FEE AGREEMENT
December 21, 2016
Pershing LLC
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 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 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 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 Pershing LLC. The Adviser acknowledges that the Fee is in
addition to any compensation the undersigned earns in connection with its role
as an underwriter to the Fund in the Offering. 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). Neither this
Agreement nor the performance of the services contemplated hereunder shall be
considered to constitute a partnership, association or joint venture between the
undersigned and the Adviser. In addition, nothing in this Agreement shall be
construed to constitute the undersigned as the agent or employee of the Adviser
or the Adviser as the agent or employee of the undersigned, and no party shall
make any representation to the contrary.
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. 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
undersigned consent to the jurisdiction of such courts and personal service with
impact thereto. Each of the Adviser and the undersigned irrevocably 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. The Adviser
agrees that a final judgment in any proceeding or counterclaim 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 judgment.
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.
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This Agreement shall be effective as of the date first written above.
FIRST TRUST ADVISORS L.P.
By:_________________________
Name:
Title:
Agreed and Accepted:
PERSHING LLC
By:_________________________
Name:
Title:
Indemnification Agreement
December 21, 2016
Pershing LLC
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Pershing LLC (the "Broker-Dealer") 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
Fee Agreement dated December 21, 2016 between the Adviser and the Broker-Dealer
(the "Agreement"), in the event that the Broker-Dealer, any of its affiliates,
each other person, if any, controlling the Broker-Dealer 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
Broker-Dealer 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 Broker-Dealer. 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 Broker-Dealer has been
retained to perform services bears to the fees paid to the Broker-Dealer 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 Broker-Dealer 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 Broker-Dealer, 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 Broker-Dealer'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 Broker-Dealer 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 BROKER-DEALER 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 Broker-Dealer'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:
PERSHING LLC
By:________________________
Name:
Title:
