FEE AGREEMENT
December 21, 2016
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 December 21, 2016
(the "Underwriting Agreement"), by and among First Trust Senior Floating Rate
2022 Target Term Fund (the "Trust"), First Trust Advisors L.P. (the "Adviser")
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 Adviser shall pay a fee to you in the
aggregate amount of $ [___] (the "Fee"). The Fee shall be paid on the Closing
Date. The payment shall be made by wire transfer to the order of RBC Capital
Markets, LLC. The Adviser 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 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 Investment 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
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 Adviser. In addition, nothing
in this Agreement shall be construed to constitute you as the agent or employee
of the Adviser or the Adviser 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 Adviser 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 or equity owners of the Adviser or any other third party in connection
with its engagement hereunder, all of which are hereby expressly waived to the
extent the Adviser has the authority to waive such duties and liabilities.
Furthermore, the Adviser 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 Adviser 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]
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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:
RBC CAPITAL MARKETS, LLC
By:__________________________
Name:
Title:
Indemnification Agreement
December 21, 2016
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"), with respect to the matters set
forth in the Structuring Fee Agreement dated December 21, 2016 between the
Adviser 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 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 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 Adviser 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 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 on account of this
Indemnification Agreement. 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 Parties. Neither the Adviser nor any member of its Board of
Directors (or similar body) 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
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 Indemnified
Parties, 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 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 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 RBCCM has been retained to perform services bears to the
fees paid to RBCCM 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 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 Adviser or other conduct by the
Adviser (or its 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 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 foregoing Indemnification 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 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 Adviser 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 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 INDEMNIFICATION AGREEMENT IS BROUGHT BY
ANY THIRD PARTY AGAINST RBCCM OR ANY INDEMNIFIED PARTY. 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 INDEMNIFICATION
AGREEMENT. THE ADVISER 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 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 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:
Agreed and Accepted:
RBC CAPITAL MARKETS, LLC
By:__________________________
Name:
Title:
