EXECUTION
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of June 23, 2016, by and between FIRST TRUST
EXCHANGE-TRADED FUND VIII (the "Trust"), a Massachusetts business trust, having
its principal office and place of business at 000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000 (the "Trust") and THE BANK OF NEW YORK MELLON, a New
York banking corporation having its principal office and place of business at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Bank").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Trust, so authorized, intends that this Agreement be
applicable to each of its series as set forth on Exhibit A (each such series
together with all other series subsequently established by the Trust and made
subject to this Agreement by amendment hereof in accordance with Section 11,
being referred to as a "Fund' and collectively as the "Funds"); and
WHEREAS, the Trust and designated agents will issue for purchase and
redeem shares of the Funds only in aggregations of shares known as "Creation
Units" (50,000 shares or such other aggregation as is specified in the
prospectus for a Fund) (each a "Creation Unit") principally in kind;
WHEREAS, The Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York ("DTC"), or its nominee (Cede
& Co.), will be the initial record or registered owner (the "Shareholder") of
all shares;
WHEREAS, the Trust on behalf of the Funds (identified on Exhibit A as the
same may be amended from time to time) desires to appoint the Bank as its
transfer agent, dividend disbursing agent, and agent in connection with certain
other activities, and the Bank desires to accept such appointment;
Now, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
SECTION 1. TERMS OF APPOINTMENT; DUTIES OF THE BANK.
Section 1.1. Subject to the terms and conditions set forth in this
Agreement, the Trust, on behalf of the Funds, hereby employs and appoints the
Bank to act as, and the Bank agrees to act as its transfer agent for the
authorized and issued shares of beneficial interest, $.01 par value per share of
each Fund ("Shares"), and as the Trust's dividend disbursing agent.
Section 1.2. The Bank agrees that it will perform the following services:
(a) The Bank shall enter into Participant Agreements with the
Participants identified therein in the form attached hereto as Exhibit B
with such changes and modifications as shall be approved by the
Distributor identified therein (the Distributor's execution of the
Participant Agreement being conclusive as to its approval of any such
changes and modifications), provided that no changes or modifications
which adversely affect the Bank's rights or obligations shall be made
without its consent, and in accordance with the terms and conditions of
such Participant Agreements the Bank shall:
(i) Perform and facilitate the performance of purchases and
redemption of Creation Units;
(ii) Prepare and transmit by means of DTC's book-entry system
payments for dividends and distributions declared by the Trust on
behalf of the applicable Fund;
(iii) Maintain the record of the name and address of the
Shareholder and the number of Shares issued by the Funds of the
Trust and held by the Shareholder;
(iv) Record the issuance of Shares of the respective Funds of
the Trust and maintain a record of the total number of outstanding
Shares of the Funds of the Trust, and, which are authorized, based
upon data provided to it by the Trust. The Bank shall have no
obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating
to the issue or sale of such Shares, which functions shall be the
sole responsibility of the Trust.
(v) Prepare and transmit to the Trust and the Trust's
administrator and to any applicable securities exchange (as
specified to the Bank by the administrator or by the Trust)
information with respect to purchases and redemptions of Shares;
(vi) On days that the Trust may accept orders for purchases
or redemptions, calculate and transmit to the Bank and the Trust's
administrator the number of outstanding Shares for each Fund;
(vii) On days that the Trust may accept orders for purchases
or redemptions (pursuant to the Participant Agreement), transmit to
the Bank, the Trust and DTC the amount of Shares purchased on such
day;
(viii) Confirm to DTC the number of Shares issued to the
Shareholder, as DTC may reasonably request;
(ix) Prepare and deliver other reports, information and
documents to DTC as DTC may reasonably request;
(x) Extend the voting rights to the Shareholder and/or
beneficial owners of Shares in accordance with the policies and
procedures of DTC for book-entry only securities;
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(xi) Distribute or maintain, as directed by the Trust,
amounts related to purchases and redemptions of Creation Units and
dividends and distributions;
(xii) Maintain those books and records of the Trust specified
by the Trust in Schedule A attached hereto;
(xiii) Prepare a monthly report of all purchases and
redemptions during such month on a gross transaction basis and
identify on a daily basis the net number of Shares either redeemed
or purchased on such business day and with respect to the
Participant (as defined in the Participant Agreement) purchasing or
redeeming Shares, the amount of Shares purchased or redeemed;
(xiv) Receive from the Distributor (as defined in the
Participant Agreement) purchase orders from Participants (as defined
in the Participant Agreement) for Creation Unit aggregations of
Shares received in good form and accepted by or on behalf of the
Trust by the Distributor, transmit appropriate trade instructions to
the National Securities Clearance Corporation ("NSCC") and/or DTC,
if applicable, and pursuant to such orders issue the appropriate
number of Shares of the applicable Fund and hold such Shares in the
account of the Shareholder for each of the respective Funds of the
Trust;
(xv) Receive from the Participants (as defined in the
Participant Agreement) redemption requests, deliver the appropriate
documentation thereof to The Bank of New York Mellon as custodian
for the Trust, generate and transmit or cause to be generated and
transmitted confirmation of receipt of such redemption requests to
the Participants submitting the same; transmit appropriate trade
instructions to the NSCC and/or DTC, if applicable, and redeem the
appropriate number of Creation Unit Aggregations of Shares held in
the account of the Shareholder;
(xvi) Confirm the name, U.S. taxpayer identification number
and principal place of business of each Authorized Participant; and
(xvii) Act in conformity with the Trust's Declaration of
Trust, as presently in effect and as amended from time to time, the
Trust's By-Laws, each Fund's prospectus, all as provided to the Bank
by the Trust or its adviser, and will be subject to the standard set
forth in Section 6, comply with and conform to the requirements of
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the 1940 Act, the Securities Exchange Act of 1934, as amended,
particularly Section 17A thereof, and all other applicable federal
and state laws, regulations and rulings as such apply to the Bank
and the services provided as contemplated herein.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: perform the
customary services of a transfer agent and dividend disbursing agent
including but not limited to: maintaining the account of the Shareholder;
obtaining a list of DTC participants holding interests in the Global
Certificate at the request of the Trust; mailing proxy materials,
shareholder reports and prospectuses to the Shareholder or DTC
participants or beneficial owners of Shares at the request of the Trust;
and maintaining the items set forth on Schedule A attached hereto and
performing such services identified in each Participant Agreement.
(c) The following shall be delivered to DTC for delivery to
beneficial owners in accordance with the procedures for book-entry only
securities of DTC:
(i) Annual and semi-annual reports of the Funds of the
Trust;
(ii) Trust proxies, proxy statements and other proxy
soliciting materials;
(iii) The Trust's prospectus(es) and amendments and
supplements to the Prospectus, including stickers; and
(iv) Other communications or materials as may be required by
law or reasonably requested by the Trust.
(d) If the Shares are represented by individual Certificates, the
Bank shall perform the services agreed to in writing by the Bank and the
Trust.
(e) The Bank shall provide additional services (if any) on behalf
of the Trust (i.e., escheatment services) which may be agreed upon in
writing between the Trust and the Bank.
(f) The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner required by applicable law,
rules and regulations under the 1940 Act. To the extent required by
Section 31 of the 1940 Act and the rules thereunder (the "Rules"), the
Bank agrees that all such records prepared or maintained by the Bank
relating to the services to be performed by the Bank hereunder are the
property of the Trust and will be preserved, maintained and made available
in accordance with such Section and Rules, and will be surrendered
promptly to the Trust on and in accordance with its request.
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SECTION 2. FEES AND EXPENSES.
Section 2.1. The Bank shall receive from the Trust such compensation for
the Transfer Agent's services provided pursuant to this Agreement as may be
agreed to from time to time in a written fee schedule approved by the parties.
The fees are accrued daily and billed monthly and shall be due and payable upon
receipt of the invoice. Upon the termination of this Agreement before the end of
any month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this Agreement.
Section 2.2. In addition to the fee paid under Section 2.1 above, the
Trust on behalf of the applicable Fund agrees to reimburse the Bank for
reasonable out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche, tabulating
proxies, records storage, or advances incurred by the Bank for the items set out
in the fee schedule attached hereto or relating to dividend distributions and
reports (whereas all expenses related to creations and redemptions of the
securities of any Fund shall be borne by the relevant Participant in such
creations and redemptions). In addition, any other expenses incurred by the Bank
at the request or with the consent of the Trust, will be reimbursed by the Trust
on behalf of the applicable Fund.
Section 2.3. The Trust on behalf of the applicable Fund agrees to pay all
fees and reimbursable expenses within ten business days following the receipt of
the respective billing notice accompanied by supporting documentation, as
appropriate. Postage for mailing of dividends, proxies, reports and other
mailings to all shareholder accounts shall be advanced to the Bank by the Trust
at least seven (7) days prior to the mailing date of such materials.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF TFIE BANK.
Section 3.1. The Bank represents and warrants to the Trust that:
It is a banking corporation duly organized and existing and in good
standing under the laws of the State of New York.
It is duly qualified to carry on its business in the State of New
York.
It is empowered under applicable laws and by its Charter and By-Laws
to act as transfer agent and dividend disbursing agent and to enter into
and perform its obligations under this Agreement.
All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
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It has obtained all regulatory licenses, approvals and consents
necessary to carry on its business as currently conducted; there is no
statue, regulation, rule, order or judgment binding on the Bank and no
provisions of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on the Bank or affecting its
property which would prohibit the execution or performance by the Bank of
this Agreement.
It has established and will continue to maintain throughout the term
of this Agreement, policies and procedures reasonably designed to comply
with the requirements of applicable law relating to the privacy of
non-public personal consumer financial information.
It has implemented and shall maintain appropriate policies,
procedures and processes reasonably designed to satisfy the requirements
of federal and New York Law applicable to Bank, including, without
limitations, the requirements of The Xxxxx- Xxxxx-Xxxxxx Act (15 U.S.C.
Section 6801 and 6805) and regulations promulgated thereunder and the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information issued by the Board of Governors of the Federal Reserve
System.
No legal or administrative proceedings have been instituted or
threatened which would impair the Bank's ability to perform its duties and
obligations under this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE TRUST.
Section 4.1. The Trust represents and warrants to the Bank that:
It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
A registration statement under the Securities Act of 1933, as amended, on behalf
of each of the Funds will become effective or is currently effective and will
remain effective, and appropriate state securities law filings have been made
and will continue to be made, with respect to all Shares of the Funds of the
Trust being offered for sale.
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SECTION 5. RESERVED.
SECTION 6. INDEMNIFICATION.
Section 6.1. Except for Losses (as defined below) for which the Bank has
accepted liability pursuant to Section 6 of this Agreement, the Bank shall not
be responsible for, and the Trust on behalf of the applicable Fund shall
indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability ("Losses
") arising out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors required
to be taken pursuant to this Agreement, provided that such actions are
taken without negligence, bad faith or willful misconduct. NSCC, DTC or
any third party described in Section 5 are not agents or subcontractors of
the Bank.
(b) The Trust's negligence or willful misconduct in respect of the
applicable Fund.
(c) The breach of any representation or warranty of the Trust
hereunder in respect of the applicable Fund.
(d) The reasonable reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services in respect
of the applicable Fund which (i) are received by the Bank or its agents or
subcontractors, and (ii) have been prepared, maintained or performed by
the Trust or any other person or firm on behalf of the Trust in respect of
the applicable Fund including but not limited to any previous transfer
agent or registrar.
(e) The reasonable reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests of the Trust
on behalf of the applicable Fund.
(f) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such
Shares in such state.
In no event shall the Trust be liable for special, indirect or
consequential damages, regardless of the form of action and even if the
same were foreseeable.
Section 6.2. At any time the Bank may apply to any officer of the Trust
for instructions, and may consult with legal counsel of the Bank's choosing with
respect to any matter arising in connection with the services to be performed by
the Bank under this Agreement, and the Bank and its agents or subcontractors
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shall not be liable and shall be indemnified by the Trust on behalf of the
applicable Fund for any action taken or omitted by it in reasonable reliance
upon such instructions or upon the advice or opinion of such counsel and shall
promptly advise the Trust of such advice or opinion (except for actions or
omissions by Bank taken with negligence or willful misconduct). The Bank, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document, reasonably believed to be genuine and to have been signed by
the proper person or persons, or upon any instruction, information, data,
records or documents provided the Bank or its agents or subcontractors by
machine readable input, CRT data entry or other similar means authorized by the
Trust, and shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Trust.
Section 6.3. Neither the Trust nor any Fund shall be responsible for, and
the Bank shall be liable for and shall indemnify the Trust and the applicable
Fund against direct money damages arising out of or attributable to:
(a) The Bank's own negligence, bad faith or willful misconduct.
(b) The breach of any representation or warranty of the Bank
hereunder.
Section 6.4. The provisions of Section 6 shall survive and remain in effect
after any termination of this Agreement or any resignation or removal of the
Bank as transfer agent hereunder.
SECTION 7. STANDARD OF CARE.
The Bank shall act in good faith, reasonable care, diligence and prudence
in carrying out its duties and obligations set forth herein as a professional
transfer agent would exercise under the facts and circumstances. The Bank shall
have no responsibility and shall not be liable for any loss or damage unless
such loss or damage is caused by its own negligence, bad faith or willful
misconduct or that of its employees, or its breach of any of its representations
or warranties hereunder. In no event shall the Bank be liable for special,
indirect or consequential damages regardless of the form of action and even if
the same were foreseeable.
SECTION 8. CONCERNING THE BANK.
Section 8.1. The Bank may, at its own expense, enter into subcontracts,
agreements and understandings with any Bank affiliate, whenever and on such
terms and conditions as it deems necessaiy or appropriate to perform its
services hereunder. No such subcontract, agreement or understanding shall
discharge the Bank from its obligations hereunder and the Bank shall be liable
and responsible to the Trust for any act or omission of any Bank affiliate in
the manner, and to the same extent, as though such act or omission were that of
the Bank.
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Section 8.2. The Bank shall be entitled to conclusively rely upon any
written or oral instruction actually received by the Bank and reasonably
believed by the Bank to be duly authorized and delivered. The Trust agrees to
forward to Bank written instructions confirming oral instructions by the close
of business of the same day that such oral instructions are given to the Bank.
The Trust agrees that the fact that such confirming written instructions are not
received or that contrary written instructions are received by the Bank shall in
no way affect the validity or enforceability of transactions authorized by such
oral instructions and effected by the Bank. If the Trust elects to transmit
written instructions through an on-line communication system offered by the
Bank, the Trust's use thereof shall be subject to the terms and conditions
attached hereto as Appendix A.
Section 8.3. The Bank shall establish and maintain a disaster recovery plan
and back-up system at all times satisfying the requirements of all applicable
law, rules, and regulations (the "Disaster Recovery Plan and Back-Up System ").
The Bank shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its control which are not a
result of its negligence, including without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities,
transportation, computer (hardware or software) or communications service;
accidents; labor disputes; acts of civil or military authority; governmental
actions; or inability to obtain labor, material, equipment or transportation,
provided that the Bank has established and is maintaining the Disaster Recovery
Plan and Back-Up System, or if not, that such delay or failure would have
occurred even if Bank had established and was maintaining the Disaster Recovery
Plan and Back-Up System. Upon the occurrence of any such delay or failure, the
Bank shall use commercially reasonable best efforts to resume performance as
soon as practicable under the circumstances.
Section 8.4. The Bank shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement and each Participant Agreement, and no covenant or obligation shall be
implied against the Bank in connection with this Agreement except as set forth
in this Agreement and each Participant Agreement.
Section 8.5. At any time the Bank may apply to an officer of the Trust for
written instructions with respect to any matter arising in connection with the
Bank's duties and obligations under this Agreement, and the Bank shall not be
liable for any action taken or omitted to be taken by the Bank in good faith and
without negligence or willful misconduct in accordance with such instructions.
Such application by the Bank for instructions from an officer of the Trust may,
at the option of the Bank, set forth in writing any action proposed to be taken
or omitted to be taken by the Bank with respect to its duties or obligations
under this Agreement and the date on and/or after which such action shall be
taken, and the Bank shall not be liable for any action taken or omitted to be
taken in accordance with a proposal included in any such application on or after
the date specified therein unless, prior to taking or omitting to take any such
action, the Bank has received written instructions in response to such
application specifying the action to be taken or omitted. In connection with the
foregoing, if the Bank personnel who are responsible for receiving and/or
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implementing such Trust instructions have actual knowledge that any instructions
provided by the Trust at the request of the Bank pursuant to this section would
cause the Bank to take any action or omit to take any action in a manner
contrary to any law or regulation, the Bank will notify the Customer of its
concerns, without any liability for failing to do so. If the Bank shall be in
doubt as to any question of law pertaining to any action it should take or
should not take, the Bank may request advice from outside counsel (who may be
counsel for the Trust, the Trust's investment adviser or the Bank, at the option
of the Bank). The Bank shall pay the cost of any counsel retained by the Bank.
The Bank shall not be liable with respect to anything done or omitted by it in
good faith and without negligence or willful misconduct in accordance with the
advice or opinion of such counsel.
Section 8.6. Notwithstanding any provisions of this Agreement to the
contrary, the Bank shall be under no duty or obligation to inquire into, and
shall not be liable for:
(a) The legality of the issue, sale or transfer of any Shares, the
sufficiency of the amount to be received in connection therewith, or the
authority of the Trust to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency of
the amount to be paid in connection therewith, or the authority of the
Trust to request such purchase;
(c) The legality of the declaration of any dividend by the Trust in
respect of the Shares of any Fund, or the legality of the issue of any
Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the
Shares.
SECTION 9. COVENANTS OF THE TRUST AND THE BANK
Section 9.1. The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Trust authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Trust and
all amendments thereto.
(c) Shares will be transferred upon presentation to the Bank of
Shares to its electronic account at DTC, accompanied by such documents as
the Bank deems necessary to evidence the authority of the person making
such transfer, and bearing satisfactory evidence of the payment of
applicable stock transfer taxes, if any. In the case of small estates
where no administration is contemplated, the Bank may, when furnished with
an appropriate surety bond, and without further approval of the Trust,
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transfer Shares registered in the name of the decedent where the current
market value of the Shares being transferred does not exceed such amount
as may from time to time be prescribed by the various states. The Bank
reserves the right to refuse to transfer Shares until it is satisfied that
the endorsements on documents submitted to it are valid and genuine, and
for that purpose it may require, unless otherwise instructed by an Officer
of the Trust, a guaranty of signature by an "eligible guarantor
institution" meeting the requirements of the Bank, which requirements
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Bank in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended. The Bank also reserves the right to refuse to
transfer Shares until it is satisfied that the requested transfer is
legally authorized, and it shall incur no liability for the refusal in
good faith and without negligence or willful misconduct to make transfers
which the Bank, in its judgment, deems improper or unauthorized, or until
it is satisfied that there is no basis to any claims adverse to such
transfer. The Bank may, in effecting transfers of Shares, rely upon those
provisions of the Uniform Act for the Simplification of Fiduciary Security
Transfers or the Uniform Commercial Code, as the same may be amended from
time to time, applicable to the transfer of securities, and the Trust on
behalf of the applicable Fund shall indemnify the Bank for any act done or
omitted by it in good faith and without negligence or willftil misconduct
in reliance upon such laws.
(d) The Bank assumes no responsibility with respect to the transfer
of restricted securities where counsel for the Trust advises that such
transfer may be properly effected.
Section 9.2. The Trust shall deliver to the Bank the following documents
on or before the initial issuance of Shares of any Fund:
(a) At the reasonable request of the Bank, an opinion of counsel for
the Trust, in a form satisfactory to the Bank, with respect to the
validity of the Shares, the obtaining of all necessary governmental
consents, whether such Shares are fully paid and nonassessable and the
status of such Shares under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and any other applicable
federal law or regulations (i.e., if subject to registration, that they
have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefore); and
(b) A certified copy of a resolution of the Board of Directors of
the Trust establishing the authority of the Bank.
Section 9.3. Prior to the issuance of any additional Shares of any Fund
pursuant to stock dividends or stock splits, and prior to any reduction in the
number of Shares of any Fund outstanding pursuant to any reverse stock split,
the Trust shall deliver the following documents to the Bank:
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(a) A certified copy of the resolutions adopted by the Board of
Trustees and/or the shareholders of the applicable Fund authorizing such
issuance of additional Shares of the Fund or such reduction, as the case
may be;
(b) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance or
reduction of such Shares, as the case may be; and
(c) At the request of the Bank, an opinion of counsel for the Trust,
in a form satisfactory to the Bank, with respect to the validity of the
Shares, whether such Shares are fully paid and non-assessable and the
status of such Shares under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and any other applicable
federal law or regulations (i.e., if subject to registration, that they
have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefore).
Section 9.4. The Bank agrees that all books and records listed on Schedule
A hereto or otherwise prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder as required by applicable law are
the property of the Trust and will be preserved, maintained and made available
upon reasonable request, and will be surrendered promptly to the Trust on and in
accordance with its request.
Section 9.5. 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 Trust or the Bank 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 Trust or the Bank 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 the Bank
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
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relevant to the defense of any claim or cause of action asserted against the
receiving party; (h) it has been or is independently developed or obtained by
the receiving party; or (i) it is necessary for Bank to release such information
to the Bank's internal or external accountants or legal counsel who are subject
to a duty of confidentiality. Bank 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
Trust. Bank agrees that, subject to the foregoing provisions of and the
exceptions set forth in this Section 9.5 (other than the exception set forth
above in this Section 9.5 as sub-item (a), which exception set forth in sub-item
(a) shall not be applicable to the Trust's Portfolio Information), Bank will
keep confidential the Trust's Portfolio Information and will not disclose the
Trust's Portfolio Information other than pursuant to a written instruction from
the Trust; provided that without the need for such a written instruction and
notwithstanding any other provision of this Section 9.5 to the contrary, the
Trust's Portfolio Information may be disclosed to third party pricing services
which are engaged by Bank 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.
Section 9.6. In case of any requests or demands for the inspection of the
Shareholder records of a Fund of the Trust, the Bank will endeavor to promptly
notify the Trust and to secure instructions from an authorized officer of the
Trust as to such inspection. The Bank reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to exhibit the Shareholder records to such
person.
Section 9.7. The Bank shall file such appropriate information returns
concerning the payment and composition of dividends and capital gain
distributions and tax withholding with the proper Federal, State and local
authorities as are required by law to be filed by the Trust and shall withhold
such sums as are required to be withheld by applicable law.
Section 9.8. From time to time as requested by the Trust, the Bank shall
provide to the Trust such certifications and sub-certifications, in the form
reasonably agreed to by the Trust and Bank, with respect to Form N-Qs, Form
N-CSRs, compliance policies and procedures under Rule 38a-l under the Investment
Company Act of 1940, as amended, and such other matters that may be reasonably
requested by the Trust or the Trust's Chief Compliance Officer from time to
time. In addition, the Bank will, from time to time, provide a written
assessment of its compliance program in conformity with current industry
standards that is reasonably acceptable to enable the Trust to fulfill its
obligations under Rule 38a-l of the Investment Company Act of 1940, as amended.
SECTION 10. TERMINATION OF AGREEMENT.
Section 10.1. Either of the parties may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such termination,
which shall not be less than ninety (90) days after the date of giving such
notice.
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Section 10.2. Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Trust. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination.
Section 10.3. Either party hereto may terminate this Agreement immediately
by sending notice thereof to the other party upon the happening of any of the
followings: (i) a party commences as debtor any case or proceeding under any
bankruptcy, insolvency or similar law, or there is commenced against such party
any such case or proceeding; (ii) a party commences as debtor any case or
proceeding seeking the appointment of a receiver, conservator, trustee,
custodian or similar official for such party or any substantial part of its
property or there is commenced against the party any such case or proceeding;
(iii) a party makes a general assignment for the benefit of creditors; or (iv) a
party states in any medium, written, electronic or otherwise, any public
communication or in any other public manner its inability to pay debts as they
come due, Either party hereto may exercise its termination right under this
Section 10.2 at any time after occurrence of any of the foregoing events
notwithstanding that such event may cease to be continuing prior to such
exercise, and any delay in exercising this right shall not be construed as a
waiver or other extinguishment of that right.
Section 10.4 The terms of Section 2 and Section 6 shall survive the
termination of this Agreement.
SECTION 11. ADDITIONAL FUNDS.
Section 11.1. In the event that the Trust establishes one or more
additional Funds with respect to which it desires to have the Bank render
services as transfer agent under the terms hereof, it shall so notify the Bank
in writing, and if the Bank agrees in writing to provide such services, such
additional issuance shall become Shares hereunder and Exhibit A shall be amended
to include the Fund.
SECTION 12. ASSIGNMENT.
Section 12.1. Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other party.
Section 12.2. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
SECTION 13. SEVERABILITY AND BENEFICIARIES.
Section 13.1. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected thereby. This Agreement shall extend to and shall be binding upon the
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parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by either party without the written
consent of the other.
Section 13.2. This Agreement is solely for the benefit of the Bank and the
Trust, and none of any authorized Participant (as defined in the Participation
Agreement), any Shareholder or beneficial owner of any Shares shall be or be
deemed a third party beneficiary of this Agreement.
SECTION 14. AMENDMENT.
Section 14.1. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Trustees of the Trust.
SECTION 15. NEW YORK LAW TO APPLY
Section 15.1. This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of laws
principles thereof. The Trust and the Bank hereby consent to the jurisdiction of
a state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Trust and the Bank hereby irrevocably waive,
to the fullest extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any such proceeding brought in
such a court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. The Trust and the Bank each hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding arising out
of or relating to this Agreement.
SECTION 16. MERGER OF AGREEMENT.
Section 16.1. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
SECTION 17. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS,
Section 17.1. It is expressly acknowledged and agreed that the obligations
of the Trust (and Funds thereof) hereunder shall not be binding upon any of the
shareholders, Trustees, officers, employees or agents of the Trust (and Funds
thereof), personally, but shall bind only the trust property of the Trust and
the applicable Fund, as provided in the Trust's Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by an officer of the Trust, acting as such, and neither
such authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust and the applicable Fund as provided in the Trust's
Declaration of Trust.
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Section 17.2. This Agreement is an agreement entered into between the Bank
and the Trust with respect to each Fund. With respect to any obligation of the
Trust on behalf of any Fund arising out of this Agreement, the Bank shall look
for payment of such obligation solely to the assets of the Fund to which such
obligation relates with the same effect as if the Bank had separately contracted
with the Trust by separate written instrument with respect to each Fund.
Section 173. As used herein, the "applicable Fund" shall be each Fund in
respect of which any amount due the Bank arises, and if any amount due the Bank
arises in respect of more than one Fund, the same shall be allocated by the Bank
among such Funds in accordance with Section 17.2. Any amounts due the Bank which
may not be allocated in accordance with the preceding sentence shall constitute
General Liabilities as defined in the Trust's Declaration of Trust and allocated
by the Trust and paid in accordance with the provisions thereof.
SECTION 18. NOTICES.
Section 18.1. Each notice, request, demand, approval or other
communication which may be or is required to be given under this Agreement shall
be in writing in English and shall be deemed to have been sufficiently given
when received by the intended party, if delivered personally at the address set
forth below for the intended party during normal business hours at such address,
if sent by facsimile transmission to the respective facsimile transmission
numbers of the parties set forth below, or if sent by recognized overnight
courier service or by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Trust: First Trust Exchange-Traded Fund VIII
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
Confirm: 000-000-0000
IftoBNYM: The Bank of New York Mellon
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: 000 000-0000
Confirm: 000 000-0000
Notices shall be given to such other addressee or address, or both, or by way of
such other facsimile transmission number, as a particular party may from time to
time designate by written notice to the other parties hereto given in accordance
with this Section.
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SECTION 19. COUNTERPARTS.
Section 19.1. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
SECTION 20. INFORMATION SHARING.
The Bank of New York Mellon Corporation is a global financial organization
that provides services to clients through its affiliates and subsidiaries in
multiple jurisdictions (the "BNY Mellon Group"). The BNY Mellon Group may
centralize functions including audit, accounting, risk, legal, compliance,
sales, administration, product communication, relationship management, storage,
compilation and analysis of customer-related data, and other functions (the
"Centralized Functions") in one or more affiliates, subsidiaries and third-party
service providers. Solely in connection with the Centralized Functions, (i) the
Trust consents to the disclosure of and authorizes the Bank to disclose
information regarding the Trust ("Customer-Related Data") to the BNY Mellon
Group and to its third-party service providers who are subject to
confidentiality obligations with respect to such information and (ii) the Bank
may store the names and business contact information of the Trust's employees
and representatives on the systems or in the records of the BNY Mellon Group or
its service providers. The BNY Mellon Group may aggregate Customer-Related Data
with other data collected and/or calculated by the BNY Mellon Group, and
notwithstanding anything in this Agreement to the contrary the BNY Mellon Group
will own all such aggregated data, provided that the BNY Mellon Group shall not
distribute the aggregated data in a format that identifies Customer-Related Data
with a particular customer. The Trust confirms that it is authorized to consent
to the foregoing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
FIRST TRUST EXCHANGE-TRADED FUND VIII
By /s/ Xxxxx X. Xxxxx
------------------------------
Name : Xxxxx X. Xxxxx
-----------------------
Title: President
-----------------------
THE BANK OF NEW YORK MELLON
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name : Xxxxxxx X. Xxxxxxx
-----------------------
Title: Managing Director
-----------------------
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EXHIBIT A
Funds of First Trust Exchange-Traded Fund VIII
As of _______________________
Exhibit A
SCHEDULE A
BOOKS AND RECORDS TO BE MAINTAINED BY BANK
Source Documents requesting Creations and Redemptions
Correspondence/AP Inquiries
Reconciliations, bank statements, copies of canceled checks, cash proofs
Daily/Monthly reconciliation of outstanding units between the Trust and DTC
Net Asset Computation Documentation Dividend Records
Year-end Statements and Tax Forms
Schedule A
EXHIBIT B
FORM OF PARTICIPANT AGREEMENT
To be provided
Exhibit B
Attachment A
Appendix A
