ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of October 11, 2012 by and between BNY MELLON
INVESTMENT SERVICING (US) INC., a Massachusetts corporation ("BNY") and FIRST
TRUST MLP AND ENERGY INCOME FUND, a Massachusetts business trust (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain BNY to provide administration and
accounting services and BNY wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation
in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by BNY from an
Authorized Person or from a person reasonably believed by BNY to be
an Authorized Person. BNY may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" means the 1933 Act, the 1934 Act and the ▇▇▇▇ ▇▇▇.
(g) "Shares" mean the shares of beneficial interest of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by BNY or (ii) trade instructions
transmitted (and received by BNY) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints BNY to provide administration and
accounting services to the Fund, in accordance with the terms set forth in
this Agreement. BNY accepts such appointment and agrees to furnish such
services. BNY shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as may be
specifically agreed to by BNY and the Fund in a written amendment hereto.
BNY shall not bear, or otherwise be responsible for, any fees, costs or
expenses charged by any third party service providers engaged by the Fund
or by any other third party service provider to the Fund.
3. COMPLIANCE WITH RULES AND REGULATIONS.
BNY undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by BNY hereunder. Except as specifically set forth herein, BNY assumes no
responsibility for such compliance by the Fund or other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, BNY shall act only upon
Oral Instructions or Written Instructions.
(b) BNY shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by BNY to be an Authorized Person) pursuant to
this Agreement. BNY may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's board of directors
or of the Fund's shareholders, unless and until BNY receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to BNY Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
BNY or its affiliates) so that BNY receives the Written Instructions
by the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by BNY or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or BNY's ability to
rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If BNY is in doubt as to any action it should or
should not take, BNY may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If BNY shall be in doubt as to any question of
law pertaining to any action it should or should not take, BNY may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or BNY, at the option of
BNY). The Fund shall pay the reasonable cost of any counsel retained
by BNY with prior notice to the Fund.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions BNY receives
from the Fund and the advice BNY receives from counsel, BNY may rely
upon and follow the advice of counsel.
(d) Protection of BNY. BNY shall be indemnified by the Fund and without
liability for any action BNY takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions
BNY receives from or on behalf of the Fund or from counsel and which
BNY believes, in good faith, to be consistent with those directions
or advice and Oral Instructions or Written Instructions. Nothing in
this section shall be construed so as to impose an obligation upon
BNY (i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund which are in the
possession or under the control of BNY shall be the property of the
Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations provided the Fund provides BNY with written notice
of such laws, rules and regulations, other than the 1940 Act and the
Internal Revenue Code of 1986, as amended, that are applicable. The
Fund and Authorized Persons shall have access to such books and
records at all times during BNY's normal business hours upon
reasonable advance notice. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by BNY to the
Fund or to an Authorized Person, at the Fund's expense.
(b) BNY shall keep the following records:
(i) all books and records with respect to the Fund's books of
account;
(ii) records of the Fund's securities transactions; and
(iii) all other books and records as BNY is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or BNY and their respective subsidiaries and
affiliated companies; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund or BNY a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if: (a) it is necessary for BNY to release such information in connection
with the provision of services under this Agreement; (b) it is already
known to the receiving party at the time it is obtained; (c) it is or
becomes publicly known or available through no wrongful act of the
receiving party; (d) it is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (e) it is released by the protected party to a third
party without restriction; (f) it is requested or required to be disclosed
by the receiving party pursuant to a court order, subpoena, governmental
or regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (g) it is Fund information provided by BNY in
connection with an independent third party compliance or other review; (h)
it is relevant to the defense of any claim or cause of action asserted
against the receiving party; or (i) it has been or is independently
developed or obtained by the receiving party. BNY acknowledges and agrees
that in connection with its services under this Agreement it receives
non-public confidential portfolio holdings information ("Portfolio
Information") with respect to the Fund. BNY agrees that, subject to the
foregoing provisions of and the exceptions set forth in this Section 7
(other than the exception set forth above in this Section 7 as sub-item
(a), which exception set forth in sub-item (a) shall not be applicable to
the Fund's Portfolio Information), BNY will keep confidential the Fund's
Portfolio Information and will not disclose the Fund's Portfolio
Information other than pursuant to a Written Instruction (which Written
Instruction may be a standing Written Instruction); provided that without
the need for such a Written Instruction and notwithstanding any other
provision of this Section 7 to the contrary, the Fund's Portfolio
Information may be disclosed to third party pricing services which are
engaged by BNY in connection with the provision of services under this
Agreement and which shall be subject to a duty of confidentiality with
respect to such Portfolio Information.
8. LIAISON WITH ACCOUNTANTS. BNY shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to the
Fund. BNY shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Fund.
9. BNY SYSTEM. BNY shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by BNY in connection with
the services provided by BNY to the Fund.
10. DISASTER RECOVERY. BNY shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions
for emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
BNY shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. BNY shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by BNY's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by BNY during the term of this
Agreement, the Fund will pay to BNY a fee or fees as may be agreed
to in writing by the Fund and BNY.
(b) The undersigned hereby represents and warrants to BNY that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to BNY or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by BNY to such adviser or sponsor or any
affiliate of the Fund relating to this Agreement have been fully
disclosed to the board of directors of the Fund and that, if
required by applicable law, such board of directors has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless BNY and its
affiliates providing services under this Agreement, including their
respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) ("Claims")
arising directly or indirectly from any action or omission to act
which BNY takes in connection with the provision of services to the
Fund. Neither BNY, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability)
caused by BNY's or its affiliates' own willful misfeasance, bad
faith, negligence or reckless disregard in the performance of BNY's
or its affiliates activities under this Agreement. The provisions of
this Section 12 shall survive termination of this Agreement.
(b) Indemnification of the Fund. BNY agrees to defend, indemnify and
hold the Fund and its officers, directors and employees harmless
from any and all Claims arising directly or indirectly from the
negligence, bad faith, reckless disregard or willful misfeasance of
BNY and its affiliates in the performance of its duties hereunder.
Notwithstanding the foregoing, the Fund shall not be indemnified
against any Claim caused by the Fund's or the Fund's other service
providers' willful misfeasance, bad faith or negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks indemnification under
this Agreement must promptly give the other party notice of
any legal action; provided, however, that a delay in notice
does not relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying party
shows that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the
other party;
(2) is not liable to the other party for any later
attorney's fees or for any other later expenses that the
other party incurs, except for reasonable investigation
costs;
(3) must not compromise or settle the action without the
other party's consent (but the other party must not
unreasonably withhold its consent); and
(4) is not liable for any compromise or settlement made
without its consent.
(iii) Failing to Assume the Defense. If the indemnifying party fails
to participate in or assume the defense within 15 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party.
13. RESPONSIBILITY OF BNY.
(a) BNY shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by BNY and the Fund in a written amendment
hereto. BNY shall be obligated to exercise commercially reasonable
care and diligence in the performance of its duties hereunder and to
act in good faith in performing services provided for under this
Agreement. As set forth herein, and as may be agreed to in writing
from time to time by BNY and the Fund with regard to such matters of
liability, BNY shall be liable only for any damages arising out of
BNY's failure to perform its duties under this Agreement to the
extent such damages arise out of BNY's willful misfeasance, bad
faith, negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, BNY
shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; failure of the mails; or functions
or malfunctions of the internet, firewalls, encryption systems or
security devices caused by any of the above; and (ii) BNY shall not
be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which BNY
reasonably believes to be genuine. BNY shall not be liable for any
damages arising out of any action or omission to act by any prior
service provider of the Fund or for any failure to discover any such
error or omission.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party to this Agreement nor their respective affiliates shall be
liable for any consequential, incidental, exemplary, punitive,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by such party.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
BNY will perform the following accounting services with respect to the
Fund:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for the Fund (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of the Fund's
Investments in accordance with the Fund's valuation policies
or guidelines; provided, however, that BNY shall not under any
circumstances be under a duty to independently price or value
any of the Fund's investments, including securities lending
related cash collateral investments, or to confirm or validate
any information or valuation provided by the Adviser or any
other pricing source, nor shall BNY have any liability
relating to inaccuracies or otherwise with respect to such
information or valuations;
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xv) Calculate the change in the liability for Federal and state
taxes in conjunction with each NAV determination utilizing
estimates provided by the adviser for partnership income and
related state tax rates:
(xvi) Compute net asset value; and
(xvii) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
BNY will perform the following administration services with respect to the
Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iv) Prepare the Fund's annual and semi-annual shareholder reports;
(v) If the chief executive officer or chief financial officer of
the Fund is required to provide a certification as part of the
Fund's Form N-Q or Form N-CSR filing pursuant to regulations
promulgated by the Securities and Exchange Commission under
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, BNY will
provide (to such person or entity as agreed between the Fund
and BNY) a sub-certification in support of certain matters set
forth in the aforementioned certification, such
sub-certification to be in such form and relating to such
matters as agreed between the Fund and BNY from time to time.
BNY shall be required to provide the sub-certification only
during the term of the Agreement and only if it receives such
cooperation as it may request to perform its investigations
with respect to the sub-certification. For clarity, the
sub-certification is not itself a certification under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or under any other regulatory
requirement;
(vi) Supply supporting tax documentation and calculations,
including but not limited to, wash sales reporting and
qualified covered call analyses;
(vii) Assist the Fund in the handling of SEC examinations and
responses thereto; and
(viii) Such other regulatory services as the parties hereto may from
time to time agree upon in writing.
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue until
June 12, 201_ (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Fund or BNY provides written notice to the
other of its intent not to renew. Such notice must be received not
less than ninety (90) days prior to the expiration of the Initial
Term or the then current Renewal Term.
(c) In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion
thereof to a successor accounting and administration services
agent(s) (and any other service provider(s)), and all trailing
expenses incurred by BNY, will be borne by the Fund and paid to BNY
if known at such time prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to BNY, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (or such other
address as BNY may inform the Fund in writing); (b) if to the Fund, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇ fax
(▇▇▇) ▇▇▇-▇▇▇▇ (or such other address as the Fund may inform BNY in
writing); or (c) if to neither of the foregoing, at such other address as
shall have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given three days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought
19. ASSIGNMENT; SUBCONTRACTING. BNY may assign its rights hereunder to any
affiliate of BNY provided that BNY gives the Fund thirty (30) days prior
written notice of such assignment. Notwithstanding the foregoing, BNY may
subcontract with, hire, engage or otherwise outsource to any third party
with respect to the performance of any one or more of the functions,
services, duties or obligations of BNY under this Agreement but any such
subcontracting, hiring, engaging or outsourcing shall not relieve BNY of
any of its liabilities hereunder.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the Fund
agrees not to make any modifications to its registration statement
or adopt any policies which would affect materially the obligations
or responsibilities of BNY hereunder without the prior written
approval of BNY, which approval shall not be unreasonably withheld
or delayed. The scope of services to be provided by BNY under this
Agreement shall not be increased as a result of new or revised
regulatory or other requirements that may become applicable with
respect to the Fund, unless the parties hereto expressly agree in
writing to any such increase.
(b) During the term of this Agreement and for one year thereafter, the
Fund shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or
hire any of BNY's employees, and the Fund shall cause the Fund's
sponsor and the Fund's affiliates to not (with the exceptions noted
in the immediately succeeding sentence) knowingly solicit or recruit
for employment or hire any of BNY's employees. To "knowingly"
solicit, recruit or hire within the meaning of this provision does
not include, and therefore does not prohibit, solicitation,
recruitment or hiring of a BNY employee by the Fund, the Fund's
sponsor or an affiliate of the Fund if the BNY employee was
identified by such entity solely as a result of the BNY employee's
response to a general advertisement by such entity in a publication
of trade or industry interest or other similar general solicitation
by such entity
(c) Except as expressly provided in this Agreement, BNY hereby disclaims
all representations and warranties, express or implied, made to the
Fund or any other person, including, without limitation, any
warranties regarding quality, suitability, merchantability, fitness
for a particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement. BNY
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(d) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(e) 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.
(f) Notwithstanding any provision hereof, the services of BNY are not,
nor shall they be, construed as constituting legal advice or the
provision of legal services for or on behalf of the Fund or any
other person. Neither this Agreement nor the provision of services
under this Agreement establishes or is intended to establish an
attorney-client relationship between the Fund and BNY.
(g) The Fund will provide such information and documentation as BNY may
reasonably request in connection with services provided by BNY to the
Fund.
(h) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts
of law.
(i) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(j) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. Except as may be explicitly stated in this Agreement, (i)
this Agreement is not for the benefit of any other person or entity
and (ii) there shall be no third party beneficiaries hereof.
(k) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(l) The Fund and BNY agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the directors of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such directors nor such
execution and delivery by such officer shall be deemed to have been
made by any of them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property of the
Fund (or applicable series thereof), as provided in the Articles of
Incorporation or Declaration of Trust.
(m) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of BNY's
affiliates are financial institutions, and BNY may, as a matter of
policy, request (or may have already requested) the Fund's name,
address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. BNY may also ask (and
may have already asked) for additional identifying information, and
BNY may take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BNY MELLON INVESTMENT SERVICING (US) INC.
By:
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
FIRST TRUST MLP AND ENERGY INCOME FUND
By:
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Name: ____________________
Title: ____________________