INVESTMENT SUB-ADVISORY AGREEMENT
INVESTMENT SUB-ADVISORY AGREEMENT made as of this 9th day of February,
2017 by and among the First Trust Exchange-Traded Fund VIII, a Massachusetts
business trust (the "Trust"), First Trust Advisors L.P., an Illinois limited
partnership (the "Manager") and a registered investment adviser with the
Securities and Exchange Commission ("SEC"), and TCW Investment Management
Company LLC, a Delaware limited liability company and a registered investment
adviser with the SEC (the "Sub-Adviser").
WHEREAS, the First Trust TCW Opportunistic Fixed Income ETF (the "Fund")
is a series of the Trust, an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust has retained the Manager to serve as the investment
adviser for the Fund pursuant to an Investment Management Agreement dated
September 13, 2016 between the Manager and the Trust (as such agreement may be
modified from time to time, the "Management Agreement");
WHEREAS, the Management Agreement provides that the Manager may, subject
to certain requirements, appoint a sub-adviser at its own cost and expense for
the purpose of furnishing certain services required under the Management
Agreement;
WHEREAS, pursuant to the Management Agreement, the Fund will pay to the
Manager, at the end of each calendar month, and the Manager agrees to accept as
full compensation therefore, an investment management fee (the "Investment
Management Fee") currently equal to an annual rate of 0.65% of the Fund's
average daily net assets, and the Manager will pay all of the expenses of the
Fund (including the cost of transfer agency, sub-advisory, custody, fund
administration, legal, audit and other services and license fees, if any) but
excluding the fee payment under the Management Agreement, interest, taxes,
brokerage commissions and other expenses connected with the execution of
portfolio transactions (such as dividend and distribution expenses from
securities sold short and/or other investment related costs), distribution and
service fees payable pursuant to a Rule 12b-1 Plan, if any, and extraordinary
expenses (collectively, the "Fund Expenses"); and
WHEREAS, the Trust and the Manager desire to retain the 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 Trust and the Manager hereby appoint the Sub-Adviser
to serve as Sub-Adviser and to provide certain sub-investment advisory services
to the Fund for the period and on the terms set forth in this Agreement. The
Sub-Adviser accepts such appointment and agrees to furnish the services herein
set forth for the compensation herein provided. The Sub-Adviser shall, for all
purposes herein provided, be deemed an independent contractor and, unless
otherwise expressly provided or authorized, shall have no authority to act for
nor represent the Trust, Fund or the Manager in any way, nor otherwise be deemed
an agent of the Trust, Fund or the Manager.
2. Services to Be Performed. Subject always to the supervision of the
Trust's Board of Trustees (the "Board of Trustees") and the Manager, the
Sub-Adviser will act as sub-adviser for, and manage on a discretionary basis the
investment and reinvestment of the assets of the Fund allocated to the
Sub-Adviser from time to time, furnish an investment program in respect of, make
investment decisions for, and place all orders for the purchase and sale of
securities and other assets for the Fund's investment portfolio allocated to the
Sub-Adviser, all on behalf of the Fund and as described in the Fund's most
current effective registration statement on Form N-1A and as the same may
thereafter be amended from time to time. In the performance of its duties, the
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, (c) comply
with the provisions of the Trust's Declaration of Trust and By-laws, as amended
from time to time and communicated by the Fund or the Manager to the Sub-Adviser
in writing, and (d) comply with (i) the investment objectives, policies and
restrictions stated in the Fund's most recently effective prospectus and
statement of additional information, (ii) such other investment objectives,
policies, restrictions or instructions as the Manager or the Trust's Board of
Trustees may communicate to the Sub-Adviser in writing, and (iii) any changes to
the objectives, policies, restrictions or instructions required under the
foregoing (i) and (ii) as communicated to the Sub-Adviser in writing and (e)
assist in the valuation of portfolio assets held by the Fund as reasonably
requested by the Manager or the Fund, with the understanding that ultimate
responsibility for determining the valuation of portfolio assets shall rest
solely with Manager and/or Fund based on their own determinations. The
Sub-Adviser and Manager will each make its officers and employees available to
the other from time to time at reasonable times to review the investment
objectives, policies and restrictions of the Fund and to consult with each other
regarding the investment affairs of such Fund. The Fund or the Manager will
provide the Sub-Adviser with current copies of the Trust's Declaration of Trust,
the Trust's By-laws, the Fund's prospectus, the Fund's statement of additional
information and any amendments thereto, and any objectives, policies or
limitations not appearing therein as they may be relevant to the Sub-Adviser's
performance under this Agreement.
The Sub-Adviser is authorized to select, in consultation with the Manager,
and enter into agreements with the brokers, dealers, futures commission
merchants, banks or any other agent or counterparty 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 in the reasonable discretion of the Sub-Adviser,
including, among other things price, dealer spread or commission, size and
difficulty of the transaction and research or other services provided. Subject
to approval of the Board of Trustees and 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 if applicable
Rule 17e-1 under the 1940 Act), the Sub-Adviser may select brokers or dealers
affiliated with the 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
Trust or the Fund, or be in breach of any obligation owing to the Trust or the
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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 value of 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, the Sub-Adviser may, to the extent permitted by applicable
law, aggregate purchase and sale orders of securities or other instruments
placed with respect to the assets of the Fund with similar orders being made
simultaneously for other accounts managed by the Sub-Adviser or its affiliates,
if in the Sub-Adviser's reasonable judgment such aggregation shall result in an
overall economic benefit to the Fund, taking into consideration the 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 the Sub-Adviser and any of its affiliates
involved in such transaction shall be to allocate the assets so purchased or
sold, as well as expenses incurred in the transaction, among the Fund and other
accounts in a fair and equitable manner as determined in the Sub-Adviser's
reasonable discretion. Nevertheless, the Fund and the Manager acknowledge that
under some circumstances, such allocation may adversely affect the Fund with
respect to, among other things, the price or size of the securities positions
obtainable or salable. Whenever the Fund and one or more other investment
advisory clients of the Sub-Adviser have available funds for investment,
investments suitable and appropriate for each will be allocated in a manner
believed by the Sub-Adviser to be equitable to each, although such allocation
may result in a delay in one or more client accounts being, or the inability of
one or more accounts to be, 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, the Sub-Adviser and its affiliates
may purchase securities or other instruments of an issuer for one client and at
approximately the same time recommend selling or sell the same or similar types
of securities, assets or instruments for another client.
The Sub-Adviser will not arrange purchases or sales of securities or other
assets between the Fund and other accounts advised by the Sub-Adviser or its
affiliates unless (a) such purchases or sales are in accordance with applicable
law (including if applicable Rule 17a-7 under the 0000 Xxx) and the Fund's
policies and procedures, (b) the Sub-Adviser determines the purchase or sale is
in the best interests of the Fund and (c) the Board of Trustees has 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.
For purposes of complying with Rule 10f-3, Rule 12d3-1, Rule 17a-10 and
Rule 17e-1 under the 1940 Act, the Sub-Adviser hereby agrees that it will not
consult with any other sub-adviser of an investment company or a series of an
investment company that is advised by the Manager (the "First Trust Fund
complex") or an affiliated person of a sub-adviser (including any sub-adviser
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that is a principal underwriter or an affiliated person of such principal
underwriter), concerning transactions for the Fund or any fund in the First
Trust Fund complex in securities or other fund assets. In addition, with respect
to a fund in the First Trust Fund complex with multiple sub-advisers, the
Sub-Adviser shall be limited to providing investment advice with respect to only
the discrete portion of the fund's portfolio as may be determined from
time-to-time by the Board of Trustees or the Manager, and shall not consult with
the sub-adviser (including any sub-adviser that is a principal underwriter or an
affiliated person of such principal underwriter) as to any other portion of the
fund's portfolio concerning transactions for the fund in securities or other
assets. Notwithstanding the foregoing, the provisions in this paragraph do not
apply to the consultation between the Sub-Adviser and any sub-adviser retained
by the Sub-Adviser pursuant to Section 4 hereof.
The Sub-Adviser will communicate to the officers and Trustees of the Trust
such information relating to transactions for the Fund as they may reasonably
request. In no instance will the Fund's portfolio assets be purchased from or
sold to the Manager, the Sub-Adviser or any affiliated person of either the
Trust, the Manager, or the Sub-Adviser, except as may be permitted under the
1940 Act and under no circumstances will Sub-Adviser select brokers or dealers
for Fund transactions on the basis of Fund share sales by such brokers or
dealers.
The 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 other fiduciary accounts for
which it has investment responsibilities;
(b) will (i) conform in all material respects to all applicable
rules and regulations of the SEC, the Commodity Futures Trading Commission
and any other applicable regulatory authority, (ii) comply in all material
respects with all policies and procedures adopted by the Board of Trustees
for the Fund and communicated to the Sub-Adviser in writing and (iii)
conduct its activities under this Agreement in all material respects in
accordance with any applicable law and regulations of any governmental
authority pertaining to its investment advisory activities and commodity
advisory activities;
(c) will report to the Manager and to the Board of Trustees on a
quarterly basis by telephone or in person as agreed between the Manager
and the Sub-Adviser and will make appropriate persons available by
telephone or in person as agreed between the Manager and the Sub-Adviser
for the purpose of reviewing with representatives of the Manager and the
Board of Trustees on a regular basis at such times as the Manager or the
Board of Trustees may reasonably request in writing regarding 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 the Manager or
the Board of Trustees;
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(d) will prepare and maintain such books and records with respect
to the Fund's assets and other transactions for the Fund's investment
portfolio as required for registered investment advisers performing such
services under applicable law, the Fund's compliance policies and
procedures or as otherwise reasonably requested by the Manager or the
Board of Trustees and will prepare and furnish the Manager and the Board
of Trustees such periodic and special reports as the Board of Trustees or
the Manager may reasonably request. Such records prepared and maintained
by the Sub-Adviser as required hereunder shall be open to inspection at
all reasonable times by the Manager or the Fund and any appropriate
regulatory authorities. 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 the
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; and
(e) will monitor the pricing of portfolio assets, and events
relating to the issuers of those assets and the markets in which the
securities or other assets trade in the ordinary course of managing the
portfolio investments of the Fund, and will notify the Manager promptly of
any issuer-specific or market events or other situations that occur
(particularly those that may occur after the close of a foreign market in
which the investments may primarily trade but before the time at which the
Fund's investments are priced on a given day) that may materially impact
the pricing of one or more securities or other assets in the Fund. In
addition, the Sub-Adviser will at the Manager's request assist Manager in
evaluating the impact that such an event may have on the net asset value
of the Fund and in determining a recommended fair value of the affected
investment or investments, with the understanding that ultimate
responsibility for determining the valuation of portfolio assets shall
rest solely with Manager and/or Fund.
3. Expenses. During the term of this Agreement, the 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 commissions, if any, and other expenses connected with the execution
of portfolio transactions) purchased for the Fund.
4. Additional Sub-Advisers. Subject to obtaining the initial and periodic
approvals required under Section 15 of the 1940 Act (after taking into effect
any exemptive order, no-action assurances or other relief, rule or regulation
upon which the Fund may rely) and the approval of the Manager, the Sub-Adviser
may retain one or more additional sub-advisers at the Sub-Adviser's own cost and
expense for the purpose of furnishing one or more of the services described in
Section 2 hereof with respect to the Fund. Retention of a sub-adviser hereunder
shall in no way reduce the responsibilities or obligations of the Sub-Adviser
under this Agreement and the Sub-Adviser shall be responsible to the Fund for
all acts or omissions of any sub-adviser in connection with the performance of
the Sub-Adviser's duties hereunder.
5. Compensation. (a) For the services provided and the expenses assumed
pursuant to this Agreement, the Manager will pay the Sub-Adviser, and the
Sub-Adviser agrees to accept as full compensation therefor, a portfolio
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management fee (the "Sub-Advisory Fee") equal to 50% monthly in arrears of any
remaining monthly Investment Management Fee paid to the Manager for the average
daily net assets of the Fund allocated to the Sub-Adviser after the average Fund
Expenses for the average daily net assets allocated to the Sub-Adviser accrued
during the most recent twelve months (or shorter period during the first eleven
months of this Agreement) are subtracted from the Investment Management Fee for
that month. If the average accrued Fund Expenses for any rolling average
twelve-month period are greater than the Investment Management Fee for the
twelfth month of such period, no Sub-Advisory Fee will be due the Sub-Adviser
for such month, subject to the Minimum Fee in Section 5(b) below. For the
avoidance of doubt, any deficit will not be carried forward for purposes of
calculating the Sub-Advisory Fee in any subsequent month. 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.
(b) Notwithstanding the foregoing in Section 5(a), the minimum
Sub-Advisory Fee to be paid to Sub-Adviser after every twelve-month period
following the effectiveness of this Agreement (the "Annual Period") shall be
$100,000 (the "Minimum Fee"). To effectuate the foregoing, for each six month
period during the effectiveness of the Agreement (each a "Semi-Annual Period")
with the first Semi-Annual Period to begin on the first day of the month
following the effectiveness of this Agreement and public offering of the Fund,
if the aggregate monthly fees paid or accrued to the Sub-Adviser during the
respective Semi-Annual Period in an Annual Period do not meet 1/2 of the Minimum
Fee (i.e. $50,000) at the end of the sixth month of the respective Semi-Annual
Period in such Annual Period, the Manager shall pay Sub-Adviser the difference
of $50,000 minus the aggregate Sub-Advisory Fees paid or accrued to the
Sub-Adviser during the respective Semi-Annual Period. For the year in which this
Agreement becomes effective, with respect to the Minimum Fee, there shall be an
appropriate proration on the basis of the number of days that the Agreement is
in effect until the first day of the month when first Semi-Annual Period begins.
For avoidance of doubt, each Annual Period is calculated separately and
Sub-Advisory Fees paid in a prior Annual Period are not carried forward to
calculate the Minimum Fee in a subsequent Annual Period. At the request of the
Sub-Adviser, the Manager shall provide the Sub-Adviser with an accounting
reasonably satisfactory to the Sub-Adviser of the calculation of the
Sub-Advisory Fee and the Minimum Fee. Manager shall provide prompt advance
notice to Sub-Adviser of any change to Manager's compensation agreements with
respect to the Fund, which change may require approval by the Board of Trustees.
(c) The Sub-Advisory Fee shall be payable in arrears on or about the
7th business day of each following month during the term of this Agreement, and
any amount owed to reach the Minimum Fee, if any, shall be payable in arrears on
or about the 7th business day following the close of the applicable Semi-Annual
Period.
6. Services to Others. (a) The Trust and the Manager acknowledge that the
Sub-Adviser now acts, or may in the future act, as an investment adviser to
other managed accounts and as investment adviser or investment sub-adviser to
one or more other investment companies that are not series of the Trust, subject
to Section 6(b) below. In addition, the Trust and the Manager acknowledge that
the persons employed by the Sub-Adviser to assist in the Sub-Adviser's duties
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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.
(b) Notwithstanding Section 6(a) above, Manager and Sub-Adviser agree that
Manager and Sub-Adviser shall not advise or sub-advise any actively managed
exchange-traded fund organized after the effectiveness of this Agreement the
performance of which is benchmarked to the Bloomberg Barclays US Aggregate Bond
Index (or a derivative or multiple thereof) for a period of 18 months following
the effectiveness of this Agreement (the "Initial Period"), and if the assets of
the Fund are greater than $300 million as of the Initial Period, Manager may, in
its discretion, automatically extend the foregoing restriction for one
additional 18 month period, provided the Manager notifies Sub-Adviser that
Manager is exercising this option no less than 60 calendar days prior to the
last day of the Initial Period.
7. Limitation of Liability. The Sub-Adviser shall not be liable for, and
the Trust and the Manager will not take any action against the Sub-Adviser to
hold the 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 or other asset) 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 obligations
and duties under this Agreement.
8. Term; Termination. This Agreement shall become effective on the same
date as the Management Agreement between the Trust and the Manager becomes
effective with respect to the Fund (it being understood that the Manager shall
notify the Sub-Adviser of the date of effectiveness of the Management Agreement
as soon as reasonably practical after effectiveness) provided that it has been
approved in the manner required by the 1940 Act (after taking into effect any
exemptive order, no-action assurances, or other relief, rule or regulation upon
which the Fund may rely), 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 (after taking into effect any exemptive order,
no-action assurances, or other relief rule or regulation upon which the Fund may
rely); 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 the 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 the Fund upon sixty (60) days' written notice to the Sub-Adviser
by the Fund without payment of any penalty.
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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.
This Agreement shall automatically terminate in the event the Management
Agreement between the Manager and the Trust on behalf of the Fund is terminated,
assigned or not renewed.
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 5 earned or accrued prior to such termination and for any
additional period during which the Sub-Adviser serves as such for the Fund,
subject to applicable law.
9. Compliance Certification. From time to time the Sub-Adviser shall
provide such certifications with respect to Rule 38a-1 under the 1940 Act, as
are reasonably requested by the Fund or the Manager. In addition, the
Sub-Adviser will, from time to time, provide a written assessment of its
compliance program in conformity with current industry standards that is
reasonably acceptable to the Fund to enable the Fund to fulfill its obligations
under Rule 38a-1 under the 1940 Act.
10. Use of Name. The Trust, the Fund and the Manager acknowledge that, as
between the Trust, the Fund and the Manager, on the one hand, and the
Sub-Adviser, on the other hand, the Sub-Adviser owns and controls the term "TCW"
and all marks related thereto. The Sub-Adviser grants to the Fund governed by
this Agreement, as amended from time to time pursuant to the terms of this
Agreement, a world-wide, non-exclusive, fully-paid and royalty free license to
use the name "TCW" in the name of the Fund for the duration of this Agreement
and any extensions or renewals thereof. Such license will, upon termination of
this Agreement, be automatically and without further action by the Sub-Adviser
terminated, in which event the Fund shall promptly take whatever action may be
necessary (including calling a meeting of its Board of Trustees) to change its
name and to discontinue any further use of the name "TCW" in the name of the
Fund or otherwise. Nothing herein will prevent the Sub-Adviser from granting a
license with respect to the name "TCW" to any other party in connection with any
of its other activities.
11. 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.
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If to the Manager or the Fund: If to the Sub-Adviser:
First Trust Exchange-Traded Fund VIII TCW Investment Management Company LLC
on behalf of First Trust TCW 000 Xxxxx Xxxxxxxx Xxxxxx
Opportunities Core Bond ETF Xxx Xxxxxxx, Xxxxxxxxxx 00000
First Trust Advisors L.P. Attention: Xxx Xxxxx
000 X. Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Secretary
12. Limitations on Liability. All parties hereto are expressly put on
notice of the Trust's Declaration of Trust and all amendments thereto, a copy of
which is on file with the Secretary of the Commonwealth of Massachusetts, and
the limitation of shareholder and Trustee liability contained therein and a copy
of which has been provided to the Sub-Adviser prior to the date hereof. This
Agreement is executed by the Trust on behalf of the Fund by the Trust's officers
in their capacity as officers and not individually and is not binding upon any
of the Trustees, officers or shareholders of the Trust individually but the
obligations imposed upon the Trust or Fund by this Agreement are binding only
upon the assets and property of the Fund, and persons dealing with the Trust or
Fund must look solely to the assets of the Fund for the enforcement of any
claims.
13. 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.
14. Applicable Law. This Agreement shall be construed in accordance with
applicable federal law and (except as to Section 12 hereof, which shall be
construed in accordance with the laws of the Commonwealth of Massachusetts) the
laws of the State of Illinois.
15. 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.
16. Authority. Each party represents to the others that it is duly
authorized and fully empowered to execute, deliver and perform this Agreement.
The Trust represents that engagement of the Sub-Adviser has been duly authorized
by the Trust and is in accordance with the Trust's Declaration of Trust and
other governing documents of the Fund.
17. Third Party Beneficiaries. None of the provisions of this Agreement
shall be for the benefit of, or enforceable by, any person or entity that is not
a party hereto.
18. Forum Selection. Any action brought on or with respect to this
Agreement or any other document executed in connection herewith or therewith by
a party to this Agreement against another party to this Agreement shall be
brought only in a court of competent jurisdiction in Chicago, Xxxx County,
Illinois, or if venue does not lie in any such court only in a court of
competent jurisdiction within the State of Illinois (the "Chosen Courts"). Each
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party to this Agreement (a) consents to jurisdiction in the Chosen Courts; (b)
waives any objection to venue in any of the Chosen Courts; and (c) waives any
objection that any of the Chosen Courts is an inconvenient forum. In any action
commenced by a party hereto against another party to the Agreement, there shall
be no right to a jury trial. THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO
THE FULLEST EXTENT PERMITTED BY LAW.
19. 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 Sub-Advisory Fee described
in Section 5 are not severable.
20. Entire Agreement; Counterparty. This Agreement constitutes the sole
and entire agreement of the parties hereto with respect to the subject matter
expressly set forth herein. This Agreement may be signed in any number of
counterparts, each of which shall be an original with the same effect as if the
signatures were upon the same instruments.
IN WITNESS WHEREOF, the Trust on behalf of the Fund, the 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. TCW INVESTMENT MANAGEMENT COMPANY
LLC
By /s/ Xxxxx X. Xxxxx By /s/ Xxxxxxx Xxxxxx
----------------------------------- -------------------------------
Title: Chief Financial Officer Title: Senior Vice President
Associate General Counsel
FIRST TRUST EXCHANGE-TRADED FUND VIII
on behalf of First Trust TCW
Opportunistic Fixed Income ETF
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Title: President
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