STRUCTURING FEE AGREEMENT
December 21, 2016
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated December 21, 2016
(the "UNDERWRITING AGREEMENT"), by and among First Trust Senior Floating Rate
2022 Target Term Fund (the "FUND"), First Trust Advisors L.P. (the "ADVISER")
and each of the Underwriters named therein (the "UNDERWRITERS"), severally, with
respect to the issue and sale of the Fund's common shares of beneficial
interest, par value $0.01 (the "COMMON SHARES"), as described therein (the
"OFFERING"). Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Underwriting Agreement.
1. Fee. In consideration of your services assisting with respect to the
structure and design of the Fund and the organization of the Fund as well as
services related to the sale and distribution of the Fund's Common Shares, the
Adviser shall pay a fee to you in the aggregate amount of $[___] (the "FEE").
The Fee shall be paid on the Closing Date (as defined in the Underwriting
Agreement). The Fee shall be paid by wire transfer to the order of Xxxxx Fargo
Securities, LLC. In the event the Offering does not proceed, you will not
receive any fees under this Agreement; however, for the avoidance of doubt,
accountable expenses actually incurred may be payable to you 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.
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. Not an Adviser; No Fiduciary Duty. The Adviser acknowledges that you are
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 you, and you are not
agreeing hereby, 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. The Adviser hereby acknowledges that your engagement under
this Agreement is as an independent contractor and not in any other capacity,
including as a fiduciary. Furthermore, the Adviser agrees that it is solely
responsible for making its own judgment in connection with the matters covered
by this Agreement (irrespective of whether you have advised or are currently
advising the Adviser on related or other matters).
5. 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 advisers).
6. Assignment. This Agreement may not be assigned by either party without
prior written consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. 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.
This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By: _________________________
Name:
Title:
Agreed and Accepted:
XXXXX FARGO SECURITIES, LLC
By: ____________________________
Name: Xxxxx Xxxx
Title: Managing Director
Indemnification Agreement
December 21, 2016
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxx Fargo Securities, LLC (the
"Bank") to assist the undersigned, First Trust Advisors L.P., together with its
affiliates and subsidiaries (the "Adviser") with respect to the matters set
forth in the Structuring Fee Agreement dated December 21, 2016 between the
Adviser and the Bank (the "Agreement"), in the event that the Bank, any of its
affiliates, each other person, if any, controlling the Bank or any of its
affiliates, their respective officers, current and former directors, employees
and agents, or the successors or assigns of any of the foregoing persons (the
Bank and each such other person or entity being referred to as an "Indemnified
Party") becomes involved in any capacity in any claim, suit, action, proceeding,
litigation, investigation or inquiry (including, without limitation, any
shareholder or derivative action or arbitration proceeding) (collectively, a
"Proceeding") with respect to the services performed pursuant to and in
accordance with the Agreement, the Adviser agrees to indemnify, defend and hold
each Indemnified Party harmless to the fullest extent permitted by law, from and
against any losses, claims, damages, liabilities and expenses, including the
fees and expenses of counsel to the Indemnified Parties, with respect to the
services performed pursuant to and in accordance with 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 primarily from the gross negligence or willful misconduct of such
Indemnified Party. In addition, in the event that an Indemnified Party becomes
involved in any capacity in any Proceeding with respect to the services
performed pursuant to and in accordance with the Agreement, the Adviser will
reimburse such Indemnified Party for its legal and other expenses (including the
cost of any investigation and preparation) as such expenses are incurred by such
Indemnified Party in connection therewith. Promptly as reasonably practicable
after receipt by an Indemnified Party of notice of the commencement of any
Proceeding, such Indemnified Party will, if a claim in respect thereof is to be
made under this paragraph, notify the Adviser in writing of the commencement
thereof; but the failure so to notify the Adviser (i) will not relieve the
Adviser from liability under this paragraph to the extent it is not materially
prejudiced as a result thereof and (ii) in any event shall not relieve the
Adviser from any liability which it may have otherwise than on account of this
Indemnification Agreement. Counsel to the Indemnified Parties shall be selected
by the Bank. The Adviser may participate at its own expense in the defense of
any such action; provided, however, that counsel to the Adviser shall not
(except with the consent of the Indemnified Parties) also be counsel to the
Indemnified Party. The Adviser shall not, without the prior written consent of
the Indemnified Parties, settle or compromise or consent to the entry of any
judgment with respect to any 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 the
Indemnified Parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
Indemnified Party from all liability arising out of such 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 any Indemnified Party.
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, on the one hand, and the Indemnified Parties, 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 the
Adviser and its partners and affiliates, 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, on the one hand, and the party entitled to
contribution, 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 Adviser or its partners or
affiliates, as the case may be, as a result of or in connection with the
transaction (whether or not consummated) for which the Bank has been retained to
perform services bears to the fees paid to the Bank under the Agreement;
provided, that in no event shall the Adviser contribute less than the amount
necessary to assure that the Indemnified Parties are not liable for losses,
claims, damages, liabilities and expenses in excess of the amount of fees
actually received by the Bank 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 the Adviser or other conduct by the Adviser (or its employees or
other agents), on the one hand, or by the Bank, on the other hand.
Notwithstanding the provisions of this paragraph, an Indemnified Party shall not
be entitled to contribution from the Adviser if it is determined that such
Indemnified Party was guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was
not guilty of such fraudulent misrepresentation. The Adviser will not settle any
Proceeding in respect of which indemnity may be sought hereunder, whether or not
an Indemnified Party is an actual or potential party to such Proceeding, without
the Bank's prior written consent (which consent shall not be unreasonably
withheld). 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 no Indemnified Party shall have any liability to
the Adviser or any person asserting claims on behalf of or in right of the
Adviser with respect to the services performed pursuant to and in accordance
with 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 primarily from the
gross negligence or willful misconduct of the Bank 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 WITH RESPECT TO THE SERVICES PERFORMED PURSUANT TO
AND IN ACCORDANCE WITH THE 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 THE INDEMNIFIED PARTIES
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 THE BANK OR ANY INDEMNIFIED
PARTY. EACH INDEMNIFIED PARTY 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 the Bank's engagement under the
Agreement. 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:
Agreed and Accepted:
XXXXX FARGO SECURITIES, LLC
By: _________________________
Name: Xxxxx Xxxx
Title: Managing Director
