SYNDICATION FEE AGREEMENT
March [ ], 2014
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between First Trust Advisors L.P. (the "Advisor"),
Energy Income Partners, LLC (the "Sub-Advisor," and together with the Advisor,
the "Companies") and Xxxxxx Xxxxxxx & Co. LLC ("Xxxxxx Xxxxxxx") with respect to
First Trust New Opportunities MLP & Energy Fund (the "Fund").
1. Syndication Fee. (a) In consideration of advice to the Companies
relating to, but not limited to, syndication assistance with respect to the Fund
and the distribution of shares of the Fund's common shares of beneficial
interest, par value $0.01 (the "Shares"), including without limitation, securing
syndicate participants for the Fund's initial public offering (the "Offering"),
preparation of marketing and diligence materials for underwriters, conveying
information and market updates to syndicate members and coordinating syndicate
orders during the Offering, each of the Advisor and Sub-Advisor, severally and
not jointly, shall pay a fee to Xxxxxx Xxxxxxx equal to $[ ] (the "Syndication
Fee"), $[ ] of which will be paid by the Advisor, and $[ ] of which will be paid
by the Sub-Advisor. The Syndication Fee paid to Xxxxxx Xxxxxxx shall not exceed
0.[ ]% of the total price to the public of the Shares sold by the Fund in the
Offering. 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").
(b) The Companies shall pay the Syndication Fee to Xxxxxx Xxxxxxx on the
closing of the purchase and sale of the Shares pursuant to the Underwriting
Agreement on March [ ], 2014 by wire transfer to the order of Xxxxxx Xxxxxxx.
The Companies acknowledge that the Syndication 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 marketing and structuring services described above.
2. Term. This Agreement shall terminate upon payment of the entire amount
of the Syndication Fee, as specified in Section 1 hereof, except as provided in
Sections 3 and 4.
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. Confidential Advice. None of any advice rendered by Xxxxxx Xxxxxxx to
the Advisor and Sub-Advisor, as applicable, 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 Advisor and Sub-Advisor, as applicable, or any of their
respective affiliates or any of their respective agents, without Xxxxxx
Xxxxxxx'x prior written consent, except (i) the Advisor and Sub-Advisor may
disclose the foregoing to any regulatory authority in response to a regulatory
proceeding, process, inquiry or request, so long as the Advisor and Sub-Advisor
give Xxxxxx Xxxxxxx prompt notice thereof unless in the opinion of the Advisor's
counsel and the Sub-Advisor's counsel they are 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 opinion of the Advisor's counsel and the Sub-Advisor's counsel they are not
legally able so to consult) and (iii) on a confidential need-to-know basis, to
the Fund and its officers and directors 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 Advisor. Each of the Advisor and Sub-Advisor
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 Advisor's and
Sub-Advisor'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 Advisor, the Sub-Advisor 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 Xxxxxx Xxxxxxx
and the Companies. In addition, nothing in this Agreement shall be construed to
constitute Xxxxxx Xxxxxxx as the agent or employee of the Companies or the
Companies as the agent or employee of Xxxxxx Xxxxxxx, and no 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
Companies 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, 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.
7. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other parties.
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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 as provided in Section 11 shall be deemed effective service of
process on such party. EACH OF XXXXXX XXXXXXX, THE ADVISOR AND THE SUB-ADVISOR
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, THE ADVISOR AND THE SUB-ADVISOR 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 XXXXXXX, THE ADVISOR AND THE SUB-ADVISOR, AS THE CASE MAY BE, AND MAY BE
ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX, THE
ADVISOR OR THE SUB-ADVISOR 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 Advisor:
First Trust Advisors L.P.
000 X. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
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or if to the Sub-Advisor:
Energy Income Partners, LLC
00 Xxxxxxxxx Xxx., Xxxxx 0
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
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 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 transmission shall be effective as delivery of a
manually executed counterpart hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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:
ENERGY INCOME PARTNERS, LLC
By:
-------------------------------------------
Name:
Title:
Accepted and agreed to as of the date first
above written:
XXXXXX XXXXXXX & CO. LLC
By:
-------------------------------------------
Name: Xxx Xxxxxxxx
Title: Executive Director
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INDEMNIFICATION AGREEMENT
March [ ], 2014
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 (the "Advisor") and Energy Income
Partners, LLC (the "Sub-Advisor," and together with the Advisor, the
"Companies") with the matters set forth in the Syndication Fee Agreement dated
March [ ], 2014, between the Companies and Xxxxxx Xxxxxxx (the "Syndication 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) with respect to the services performed pursuant to and in accordance
with the Syndication Fee Agreement, including, without limitation, related
services and activities prior to the date of the Syndication Fee Agreement, the
Companies have 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 Syndication Fee Agreement and/or any action taken by
any Indemnified Person in connection therewith (including, without limitation,
any presentation given by the Companies and an Indemnified Person relating to
the common shares of beneficial interest, par value $0.01 per share (the
"Shares") of First Trust New Opportunities MLP & Energy Fund (the "Fund")), and
will reimburse each Indemnified Person for all expenses as they are reasonably
incurred, including fees and expenses of counsel, in connection with
investigating, preparing, pursuing or defending any claim, suit, action,
proceeding, investigation or inquiry (collectively, a "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 person 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 Companies will not, however, be
responsible for any losses, claims, damages, 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 Companies also agree
that no Indemnified Person shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Companies for or in connection with the
Activities, except for any such liability for losses, claims, damages or
liabilities incurred by the Companies 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 Companies be
responsible for any losses, claims, damages or liabilities to any Indemnified
Person arising from any such claim, suit, action, proceeding, investigation or
inquiry 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 Companies 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 claim, suit,
action, proceeding, investigation or inquiry 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 Companies 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 claim, suit, action, proceeding, investigation or inquiry 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 claim, suit, action, proceeding, investigation
or inquiry. No Indemnified Person seeking indemnification, reimbursement or
contribution under this agreement (the "Indemnification Agreement") will,
without our prior written consent, settle, compromise, consent to the entry of
any judgment in or otherwise seek to terminate any claim, suit, action,
proceeding, investigation or inquiry referred to in the preceding paragraphs.
If such indemnification were not to be available for any reason, the
Companies agree 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, their partners,
members and affiliates and other constituencies, (including the net proceeds
from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting
expenses), on the one hand, and Xxxxxx Xxxxxxx, on the other hand, in the
matters contemplated by the Syndication 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
Companies, their partners, members 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 Companies agree that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Companies, their partners, members or affiliates and other
constituencies, 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
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received by or paid to the Companies, their partners, members and affiliates and
other constituencies, 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 Syndication Fee Agreement; provided that in no event shall the
Companies 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
Syndication 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 Companies or other
conduct by the Companies (or their employees or other agents), on the one hand,
or by Xxxxxx Xxxxxxx, on the other hand.
This Indemnification Agreement, together with the Syndication Fee
Agreement, any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this agreement) that relate to the
Offering of the Shares, represents the entire agreement between the Companies
and the Indemnified Persons with respect to the marketing and structuring fee
paid to Xxxxxx Xxxxxxx under the Syndication Fee Agreement.
The Companies acknowledge that in connection with the Offering of the
Shares: (i) Xxxxxx Xxxxxxx has acted at arms length, is not an agent of, and
owes no fiduciary duties to, the Companies, the Fund or any person affiliated
with the Fund or the Companies, (ii) Xxxxxx Xxxxxxx owes the Companies only
those duties and obligations set forth in this Indemnification Agreement and
(iii) Xxxxxx Xxxxxxx may have interests that differ from those of the Companies.
The Companies waive to the full extent permitted by applicable law any claims
any of the Companies, the Fund or any person affiliated with the Fund or the
Companies may have against Xxxxxx Xxxxxxx arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares.
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 Syndication Fee Agreement.
This Indemnification Agreement may not be assigned by any party without
prior written consent of the other parties. 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
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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 as provided in Section
11 of the Syndication Fee Agreement shall be deemed effective service of process
on such party. EACH OF XXXXXX XXXXXXX, THE ADVISOR AND THE SUB-ADVISOR 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, THE ADVISOR AND THE
SUB-ADVISOR 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, THE ADVISOR AND THE
SUB-ADVISOR, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE
JURISDICTION OF WHICH XXXXXX XXXXXXX, THE ADVISOR OR THE SUB-ADVISOR 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
transmission 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:
ENERGY INCOME PARTNERS, LLC
By:
-------------------------------------------
Name:
Title:
Accepted and agreed to as of the date first
above written:
XXXXXX XXXXXXX & CO. LLC
By:
-------------------------------------------
Name: Xxx Xxxxxxxx
Title: Executive Director
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