STRUCTURING FEE AGREEMENT
-------------------------
September [__], 2015
RBC Capital Markets, LLC
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated September [__] 2015
(the "Underwriting Agreement"), by and among First Trust Dynamic Europe Equity
Income Fund (the "Trust"), First Trust Advisors L.P. (the "Adviser"), Xxxxxxxxx
Global Investors (North America) Inc. (the "Investment Sub-Adviser"), Xxxxxxxxx
Investment Management Limited (the "Sub-Sub-Adviser," and together with the
Adviser and the Investment Sub-Adviser, the "Companies") and each of the
Underwriters named in Schedule A thereto, with respect to the issue and sale of
the Trust's common shares of beneficial interest (the "Offering"), as described
therein. 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 in offering advice relating to
the distribution of the Trust's common shares of beneficial interest, $0.01 par
value per share (the "Common Shares"), the Companies shall pay a fee to you in
the aggregate amount of $[__] (the "Fee"), of which $[__] shall be paid by the
Adviser and $[__] shall be paid by the Investment Sub-Adviser. The Fee shall be
paid on September [__], 2015. The payment shall be made by wire transfer to the
order of RBC Capital Markets, LLC. The Companies acknowledges that the Fee is in
addition to any compensation you earn in connection with your role as an
underwriter to the Trust in the Offering, which services are distinct from and
in addition to the marketing services rendered in connection with the advice
described above. 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 Companies agree 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 Investment Adviser; No Fiduciary Duty. The Companies
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 Trust'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. Neither this Agreement nor the performance of the
services contemplated hereunder shall be considered to constitute a partnership,
association or joint venture between you and the Companies. In addition, nothing
in this Agreement shall be construed to constitute you as the agent or employee
of the Companies or the Companies as your agent or employee, and neither party
shall make any representation to the contrary. It is understood that you are
engaged hereunder as an independent contractor solely to provide the services
described above to the Companies and that you are not acting as an agent or
fiduciary of, and you shall not have any duties or liability to, the current or
future partners, members or equity owners of the Companies or any other third
party in connection with its engagement hereunder, all of which are hereby
expressly waived to the extent the Companies have the authority to waive such
duties and liabilities. Furthermore, each Company agrees that it is solely
responsible for making its own judgments in connection with the matters covered
by this Agreement (irrespective of whether you have advised or are currently
advising the Company 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 managers).
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 or other electronic transmission that accurately
depicts a manual signature shall be effective as delivery of a manually executed
counterpart hereof.
[END OF TEXT]
This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By:
--------------------------------
Name:
Title:
XXXXXXXXX GLOBAL INVESTORS (NORTH
AMERICA) INC.
By:
--------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT MANAGEMENT
LIMITED
By:
--------------------------------
Name:
Title:
Agreed and Accepted:
RBC CAPITAL MARKETS, LLC
By:
--------------------------------
Name:
Title:
[Signature Page to RBC Structuring Fee Agreement]
DRAFT - SEPTEMBER 11, 2015
INDEMNIFICATION AGREEMENT
-------------------------
June 30, 2015
RBC Capital Markets, LLC
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
In connection with the engagement of RBC Capital Markets, LLC ("RBCCM") to
advise and assist the undersigned, First Trust Advisors L.P., together with its
affiliates and subsidiaries (the "Adviser"), Xxxxxxxxx Global Investors (North
America) Inc., together with its affiliates and subsidiaries (the "Investment
Sub-Adviser"), and Xxxxxxxxx Investment Management Limited, together with its
affiliates and subsidiaries (the "Sub-Sub-Adviser," and together with the
Adviser and the Investment Sub Adviser, the "Companies"), with respect to the
matters set forth in the Structuring Fee Agreement dated [__], 2015 between the
Companies and RBCCM (the "Agreement"), in the event that RBCCM, any of its
affiliates, each other person, if any, controlling RBCCM 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 (RBCCM
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,
investigation or inquiry (including, without limitation, any shareholder or
derivative action or arbitration proceeding) (collectively, a "Proceeding") with
respect to the services performed under the Agreement, the Companies 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 fees and expenses of counsel to the Indemnified Parties,
with respect to the services performed under 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 bad faith, 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 Agreement, the Companies will
reimburse such Indemnified Party for legal and other expenses (including the
cost of any investigation and preparation) as such expenses are incurred by such
Indemnified Party in connection therewith. Counsel to the indemnified parties
shall be selected by such indemnified party. 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 Companies in writing of the commencement
thereof; but the failure so to notify the Companies (i) will not relieve the
Companies 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
Companies from any liability which it may have otherwise on account of this
Indemnification Agreement. The Companies may participate at its own expense in
the defense of any such action; provided, however, that counsel to the Companies
shall not (except with the consent of the Indemnified Parties) also be counsel
to the Indemnified Parties. No Company nor any member of a Company's Board of
Directors shall, without the prior written consent of the Indemnified Parties,
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 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 litigation,
investigation, proceeding or claim 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
Companies 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 Companies and their
stockholders, members 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 Companies and their stockholders, members and affiliates,
on the one hand, and the Indemnified Parties, on the other hand, as well as any
other relevant equitable considerations. The Companies agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Companies and their stockholders, members and affiliates, on
the one hand, and the Indemnified Parties, 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
Companies or its stockholders, members or affiliates, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which RBCCM has been retained to perform services bears to the fees paid to
RBCCM under the Agreement; provided, that in no event shall the Companies
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 RBCCM 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 Companies or other conduct by the Companies (or
their employees or other agents), on the one hand, or by RBCCM (or its employees
or other agents), on the other hand. Notwithstanding the provisions of this
paragraph, an Indemnified Party shall not be entitled to contribution from the
Companies 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 Companies were not guilty of such
fraudulent misrepresentation. The foregoing Indemnification Agreement shall be
in addition to any rights that any Indemnified Party may have at common law or
otherwise.
The Companies agrees that no Indemnified Party shall have any liability to
the Companies or any person asserting claims on behalf of or in right of the
Companies with respect to 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 any losses, claims, damages, liabilities or expenses
reasonably incurred by the Companies resulted primarily from the bad faith,
gross negligence or willful misconduct of RBCCM 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 MATTERS CONTEMPLATED BY 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 COMPANIES AND THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF
SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANIES 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 RBCCM OR ANY INDEMNIFIED PARTY. EACH 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. EACH 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 OR OTHER AVAILABLE JUDICIAL PROCESS.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the RBCCM'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:
XXXXXXXXX GLOBAL INVESTORS (NORTH
AMERICA) INC.
By:
--------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT MANAGEMENT
LIMITED
By:
--------------------------------
Name:
Title:
Agreed and Accepted:
RBC CAPITAL MARKETS, LLC
By:
--------------------------------
Name:
Title:
[Signature Page to RBC Indemnification Agreement]
