CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT
This CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT (the
"Agreement"), dated as of June [ ], 2004, between X.X. Xxxxxxx & Sons, Inc.
("X.X. Xxxxxxx") and First Trust Advisors, L.P. ("First Trust Advisors").
WHEREAS, Energy Income and Growth Fund (the "Fund") is a non-diversified,
closed-end management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), and its common shares of beneficial
interest, par value $0.01 per share (the "Common Shares"), are registered under
the Securities Act of 1933, as amended;
WHEREAS, the Fund has made the public offering of the Fund's Common Shares
(the "Offering");
WHEREAS, First Trust Advisors is the investment adviser of the Fund;
WHEREAS, First Trust Advisors desires to retain X.X. Xxxxxxx, who acted as
lead underwriter in the Offering, to provide certain corporate finance and
consulting services to First Trust Advisors and to the Fund on an ongoing basis,
and X.X. Xxxxxxx is willing to render such services; and
WHEREAS, First Trust Advisors desires to provide compensation to X.X.
Xxxxxxx for providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) First Trust Advisors hereby employs X.X. Xxxxxxx, for the period
and on the terms and conditions set forth herein, to provide the
following services: (i) Provide relevant information, studies or
reports regarding closed-end investment companies with similar
investment objectives and/or strategies as the Fund as well as
general trends in the closed-end investment company and asset
management industries and consult with representatives of First
Trust Advisors in connection therewith; (ii) At the request of
First Trust Advisors, provide certain economic research and
statistical information and reports on behalf of First Trust
Advisors or the Fund and consult with representatives of First
Trust Advisors or the Fund, and/or Trustees of the Fund in
connection therewith, which information and reports shall
include: (a) statistical and financial market information with
respect to the Fund's market performance; and (b) comparative
information regarding the Fund and other closed-end management
investment companies with respect to (x) the net asset value of
their respective shares (as made publicly available by the Fund
and such investment companies), (y) the respective market
performance of the Fund and such other companies, and (z) other
relevant performance indicators; and (iii) Provide First Trust
Advisors with such other services in connection with the Common
Shares relating to the trading price and market price thereof
upon which First Trust Advisors and X.X. Xxxxxxx shall, from time
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to time, agree, including after-market services designed to
maintain the visibility of the Fund in the market.
(b) At the request of First Trust Advisors, X.X. Xxxxxxx shall limit or
cease any action or service provided hereunder to the extent and for
the time period requested by First Trust Advisors; provided,
however, that pending termination of this Agreement as provided for
in Section 7 hereof, any such limitation or cessation shall not
relieve First Trust Advisors of its payment obligations pursuant to
Section 2 hereof.
(c) X.X. Xxxxxxx will promptly notify First Trust Advisors in writing
if it learns of any material inaccuracy or misstatement in, or
material omission from, any written information provided by X.X.
Xxxxxxx to First Trust Advisors in connection with the
performance of services by X.X. Xxxxxxx under this Agreement.
X.X. Xxxxxxx agrees that in performing its services under this
Agreement, it shall comply in all material respects with all
applicable laws, rules and regulations.
2. First Trust Advisors shall pay to X.X. Xxxxxxx a fee payable quarterly
in arrears commencing on the date hereon at an annualized rate of 0.15%
of the Fund's average daily net assets for a term as described in
Section 7 hereof. All quarterly fees payable hereunder shall be paid to
X.X. Xxxxxxx within 15 days following the end of each quarter. Such fee
payments shall be subject to the sales charge limits of the National
Association of Securities Dealer, Inc. (the "NASD"), and shall not
exceed [ ]% of the aggregate offering price of the Common Shares in the
Offering (the "Maximum Fee Amount").
3. First Trust Advisors shall be permitted to discharge all or a portion of
its payment obligations hereunder upon prepayment in full or in part of
the remaining balance due of the Maximum Fee Amount described in paragraph
2 above.
4. First Trust Advisors acknowledges that the services of X.X. Xxxxxxx
provided for hereunder do not include any advice as to the value of
securities or regarding the advisability of purchasing or selling any
securities, in each case 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 X.X. Xxxxxxx, and X.X. Xxxxxxx is
not agreeing, to: (i) furnish any advice or make any recommendations
regarding the purchase or sale of portfolio securities or (ii) render
any opinions, valuations of portfolio securities or recommendations of
any kind in connection with providing the services described in Section
1 hereof, to the extent that any such services would constitute
investment advisory or investment banking services, it being understood
between the parties hereto that any such investment advisory or
investment banking services if, and to the extent, agreed to be
performed by X.X. Xxxxxxx, shall be the subject of a separate agreement
with First Trust Advisors.
5. Nothing herein shall be construed as prohibiting X.X. Xxxxxxx or any of
its respective affiliates from providing similar or other services to
any other clients (including other registered investment companies or
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other investment advisers), so long as X.X. Xxxxxxx'x services to First
Trust Advisors are not impaired thereby. Neither this Agreement nor
the performance of the services contemplated hereunder shall be
considered to constitute a partnership, association or joint venture
between X.X. Xxxxxxx and First Trust Advisors. In addition, nothing in
this Agreement shall be construed to constitute X.X. Xxxxxxx as the
agent or employee of First Trust Advisors or First Trust Advisors as
the agent or employee of X.X. Xxxxxxx, and neither party shall make any
representation to the contrary. It is understood that X.X. Xxxxxxx is
being engaged hereunder solely to provide the services described above
to First Trust Advisors and that X.X. Xxxxxxx is not acting as an agent
or fiduciary of, and X.X. Xxxxxxx shall not have any 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 to the extent First Trust Advisors
has the authority to waive such duties and liabilities.
6. First Trust Advisors will furnish X.X. Xxxxxxx with such information as
X.X. Xxxxxxx reasonably believes appropriate to the performance of its
obligations hereunder (all such information so furnished being the
"Information"). First Trust Advisors recognizes and confirms that X.X.
Xxxxxxx (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 Advisors' knowledge, the
Information to be furnished by First Trust Advisors when delivered,
will be true and correct in all material respects and will not contain
any material misstatement of fact or omit to state any material fact.
First Trust Advisors will promptly notify X.X. Xxxxxxx if it learns of
any material inaccuracy or misstatement in, or material omission from,
any Information delivered to such party.
7. The term of this Agreement shall commence upon the date referred to
above and shall be in effect only so long as First Trust Advisors (or
any affiliate or successor in interest) acts as the investment adviser
to the Fund pursuant to the Advisory Agreement (as such term is defined
in the Underwriting Agreement, dated June [ ], 2004, by and among the
Fund, First Trust Advisors, Fiduciary Asset Management, LLC and each of
the Underwriters named therein), as such Advisory Agreement (or other
subsequent advisory agreement with First Trust Advisors or any
successor thereto) may be renewed from time to time pursuant to the
1940 Act; provided, however, that this Agreement may be terminated by
X.X. Xxxxxxx upon 60 days notice to First Trust Advisors following a
determination in good faith by X.X. Xxxxxxx that the continuing receipt
of the fees provided for would exceed the Maximum Fee Amount.
8. First Trust Advisors agrees that X.X. Xxxxxxx shall not have any liability
to First Trust Advisors or the Fund for any act or omission to act by X.X.
Xxxxxxx in the course of its performance under this Agreement, in the
absence of gross negligence or willful misconduct on the part of X.X.
Xxxxxxx. First Trust Advisors agrees that it shall provide indemnification
to X.X. Xxxxxxx as set forth in the Indemnification Agreement appended
hereto.
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9. 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.
10. 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 Advisors and
X.X. Xxxxxxx consent to the jurisdiction of such courts and personal
service with respect thereto. Each of First Trust Advisors and X.X.
Xxxxxxx 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. Each of First Trust Advisors and X.X.
Xxxxxxx agrees that a final judgment in any proceeding or counterclaim
brought in any such court shall be conclusive and binding upon such
party and may be enforced in any other courts to the jurisdiction of
which such party is or may be subject, by suit upon such judgment.
11. This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. This 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 First
Trust Advisors and X.X. Xxxxxxx.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to First Trust Advisors:
First Trust Advisors, L.P.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx--General Counsel
or if to X.X. Xxxxxxx:
X.X. Xxxxxxx & Sons, Inc. Xxx Xxxxx Xxxxxxxxx Xx. Xxxxx, XX 00000
Attention: Investment Banking--Corporate Finance
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
transmission, whichever is earlier.
14. 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 Corporate
Finance Services and Consulting Agreement as of the date first above
written.
FIRST TRUST ADVISORS, L.P. A.G. XXXXXXX & SONS, INC.
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
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Indemnification Agreement
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xx.
Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of X.X. Xxxxxxx & Sons, Inc. ("X.X.
Xxxxxxx") to provide services to the undersigned (together with its affiliates
and subsidiaries, referred to as the "Company") in connection with the matters
set forth in the Corporate Finance Services and Consulting Agreement dated June
[ ], 2004 (the "Agreement"), between the Company and X.X. Xxxxxxx, in the event
that X.X. 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") 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 X.X. Xxxxxxx
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 from the gross
negligence or willful misconduct of X.X. Xxxxxxx. In addition, in the event that
X.X. Xxxxxxx 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 X.X. Xxxxxxx for its legal and other expenses
(including the cost of any investigation and preparation) as such expenses are
reasonably incurred by X.X. Xxxxxxx in connection therewith. 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 shareholders and affiliates and
other constituencies, on the one hand, and X.X. Xxxxxxx, on the other hand, in
the matters contemplated by the Agreement or (ii) if (but only if and to the
extent that) 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 shareholders 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. The Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company and its shareholders 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 Company or its
shareholders or affiliates and other constituencies, as the case may be, as a
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result of or in connection with the transaction (whether or not consummated) for
which X.X. Xxxxxxx has been retained to perform services bears to the fees paid
to X.X. Xxxxxxx under the Agreement; provided, that in no event shall the
Company contribute less than the amount necessary to assure that X.X. Xxxxxxx is
not liable for losses, claims, damages, liabilities and expenses in excess of
the amount of fees actually received by X.X. Xxxxxxx 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 Company or other conduct by the Company (or its
employees or other agents), on the one hand, or by X.X. Xxxxxxx, on the other
hand. The Company shall not be liable under this Indemnification Agreement to
X.X. Xxxxxxx regarding any settlement or compromise or consent to the entry of
any judgment with respect to any Proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the Company is an actual
or potential party to such Proceeding) unless such settlement, compromise or
judgment is consented to by the Company. The Company shall not, without the
prior written consent of X.X. Xxxxxxx, settle or compromise or consent to the
entry of any judgment with respect to any Proceeding in respect of which
indemnification or contribution could be sought under this Indemnification
Agreement (whether or not X.X. Xxxxxxx is an actual or potential party thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of X.X. Xxxxxxx 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 X.X. Xxxxxxx. For purposes of this
Indemnification Agreement, X.X. Xxxxxxx shall include any of its affiliates,
each other person, if any, controlling X.X. Xxxxxxx 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 X.X. Xxxxxxx 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 X.X. Xxxxxxx'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 from the gross
negligence or willful misconduct of X.X. Xxxxxxx in performing the services that
are the subject of the Agreement.
Notwithstanding any provision contained herein, in no event shall X.X.
Xxxxxxx be entitled to indemnification by the Company hereunder from and against
any losses, claims, damages, liabilities or expenses in respect of which
indemnity may be sought under Section 9 of the Underwriting Agreement.
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 for which First Trust Advisors, L.P.
serves as investment adviser.
Page 7
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
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 X.X. XXXXXXX 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 AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST
X.X. XXXXXXX OR ANY INDEMNIFIED PARTY. X.X. XXXXXXX AND THE COMPANY WAIVE 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
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 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 X.X. Xxxxxxx'x engagement. 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:
X.X. XXXXXXX & SONS, INC.
By: _______________________
Name:
Title:
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