STRUCTURING FEE AGREEMENT
STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of December 21, 2016,
between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("xxxxxxx Xxxxx") and
First Trust Advisors L.P. ("First Trust").
WHEREAS, First Trust Senior Floating Rate 2022 Target Term Fund (the
"Fund") is a newly organized, diversified, closed-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 ACT") and its common shares (the "Common Shares") are registered under the
Securities Act of 1933, as amended;
WHEREAS, First Trust is the investment adviser of the Fund;
WHEREAS, Xxxxxxx Xxxxx is acting as a lead underwriter in an offering of
the Fund's Common Shares (the "Offering"); and
WHEREAS, First Trust desires to provide additional compensation 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, First
Trust shall pay Xxxxxxx Xxxxx a fee equal to $[____] (the "FEE"). The Fee
shall be paid on the Closing Date (as defined in the Underwriting Agreement
dated December 21, 2016 by and among the Fund and First Trust and each of
the Underwriters named in Schedule I therein (the "Underwriting
Agreement"), or as otherwise agreed to by 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.
2. First Trust acknowledges 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 the
transactions contemplated herein.
3. 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), so long as Xxxxxxx Xxxxx'x services to First Trust are not
impaired thereby.
4. This Agreement shall terminate upon the payment of the entire amount of the
Fee, as specified in Section 1 hereof. Xxxxxxx Xxxxx confirms that should
the Offering be terminated, Xxxxxxx Xxxxx may only be reimbursed for
reasonable and actual out-of-pocket expenses in accordance with the terms
of the Underwriting Agreement.
5. First Trust has furnished Xxxxxxx Xxxxx with such information as Xxxxxxx
Xxxxx believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). First Trust recognizes
and confirms that Xxxxxxx Xxxxx (a) will use and rely 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 First Trust's knowledge, the Information
furnished by First Trust, 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. First Trust will promptly notify Xxxxxxx Xxxxx if
it learns of any material inaccuracy or misstatement in, or material
omission from, any Information delivered to Xxxxxxx Xxxxx pursuant to this
Section 5.
6. It is understood that Xxxxxxx Xxxxx is being engaged hereunder solely to
provide the services described above to First Trust and that Xxxxxxx Xxxxx
is not acting as an agent or fiduciary of, and shall have no duties or
liability to the current or future shareholders of the Fund or any other
third party in connection with its engagement hereunder, all of which are
hereby expressly waived.
7. First Trust agrees that Xxxxxxx Xxxxx shall have no liability to First
Trust 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 bad
faith, gross negligence or willful misconduct on the part of Xxxxxxx Xxxxx.
First Trust agrees to the indemnification provisions and other 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.
8. 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.
9. 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 and Xxxxxxx Xxxxx consent to
the jurisdiction of such courts and personal service with respect thereto.
Each of Xxxxxxx Xxxxx and First Trust 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. First Trust agrees that a
final judgment in any proceeding or counterclaim brought in any such court
shall be conclusive and binding upon First Trust and may be enforced in any
other courts to the jurisdiction of which First Trust is or may be subject,
by suit upon such judgment.
10. This Agreement may not be assigned by either party without the prior
written consent of the other party.
11. 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 both Xxxxxxx Xxxxx and First Trust.
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12. All notices required or permitted to be sent under this Agreement shall be
sent, if to First Trust:
First Trust Advisors L.P.
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: W. Xxxxx Xxxxxxx
or if to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department, with a copy to the ECM Legal Department
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
or electronic transmission, whichever is earlier.
13. 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.
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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: Authorized Signatory
Title:
Xxxxxxx Xxxxx Indemnification Agreement
December 21, 2016
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 its affiliates and subsidiaries, referred to as the "COMPANY") with the
matters set forth in the Structuring Fee Agreement dated December 21, 2016
between the Company 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,
including, without limitation, related services and activities prior to the date
of the Agreement, the Company agrees to 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, 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
such losses, claims, damages, liabilities and expenses resulted solely from the
gross negligence, bad faith 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,
including, without limitation, related services and activities prior to the date
of the Agreement, the Company will reimburse Xxxxxxx Xxxxx for its reasonable
legal and other expenses (including the cost of any investigation and
preparation) as such expenses are incurred by Xxxxxxx Xxxxx in connection
therewith. 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 Company in
writing of the commencement thereof; but the failure to so notify the Company
(i) will not relieve the Company 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 Company from any liability which it may have otherwise
than on account of this Indemnification Agreement. The Company shall be entitled
to appoint counsel of the Company's choice at the Company's expense to represent
Xxxxxxx Xxxxx in any Proceeding for which indemnification is sought (in which
case the Company shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by Xxxxxxx Xxxxx or parties except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory to
Xxxxxxx Xxxxx. Notwithstanding the Company's election to appoint counsel to
represent Xxxxxxx Xxxxx in a Proceeding, Xxxxxxx Xxxxx shall have the right to
employ one separate counsel (including local counsel), and the Company shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the Company to represent Xxxxxxx Xxxxx would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such Proceeding include both Xxxxxxx Xxxxx and
the Company and Xxxxxxx Xxxxx shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the Company, (iii) the
Company shall not have employed counsel satisfactory to Xxxxxxx Xxxxx to
represent Xxxxxxx Xxxxx within a reasonable time after notice of the institution
of such Proceeding or (iv) the Company shall authorize Xxxxxxx Xxxxx to employ
separate counsel at the expense of the Company. If such indemnification were not
to be available for any reason, the Company 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 Company and its partners 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 the Company 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.
Notwithstanding the provisions of this paragraph, Xxxxxxx Xxxxx shall not be
entitled to contribution from the Company if it is determined that Xxxxxxx Xxxxx
was guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act of 1933, as amended) and the Company was not guilty of
such fraudulent misrepresentation. The Company agrees that for the purposes of
this paragraph the relative benefits received, or sought to be received, by the
Company 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 by or paid to
or contemplated to be received by or paid to the Company or its partners or
affiliates and other constituencies, as the case may be, as a result of or in
connection with the Agreement 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 (as
defined in the Agreement) provided by the Company or other conduct by the
Company (or its employees or other agents), on the one hand, or by Xxxxxxx
Xxxxx, on the other hand. The Company will not 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, which consent shall not be unreasonably withheld. 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 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 Company agrees that neither Xxxxxxx Xxxxx nor any of its affiliates,
directors, agents, employees or controlling persons shall have any liability to
the Company or any person asserting claims on behalf of or in right of the
Company 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 Company resulted solely from the gross
negligence, bad faith or willful misconduct of Xxxxxxx Xxxxx in performing the
services that are the subject of the Agreement. Nothing in this Indemnification
Agreement shall be read or construed to limit any liability or obligations of
any party arising under or in connection with the Underwriting Agreement (as
defined in the Agreement).
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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 (including any
successor by merger or otherwise), for which First Trust Advisors L.P. 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
INDEMNIFICATION 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 COMPANY AND XXXXXXX XXXXX CONSENT TO THE JURISDICTION OF
SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY 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 INDEMNIFICATION AGREEMENT IS
BROUGHT BY ANY THIRD PARTY AGAINST XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY. EACH
OF XXXXXXX XXXXX AND THE COMPANY 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 INDEMNIFICATION AGREEMENT. THE COMPANY AGREES
THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY
RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS
TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH
JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of 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:
Accepted and agreed to as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _____________________________________
Authorized Signatory
