FORM OF
STRUCTURING FEE AGREEMENT
STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of September [ ],
2011, by and among Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), First Trust Advisors L.P. ("Investment Adviser") and Energy
Income Partners, LLC (the "Sub-Adviser," and together with the Investment
Adviser, the "Advisers").
WHEREAS, First Trust Energy Infrastructure Fund (the "Fund") is a newly
organized, non-diversified, closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
common shares are registered under the Securities Act of 1933, as amended;
WHEREAS, the Fund and the Advisers have entered into an underwriting
agreement (the "Underwriting Agreement"), dated September [ ], 2011
with Xxxxxxx Xxxxx and the other underwriters named therein (the
"Underwriters");
WHEREAS, First Trust Advisors L.P. is the investment adviser of the Fund;
WHEREAS, Energy Income Partners, LLC is the investment sub-adviser of the
Fund;
WHEREAS, Xxxxxxx Xxxxx is acting as an underwriter in an offering of the
Fund's common shares (the "Offering"), made under the terms of the Fund's
prospectus dated [ ], 2011 (the "Prospectus"); and
WHEREAS, the Advisers desire to provide a structuring fee to Xxxxxxx Xxxxx
for providing the advice and services described below;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. In consideration of Xxxxxxx Xxxxx'x providing advice relating to the
structure and design and the organization of the Fund as well as
services related to the sale and distribution of the Fund's common
shares, par value $0.01 per share, which may but need not necessarily
include views from an investor market and distribution perspective on
(i) diversification, proportion and concentration approaches for the
Fund's investments in light of current market conditions, (ii)
marketing issues with respect to the Fund's investment policies and
proposed investments, (iii) the proportion of the Fund's assets to
invest in the Fund's strategies and (iv) the overall marketing and
positioning thesis for the Offering, the Advisers shall pay Xxxxxxx
Xxxxx an aggregate fee equal to 1.25% of the total price to the
public of the Fund's common shares issued by the Fund sold by Xxxxxxx
Xxxxx pursuant to the Prospectus (including all Initial Securities and
Option Securities as such terms are described in the Underwriting
Agreement) (the "Fee"), $[ ] of which will be paid by the Adviser,
and $[ ] of which will be paid by the Sub-Adviser. The Fee shall be
paid on or before the Closing Date (as defined in the Underwriting
Agreement) and any Date of Delivery (as defined in the Underwriting
Agreement), if applicable, in an aggregate amount equal to 1.25% of
the total price to the public of the common shares issued by the Fund
sold by Xxxxxxx Xxxxx on such Closing Date or Date of Delivery, as the
case may be, or as otherwise agreed to the parties. The sum total of
all compensation to or reimbursement of underwriters in connection
with the offering, including sales load and all forms of additional
compensation, shall not exceed [ ]% of the total price of the
Fund's common shares sold in the offering.
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2. Nothing herein shall be construed as prohibiting Xxxxxxx Xxxxx or its
affiliates from providing similar or other services to any other
clients (including other registered investment companies or other
investment advisers).
3. The Advisers acknowledge that Xxxxxxx Xxxxx did not provide and is not
providing any advice hereunder as to the value of securities or
regarding the advisability of purchasing or selling any securities for
the Fund's portfolio. No provision of this Agreement shall be
considered as creating, nor shall any provision create, any obligation
on the part of Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx is not hereby
agreeing, to: (i) furnish any advice or make any recommendations
regarding the purchase or sale of portfolio securities or (ii) render
any opinions, valuations or recommendations of any kind or to perform
any such similar services in connection with acting as an underwriter
in the Offering of the Fund's common shares.
4. This Agreement shall terminate upon the payment of the entire amount
of the Fee, as specified in Paragraph 1 hereof.
5. The Advisers will xxxxxxx Xxxxxxx Xxxxx with such information as
Xxxxxxx Xxxxx believes appropriate to its assignment hereunder (all
such information so furnished being the "Information"). The Advisers
recognize and confirm that Xxxxxxx Xxxxx (a) has used and relied
primarily on the Information and on information available from
generally recognized public sources in performing the services
contemplated by this Agreement without having independently verified
the same and (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information. To the
best of the Advisers' knowledge, the Information furnished by the
Advisers, when delivered, was true and correct in all material
respects and did not contain any material misstatement of fact or omit
to state any material fact necessary to make the statements contained
therein not misleading. The Advisers will promptly notify Xxxxxxx
Xxxxx if they learn of any material inaccuracy or misstatement in, or
material omission from, any Information delivered to Xxxxxxx Xxxxx.
6. The Advisers agree that Xxxxxxx Xxxxx shall have no liability to the
Advisers or the Fund for any act or omission to act by Xxxxxxx Xxxxx
in the course of its performance under this Agreement, in the absence
of gross negligence or willful misconduct on the part of Xxxxxxx
Xxxxx. The Advisers agree to the terms 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.
7. 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") shall be governed by and construed in accordance
with the laws of the State of New York.
8. 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 First Trust
Energy Infrastructure Fund, First Trust Advisors L.P., Energy Income
Partners, LLC and Xxxxxxx Xxxxx consent to the jurisdiction of such
courts and personal service with respect thereto. Each of Xxxxxxx
Xxxxx and the Advisers waives all right to trial by jury in any
proceeding (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. Each Adviser agrees that
a final judgment in any proceeding or counterclaim brought in any such
court shall be conclusive and binding upon that Adviser and may be
enforced in any other courts to the jurisdiction of which the Adviser
is or may be subject, by suit upon such judgment.
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9. This Agreement may not be assigned by any parties without the prior
written consent of the other parties.
10. This Agreement (including the attached Indemnification Agreement)
embodies the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof. If any provision of this Agreement is
determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or
any other provision of this Agreement, which will remain in full force
and effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by Xxxxxxx Xxxxx and
the Advisers.
11. All notices required or permitted to be sent under this Agreement
shall be sent, if to First Trust Advisors L.P.:
[NAME AND ADDRESS OF INVESTMENT ADVISER]
or if to Energy Income Partners, LLC:
[NAME AND ADDRESS OF SUB-ADVISER]
or if to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
or such other name or address as may be given in writing to the other
parties. Any notice shall be deemed to be given or received on the
third day after deposit in the U.S. mail with certified postage
prepaid or when actually received, whether by hand, express delivery
service or facsimile electronic transmission, whichever is earlier.
12. This Agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute
one and the same agreement.
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Structuring
Fee Agreement as of the date first above written.
FIRST TRUST ADVISORS X.X. XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
ENERGY INCOME PARTNERS, LLC
By: _____________________________
Name:
Title:
Xxxxxxx Xxxxx & Co. Indemnification Agreement
September [ ], 2011
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") to advise and assist the undersigned (together
with their affiliates and subsidiaries, each referred to as a "Company" and,
together, the "Companies") with the matters set forth in the Structuring Fee
Agreement dated September [ ], 2011 among each of the Companies and
Xxxxxxx Xxxxx (the "Agreement"), in the event that Xxxxxxx Xxxxx 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, the Companies agree to jointly and
severally indemnify, defend and hold Xxxxxxx Xxxxx 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, 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 Xxxxxxx Xxxxx. In addition, in the event that Xxxxxxx Xxxxx
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 Companies shall jointly and severally
reimburse Xxxxxxx Xxxxx for its legal and other expenses (including the cost of
any investigation and preparation) as such expenses are reasonably incurred by
Xxxxxxx Xxxxx in connection therewith, except to the extent that it shall be
determined by a court of competent jurisdiction in a judgment that has become
final in that it is no longer subject to appeal or other review, that such legal
and other expenses resulted solely from the gross negligence or willful
misconduct of Xxxxxxx Xxxxx. Promptly as reasonably practicable after receipt by
Xxxxxxx Xxxxx of notice of the commencement of any Proceeding, Xxxxxxx Xxxxx
will, if a claim in respect thereof is to be made under this paragraph, notify
the Companies in writing of the commencement thereof; but the failure to so
notify the Companies (i) will not relieve the Companies from liability under
this paragraph to the extent they are not materially prejudiced as a result
thereof and (ii) in any event shall not relieve the Companies from any liability
which they may have otherwise than on account of this Indemnification Agreement.
Counsel to Xxxxxxx Xxxxx shall be selected by Xxxxxxx Xxxxx. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of Xxxxxxx Xxxxx) also be counsel to Xxxxxxx Xxxxx. No indemnifying
party shall, without the prior written consent of the Xxxxxxx Xxxxx, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought hereunder (whether or not
Xxxxxxx Xxxxx is an actual or potential party thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of Xxxxxxx Xxxxx
from all liability arising out of such litigation, investigation or Proceeding
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of Xxxxxxx Xxxxx.
If such indemnification were not to be available for any reason, each
Company agrees to, jointly and severally with the other Company, 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 that Company and its stockholders and affiliates and other
constituencies, on the one hand, and Xxxxxxx Xxxxx, on the other hand, in the
matters contemplated by the Agreement or (ii) if (but only if and to the extent)
the allocation provided for in clause (i) is for any reason held unenforceable,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of that Company and its
stockholders and affiliates, on the one hand, and Xxxxxxx Xxxxx, on the other
hand, as well as any other relevant equitable considerations. Each Company
agrees that for the purposes of this paragraph the relative benefits received,
or sought to be received, by that Company and its stockholders and affiliates,
on the one hand, and Xxxxxxx Xxxxx, on the other hand, of a transaction as
contemplated 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 Company or its
stockholders or affiliates, as the case may be, as a result of or in connection
with the transaction (whether or not consummated) for which Xxxxxxx Xxxxx has
been retained to perform services bears to the fees paid to Xxxxxxx Xxxxx under
the Agreement; provided, that in no event shall the Company contribute less than
the amount necessary to assure that Xxxxxxx Xxxxx is not liable for losses,
claims, damages, liabilities and expenses in excess of the amount of fees
actually received by Xxxxxxx Xxxxx pursuant to the Agreement. Relative fault
shall be determined by reference to, among other things, whether any alleged
untrue statement or omission or any other alleged conduct relates to information
provided by a Company or other conduct by that Company (or its employees or
other agents), on the one hand, or by Xxxxxxx Xxxxx, on the other hand.
Neither Company shall settle any Proceeding in respect of which indemnity
may be sought hereunder, whether or not Xxxxxxx Xxxxx is an actual or potential
party to such Proceeding, without Xxxxxxx Xxxxx'x prior written consent. For
purposes of this Indemnification Agreement, Xxxxxxx Xxxxx shall include Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, any of its affiliates, each other
person, if any, controlling Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated or
any of its affiliates, their respective officers, current and former officers,
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 Companies agree that neither Xxxxxxx Xxxxx nor any of its affiliates,
officers, directors, agents, employees or controlling persons shall have any
liability to the Companies or any person asserting claims on behalf of or in
right of the Companies in connection with or as a result of either Xxxxxxx
Xxxxx'x engagement under the Agreement or any matter referred to in the
Agreement, including, without limitation, related services and activities 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 Companies resulted solely from
the gross negligence or willful misconduct of Xxxxxxx Xxxxx in performing the
services that are the subject of the Agreement.
For clarification, the parties to this Indemnification Agreement agree
that the term "affiliate" as used in the definition of "Company" herein does not
include any registered investment company, except for the Fund, for which such
Company or any of its affiliates serves as investment adviser.
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 COMPANIES AND XXXXXXX XXXXX CONSENT TO THE JURISDICTION OF SUCH COURTS
AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANIES HEREBY CONSENT 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 XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY. EACH OF XXXXXXX XXXXX AND THE
COMPANIES WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT. EACH COMPANY 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 THAT COMPANY AND MAY BE ENFORCED
IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THAT COMPANY 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 Xxxxxxx Xxxxx'x engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
FIRST TRUST ADVISORS L.P.
By: ______________________
Name:
Title:
ENERGY INCOME PARTNERS, LLC
By: ______________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By ______________________
Name:
Title:
