary, the Fund's Portfolio Information may be disclosed to third
party pricing services which are engaged by BNY Mellon in connection with
the provision of services under this Agreement and which shall be subject
to a duty of confidentiality with respect to such Portfolio Information.
8. LIAISON WITH ACCOUNTANTS. BNY Mellon shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to the
Fund. BNY Mellon shall take all reasonable action in the performance of
its duties under this Agreement to assure that the necessary information
is made available to such accountants for the expression of their opinion,
as required by the Fund.
0. XXX XXXXXX XXXXXX. XXX Xxxxxx shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents,
copyrights, trade secrets, and other related legal rights utilized by BNY
Mellon in connection with the services provided by BNY Mellon to the Fund.
10. DISASTER RECOVERY. BNY Mellon shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, BNY Mellon shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. BNY Mellon shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure, provided such loss or interruption is not
caused by BNY Mellon's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by BNY Mellon during the term
of this Agreement, the Fund will pay to BNY Mellon a fee or fees as
may be agreed to in writing by the Fund and BNY Mellon.
(b) The undersigned hereby represents and warrants to BNY Mellon that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits accruing to
BNY Mellon or to the adviser or sponsor to the Fund in connection
with this Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing payments
or periodic payments made or to be made by BNY Mellon to such
adviser or sponsor or any affiliate of the Fund relating to this
Agreement have been fully disclosed to the board of directors of the
Fund and that, if required by applicable law, such board of
directors has approved or will approve the terms of this Agreement,
any such fees and expenses, and any such benefits.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless BNY Mellon
and its affiliates providing services under this Agreement,
including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, reasonable
attorneys' fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky
laws) ("Claims") arising directly or indirectly from any action or
omission to act which BNY Mellon takes in connection with the
provision of services to the Fund. Neither BNY Mellon, nor any of
its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by BNY Mellon's or its
affiliates' own willful misfeasance, bad faith, negligence or
reckless disregard in the performance of BNY Mellon's or its
affiliates activities under this Agreement. The provisions of this
Section 12 shall survive termination of this Agreement.
(b) Indemnification of the Fund. BNY Mellon agrees to defend, indemnify
and hold the Fund and its officers, directors and employees harmless
from any and all Claims arising directly or indirectly from the
negligence, bad faith, reckless disregard or willful misfeasance of
BNY Mellon and its affiliates in the performance of its duties
hereunder. Notwithstanding the foregoing, the Fund shall not be
indemnified against any Claim caused by the Fund's or the Fund's
other service providers' willful misfeasance, bad faith or
negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks indemnification under
this Agreement must promptly give the other party notice of
any legal action; provided, however, that a delay in notice
does not relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying party
shows that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the
other party;
(2) is not liable to the other party for any later
attorney's fees or for any other later expenses that the
other party incurs, except for reasonable investigation
costs;
(3) must not compromise or settle the action without the
other party's consent (but the other party must not
unreasonably withhold its consent); and
(4) is not liable for any compromise or settlement made
without its consent.
(iii) Failing to Assume the Defense. If the indemnifying party fails
to participate in or assume the defense within 15 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party.
13. RESPONSIBILITY OF BNY MELLON.
(a) BNY Mellon shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as may
be specifically agreed to by BNY Mellon and the Fund in a written
amendment hereto. BNY Mellon shall be obligated to exercise
commercially reasonable care and diligence in the performance of its
duties hereunder and to act in good faith in performing services
provided for under this Agreement. As set forth herein, and as may
be agreed to in writing from time to time by BNY Mellon and the Fund
with regard to such matters of liability, BNY Mellon shall be liable
only for any damages arising out of BNY Mellon's failure to perform
its duties under this Agreement to the extent such damages arise out
of BNY Mellon's willful misfeasance, bad faith, negligence or
reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, BNY
Mellon shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; failure of the mails; or functions
or malfunctions of the internet, firewalls, encryption systems or
security devices caused by any of the above; and (ii) BNY Mellon
shall not be under any duty or obligation to inquire into and shall
not be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information
which BNY Mellon reasonably believes to be genuine. BNY Mellon shall
not be liable for any damages arising out of any action or omission
to act by any prior service provider of the Fund or for any failure
to discover any such error or omission.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party to this Agreement nor their respective affiliates shall be
liable for any consequential, incidental, exemplary, punitive,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by such party.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
BNY Mellon will perform the following accounting services with respect to
the Fund:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for the Fund (the "Adviser") and transmit trades
to the Fund's custodian (the "Custodian") for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of the Fund's Investments in accordance with the
Fund's valuation policies or guidelines; provided, however, that BNY
Mellon shall not under any circumstances be under a duty to
independently price or value any of the Fund's investments,
including securities lending related cash collateral investments, or
to confirm or validate any information or valuation provided by the
Adviser or any other pricing source, nor shall BNY Mellon have any
liability relating to inaccuracies or otherwise with respect to such
information or valuations;
(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xv) Calculate the change in the liability for Federal and state taxes in
conjunction with each NAV determination utilizing estimates provided
by the adviser for partnership income and related state tax rates:
(xvi) Compute net asset value; and
(xvii) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
BNY Mellon will perform the following administration services with respect
to the Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iv) Prepare the Fund's annual and semi-annual shareholder reports;
(v) If the chief executive officer or chief financial officer of the
Fund is required to provide a certification as part of the Fund's
Form N-Q or Form N-CSR filing pursuant to regulations promulgated by
the Securities and Exchange Commission under Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002, BNY Mellon will provide (to such person
or entity as agreed between the Fund and BNY Mellon) a
sub-certification in support of certain matters set forth in the
aforementioned certification, such sub-certification to be in such
form and relating to such matters as agreed between the Fund and BNY
Mellon from time to time. BNY Mellon shall be required to provide
the sub-certification only during the term of the Agreement and only
if it receives such cooperation as it may request to perform its
investigations with respect to the sub-certification. For clarity,
the sub-certification is not itself a certification under the
Xxxxxxxx-Xxxxx Act of 2002 or under any other regulatory
requirement;
(vi) Supply supporting tax documentation and calculations, including but
not limited to, wash sales reporting and qualified covered call
analysis;
(vii) Assist the Fund in the handling of SEC examinations
and responses thereto; and
(viii) Such other regulatory services as the parties hereto may from time
to time agree upon in writing.
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue until
June 13, 2014 (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Fund or BNY Mellon provides written notice
to the other of its intent not to renew. Such notice must be
received not less than ninety (90) days prior to the expiration of
the Initial Term or the then current Renewal Term.
(c) In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion
thereof to a successor accounting and administration services
agent(s) (and any other service provider(s)), and all trailing
expenses incurred by BNY Mellon, will be borne by the Fund and paid
to BNY Mellon if known at such time prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to BNY Mellon, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as BNY Mellon may inform the Fund in writing); (b) if to the Fund,
at 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: W. Xxxxx Xxxxxxx
fax (000) 000-0000 (or such other address as the Fund may inform BNY
Mellon in writing); or (c) if to neither of the foregoing, at such other
address as shall have been given by like notice to the sender of any such
notice or other communication by the other party. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought
19. ASSIGNMENT; SUBCONTRACTING. BNY Mellon may assign its rights hereunder to
any affiliate of BNY Mellon provided that BNY Mellon gives the Fund thirty
(30) days prior written notice of such assignment. Notwithstanding the
foregoing, BNY Mellon may subcontract with, hire, engage or otherwise
outsource to any third party with respect to the performance of any one or
more of the functions, services, duties or obligations of BNY Mellon under
this Agreement but any such subcontracting, hiring, engaging or
outsourcing shall not relieve BNY Mellon of any of its liabilities
hereunder.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. 21. FURTHER ACTIONS. Each party
agrees to perform such further acts and execute such further documents as
are necessary to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the Fund
agrees not to make any modifications to its registration statement or
adopt any policies which would affect materially the obligations or
responsibilities of BNY Mellon hereunder without the prior written
approval of BNY Mellon, which approval shall not be unreasonably
withheld or delayed. The scope of services to be provided by BNY
Mellon under this Agreement shall not be increased as a result of new
or revised regulatory or other requirements that may become
applicable with respect to the Fund, unless the parties hereto
expressly agree in writing to any such increase.
(b) During the term of this Agreement and for one year thereafter, the
Fund shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or
hire any of BNY Mellon's employees, and the Fund shall cause the
Fund's sponsor and the Fund's affiliates to not (with the exceptions
noted in the immediately succeeding sentence) knowingly solicit or
recruit for employment or hire any of BNY Mellon's employees. To
"knowingly" solicit, recruit or hire within the meaning of this
provision does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a BNY Mellon employee by the
Fund, the Fund's sponsor or an affiliate of the Fund if the BNY
Mellon employee was identified by such entity solely as a result of
the BNY Mellon employee's response to a general advertisement by such
entity in a publication of trade or industry interest or other
similar general solicitation by such entity.
(c) Except as expressly provided in this Agreement, BNY Mellon hereby
disclaims all representations and warranties, express or implied,
made to the Fund or any other person, including, without limitation,
any warranties regarding quality, suitability, merchantability,
fitness for a particular purpose or otherwise (irrespective of any
course of dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this Agreement.
BNY Mellon disclaims any warranty of title or non-infringement except
as otherwise set forth in this Agreement.
(d) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(e) The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(f) Notwithstanding any provision hereof, the services of BNY Mellon are
not, nor shall they be, construed as constituting legal advice or
the provision of legal services for or on behalf of the Fund or any
other person. Neither this Agreement nor the provision of services
under this Agreement establishes or is intended to establish an
attorney-client relationship between the Fund and BNY Mellon.
(g) The Fund will provide such information and documentation as BNY
Mellon may reasonably request in connection with services provided
by BNY Mellon to the Fund.
(h) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts
of law.
(i) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(j) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. Except as may be explicitly stated in this Agreement, (i)
this Agreement is not for the benefit of any other person or entity
and (ii) there shall be no third party beneficiaries hereof.
(k) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(l) The Fund and BNY Mellon agree that the obligations of the Fund under
the Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the directors of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such directors nor such
execution and delivery by such officer shall be deemed to have been
made by any of them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property of the
Fund (or applicable series thereof), as provided in the Articles of
Incorporation or Declaration of Trust.
(m) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of BNY
Mellon's affiliates are financial institutions, and BNY Mellon may,
as a matter of policy, request (or may have already requested) the
Fund's name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. BNY Mellon may also ask
(and may have already asked) for additional identifying information,
and BNY Mellon may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BNY MELLON INVESTMENT SERVICING (US) INC.
By: ____________________
Name: ____________________
Title: ____________________
FIRST TRUST NEW OPPORTUNITIES MLP &
ENERGY FUND
By: ____________________
Name: Xxxxx X. Xxxxx
Title: Treasurer, Chief Financial Officer
