STRUCTURING AND SYNDICATION FEE AGREEMENT
December 21, 2016
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between First Trust Advisors L.P. (the "Company") and
Xxxxxx Xxxxxxx & Co. LLC ("Xxxxxx Xxxxxxx") with respect to First Trust Senior
Floating Rate 2022 Target Term Fund (the "Fund").
1. Fee. (a) In consideration of advice to the Company relating to, but
not limited to, the design and structuring of, and marketing assistance with
respect to, the Fund and the distribution of the Fund's common shares of
beneficial interest, par value $0.01 per share (the "Shares"), and syndication
assistance with respect to the Fund and the distribution of the Shares,
including without limitation, views from an investor market, distribution and
syndication perspective on (i) marketing issues with respect to the Fund's
investment policies and proposed investments, (ii) the overall marketing and
positioning thesis for the Fund's initial public offering of its Shares (the
"Offering"), (iii) securing syndicate participants for the Offering, (iv)
preparation of marketing and diligence materials for underwriters, (v) conveying
information and market updates to syndicate members and (vi) coordinating
syndicate orders during the Offering, the Company shall pay a fee to Xxxxxx
Xxxxxxx calculated at 0.50% of the aggregate price to the public of all Shares
sold in the Offering (whether sold by Xxxxxx Xxxxxxx or any other broker or
dealer participating in the Offering (each, an "Other Broker") and including any
Shares over-allotted in the Offering regardless of whether the over-allotment
option in the Offering is exercised), equal to $[__________] (the "Fee").
(b) Subject to paragraph (c), the Fee paid to Xxxxxx Xxxxxxx shall not
exceed 0.50% of the total price to the public of the Shares sold by the Fund in
the Offering (including any Shares over-allotted in the Offering regardless of
whether the over-allotment option in the Offering is exercised. In the event the
Offering does not proceed, Xxxxxx Xxxxxxx will not receive any fees under this
Agreement; however, for the avoidance of doubt, accountable expenses actually
incurred may be payable to Xxxxxx Xxxxxxx pursuant to the terms of the principal
underwriting agreement relating to the Offering (the "Underwriting Agreement").
(c) Notwithstanding paragraph (a), in the event that the Company (or the
Fund or any person or entity affiliated with the Company, the Fund or any
sub-adviser to the Fund or acting on behalf of or at the direction of any of the
foregoing) compensates or agrees to compensate any Other Broker for any services
or otherwise in connection with the Offering or with respect to the Fund or its
Shares (excluding for this purpose any compensation paid directly to the entire
underwriting syndicate, as a group, pursuant to the Underwriting Agreement),
whether such compensation be denominated a fee, an expense reimbursement, a
set-off, a credit or otherwise (such compensation with respect to any Other
Broker, such Other Broker's "Other Compensation"), then the amount of the Fee
shall be increased as and to the extent necessary so that the Fee payable to
Xxxxxx Xxxxxxx hereunder, expressed as (i) a dollar amount, (ii) a percentage of
the aggregate price to the public of the Shares sold by Xxxxxx Xxxxxxx in the
Offering (including any Shares over-allotted by Xxxxxx Xxxxxxx in the Offering
regardless of whether the over-allotment option in the Offering is exercised) or
(iii) a percentage of the aggregate price to the public of all Shares sold in
the Offering (including any Shares over-allotted in the Offering regardless of
whether the over-allotment option in the Offering is exercised), is no less than
the Other Compensation, expressed as (i) a dollar amount, (ii) a percentage of
the aggregate price to the public of the Shares sold by such Other Broker in the
Offering (including any Shares over-allotted by such Other Broker in the
Offering regardless of whether the over-allotment option in the Offering is
exercised) or (iii) a percentage of the aggregate price to the public of all
Shares sold in the Offering (including any Shares over-allotted in the Offering
regardless of whether the over-allotment option in the Offering is exercised),
respectively.
(d) The Company shall pay the Fee to Xxxxxx Xxxxxxx on the closing of the
purchase and sale of the Shares pursuant to the Underwriting Agreement by wire
transfer to the order of Xxxxxx Xxxxxxx using the following wire instructions:
Citibank, N.A.
Account: Xxxxxx Xxxxxxx & Co.
Account #: 000-00-000
ABA #: 000-000-000
Attention: Xxxxx Xxxxx
Ref: First Trust Senior Floating Rate 2022 Target Term Fund
Please notify "xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx" when the wire is sent.
(e) The Company acknowledges that the Fee is in addition to any
compensation Xxxxxx Xxxxxxx earns in connection with its role as an underwriter
to the Fund in the Offering, which services are distinct from and in addition to
the services described above.
2. Term. This Agreement shall terminate upon payment of the entire
amount of the Fee, as specified in Section 1 hereof, or upon the termination of
the Underwriting Agreement without the Shares having been delivered and paid
for, except as provided in Sections 3 and 4.
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3. Indemnification. The Company 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. None of any advice rendered by Xxxxxx Xxxxxxx
to the Company or any communication from Xxxxxx Xxxxxxx in connection with the
services performed by Xxxxxx Xxxxxxx pursuant to this Agreement will be quoted
or referred to orally or in writing, or reproduced or disseminated, by the
Company or any of its affiliates or any of their agents, without Xxxxxx
Xxxxxxx'x prior written consent, except (i) the Company may disclose the
foregoing to any regulatory authority in response to a regulatory proceeding,
process, inquiry or request, so long as the Company gives Xxxxxx Xxxxxxx prompt
notice thereof unless in the reasonable opinion of the Company's counsel it is
not legally able to do so, (ii) to the extent otherwise required by law,
judicial process or applicable regulation (after consultation with, and approval
(not to be unreasonably withheld) as to form and substance by, Xxxxxx Xxxxxxx
and its counsel, unless in the reasonable opinion of the Company's counsel it is
not legally able to so consult) and (iii) on a confidential need-to-know basis,
to the Fund and its officers and trustees and their legal counsel, auditors and
other advisors. This confidentiality provision will terminate eighteen months
from the date first written above.
5. Not an Investment Adviser. The Company acknowledges that Xxxxxx
Xxxxxxx 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 Xxxxxx
Xxxxxxx, and Xxxxxx Xxxxxxx is 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 Company's engagement of Xxxxxx
Xxxxxxx hereunder is not intended to confer rights upon any person (including
the Fund or any shareholders, employees or creditors of the Company or the Fund)
not a party hereto as against Xxxxxx Xxxxxxx or its affiliates, or their
respective directors, officers, employees or agents, successors, or assigns.
6. Not Exclusive. Nothing herein shall be construed as prohibiting
Xxxxxx Xxxxxxx or its affiliates from acting as an underwriter or financial
advisor or in any other capacity for any other persons (including other
registered investment companies or other investment managers). Neither this
Agreement nor the performance of the services contemplated hereunder shall be
considered to constitute a partnership, association or joint venture between
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Xxxxxx Xxxxxxx and the Company. In addition, nothing in this Agreement shall be
construed to constitute Xxxxxx Xxxxxxx as the agent or employee of the Company
or the Company as the agent or employee of Xxxxxx Xxxxxxx, and neither party
shall make any representation to the contrary. It is understood that Xxxxxx
Xxxxxxx is engaged hereunder solely to provide the services described above to
the Company and that Xxxxxx Xxxxxxx is not acting as an agent or fiduciary of,
and Xxxxxx Xxxxxxx shall not have any duties or liability to, the current or
future partners or equity owners of the Company or any other third party in
connection with its engagement hereunder, all of which are hereby expressly
waived to the extent the Company has the authority to waive such duties and
liabilities.
7. Assignment. This Agreement may not be assigned by either party
without prior written consent of the other party.
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; Consent to Jurisdiction; WAIVER OF JURY TRIAL. This
Agreement and any claim, counterclaim, dispute or proceeding 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 internal 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 (and of the
appropriate appellate courts therefrom), which courts shall have exclusive
jurisdiction over the adjudication of such matters except as provided below.
Each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such Claim and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Claim in any
such court or that any such Claim brought in any such court has been brought in
an inconvenient forum. Process in any such Claim may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party at the address provided in Section 11 shall be deemed effective
service of process on such party. EACH OF XXXXXX XXXXXXX 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
AGREEMENT. EACH OF XXXXXX XXXXXXX AND THE 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 XXXXXX
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XXXXXXX AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER
COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
10. Entire Agreement. 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.
11. Notices. All notices required or permitted to be sent under this
Agreement shall be sent, if to the Company:
First Trust Advisors L.P.
000 X. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
or if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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 by certified U.S. mail, postage prepaid, or when actually received,
whether by hand, express delivery service or facsimile or other electronic
transmission, whichever is earlier.
12. 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.
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This Agreement shall be effective as of the date first written above.
Very truly yours,
FIRST TRUST ADVISORS L.P.
By: _____________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXX XXXXXXX & CO. LLC
By: _____________________
Name:
Title:
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INDEMNIFICATION AGREEMENT
December 21, 2016
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx Xxxxxxx & Co. LLC ("Xxxxxx
Xxxxxxx") to advise and assist the undersigned, First Trust Advisors L.P.
(together with its affiliates and subsidiaries, referred to as the "Company")
with the matters set forth in the Structuring and Syndication Fee Agreement
dated December 21, 2016 between the Company and Xxxxxx Xxxxxxx (the "Fee
Agreement"), in the event that Xxxxxx Xxxxxxx 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 in connection with, or arising out of, or based upon the Fee
Agreement, including, without limitation, related services and activities prior
to the date of the Fee Agreement, the Company has agreed to indemnify and hold
harmless Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx'x affiliates and their respective
officers, directors, employees and agents and each other person, if any,
controlling Xxxxxx Xxxxxxx or any of Xxxxxx Xxxxxxx'x affiliates (Xxxxxx Xxxxxxx
and each such other person being an "Indemnified Person") from and against any
losses, claims, damages or liabilities related to, arising out of or in
connection with the activities (the "Activities") performed by any Indemnified
Person in connection with, or arising out of, or based upon, the Fee Agreement
and/or any action taken by any Indemnified Person in connection therewith
(including, without limitation, any presentation given by the Company and an
Indemnified Person relating to the common shares of beneficial interest, par
value $0.01 per share (the "Shares") of First Trust Senior Floating Rate 2022
Target Term Fund (the "Fund")), and will reimburse each Indemnified Person for
all expenses (including fees and expenses of counsel) as they are reasonably
incurred in connection with investigating, preparing, pursuing or defending any
Proceeding related to, arising out of or in connection with the Activities,
whether or not pending or threatened and whether or not any Indemnified Person
is a party; provided that in any such Proceeding, any Indemnified Person shall
have the right to retain its own counsel (and local counsel), but the fees and
expenses of such counsel (and local counsel) shall be at the expense of such
Indemnified Person unless (i) the indemnifying person and the Indemnified Person
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such Proceeding (including any impleaded parties) include both
the indemnifying person and the Indemnified Person and representations of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any Indemnified Person in
connection with any Proceeding or related Proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons. The Company will not,
however, be responsible for any losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of any Indemnified Person. The
Company also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company related to,
arising out of or in connection with the Activities, except for any such
liability for losses, claims, damages or liabilities incurred by the Company
that are finally judicially determined to have resulted from the bad faith or
gross negligence of such Indemnified Person.
Notwithstanding the foregoing, in no event shall the Company be
responsible for any losses, claims, damages or liabilities to any Indemnified
Person arising from any such Proceeding in excess of the gross proceeds received
by the Fund from the initial public offering of the Shares of the Fund (the
"Offering"); provided, however, that the Company shall, as set forth above,
indemnify and be responsible for, regardless of the gross proceeds received by
the Fund from the Offering, all expenses (including fees and expenses of
counsel) reasonably incurred in connection with investigating, preparing,
pursuing or defending any Proceeding related to, arising out of or in connection
with the Activities, whether or not pending or threatened and whether or not any
Indemnified Person is a party, as set forth above.
The Company will not, without Xxxxxx Xxxxxxx'x prior written consent,
settle, compromise, consent to the entry of any judgment in or otherwise seek to
terminate any Proceeding in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such Proceeding. No
Indemnified Person seeking indemnification, reimbursement or contribution under
this agreement (the "Indemnification Agreement") will, without the Company's
prior written consent, settle, compromise, consent to the entry of any judgment
in or otherwise seek to terminate any Proceeding.
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 (including the net
proceeds from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting
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expenses) and its equity holders and affiliates, on the one hand, and Xxxxxx
Xxxxxxx, on the other hand, in the matters contemplated by the Fee 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 equity holders 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 Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company and its equity holders 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 equity holders or affiliates, as the case may be, as a result of or in
connection with the transaction (whether or not consummated) for which Xxxxxx
Xxxxxxx has been retained to perform financial services bears to the fees paid
to Xxxxxx Xxxxxxx under the Fee Agreement; provided that in no event shall the
Company contribute less than the amount necessary to assure that Xxxxxx Xxxxxxx
is not liable for losses, claims, damages, liabilities and expenses in excess of
the amount of fees actually received by Xxxxxx Xxxxxxx pursuant to the Fee
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 Company or other conduct by the
Company (or its employees or other agents), on the one hand, or by Xxxxxx
Xxxxxxx, on the other hand.
This Indemnification Agreement, together with the Fee Agreement, any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this agreement) that relate to the Offering, represents
the entire agreement between the Company and the Indemnified Persons with
respect to the fee paid to Xxxxxx Xxxxxxx under the Fee Agreement.
The Company acknowledges that in connection with the Offering and the
services performed pursuant to the Fee Agreement: (i) Xxxxxx Xxxxxxx has acted
at arm's length, is not an agent of, and owes no fiduciary duties to, the
Company, the Fund or any person affiliated with the Fund or the Company, (ii)
Xxxxxx Xxxxxxx owes the Company only those duties and obligations set forth in
this Indemnification Agreement and the Fee Agreement and (iii) Xxxxxx Xxxxxxx
may have interests that differ from those of the Company. The Company waives to
the full extent permitted by applicable law any claims any of the Company, the
Fund or any person affiliated with the Fund or the Company may have against
Xxxxxx Xxxxxxx arising from an alleged breach of fiduciary duty in connection
with the Offering or the services performed pursuant to the Fee Agreement.
The provisions of this Indemnification Agreement shall apply to the
Activities and any modification thereof and shall remain in full force and
effect regardless of any termination or the completion of Xxxxxx Xxxxxxx'x
services under the Fee Agreement.
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This Indemnification Agreement may not be assigned by either party
without prior written consent of the other party. No provision of this
Indemnification Agreement may be amended or waived except by an instrument in
writing signed by the parties hereto. This Indemnification Agreement and any
claim, counterclaim, dispute or proceeding 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 internal 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 (and of the
appropriate appellate courts therefrom), which courts shall have exclusive
jurisdiction over the adjudication of such matters except as provided below.
Each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such Claim and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Claim in any
such court or that any such Claim brought in any such court has been brought in
an inconvenient forum. Process in any such Claim may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party at the address provided in Section 11 of the Fee Agreement shall
be deemed effective service of process on such party. EACH OF XXXXXX XXXXXXX 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. EACH OF XXXXXX XXXXXXX AND 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 XXXXXX XXXXXXX AND THE COMPANY, AS
THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF
WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH
JUDGMENT. This Indemnification 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 Indemnification Agreement by facsimile or other electronic transmission
that accurately depicts a manual signature shall be effective as delivery of a
manually executed counterpart hereof.
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Very truly yours,
FIRST TRUST ADVISORS L.P.
By: _____________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXX XXXXXXX & CO. LLC
By: _____________________
Name:
Title:
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