INVESTMENT SUB-SUB-ADVISORY AGREEMENT
AGREEMENT made as of this 24th day of September, 2015 by and among First
Trust Dynamic Europe Equity Income Fund, a Massachusetts business trust (the
"Fund"), First Trust Advisors L.P., an Illinois limited partnership (the
"Manager") and a registered investment adviser with the Securities and Exchange
Commission ("SEC"), Xxxxxxxxx Global Investors (North America) Inc., a Delaware
corporation and a registered investment adviser with the SEC (the "Sub-Adviser")
and Xxxxxxxxx Investment Management Limited, a United Kingdom corporation and a
registered investment adviser with the SEC (the "Sub-Sub-Adviser").
WHEREAS, the Fund is a closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund has retained the Manager to serve as the investment
manager for the Fund pursuant to an Investment Management Agreement between the
Manager and the Fund (the "Management Agreement") to manage the investment and
reinvestment of assets of the Fund in accordance with the Fund's investment
objective and policies and limitations, as the same may be amended from time to
time;
WHEREAS, the Management Agreement provides that the Manager may, subject
to certain requirements, appoint a sub-adviser at its own cost and expense for
the purpose of furnishing certain services required under the Management
Agreement;
WHEREAS, the Fund and the Manager have retained the Sub-Adviser to serve
as the lead sub-adviser for the Fund pursuant to an investment sub-advisory
agreement among the Manager, the Fund and the Sub-Adviser (the "Sub-Advisory
Agreement");
WHEREAS, the Sub-Advisory Agreement provides that the Sub-Adviser may,
subject to certain requirements, appoint additional sub-advisers at its own cost
and expense for the purpose of furnishing certain services required under the
Sub-Advisory Agreement;
WHEREAS, the Sub-Adviser desires to retain, and the Fund and Manager have
approved the retention of, the Sub-Sub-Adviser to furnish certain investment
advisory services required by the Sub-Adviser under the Sub-Advisory Agreement
in accordance with the Fund's investment objective and policies and limitations
assigned to the Sub-Adviser and described in the Fund's most recent effective
registration statement and as such objective, policies and limitations may be
amended from time to time for the assets of the Fund's investment portfolio the
Sub-Adviser and/or the Manager allocates to the Sub-Sub-Adviser from time to
time (the "Sub-Adviser's Strategy"), upon the terms and conditions hereafter set
forth;
WHEREAS, the Fund will also apply a strategy of writing call options on
portfolio equity securities, custom baskets of individual securities and certain
broad-based securities indices in accordance with the Fund's investment
objective and policies and limitations (the "Call Writing Strategy") assigned to
the Manager and described in the Fund's most recent effective registration
statement and as such objective, policies and limitations may be amended from
time to time;
WHEREAS, the Manager may make portfolio investment decisions for purchases
and sales of securities and other assets of the Fund with respect to investment
strategies not assigned to the Sub-Adviser, including the Call Writing Strategy
(the "Manager's Strategy");
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Appointment. The Fund, the Manager and the Sub-Adviser hereby appoint
the Sub-Sub-Adviser to provide certain investment sub-advisory services to the
Fund solely with respect to the Sub-Adviser's Strategy for the period and on the
terms set forth in this Agreement. The Sub-Sub-Adviser accepts such appointment
and agrees to furnish the services herein set forth for the compensation herein
provided. The Sub-Sub-Adviser shall, for all purposes herein provided, be deemed
an independent contractor and, unless otherwise expressly provided or
authorized, shall have no authority to act for nor represent the Fund or the
Manager in any way, nor otherwise be deemed an agent of the Fund or the Manager.
Without limiting the generality of the foregoing, the Sub-Sub-Adviser shall have
no duty to (a) implement the Manager's Strategy, (b) review, monitor or advise
upon the performance of the Manager or its delegates in implementing the
Manager's Strategy, (c) assist with the selection of brokers or other
counterparties for the Manager's Strategy, or (d) determine the amount of Fund
assets devoted to the Manager's Strategy and the levels of risk assumed by the
Fund in the Manager's Strategy.
This appointment shall be non-exclusive and nothing in this Agreement
shall affect or limit the right of the Sub-Sub-Adviser to undertake any other
business or venture whatsoever or provide the Fund or the Manager with any right
or claim on the income or revenues of any such other business or venture,
subject to exception for any liabilities the Sub-Sub-Adviser may have under
Section 6 below.
2. Services to Be Performed. Subject always to the supervision of the
Fund's Board of Trustees (the "Board of Trustees" or the "Board"), the Manager
and the Sub-Adviser, the Sub-Sub-Adviser will act as sub-adviser for, and manage
on a discretionary basis the investment and reinvestment of the assets of the
Fund assigned to the Sub-Sub-Adviser by the Sub-Adviser and/or the Manager from
time to time in the Sub-Adviser's Strategy, furnish an investment program in
respect of, make investment decisions for, and place all orders for the purchase
and sale of securities or other assets for the Fund's investment portfolio in
the Sub-Adviser's Strategy, all on behalf of the Fund and as described in the
Fund's most recent effective registration statement on Form N-2 and as the same
and such investment policies described therein may thereafter be amended from
time to time and communicated by the Fund, the Manager or the Sub-Adviser in
writing to the Sub-Sub-Adviser. In the performance of its duties, the
Sub-Sub-Adviser will (a) satisfy any applicable fiduciary duties it may have to
the Fund; (b) monitor the Fund's investments in the Sub-Adviser's Strategy; (c)
comply with the provisions of the Fund's Declaration of Trust and By-laws, as
amended from time to time and communicated by the Fund, the Manager or the
Sub-Adviser to the Sub-Sub-Adviser; (d) comply with (i) the investment
objective, policies and restrictions of the Fund stated in the Fund's most
recently effective prospectus and statement of additional information, (ii) such
other investment objective, policies, restrictions or instructions as the
Manager, the Fund's Board of Trustees or the Sub-Adviser may communicate to the
Sub-Sub-Adviser in writing, and (iii) any changes to the objective, policies,
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restrictions or instructions required under the foregoing (i) and (ii) as
communicated to the Sub-Sub-Adviser in writing; (e) assist in the valuation of
portfolio assets held by the Fund in the Sub-Adviser's Strategy as reasonably
requested by the Manager or the Sub-Adviser of the Fund; and (f) communicate as
necessary with the Manager or the Sub-Adviser to coordinate the implementation
of the Manager's Strategy. The Sub-Sub-Adviser, the Sub-Adviser and the Manager
will also each make its officers and employees available to the other from time
to time at reasonable times to review the investment objective, policies and
restrictions of the Fund and to consult with each other regarding the investment
affairs of the Fund. The Fund, the Manager or the Sub-Adviser shall provide the
Sub-Sub-Adviser with current copies of the Fund's Declaration of Trust, By-laws,
prospectus, statement of additional information and any amendments thereto, and
any objective, policies or limitations not appearing therein as they may be
relevant to the Sub-Sub-Adviser's performance under this Agreement.
Unless otherwise provided by the Manager or the Sub-Adviser in writing,
the Sub-Sub-Adviser is authorized to select the brokers, dealers, futures
commission merchants, banks, or any other agent or counterparty that will
execute the purchases and sales of portfolio investments for the Fund in the
Sub-Adviser's Strategy, and is directed to use its commercially reasonable
efforts to obtain best execution in such a manner that the Fund's total cost or
proceeds in each transaction is the most favorable under the circumstances,
taking into account all appropriate factors, including, among other things,
price, dealer spread or commission, size and difficulty of the transaction and
research or other services provided. Subject to approval by the Fund's Board of
Trustees and compliance with the policies and procedures adopted by the Board of
Trustees for the Fund and communicated by the Fund, the Manager or Sub-Adviser
in writing to the Sub-Sub-Adviser and to the extent permitted by and in
conformance with applicable law (including Rule 17e-1 under the 1940 Act), the
Sub-Sub-Adviser may select brokers or dealers affiliated with the
Sub-Sub-Adviser. It is understood that the Sub-Sub-Adviser will not be deemed to
have acted unlawfully, or to have breached a fiduciary duty to the Fund or the
Manager, or be in breach of any obligation owing to the Fund under this
Agreement, or otherwise, solely by reason of its having caused the Fund to pay a
member of a securities exchange, a broker or a dealer a commission for effecting
a securities transaction for the Fund in excess of the amount of commission
another member of an exchange, broker or dealer would have charged if the
Sub-Sub-Adviser determined in good faith that the commission paid was reasonable
in relation to the value of brokerage or research services provided by such
member, broker or dealer, viewed in terms of that particular transaction or the
Sub-Sub-Adviser's overall responsibilities with respect to its accounts,
including the Fund, as to which it exercises investment discretion. The Fund and
the Manager shall instruct the custodian for the Fund to accept and act upon
instructions for purchases and sales of portfolio securities and other
investment transactions for the account of the Fund issued by the
Sub-Sub-Adviser pursuant to this Agreement.
In addition, the Sub-Sub-Adviser may, to the extent permitted by
applicable law, aggregate purchase and sale orders of securities or other
instruments placed with respect to the assets of the Fund with similar orders
being made simultaneously for other accounts managed by the Sub-Sub-Adviser or
its affiliates to attempt to obtain more favorable price or lower brokerage
commissions and efficient execution, if in the Sub-Sub-Adviser's reasonable
judgment such aggregation is in the best interest of the Fund as well as such
other accounts. In the event that a purchase or sale of an asset of the Fund
occurs as part of any aggregate sale or purchase orders, the objective of the
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Sub-Sub-Adviser and any of its affiliates involved in such transaction shall be
to allocate the assets so purchased or sold, as well as expenses incurred in the
transaction, among the Fund and other accounts in a fair and equitable manner.
Nevertheless, the Fund, the Manager and the Sub-Adviser acknowledge that under
some circumstances, such allocation may adversely affect the Fund with respect
to, among other things, the price or size of the assets obtainable or salable.
Whenever the Fund and one or more other investment advisory clients of the
Sub-Sub-Adviser have available funds for investment, investments suitable and
appropriate for each will be allocated in a manner believed by the
Sub-Sub-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 objective or for other reasons, the Sub-Sub-Adviser and its
affiliates may purchase securities or other instruments of an issuer for one
client and at approximately the same time recommend selling or sell the same or
similar types of securities, assets or instruments for another client.
The Sub-Sub-Adviser will not arrange purchases or sales of securities or
other assets between the Fund and other accounts advised by the Sub-Sub-Adviser
or its affiliates unless (a) such purchases or sales are in accordance with
applicable law (including Rule 17a-7 under the 0000 Xxx) and the Fund's policies
and procedures that have been communicated by the Fund, the Manager or the
Sub-Adviser in writing to the Sub-Sub-Adviser, (b) the Sub-Sub-Adviser
determines the purchase or sale is in the best interests of the Fund, and (c)
the Fund's Board of Trustees has approved these types of transactions.
The Fund may adopt policies and procedures that modify or restrict the
Sub-Sub-Adviser's authority regarding the execution of the Fund's portfolio
transactions provided herein, provided that no such policy or procedure shall
bind the Sub-Sub-Adviser until it has been communicated by the Fund, the Manager
or the Sub-Adviser in writing to the Sub-Sub-Adviser.
The Sub-Sub-Adviser acknowledges that the Fund intends to rely on Rule
10f-3, Rule 12d3-1, Rule 17a-10 and Rule 17e-1 under the 1940 Act, the
Sub-Sub-Adviser hereby agrees that it will not consult with any other
sub-adviser of an investment company or a series of an investment company that
is advised by the Manager (the "First Trust Fund complex") or consult with an
affiliated person of any such sub-adviser (including any sub-adviser that is a
principal underwriter or an affiliated person of such principal underwriter), in
each case concerning transactions for the Fund or any fund in the First Trust
Fund complex in securities or other fund assets. A list of each sub-adviser to
the First Trust Fund complex and each affiliated person of any such sub-adviser
is provided by the Manager, and the Manager will promptly notify Sub-Sub-Adviser
of any amendments to such list. In addition, with respect to a fund in the First
Trust Fund complex with multiple sub-advisers, the Sub-Sub-Adviser shall be
limited to providing investment advice with respect to only the discrete portion
of the fund's portfolio as may be determined from time to time by the Board of
Trustees or the Manager, and shall not consult with the sub-adviser (including
any sub-adviser that is a principal underwriter or an affiliated person of such
principal underwriter) as to any other portion of the fund's portfolio
concerning transactions for the fund in securities or other assets.
Notwithstanding the foregoing, the provisions in this paragraph do not apply to
consultations between the Sub-Adviser and the Sub-Sub-Adviser.
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The Sub-Sub-Adviser will communicate to the officers and Trustees of the
Fund such information relating to transactions for the Fund in the Sub-Adviser's
Strategy as they may reasonably request. In no instance will the Fund's
portfolio assets be purchased from or sold to the Manager, the Sub-Adviser, the
Sub-Sub-Adviser or any affiliated person of any of the Fund, the Manager, the
Sub-Adviser or the Sub-Sub-Adviser, except as may be permitted under the 1940
Act and under no circumstances will the Sub-Sub-Adviser select brokers or
dealers for Fund transactions on the basis of Fund share sales by such brokers
or dealers.
The Sub-Sub-Adviser is hereby authorized to Vote proxies in its sole
discretion in accordance with its Proxy Voting Policy, a copy of which will be
provided to the Fund at the Fund's request.
The Sub-Sub-Adviser shall not be required to render any legal advice or
initiate litigation with respect to portfolio assets, including, but not limited
to, class action and bankruptcy claims.
The Sub-Sub-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 other fiduciary accounts for
which it has investment responsibilities;
(b) will (i) in the performance of its duties under this Agreement
conform in all material respects to all applicable rules and regulations
of the SEC, Commodity Futures Trading Commission and any other applicable
regulatory authority, (ii) in the performance of its duties under this
Agreement comply in all material respects with all policies and procedures
adopted by the Board of Trustees for the Fund and communicated to the
Sub-Adviser or Sub-Sub-Adviser in writing and (iii) conduct its activities
under this Agreement in all material respects in accordance with any
applicable law and regulations of any governmental authority pertaining to
its investment advisory, commodity pool operator and commodity trading
advisory activities;
(c) will report to the Manager and to the Board of Trustees of the
Fund on a quarterly basis and to the Sub-Adviser as it may request and
will make appropriate persons available for the purpose of reviewing with
representatives of the Manager, the Board of Trustees and the Sub-Adviser
on a regular basis at such times as the Manager, the Board of Trustees or
the Sub-Adviser may reasonably request in writing regarding the management
of the Fund, including, without limitation, review of the general
investment strategies of the Fund in the Sub-Adviser's Strategy, the
performance of the Fund's investment portfolio in the Sub-Adviser's
Strategy 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 Manager,
Sub-Adviser or the Board of Trustees of the Fund in relation to the
Sub-Adviser's Strategy; and
(d) will prepare and maintain such books and records with respect
to the Fund's securities and other transactions for the Fund's investment
portfolio in each case, relating solely to the Sub-Adviser's Strategy as
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required for registered investment advisers under applicable law, the
Fund's policies and procedures or as otherwise reasonably requested by the
Manager, the Board or the Sub-Adviser and will prepare and furnish the
Manager, the Fund's Board of Trustees or the Sub-Adviser such periodic and
special reports as the Board, the Manager or the Sub-Adviser may
reasonably request. Such records prepared and maintained by the
Sub-Sub-Adviser as required hereunder shall be open to inspection at all
reasonable times by the Manager, the Fund or the Sub-Adviser and any
appropriate regulatory authorities. The Sub-Sub-Adviser further agrees
that all records that it maintains for the Fund are the property of the
Fund and the Sub-Sub-Adviser will surrender promptly to the Fund any such
records upon the request of the Manager or the Fund (provided, however,
that the Sub-Sub-Adviser shall be permitted to retain copies thereof); and
shall be permitted to retain originals (with copies to the Fund) to the
extent required under Rule 204-2 under the Investment Advisers Act of 1940
or other applicable law; and
(e) will monitor the pricing of portfolio assets in the
Sub-Adviser's Strategy, and events relating to the issuers of those assets
and the markets in which the securities or other assets trade in the
ordinary course of managing the portfolio investments of the Fund, and
will notify Manager and the Sub-Adviser promptly of any issuer-specific or
market events or other situations that occur (particularly those that may
occur after the close of a foreign market in which the investments may
primarily trade but before the time at which the Fund's investments are
priced on a given day) that may materially impact the pricing of one or
more securities or other assets in Sub-Sub-Adviser's portion of the
portfolio. In addition, Sub-Sub-Adviser will at the Manager's or
Sub-Adviser's request assist Manager and/or the Sub-Adviser in evaluating
the impact that such an event may have on the net asset value of the Fund
and in determining a recommended fair value of the affected investment or
investments.
3. Expenses. During the term of this Agreement, the Sub-Sub-Adviser will
pay all its expenses incurred in connection with its activities under this
Agreement other than the cost of securities and other assets (including, but not
limited to, brokerage commissions, stamp duties, currency conversion costs, and
other transaction charges, if any) purchased or otherwise acquired, or sold or
otherwise disposed of, for the Fund, which will be paid by the Fund.
4. Compensation. For the services provided and expenses assumed pursuant
to this Agreement, the Sub-Adviser will pay the Sub-Sub-Adviser, and the
Sub-Sub-Adviser agrees to accept as full compensation therefore, a sub-advisory
fee (the "Sub-Advisory Fee") equal to the annual rate of 0.35% of the Fund's
Managed Assets (as defined below). For purposes of calculating the Sub-Advisory
Fee, Managed Assets means the average daily gross asset value of the Fund (which
includes assets attributable to the Fund's leverage, if any), minus the sum of
the Fund's accrued and unpaid dividends on any outstanding Preferred Shares (as
such term is defined in the Fund's prospectus), if any, and accrued liabilities
(other than liabilities representing leverage). For purposes of determining
Managed Assets, the liquidation preference of any outstanding Preferred Shares
of the Fund is not treated as a liability. The Sub-Advisory Fee shall be payable
in arrears on or about the first day of each month during the term of this
Agreement.
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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 is in effect during the month and year, respectively.
5. Services to Others. The Fund, the Manager and the Sub-Adviser
acknowledge that the Sub-Sub-Adviser now acts, or may in the future 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 Fund, the Manager and the Sub-Adviser acknowledge that the persons employed
by the Sub-Sub-Adviser to assist in its respective duties under this Agreement
will not devote their full time to such efforts. It is also agreed that the
Sub-Sub-Adviser may use any supplemental research obtained for the benefit of
the Fund in providing investment advice to its other investment advisory
accounts and for managing its own accounts.
6. Limitation of Liability. The duties of the Sub-Sub-Adviser under this
Agreement are limited to those expressly set forth herein and as may be imposed
under applicable law, and no duties of the Sub-Sub-Adviser shall be implied
under this Agreement. The Sub-Sub-Adviser shall not be liable for, and the Fund
and the Manager will not take any action against the Sub-Sub-Adviser to hold the
Sub-Sub-Adviser liable for, (a) any error of judgment or mistake of law or for
any loss suffered by the Fund or the Manager (including, without limitation, by
reason of the purchase, sale or retention of any security) in connection with
the performance of the Sub-Sub-Adviser's duties under this Agreement or (b) any
loss, liability, expenses, or damages suffered or incurred by the Fund or the
Manager in relation to the Manager's Strategy, including, without limitation, by
reason of any failure to follow investment policies or restrictions of the
Manager's Strategy, except in either (a) or (b) of this Section, the
Sub-Sub-Adviser shall be liable for a loss resulting from willful misfeasance,
bad faith or gross negligence on the part of the Sub-Sub-Adviser in the
performance of its duties under this Agreement, or by reason of the
Sub-Sub-Adviser's reckless disregard of its obligations and duties under this
Agreement.
7. Term; Termination. This Agreement shall become effective on the same
date as the Sub-Advisory Agreement becomes effective (it being understood that
the Sub-Adviser shall notify the Sub-Sub-Adviser of the date of effectiveness of
the Sub-Advisory Agreement as soon as reasonably practical after effectiveness),
provided that this Agreement has been approved in the manner required by the
1940 Act (after taking into effect any exemptive order, no-action assurances or
other relief, rule or regulation upon which the Fund may rely), and shall remain
in full force until the two-year anniversary of the date of its effectiveness
unless sooner terminated as hereinafter provided. This Agreement shall continue
in force from year to year thereafter, but only as long as such continuance is
specifically approved for the Fund at least annually in the manner required by
the 1940 Act and the rules and regulations thereunder (after taking into effect
any exemptive order, no-action assurances or other relief, rule or regulation
upon which the Fund may rely); provided, however, that if the continuation of
this Agreement is not approved for the Fund, the Sub-Sub-Adviser may continue to
serve in its respective capacity for the Fund in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
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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 Manager, the Sub-Adviser or the Sub-Sub-Adviser upon sixty (60) days'
written notice to the other parties. This Agreement may also be terminated by
the Fund by action of the Board of Trustees or by a vote of a majority of the
outstanding voting securities of the Fund upon sixty (60) days' written notice
to the Sub-Sub-Adviser by the Fund without payment of any penalty.
This Agreement may be terminated at any time without the payment of any
penalty by the Manager, the Board of Trustees or by vote of a majority of the
outstanding voting securities of the Fund in the event that it shall have been
established by a court of competent jurisdiction that the Sub-Adviser or the
Sub-Sub-Adviser or any officer or director of the Sub-Adviser or the
Sub-Sub-Adviser has taken any action that results in a breach of the material
covenants of the Sub-Sub-Adviser set forth herein.
The terms "assignment" and "vote of a majority of the outstanding voting
securities" shall have the meanings set forth in the 1940 Act and the rules and
regulations thereunder.
This Agreement shall automatically terminate in the event the Management
Agreement or the Sub-Advisory Agreement is terminated, assigned or not renewed.
Termination of this Agreement shall not affect the right of the
Sub-Sub-Adviser to receive payments on any unpaid balance of the compensation
described in Section 4 earned prior to such termination and for any additional
period during which the Sub-Sub-Adviser serves as such for the Fund, subject to
applicable law. Sections 6 and 9 shall survive termination or the end of the
term of this Agreement. The License (as defined below) granted in Section 10
shall end with the termination or the end of the term of this Agreement,
provided that the other provisions of Section 10 shall survive. Termination of
this Agreement shall not affect any rights or claims accrued under this
Agreement prior to its termination.
8. Compliance Certification. From time to time the Sub-Sub-Adviser shall
provide such certifications with respect to Rule 38a-1 under the 1940 Act as are
reasonably requested by the Fund, the Manager or the Sub-Adviser. In addition,
the Sub-Sub-Adviser will, from time to time, provide a written assessment of its
compliance program in conformity with current industry standards that is
reasonably acceptable to the Fund to enable the Fund to fulfill its obligations
under Rule 38a-1 under the 1940 Act.
9. Confidentiality. The Sub-Sub-Adviser shall treat as confidential and
use only in connection with the Fund in accordance with this Agreement all
non-public information of the Fund and the Manager delivered to the
Sub-Sub-Adviser in the course of the Sub-Sub-Adviser's performances under this
Agreement. The Manager and the Fund shall treat as confidential and use only in
connection with the Fund in accordance with this Agreement all non-public
information of the Sub-Sub-Adviser delivered to the Fund or the Manager in the
course of the Sub-Sub-Adviser's performances under this Agreement, including for
avoidance of doubt investment decisions, trading strategies, and investment
advice for the Fund provided by or on behalf of the Sub-Sub-Adviser
("Recommendations"). The undertakings in the first two sentences of this
paragraph shall not (a) limit disclosures that are required to be made under
8
applicable laws and regulations; (b) apply to information that becomes public
without a breach of this paragraph or the next two following paragraphs; or (c)
prohibit disclosures on a confidential basis to lawyers, accountants, bankers,
securities brokers, the Sub-Adviser or other service providers to any of the
parties to this Agreement related to the performances contemplated by this
Agreement. The parties acknowledge that any breach of the undertakings in the
first two sentences of this paragraph might result in immediate, irreparable
injury to another party and that, accordingly, equitable remedies, including ex
parte remedies, are appropriate in the event of any actual, apparent, or
threatened breach of any such undertaking. The undertakings in this paragraph
shall apply to derivative works.
The Fund and the Manager shall not use, or permit any of their affiliates
to use, any Recommendations for any purpose other than the management of the
Fund.
10. Sub-Sub-Adviser Marks. The Fund and the Manager acknowledge that
associates of the Sub-Sub-Adviser own the names "Xxxxxxxxx Investment
Management" and "Xxxxxxxxx" and all related names, marks, and trade dress
(collectively, the foregoing are the "Xxxxxxxxx Marks") and all associated
goodwill. The Fund and the Manager shall not take any action inconsistent with
such ownership, including, without limitation, contesting the Sub-Sub-Adviser's
ownership of or validity of the Xxxxxxxxx Marks. All use of the Henderson Marks
under this Agreement inures to the sole benefit of the Sub-Sub-Adviser for and
on behalf of the owners of the Xxxxxxxxx Marks. The Fund and the Manager shall
upon request execute and deliver such documents as the Sub-Sub-Adviser may
reasonably require to further evidence, assure, and confirm the foregoing.
It is understood that the Fund and the Adviser have the right to use the
Xxxxxxxxx Marks in offering materials or promotional or sales-related materials
of the Fund, only with the prior written approval of the Sub-Adviser, such
approval not to be unreasonably withheld, and for so long as the Sub-Advisor is
Sub-Advisor of the Fund, except to the extent required by law. Notwithstanding
the foregoing, the Sub-Advisor's approval is not required when (i) previously
approved materials are reissued with minor modifications, (ii) the Advisor and
Sub-Advisor identify materials which they jointly determine do not require the
Sub-Advisor's approval and (iii) used as required to be disclosed in the
registration statement of the Fund. Upon termination of this Agreement, the Fund
shall forthwith case to use such name (or derivative or logo), except to the
extent required by law.
11. Notice. Any notice under this Agreement shall be sufficient in all
respects if given in writing and delivered by commercial courier providing proof
of delivery and addressed as follows or addressed to such other person or
address as such party may designate for receipt of such notice.
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If to the Manager or the Fund: If to the Sub-Sub-Adviser:
First Trust Dynamic Europe Equity Xxxxxxxxx Investment Management Limited
Income Fund
First Trust Advisors L.P.
000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Secretary Attention: Legal Department
If to the Sub-Adviser:
Xxxxxxxxx Global Investors (North America) Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Legal Department
12. Limitations on Liability. All parties hereto are expressly put on
notice of the Fund'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 and a copy
of which has been provided to the Sub-Sub-Adviser prior to the date hereof. This
Agreement is executed on behalf of the Fund by the Fund's officers in their
capacity as officers and not individually and is not binding upon any of the
Trustees, officers or shareholders of the Fund individually but the obligations
imposed upon the Fund by this Agreement are binding only upon the assets and
property of the Fund, and persons dealing with the Fund must look solely to the
assets of the Fund for the enforcement of any claims.
13. Miscellaneous. 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. This
Agreement will be binding upon and shall inure to the benefit of the parties
hereto and their respective successors.
14. Applicable Law. This Agreement shall be construed in accordance with
applicable federal law and (except as to Section 12 hereof, which shall be
construed in accordance with the laws of the Commonwealth of Massachusetts) the
laws of the State of Illinois.
15. Amendment, Etc. This Agreement may only be amended, or its provisions
modified or waived, in a writing signed by the party against which such
amendment, modification or waiver is sought to be enforced.
16. Authority. Each party represents to the others that it is duly
authorized and fully empowered to execute, deliver and perform this Agreement.
The Fund represents that engagement of the Sub-Sub-Adviser has been duly
authorized by the Fund and is in accordance with the Fund's Declaration of Trust
and other governing documents of the Fund.
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17. Severability. Each provision of this Agreement is intended to be
severable from the others so that if any provision or term hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remaining provisions and terms hereof; provided,
however, that the provisions governing payment of the Sub-Advisory Fee described
in Section 4 are not severable.
18. Third Party Beneficiaries. None of the provisions of this Agreement
shall be for the benefit of, or enforceable by, any person or entity that is not
a party hereto.
19. Forum Selection. Any action brought on or with respect to this
Agreement or any other document executed in connection herewith or therewith by
a party to this Agreement against another party to this Agreement shall be
brought only in a court of competent jurisdiction in Chicago, Xxxx County,
Illinois, or if venue does not lie in any such court only in a court of
competent jurisdiction within the State of Illinois (the "Chosen Courts"). Each
party to this Agreement (a) consents to jurisdiction in the Chosen Courts; (b)
waives any objection to venue in any of the Chosen Courts; and (c) waives any
objection that any of the Chosen Courts is an inconvenient forum. In any action
commenced by a party hereto against another party to the Agreement, there shall
be no right to a jury trial. THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO
THE FULLEST EXTENT PERMITTED BY LAW.
20. Entire Agreement. This Agreement constitutes the sole and entire
agreement of the parties hereto with respect to the subject matter expressly set
forth herein.
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IN WITNESS WHEREOF, the Fund, the Manager, the Sub-Adviser and the
Sub-Sub-Adviser have caused this Agreement to be executed as of the day and year
first above written.
FIRST TRUST ADVISORS X.X. XXXXXXXXX GLOBAL INVESTORS (NORTH
AMERICA) INC.
By__________________________________ By__________________________________
Title:_________________________ Title:_________________________
FIRST TRUST DYNAMIC EUROPE EQUITY XXXXXXXXX INVESTMENT MANAGEMENT LIMITED
INCOME FUND
By__________________________________ By__________________________________
Title:_________________________ Title:_________________________
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