INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT made as of this 24th day of June, 2004 by and among Energy
Income and Growth Fund, a Massachusetts business trust (the "Fund"), First Trust
Advisors L.P., an Illinois limited partnership and a federally registered
investment adviser ("Manager"), and Fiduciary Asset Management, LLC, a Missouri
limited liability company and a federally registered investment adviser
("Sub-Adviser").
WHEREAS, the Fund is a closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund has retained the Manager to serve as the investment
manager for the Fund pursuant to an Investment Management Agreement between
Manager and the Fund (as such agreement may be modified from time to time, the
"Management Agreement");
WHEREAS, the Management Agreement provides that the Manager may, subject
to the initial and periodic approvals required under Section 15 of the 1940 Act,
appoint a sub-adviser at its own cost and expense for the purpose of furnishing
certain services required under the Management Agreement;
WHEREAS, the Fund and Manager desire to retain Sub-Adviser to furnish
investment advisory services for the Fund's investment portfolio, upon the terms
and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Appointment. The Fund and Manager hereby appoint Sub-Adviser to provide
certain sub-investment advisory services to the Fund for the period and on the
terms set forth in this Agreement. Sub-Adviser accepts such appointment and
agrees to furnish the services herein set forth for the compensation herein
provided.
2. Services to be Performed. Subject always to the supervision of Fund's
Board of Trustees and the Manager, Sub-Adviser will act as sub-adviser for, and
to manage the investment and reinvestment of the assets of the Fund, furnish an
investment program in respect of, make investment decisions for, and place all
orders for the purchase and sale of securities for the Fund's investment
portfolio, all on behalf of the Fund and as described in the investment policy
sections of the Fund's initial registration statement on Form N-2 (File No.
333-114131) as declared effective by the Securities and Exchange Commission, and
as the same may thereafter be amended from time to time. In the performance of
its duties, Sub-Adviser will in all material respects (a) satisfy any applicable
fiduciary duties it may have to the Fund, (b) monitor the Fund's investments,
and (c) comply with the provisions of the Fund's Declaration of Trust and
By-laws, as amended from time to time and communicated by the Fund or Manager to
Sub-Adviser in writing, and the stated investment objectives, policies and
restrictions of the Fund as such objectives, policies and restrictions may
subsequently be changed by the Fund's Board of Trustees and communicated by the
Fund or Manager to Sub-Adviser in writing. The Fund or Manager has provided
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Sub-Adviser with current copies of the Fund's Declaration of Trust, By-laws,
prospectus, statement of additional information and any amendments thereto, and
any objectives, policies or limitations not appearing therein as they may be
relevant to Sub-Adviser's performance under this Agreement.
Sub-Adviser is authorized to select the brokers or dealers that will
execute the purchases and sales of portfolio investments for the Fund, and is
directed to use its commercially reasonable efforts to obtain best execution,
which includes most favorable net results and execution of the Fund's orders,
taking into account all appropriate factors, including price, dealer spread or
commission, size and difficulty of the transaction and research or other
services provided. Subject to compliance with the policies and procedures
adopted by the Board of Trustees for the Fund and to the extent permitted by and
in conformance with applicable law (including Rule 17e-1 of the 1940 Act),
Sub-Adviser may select brokers or dealers affiliated with Sub-Adviser. It is
understood that the Sub-Adviser will not be deemed to have acted unlawfully, or
to have breached a fiduciary duty to the Fund, or be in breach of any obligation
owing to the Fund under this Agreement, or otherwise, solely by reason of its
having caused the Fund to pay a member of a securities exchange, a broker or a
dealer a commission for effecting a securities transaction for the Fund in
excess of the amount of commission another member of an exchange, broker or
dealer would have charged if the Sub-Adviser determined in good faith that the
commission paid was reasonable in relation to the brokerage or research services
provided by such member, broker or dealer, viewed in terms of that particular
transaction or the Sub-Adviser's overall responsibilities with respect to its
accounts, including the Fund, as to which it exercises investment discretion.
In addition, Sub-Adviser may, to the extent permitted by applicable law,
aggregate purchase and sale orders of securities placed with respect to the
assets of the Fund with similar orders being made simultaneously for other
accounts managed by Sub-Adviser or its affiliates, if in Sub-Adviser's
reasonable judgment such aggregation shall result in an overall economic benefit
to the Fund, taking into consideration the advantageous selling or purchase
price, brokerage commissions and other expenses. In the event that a purchase or
sale of an asset of the Fund occurs as part of any aggregate sale or purchase
orders, the objective of Sub-Adviser and any of its affiliates involved in such
transaction shall be to allocate the securities so purchased or sold, as well as
expenses incurred in the transaction, among the Fund and other accounts in an
equitable manner. Nevertheless, the Fund and Manager acknowledge that under some
circumstances, such allocation may adversely affect the Fund with respect to the
price or size of the securities positions obtainable or salable. Whenever the
Fund and one or more other investment advisory clients of Sub-Adviser have
available funds for investment, investments suitable and appropriate for each
will be allocated in a manner believed by Sub-Adviser to be equitable to each,
although such allocation may result in a delay in one or more client accounts
being fully invested that would not occur if such an allocation were not made.
Moreover, it is possible that due to differing investment objectives or for
other reasons, Sub-Adviser and its affiliates may purchase securities or loans
of an issuer for one client and at approximately the same time recommend selling
or sell the same or similar types of securities or loans for another client.
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The Sub-Adviser will vote all proxies solicited by or with respect to the
issuers of securities which assets of the Fund's investment portfolio allocated
by Manager to Sub-Adviser are invested, consistent with its proxy voting
guidelines and based upon the best interests of the Fund. The Sub-Adviser will
maintain appropriate records in accordance with applicable law detailing its
voting of proxies on behalf of the Fund and upon reasonable request will provide
a report setting forth the proposals voted on and how the Fund's shares were
voted, including the name of the corresponding issuers.
Sub-Adviser will not arrange purchases or sales of securities between the
Fund and other accounts advised by Sub-Adviser or its affiliates unless (a) such
purchases or sales are in accordance with applicable law (including Rule 17a-7
of the ▇▇▇▇ ▇▇▇) and the Fund's policies and procedures, (b) Sub-Adviser
determines the purchase or sale is in the best interests of the Fund, and (c)
the Fund's Board of Trustees have approved these types of transactions.
The Fund may adopt policies and procedures that modify or restrict the
Sub-Adviser's authority regarding the execution of the Fund's portfolio
transactions provided herein.
The Sub-Adviser will communicate to the officers and trustees of the Fund
such information relating to transactions for the Fund as they may reasonably
request. In no instance will portfolio securities be purchased from or sold to
the Manager, Sub-Adviser or any affiliated person of either the Fund, Manager,
or Sub-Adviser, except as may be permitted under the 1940 Act.
Sub-Adviser further agrees that it:
(a) will use the same degree of skill and care in providing such
services as it uses in providing services to fiduciary accounts for which
it has investment responsibilities;
(b) will conform in all material respects to all applicable Rules
and Regulations of the Securities and Exchange Commission and comply in
all material respects with all policies and procedures adopted by the
Board of Trustees for the Fund and communicated to Sub-Adviser in writing
and, in addition, will conduct its activities under this Agreement in all
material respects in accordance with any applicable regulations of any
governmental authority pertaining to its investment advisory activities;
(c) will report regularly to Manager and to the Board of Trustees of
the Fund (generally on a quarterly basis) and will make appropriate
persons available for the purpose of reviewing with representatives of
Manager and the Board of Trustees on a regular basis at reasonable times
the management of the Fund, including, without limitation, review of the
general investment strategies of the Fund, the performance of the Fund's
investment portfolio in relation to relevant standard industry indices and
general conditions affecting the marketplace and will provide various
other reports from time to time as reasonably requested by Manager or the
Board of Trustees of the Fund; and
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(d) will prepare and maintain such books and records with respect to
the Fund's securities and other transactions for the Fund's investment
portfolio as required for registered investment advisers under applicable
law or as otherwise reasonably requested by Manager and will prepare and
furnish Manager and Fund's Board of Trustees such periodic and special
reports as the Board or Manager may reasonably request. The Sub-Adviser
further agrees that all records that it maintains for the Fund are the
property of the Fund and the Sub-Adviser will surrender promptly to the
Fund any such records upon the request of the Manager or the Fund
(provided, however, that Sub-Adviser shall be permitted to retain copies
thereof); and shall be permitted to retain originals (with copies to the
Fund) to the extent required under Rule 204-2 of the Investment Advisers
Act of 1940 or other applicable law.
3. Expenses. During the term of this Agreement, Sub-Adviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities and other assets (including brokerage
commission, if any) purchased for the Fund.
4. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, the Manager will pay Sub-Adviser, and Sub-Adviser
agrees to accept as full compensation therefor, a portfolio management fee
("Management Fee") equal to the annual rate of 0.50% of the Fund's Managed
Assets (as defined below), subject to paragraph 5 below. Notwithstanding the
foregoing, as of the date hereof and until June 24, 2006 the Sub-Adviser agrees
to reduce its Management Fee to an annual rate of 0.382% of the Fund's Managed
Assets during such period. For purposes of calculating the Management Fee,
Managed Assets means the average daily gross asset value of the Fund (including
assets attributable to the Fund's preferred shares, if any, and the principal
amount of borrowings), minus the sum of the Fund's accrued and unpaid dividends
on any outstanding preferred shares and accrued liabilities (other than the
principal amount of any borrowings incurred, commercial paper or notes or other
forms of indebtedness issued by the Fund and the liquidation preference of any
outstanding preferred shares). The Management Fee shall be payable in arrears on
or about the first day of each month during the term of this Agreement.
For the month and year in which this Agreement becomes effective or
terminates, there shall be an appropriate proration on the basis of the number
of days that the Agreement is in effect during the month and year, respectively.
5. Expense Reimbursement. Sub-Adviser agrees to pay Manager one-half of
(i) all organizational costs and (ii) all offering costs of the Fund (other than
sales load) that exceed $0.04 per Common Share (as such term is defined in the
Fund's prospectus). The term "organization costs" and "offering costs" shall
have the meanings ascribed to them in Sections 8.18-8.25 of the AICPA Audit and
Accounting Guide, Audits for Investment Companies, with Conforming Changes as of
May 1, 2002.
6. Services to Others. The Fund and Manager acknowledge that Sub-Adviser
now acts, and may in the future act, as an investment adviser to other managed
accounts and as investment adviser or sub-investment adviser to one or more
other investment companies that are not a series of the Fund, including, without
limitation, accounts or investment companies that invest in master limited
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partnerships and similar instruments. In addition, the Fund and Manager
acknowledge that the persons employed by Sub-Adviser to assist in Sub-Adviser's
duties under this Agreement will not devote their full time to such efforts. It
is also agreed that the Sub-Adviser may use any supplemental research obtained
for the benefit of the Fund in providing investment advice to its other
investment advisory accounts and for managing its own accounts.
7. Limitation of Liability. The Sub-Adviser shall not be liable for, and
the Fund and Manager will not take any action against the Sub-Adviser to hold
Sub-Adviser liable for, any error of judgment or mistake of law or for any loss
suffered by the Fund or the Manager (including, without limitation, by reason of
the purchase, sale or retention of any security) in connection with the
performance of the Sub-Adviser's duties under this Agreement, except for a loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Sub-Adviser in the performance of its duties under this Agreement, or by
reason of its reckless disregard of its material obligations and duties under
this Agreement.
8. Term; Termination; Amendment. This Agreement shall become effective
with respect to the Fund on the same date as the Management Agreement between
the Fund and the Manager becomes effective (it being understood that the Manager
shall notify the Sub-Adviser of the date of effectiveness of the Management
Agreement as soon as reasonable practical after effectiveness), provided that it
has been approved by a vote of a majority of the outstanding voting securities
of the Fund in accordance with the requirements of the 1940 Act, and shall
remain in full force until the two-year anniversary of the date of its
effectiveness unless sooner terminated as hereinafter provided. This Agreement
shall continue in force from year to year thereafter, but only as long as such
continuance is specifically approved for the Fund at least annually in the
manner required by the 1940 Act and the rules and regulations thereunder;
provided, however, that if the continuation of this Agreement is not approved
for the Fund, the Sub-Adviser may continue to serve in such capacity for the
Fund in the manner and to the extent permitted by the 1940 Act and the rules and
regulations thereunder.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of any penalty
by the Manager or Sub-Adviser upon sixty (60) days' written notice to the other
parties. This Agreement may also be terminated by the Fund by action of the
Board of Trustees or by a vote of a majority of the outstanding voting
securities of such Fund upon sixty (60) days' written notice to the Sub-Adviser
by the Fund without payment of any penalty.
This Agreement may be terminated at any time without the payment of any
penalty by the Manager, the Board of Trustees or by vote of a majority of the
outstanding voting securities of the Fund in the event that it shall have been
established by a court of competent jurisdiction that the Sub-Adviser or any
officer or director of the Sub-Adviser has taken any action that results in a
breach of the material covenants of the Sub-Adviser set forth herein.
The terms "assignment" and "vote of a majority of the outstanding voting
securities" shall have the meanings set forth in the 1940 Act and the rules and
regulations thereunder.
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Termination of this Agreement shall not affect the right of the
Sub-Adviser to receive payments on any unpaid balance of the compensation
described in Section 4 earned prior to such termination and for any additional
period during which Sub-Adviser serves as such for the Fund, subject to
applicable law.
9. Notice. Any notice under this Agreement shall be sufficient in all
respects if given in writing and delivered by commercial courier providing proof
of delivery and addressed as follows or addressed to such other person or
address as such party may designate for receipt of such notice.
If to the Manager or Fund: If to the Sub-Adviser:
Energy Income and Growth Fund Fiduciary Asset Management, LLC
First Trust Advisors ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Attention: General Counsel
If by Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If by Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10. Limitations on Liability. All parties hereto are expressly put on
notice of the Fund's Agreement and Declaration of Trust and all amendments
thereto, a copy of which is on file with the Secretary of the Commonwealth of
Massachusetts and a certified copy of which has been provided to the Sub-Adviser
prior to the date hereof, and the limitation of shareholder and trustee
liability contained therein. This Agreement is executed on behalf of the Fund by
the Fund's officers in their capacity as officers and not individually and are
not binding upon any of the Trustees, officers, or shareholders of the Fund
individually but the obligations imposed upon the Fund by this Agreement are
binding only upon the assets and property of the Fund, and persons dealing with
the Fund must look solely to the assets of the Fund and those assets belonging
to the subject Fund, for the enforcement of any claims.
11. References to the Sub-Adviser. The Manager may not use the names
"Fiduciary Asset Management" or any variations thereof or the logo of the
Sub-Adviser in the Fund's registration statement or any promotional or sales
materials without the prior approval of the Sub-Adviser, which the Sub-Adviser
may grant in its sole discretion. Such prior approval shall not be unreasonably
withheld. The Sub-Adviser shall provide to the Manager upon reasonable request
information relating to it for inclusion in any promotional materials, and shall
review and approve prior to first use any statements in such promotional
materials relating to the Sub-Adviser. The Sub-Adviser will prepare and/or
review such promotional materials on a basis which it believes in good faith is
accurate, not misleading and appropriate under the circumstances. In connection
with any such assistance, the Manager understands and agrees that it is the sole
responsibility of the Manager to ensure that the contents, distribution and use
of any promotional materials that are required to be filed with the National
Association of Securities Dealers comply at all times with any applicable
provisions of law in any relevant jurisdiction. The Manager further understands
and agrees that the Sub-Adviser has no expertise in such laws and has not
prepared or reviewed the promotional materials with reference to such laws, and
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that the Manager's approval of the contents of the promotional materials shall
constitute its agreement that the contents thereof comply with such law.
12. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement will be binding upon and shall inure to the benefit of the parties
hereto and their respective successors.
13. Applicable Law. This Agreement shall be construed in accordance with
applicable federal law and (except as to Section 10 hereof which shall be
construed in accordance with the laws of Massachusetts) the laws of the State of
Illinois.
14. Amendment, Etc. This Agreement may only be amended, or its provisions
modified or waived, in a writing signed by the party against which such
amendment, modification or waiver is sought to be enforced.
15. Authority. Each party represents to the others that it is duly
authorized and fully empowered to execute, deliver and perform this Agreement.
The Fund represents that engagement of Sub-Adviser has been duly authorized by
the Fund and is in accordance with the Fund's Declaration of Trust and other
governing documents of the Fund.
16. Severability. Each provision of this Agreement is intended to be
severable from the others so that if any provision or term hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remaining provisions and terms hereof; provided,
however, that the provisions governing payment of the Management Fee described
in Section 4 are not severable.
17. Entire Agreement. This Agreement constitutes the sole and entire
agreement of the parties hereto. Any written or oral agreements, statements,
promises, negotiations or representations not expressly set forth in this
Agreement are of no force and effect.
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IN WITNESS WHEREOF, the Fund, Manager and the Sub-Adviser have caused this
Agreement to be executed as of the day and year first above written.
FIRST TRUST ADVISORS L.P. FIDUCIARY ASSET MANAGEMENT, LLC
By: __________________________________ By: ___________________________________
Title: _____________________________ Title: ___________________________
ENERGY INCOME AND GROWTH FUND
By: ___________________________________
Title: ______________________________
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