STRUCTURING FEE AGREEMENT
December 21, 2016
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement (the "Agreement") is between First Trust Advisors L.P. (the
"Adviser"), and UBS Securities LLC ("UBS") with respect to the First Trust
Senior Floating Rate 2022 Target Term Fund (the "Fund"). Capitalized terms used
herein and not otherwise defined shall have the meanings given to them in the
Underwriting Agreement dated December 21, 2016 by and among the Fund, the
Adviser and each of the underwriters named therein (the "Underwriting
Agreement").
1. Fee. In consideration of certain financial advisory services that UBS
has provided to the Adviser in assisting the Adviser in structuring, designing
and organizing the Fund as well as services related to the sale and distribution
of the Common Shares of the Fund, it being understood that the ultimate decision
with respect to the structure, design and organization of the Fund shall rest
with the Adviser, the Adviser shall pay a fee to UBS in the aggregate amount of
$[___] (the "Fee"). The Fee shall be paid on December 27, 2016 or as otherwise
agreed to by the parties. In the event the offering contemplated by the
Underwriting Agreement does not proceed, UBS will not receive any fees under
this Agreement; however, for the avoidance of doubt, accountable expenses
actually incurred may be payable to UBS pursuant to the terms of the
Underwriting Agreement.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Fee, as specified in Section 1 hereof. Notwithstanding the
foregoing, Sections 4, 5, 8, 9 and 10 of this Agreement and the Indemnification
Agreement attached hereto shall survive the termination of this Agreement.
3. Indemnification. The Adviser agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached hereto, the
provisions of which are incorporated herein by reference and shall survive the
termination, expiration or supersession of this Agreement.
4. Confidential Advice. Except (a) to the extent legally required (after
consultation with, and approval as to form and substance by, UBS and its
counsel), none of (i) the name of UBS, (ii) any advice rendered by UBS to the
Adviser, or (iii) the terms of this Agreement or any communication from UBS,
each in connection with the services performed by UBS pursuant to this
Agreement, will be quoted or referred to orally or in writing, or in the case of
(ii) and (iii), reproduced or disseminated, by the Adviser or any of its
respective affiliates or any of its respective agents, without UBS' prior
written consent, which consent will not be unreasonably withheld.
5. Information. The Adviser recognizes and confirms that UBS (a) has used
and relied primarily on the information provided by the Adviser and on
information available from generally recognized public sources in performing the
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services contemplated by this Agreement without having assumed responsibility
for independently verifying the same, (b) has not assumed responsibility for the
accuracy, completeness or reasonableness of such information and (c) has not
made an appraisal of any assets or liabilities (contingent or otherwise) of the
Fund.
6. Not an Investment Adviser. The Adviser acknowledges that UBS has not
provided any advice hereunder as to the value of securities or regarding the
advisability of purchasing or selling any securities for the Fund's portfolio.
The Adviser acknowledges and agrees that UBS has been retained to act solely as
an adviser to the Adviser, and the Adviser's engagement of UBS is not intended
to confer rights upon any person (including the Fund or any shareholders,
employees or creditors of the Adviser or the Fund) not a party hereto as against
UBS or its affiliates, or their respective directors, officers, employees or
agents, successors, or assigns. UBS has acted as an independent contractor under
this Agreement, and not in any other capacity including as a fiduciary, and any
duties arising out of its engagement shall be owed solely to the Adviser.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or
your affiliates from acting as an underwriter or financial adviser or in any
other capacity for any other persons (including other registered investment
companies or other investment managers).
8. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
9. Governing Law. This Agreement and any claim, counterclaim or dispute of
any kind or nature whatsoever arising out of or in any way relating to this
Agreement ("Claim"), directly or indirectly, shall be governed by and construed
in accordance with the laws of the State of New York. No Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New
York located in the City and County of New York or in the United States District
Court for the Southern District of New York, which courts shall have exclusive
jurisdiction over the adjudication of such matters, and the Adviser and UBS
consent to the jurisdiction of such courts and personal service with respect
thereto. EACH OF UBS AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
10. Successors and Assigns. This Agreement shall be binding upon the
Adviser and UBS and their respective successors and assigns and any successor or
assign of any substantial portion of a Adviser's or UBS' respective businesses
and/or assets.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one agreement. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
[Signature Page Follows]
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This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By: _____________________________
Name:
Title:
Agreed and Accepted:
UBS SECURITIES LLC
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
Indemnification Agreement
December 21, 2016
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC ("UBS") to
advise and assist the undersigned (including any successor or assign by merger
or otherwise, the "Adviser") with the matters set forth in the Structuring Fee
Agreement, dated December 21, 2016, between the Adviser and UBS (the
"Agreement"), in the event that UBS becomes involved in any capacity in any
claim, suit, action, proceeding, investigation or inquiry (including, without
limitation, any shareholder or derivative action or arbitration proceeding)
(collectively, a "Proceeding") in connection with any matter in any way relating
to or referred to in the Agreement or arising out of the matters contemplated by
the Agreement, including, without limitation, related services and activities
provided prior to the date of the Agreement, the Adviser agrees to indemnify,
defend and hold UBS harmless to the fullest extent permitted by law, from and
against any losses, claims, damages, liabilities and expenses in connection with
any matter in any way relating to or referred to in the Agreement or arising out
of the matters contemplated by the Agreement, including, without limitation,
related services and activities provided prior to the date of the Agreement,
except to the extent that it shall be determined by a court of competent
jurisdiction in a judgment that has become final in that it is no longer subject
to appeal or other review that such losses, claims, damages, liabilities and
expenses resulted solely from the gross negligence or willful misconduct of UBS.
In addition, in the event that UBS becomes involved in any capacity in any
Proceeding in connection with any matter in any way relating to or referred to
in the Agreement or arising out of the matters contemplated by the Agreement,
the Adviser will reimburse UBS for its legal and other expenses (including the
cost of any investigation and preparation) as such expenses are incurred by UBS
in connection therewith. If such indemnification were not to be available for
any reason, the Adviser agrees to contribute to the losses, claims, damages,
liabilities and expenses involved (i) in the proportion appropriate to reflect
the relative benefits received or sought to be received by the Adviser and its
partners and affiliates and other constituencies, on the one hand, and UBS, on
the other hand, in connection with the matters contemplated by the Agreement or
(ii) if (but only if and to the extent) the allocation provided for in clause
(i) is for any reason held unenforceable, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Adviser and its partners and affiliates and other
constituencies, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations. The Adviser
agrees that for the purposes of this paragraph the relative benefits received,
or sought to be received, by the Adviser and its partners and affiliates and
other constituencies, on the one hand, and the party entitled to contribution,
on the other hand, in connection with the matters contemplated by the Agreement
shall be deemed to be in the same proportion that the total value received or
paid or contemplated to be received or paid by the Adviser or its partners or
affiliates and other constituencies, as the case may be, as a result of or in
connection with the matters (whether or not consummated) for which UBS has been
retained to perform financial services bears to the fees paid to UBS under the
Agreement; provided that, in no event shall the Adviser contribute less than the
amount necessary to assure that UBS is not liable for losses, claims, damages,
liabilities and expenses in excess of the amount of fees actually received by
UBS pursuant to the Agreement. Relative fault shall be determined by reference
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to, among other things, whether any alleged untrue statement or omission or any
other alleged conduct relates to information provided by the Adviser or other
conduct by the Adviser (or its employees or other agents), on the one hand, or
by UBS, on the other hand. The Adviser will not settle any Proceeding in respect
of which indemnity may be sought hereunder, whether or not UBS is an actual or
potential party to such Proceeding, without UBS' prior written consent. For
purposes of this Indemnification Agreement, UBS shall include UBS Securities
LLC, any of its affiliates, each other person, if any, controlling UBS or any of
its affiliates, their respective officers, current and former directors,
employees and agents, and the successors and assigns of all of the foregoing
persons. The foregoing indemnity and contribution agreement shall be in addition
to any rights that any indemnified party may have at common law or otherwise.
The Adviser agrees that neither UBS nor any of its affiliates, directors,
agents, employees or controlling persons shall have any liability to the Adviser
or any person asserting claims on behalf of or in right of the Adviser in
connection with or as a result of either UBS' engagement under the Agreement or
any matter referred to in the Agreement, including, without limitation, related
services and activities provided prior to the date of the Agreement, except to
the extent that it shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject to appeal or
other review that any losses, claims, damages, liabilities or expenses incurred
by the Adviser resulted solely from the gross negligence or willful misconduct
of UBS in performing the services that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE ADVISER AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL
SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL
JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF
OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST
UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER
AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY
WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND
BINDING UPON THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE
JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH
JUDGMENT.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS' engagement. This Indemnification
Agreement shall be binding upon the Adviser and UBS and their respective
successors and assigns and any successor or assign of any substantial portion of
the Adviser or UBS' respective businesses and/or assets. This Indemnification
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Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
agreement.
[Signature Page Follows]
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Very truly yours,
FIRST TRUST ADVISORS L.P.
By: _____________________________
Name:
Title:
Agreed and Accepted:
UBS SECURITIES LLC
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
