SERVICE AGREEMENT
FOR
TRANSFER AGENT SERVICES
TO
FIRST TRUST MLP AND ENERGY INCOME FUND
THIS SERVICE AGREEMENT FOR TRANSFER AGENT SERVICES (this "Agreement")
between First Trust MLP and Energy Income Fund, a Massachusetts business trust
("Client") and BNY Mellon Investment Servicing (US) Inc., a Massachusetts
corporation ("Agent"), is dated as of __________, 2012.
1. APPOINTMENT. Client appoints Agent as its transfer agent, registrar,
shareholder servicing agent and dividend disbursing agent and Agent accepts such
appointment in accordance with and subject to the following terms and conditions
for all authorized shares of each class of stock listed in EXHIBIT A hereto (the
"Shares").
2. TERM OF AGREEMENT. Agent's appointment hereunder shall commence on the
next business day after the later of (i) the date hereof, or (ii) the date Agent
has confirmed that Client's records have been converted to Agent's system (the
"Effective Date"), and shall continue until June 12, 201_ (the "Initial Term").
Unless either party gives written notice of termination of this Agreement at
least 90 days prior to the end of the Initial Term or any subsequent one-year
term, this Agreement shall automatically renew for successive additional
one-year terms.
3. DUTIES OF AGENT. Commencing on the Effective Date, Agent shall provide the
services listed in EXHIBIT B hereto, in the performance of its duties hereunder.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CLIENT. Client represents,
warrants and covenants to Agent that:
(a) it is a business trust duly organized and validly existing under the
laws of its state of Massachusetts;
(b) the Shares issued and outstanding on the date hereof have been duly
authorized, validly issued and are fully paid and are non-assessable; and any
Shares to be issued hereafter, when issued, shall have been duly authorized,
validly issued and fully paid and will be non-assessable;
(c) the Shares issued and outstanding on the date hereof have been duly
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and such registration has become effective, or are exempt from such
registration; and have been duly registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or are exempt from such registration;
(d) any Shares to be issued hereafter, when issued, shall have been duly
registered under the Securities Act, and such registration shall have become
effective, or shall be exempt from such registration; and shall have been duly
registered under the Exchange Act, or shall be exempt from such registration;
(e) Client has paid or caused to be paid all taxes, if any, that were
payable upon or in respect of the original issuance of the Shares issued and
outstanding on the date hereof;
1
(f) the use of facsimile signatures by Agent in connection with the
countersigning and registering of Share certificates of Client has been duly
authorized by Client and is valid and effective;
(g) the execution and delivery of this Agreement, and the issuance and any
subsequent transfer of the Shares in accordance with this Agreement, do not and
will not conflict with, violate, or result in a breach of, the terms, conditions
or provisions of, or constitute a default under, the charter or the by-laws of
Client, any law or regulation, any order or decree of any court or public
authority having jurisdiction, or any mortgage, indenture, contract, agreement
or undertaking to which Client is a party or by which it is bound. This
Agreement has been duly authorized, executed and delivered by Client and is
enforceable against Client in accordance with its terms, except as may be
limited by bankruptcy, insolvency, moratorium, reorganization and other similar
laws affecting the enforcement of creditors' rights generally; and
(h) Client agrees to provide to Agent the documentation and notifications
listed in EXHIBIT C hereto according to the requirements set forth therein.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF AGENT. Agent represents,
warrants and covenants to Client that:
(a) Agent is a Massachusetts corporation organized and validly existing
under the laws of its state of organization;
(b) Agent is, and for the term of this Agreement shall remain, duly
registered as a transfer agent under the Exchange Act;
(c) subject to Section 7 hereof, during the term of this Agreement, Agent
shall comply with its obligations as a transfer agent under the Exchange Act and
the rules and regulations thereunder; and
(d) assuming the accuracy of Client's representations and warranties and
compliance by Client with its covenants hereunder, the execution and delivery of
this Agreement, and the performance by Agent of its obligations in accordance
with this Agreement, do not and will not conflict with, violate, or result in a
breach of, the terms, conditions or provisions of, or constitute a default
under, the organizational documents of Agent, any law or regulation, any order
or decree of any court or public authority having jurisdiction, or any mortgage,
indenture, contract, agreement or undertaking to which Agent is a party or by
which it is bound. This Agreement has been duly authorized, executed and
delivered by Agent and is enforceable against Agent in accordance with its
terms, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting the enforcement of creditors'
rights generally.
(e) Agent undertakes to comply with all applicable requirements of the
Securities Laws, including the Investment Company Act of 1940, the Securities
Act of 1933, and the Securities Exchange Act of 1934, as each may be amended,
and any laws, rules and regulations of governmental authorities having
2
jurisdiction with respect to the duties to be performed by Agent hereunder.
Except as specifically set forth herein, Agent assumes no responsibility for
such compliance by the Fund or any other entity.
(f) The books and records pertaining to the Client, which are in the
possession or under the control of Agent, shall be the property of the Client.
Such books and records shall be prepared and maintained as required by the
Investment Company Act of 1940, the Internal Revenue Code of 1986 and other
applicable securities laws, rules and regulations. The Client shall have access
to such books and records at all times during Agent's normal business hours upon
reasonable advance notice. Upon the reasonable request of the Client, copies of
any such books and records shall be provided by Agent to the Client or Client's
Authorized Person, at the Client's expense. Agent shall keep the following
records for the Client: all books and records as are customarily maintained by
the transfer agent for a registered investment company.
6. SCOPE OF AGENCY.
(a) Agent shall act solely as agent for Client under this Agreement and
owes no duties hereunder to any other person. Agent undertakes to perform the
duties and only the duties that are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this Agreement
against Agent. Agent 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.
(b) Agent may rely upon, and shall be protected in acting or refraining
from acting in reliance upon, (i) any communication from Client, any predecessor
Transfer Agent or co-Transfer Agent or any Registrar (other than Agent),
predecessor Registrar or co-Registrar; (ii) any instruction, notice, request,
direction, consent, report, certificate, opinion or other instrument, paper,
document or electronic transmission believed by Agent to be genuine and to have
been signed or given by the proper party or parties; (iii) any guaranty of
signature by an "eligible guarantor institution" that is a member or participant
in the Securities Transfer Agents Medallion Program or other comparable
"signature guarantee program" or insurance program in addition to, or in
substitution for, the foregoing; (iv) any instructions received through Direct
Registration System/Profile; or (v) any law, act, regulation or any
interpretation of the same even though such law, act, or regulation may
thereafter have been altered, changed, amended or repealed. In addition, Agent
is authorized to refuse to make any transfer that it determines in good faith
not to be in good order.
(c) In connection with any question of law arising in the course of Agent
performing its duties hereunder, Agent may consult with legal counsel (including
internal counsel) whose advice shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by Agent
hereunder in good faith and in reasonable reliance thereon.
(d) Any instructions given by Client to Agent orally shall be confirmed in
writing by Client as soon as practicable. Agent shall not be liable or
3
responsible and shall be fully authorized and protected for acting, or failing
to act, in reliance upon any oral instructions that do not conform with the
written confirmation received in accordance with this Section 6(d).
7. INDEMNIFICATION.
(a) Client agrees to indemnify, defend and hold harmless Agent 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 Agent takes in connection with the provision of
services to Client. Neither Agent, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by Agent's or its affiliates' own willful misfeasance,
bad faith, negligence or reckless disregard in the performance of Agent's
or its affiliates' activities under this Agreement, provided that in the
absence of a finding to the contrary the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of Agent's or its affiliates own
willful misfeasance, bad faith, negligence or reckless disregard of such
duties and obligations. The provisions of this Section 7 shall survive
termination of this Agreement.
(b) Indemnification of Client. Agent agrees to defend, indemnify and
hold Client 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 Agent and its
affiliates in the performance of its duties hereunder. Notwithstanding the
foregoing, Client shall not be indemnified against any Claim caused by
Client's or Client'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;
4
(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.
8. LIMITATION OF LIABILITY.
(a) Agent shall be liable only for damages arising out of Agent's failure
to perform its duties under this Agreement to the extent such damages arise out
of Agent's willful misfeasance, bad faith, negligence or reckless disregard of
such duties. In the absence of gross negligence or intentional misconduct on its
part, Agent shall not be liable for any action taken, suffered or omitted by it
or for any error of judgment made by it in the performance of its duties under
this Agreement. In no event will either Agent or Client be liable for special,
indirect, incidental, consequential or punitive losses or damages of any kind
whatsoever (including but not limited to lost profits), even if such party has
been advised of the possibility of such losses or damages and regardless of the
form of action. Each party will have a duty to mitigate damages for which the
other party may become responsible. The provisions of this Section shall survive
termination of this Agreement.
(b) If any question or dispute arises with respect to the proper
interpretation of this Agreement or Agent's duties hereunder, Agent shall not be
required to act or be held liable or responsible for its failure or refusal to
act until the question or dispute has been (i) judicially settled (and Agent
may, if it deems it advisable, but shall not be obligated to, file a suit in
interpleader or for a declaratory judgment for such purpose) by a final judgment
of a court of competent jurisdiction that is binding on all parties interested
in the matter and is no longer subject to review or appeal, or (ii) settled by a
written document in form and substance satisfactory to Agent and executed by
Client. For such purpose, Agent may, but shall not be obligated to, require the
execution of such a document.
(c) Client and Agent agree that the obligations of the Client 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
Client individually, but are binding only upon the assets and property of the
5
Client (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 Client, and signed by an authorized officer of the Client,
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 Client individually or to impose any liability
on any of them or any shareholder of the Client personally, but shall bind only
the assets and property of the Client (or applicable series thereof), as
provided in the Client's By-Laws or Declaration of Trust.
9. FORCE MAJEURE. Agent shall not be liable for any failures, delays or
losses, arising directly or indirectly out of conditions beyond its reasonable
control, including, but not limited to, acts of government, exchange or market
ruling, suspension of trading, work stoppages or labor disputes, civil
disobedience, riots, rebellions, electrical or mechanical failure, computer
hardware or software failure, communications facilities failures including
telephone failure, war, terrorism, insurrection, fires, earthquakes, storms,
floods, acts of God or similar occurrences. Agent 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, Agent shall, at no additional expense to the Client, take reasonable
steps to minimize service interruptions. Agent 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 Agent's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
10. MARKET DATA. Client acknowledges that Agent may provide real-time or
delayed quotations and other market information and messages ("Market Data"),
which Market Data is provided to Agent by certain national securities exchanges
and associations who assert a proprietary interest in Market Data disseminated
by them but do not guarantee the timeliness, sequence, accuracy or completeness
thereof. Client agrees and acknowledges that Agent shall not be liable in any
way for any loss or damage arising from or occasioned by any inaccuracy, error,
delay in, omission of, or interruption in any Market Data or the transmission
thereof.
11. TERMINATION.
(a) Client may terminate this Agreement if (i) Agent defaults on any of
its material obligations hereunder and such default remains uncured thirty (30)
days after Agent's receipt of notice of such default from Client; or (ii) any
proceeding in bankruptcy, reorganization, receivership or insolvency is
commenced by or against Agent, Agent shall become insolvent or shall cease
paying its obligations as they become due or makes any assignment for the
benefit of its creditors.
(b) Agent may suspend providing services hereunder or terminate this
Agreement if (i) Client fails to pay amounts due hereunder or defaults on any of
its material obligations hereunder and such failure or default remains uncured
thirty (30) days after Client's receipt of notice of such failure or default
6
from Agent; (ii) any proceeding in bankruptcy, reorganization, receivership or
insolvency is commenced by or against Client, Client shall become insolvent, or
shall cease paying its obligations as they become due or makes any assignment
for the benefit of its creditors; or (iii) Client is acquired by or is merged
with or into another entity where Client is not the surviving company.
(c) Upon termination of this Agreement, all fees earned and expenses
incurred by Agent up to and including the date of such termination shall be
immediately due and payable to Agent on or before the effective date of such
termination.
(d) Prior to termination of this Agreement, Client shall provide Agent
with written instructions as to the disposition of records, as well as any
additional documentation reasonably requested by Agent. Except as otherwise
expressly provided in this Agreement, the respective rights and duties of Client
and Agent under this Agreement shall cease upon termination of this Agreement.
12. LOST CERTIFICATES. Agent shall not be obligated to issue a replacement
share certificate for any share certificate reported to have been lost,
destroyed or stolen unless Agent shall have received: (a) an affidavit of such
loss, destruction or theft; (b) a bond of indemnity in form and substance
satisfactory to Agent; and (c) payment of all applicable fees. Shareholders may
obtain such a bond of indemnity from a surety company of the shareholder's
choice, provided the surety company satisfies Agent's minimum requirements.
13. CONFIDENTIALITY.
(a) In connection with Agent's appointment hereunder, each party shall
obtain confidential information related to the other party or its stockholders
that is not available to the general public ("Confidential Information"), which
Confidential Information shall include the terms and conditions of this
Agreement and the exhibits attached hereto. Each party agrees that the
Confidential Information shall be held and treated by it, its directors,
officers, employees, affiliates, agents and subcontractors (collectively,
"Representatives") in confidence and, except as hereinafter provided, shall not
be disclosed in any manner whatsoever except as otherwise required by law,
regulation, subpoena or governmental authority. Confidential Information shall
be used by each party and its Representatives only for the purposes for which
provided and shall be disclosed by such party only to those Representatives who
have a need to know in order to accomplish the business purpose in connection
with which the Confidential Information has been provided. Confidential
Information does not include information that (i) is now or subsequently becomes
generally available to the public through no fault or breach on the part of the
receiving party; (ii) the receiving party had rightfully in its possession prior
to disclosure to it by the disclosing party; (iii) is independently developed by
the receiving party without the use of or reference to any Confidential
Information; or (iv) the receiving party rightfully obtains on a
non-confidential basis from a source other than the disclosing party who has the
right to transfer or disclose it.
7
(b) In connection with the provision of services under this Agreement,
Client may direct Agent to release information, including non-public personal
information ("NPPI"), as defined in Title V of the Gramm Xxxxx Xxxxxx Act and
the regulations issued thereunder (including but not limited to Regulation P of
the Board of Governors of the Federal Reserve) to Client's agents or other third
party service providers, including, without limitation, broker/dealers,
custodians and depositories. In addition, Client consents to the release of
information, including NPPI, (i) to any of Agent's Representatives in connection
with the services provided hereunder and (ii) as required by law, regulation,
subpoena or governmental authority. Agent shall not be liable for the release of
information in accordance with the foregoing provisions.
(c) Agent 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 Client. Agent agrees
that to keep confidential the Client's Portfolio Information and will not
disclose the Client's Portfolio Information other than pursuant to a written
instruction; provided that without the need for such a written instruction and
notwithstanding any other provision of this Section 13 to the contrary, the
Client's Portfolio Information may be disclosed to third party pricing services
which are engaged by Agent 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.
14. PUBLICITY. Neither party will issue a news release, public announcement,
advertisement, or other form of publicity concerning the existence of this
Agreement or the Services to be provided hereunder without obtaining the prior
written approval of the other party, which may be withheld in the other party's
sole discretion; provided that Agent may use Client's name in its customer
lists.
15. LOST STOCKHOLDERS; IN-DEPTH STOCKHOLDER SEARCH.
(a) Agent shall conduct such database searches to locate lost stockholders
as are required by Rule 17Ad-17 under the Exchange Act, without charge to the
stockholder. If a new address is so obtained in a database search for a lost
stockholder, Agent shall conduct a verification mailing and update its records
for such stockholder accordingly.
(b) Agent may conduct a more in-depth search for the purpose of (i)
locating lost stockholders for whom a new address is not obtained in accordance
with clause (a) above, (ii) identifying stockholders who are deceased (or
locating their next of kin) and (iii) locating stockholders whose accounts
contain two or more consecutive uncashed checks, in each case using the services
of a locating service provider selected by Agent. Such provider may compensate
Agent for processing and other services that Agent provides in connection with
such in-depth search.
(c) Upon locating any stockholder (or next of kin) pursuant to clause (b)
above, the locating service provider shall clearly identify to such stockholder
(or next of kin) all assets held in such stockholder's account. Such provider
shall inform any such located stockholders (or next of kin) that they may choose
8
either (i) to contact Agent directly to obtain the assets in such account, at no
charge other than any applicable fees to replace lost certificates, or (ii) to
use the services of such provider for a fee, which may not exceed (A) 10% of the
asset value of such stockholder's property where the registered stockholder is a
living person or (B) 20% of the asset value of such stockholder's property where
the registered stockholder is deceased or is not a natural person; provided that
in no case shall such fee exceed the maximum statutory fee permitted by the
applicable state jurisdiction. If Client selects a locating service provider
other than one selected by Agent, then Agent shall not be responsible for the
terms of any agreement with such provider and additional fees may apply.
16. COMPENSATION AND EXPENSES.
(a) Commencing on the Effective Date, Client shall compensate Agent for
its services hereunder in accordance with the fee schedules listed in EXHIBIT B
hereto.
(b) All amounts owed to Agent hereunder are due within thirty (30) days of
the invoice date. Delinquent payments are subject to a late payment charge of
one percent (1%) per month until payment of the fees are received by Agent.
Client agrees to reimburse Agent for any attorney's fees and any other costs
associated with collecting delinquent payments.
(c) Client shall be charged for certain expenses advanced or incurred by
Agent in connection with Agent's performance of its duties hereunder. Such
charges include, but are not limited to, stationery and supplies, such as
transfer sheets, dividend checks, envelopes, and paper stock, as well as any
disbursements for telephone, mail insurance, electronic document creation and
delivery, travel expenses for annual meetings, link-up charges from Automatic
Data Processing Inc. and tape charges from The Depository Trust Company. While
Agent endeavors to maintain such charges (both internal and external) at
competitive rates, these charges will not, in all instances, reflect actual
out-of-pocket costs, and in some instances may include handling charges to cover
internal processing and use of Agent's billing systems.
(d) With respect to any shareholder mailings processed by Agent, Client
shall be charged postage as an out-of-pocket expense at postage rates that may
not reflect all available or utilized postal discounts, such as presort or NCOA
discounts. Client shall, at least one business day prior to mail date, provide
immediately available funds sufficient to cover all postage due on such mailing.
Any material shareholder mailing schedule changes, including, but not limited
to, delays in delivering materials to Agent or changes in a mailing commencement
date, may result in additional fees and/or expenses.
(e) Upon expiration or termination of this Agreement, Client shall pay
Agent a fee for deconversion services (e.g., providing shareholder lists and
files, producing and shipping records, answering successor agent inquiries).
This fee shall be based on Agent's then-current deconversion fee schedule. Agent
may withhold the Client's records, reports and unused certificate stock pending
Client's payment in full of all fees and expenses owed to Agent under this
Agreement.
9
17. NOTICES. All notices, demands and other communications given pursuant to
this Agreement shall be in writing, shall be deemed effective on the date of
receipt, and may be sent by overnight delivery service, or by certified or
registered mail, return receipt requested to:
If to Client:
First Trust MLP and Energy Income Fund
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: W. Xxxxx Xxxxxxx
fax (000) 000-0000
If to Agent: with an additional copy to:
BNY Mellon Investment Servicing BNY Mellon Investment Servicing
(US) Inc. (US) Inc.
000 Xxxxxxxx Xxxxxxx 000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: President Attn: Legal Department
18. SUBMISSION TO JURISDICTION; FOREIGN LAW.
(a) The parties irrevocably (i) submit to the non-exclusive jurisdiction
of any Delaware State court or the United States District Court for the District
of Delaware in any action or proceeding arising out of or relating to this
Agreement, (ii) waive, to the fullest extent they may effectively do so, any
defense based on inconvenient forum, improper venue or lack of jurisdiction to
the maintenance of any such action or proceeding, and (iii) waive all right to
trial by jury in any action, proceeding or counterclaim arising out of this
Agreement or the transactions contemplated hereby.
(b) Agent shall not be required hereunder to comply with the laws or
regulations of any country other than the United States of America or any
political subdivision thereof. Agent may consult with foreign counsel, at
Client's expense, to resolve any foreign law issues that may arise as a result
of Client or any other party being subject to the laws or regulations of any
foreign jurisdiction.
19. MISCELLANEOUS.
(a) AMENDMENTS. This Agreement may not be amended or modified in any
manner except by a written agreement signed by both Client and Agent.
(b) GOVERNING LAW. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of law.
10
(c) SURVIVAL OF TERMS. Sections 7, 8, 13 and 16 hereof shall survive
termination of this Agreement and Agent's appointment hereunder.
(d) ASSIGNMENT. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns; provided that this Agreement may
not be assigned, or otherwise transferred, in whole or in part, by either party
without the prior written consent of the other party, which the other party will
not unreasonably withhold, condition or delay; and provided further that (i)
consent is not required for an assignment to an affiliate of Agent and (ii) any
reorganization, merger, consolidation, sale of assets or other form of business
combination by Agent shall not be deemed to constitute an assignment of this
Agreement. Any attempted assignment in violation of the foregoing will be void.
(e) HEADINGS. The headings contained in this Agreement are for the
purposes of convenience only and are not intended to define or limit the
contents of this Agreement.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is found to violate a law, it will
be severed from the rest of the Agreement and ignored.
(g) COUNTERPARTS. This Agreement may be executed manually in any number of
counterparts, each of which such counterparts, when so executed and delivered,
shall be deemed an original, and all such counterparts when taken together shall
constitute one and the same original instrument.
(h) ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the parties with respect to the subject matter hereof and supercedes all
prior written or oral communications, understandings, and agreements with
respect to the subject matter of this Agreement. The parties acknowledge that
the Exhibits hereto are an integral part of this Agreement.
(i) BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give any person or entity other than Agent and Client any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of Agent and Client.
(j) CUSTOMER IDENTIFICATION PROGRAM. Client acknowledges that Agent is
subject to the customer identification program ("Customer Identification
Program") requirements under the USA PATRIOT Act and its implementing
regulations, and that Agent must obtain, verify and record information that
allows Agent to identify Client. Accordingly, prior to accepting an appointment
hereunder, Agent may request information from Client that will help Agent to
identify Client, including without limitation Client's physical address, tax
identification number, organizational documents, certificate of good standing,
license to do business, or any other information that Agent deems necessary.
11
Client agrees that Agent cannot accept an appointment hereunder unless and until
Agent verifies Client's identity in accordance with the Customer Identification
Program requirements.
(k) INCENTIVE COMPENSATION PROGRAM. The Bank of New York Mellon
Corporation ("BNYM") has adopted an incentive compensation program designed (i)
to facilitate clients gaining access to and being provided with explanations
about the full range of products and services offered by BNYM and its
subsidiaries and (ii) to expand and develop client relationships. This program
may lead to the payment of referral fees and/or bonuses to employees of BNYM or
its subsidiaries who may have been involved in a referral that resulted in the
execution of obtaining of products or services by Client covered by this
Agreement or which may be ancillary or supplemental to such products or
services. Any such referral fees or bonuses are funded solely out of fees and
commissions paid by Client under this Agreement or with respect to such
ancillary or supplemental products or services.
[The remainder of this page has been intentionally left blank.
Signature page follows.]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
FIRST TRUST MLP AND ENERGY INCOME FUND
By:
-------------------------------------------
Name:
Title:
BNY MELLON INVESTMENT SERVICING (US) INC.
By:
-------------------------------------------
Name:
Title:
13
