EXECUTION
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT made as of June 23, 2016, by and between First Trust
Exchange-Traded Fund VIII (the "Trust"), and The Bank of New York Mellon, a New
York banking corporation ("BNYM").
W I T N E S S E T H:
WHEREAS, the Trust is an investment company registered 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 in accordance with Section 12 herein, being referred
to as a "Fund" and collectively as the "Funds")-, and
WHEREAS, the Trust desires to retain BNYM to provide for the Funds the
services described herein, and BNYM is willing to provide such services, all as
more fully set forth below;
Now, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment. The Trust hereby appoints BNYM as its agent for the term
of this Agreement to perform the services described herein. BNYM hereby accepts
such appointment and agrees to perform the duties hereinafter set forth.
2. Representations and Warranties. The Trust hereby represents and
warrants to BNYM, which representations and warranties shall be deemed to be
continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its
obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Trust, enforceable in
accordance with its terms;
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to cany on its
business as now conducted; there is no statute, regulation, rule, order or
judgment binding on it and no provision of its Declaration of Trust or
by-laws, nor of any mortgage, indenture, credit agreement or other
contract binding on it or affecting its property which would prohibit its
execution or performance of this Agreement; and
(d) To the extent the performance of any services described in
Schedule II attached hereto by BNYM in accordance with the then effective
Prospectus (as hereinafter defined) for any Fund would violate any
applicable laws or regulations, the Trust shall so notify BNYM as soon as
practicable to the extent Trust officers have knowledge or reasonably
should have knowledge of such violation in writing and thereafter shall
either furnish BNYM with the appropriate values of securities, net asset
value or other computation, as the case may be, or, subject to the prior
approval of BNYM, instruct BNYM in writing to value securities and/or
compute net asset value or other computations in a manner the Trust
specifies in writing, and either the furnishing of such values or the
giving of such instructions shall constitute a representation by the Trust
that the same is consistent with all applicable laws and regulations and
with its Prospectus.
BNYM hereby represents and warrants to the Funds, which representations and
warranties shall be deemed to be continuing that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power and authority to carry on its
business as now conducted, to enter into this Agreement and to perform its
obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by BNYM in accordance with all requisite corporate action and constitutes a
valid and legally binding obligation of BNYM enforceable in accordance with its
terms;
(c) BNYM has obtained all regulatory licenses, approvals and
consents necessary to carry on its business as currently conducted; there is no
statute, regulation, rule, order or judgment binding on BNYM and no provision of
its charter or by-laws, nor of any mortgage, indenture, credit agreement or
other contract binding on BNYM or affecting its property which would prohibit
the execution or performance by BNYM of this Agreement; and
(d) To the extent the performance of any services described in
Schedule II attached hereto by BNYM in accordance with the then effective
Prospectus (as hereinafter defined) for the Fund would violate any applicable
laws or regulations applicable to BNYM, BNYM shall so notify the Fund in writing
as soon as practicable, to the extent that BNYM personnel responsible for the
performance of such services have knowledge, or should reasonably have
knowledge, of such violation.
3. Delivery of Documents, (a) The Trust will promptly deliver to BNYM true
and correct copies of each of the following documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Trust's Declaration of Trust or other organizational
document and all amendments thereto (the "Trust Agreement")',
(ii) The Trust's bylaws (the "Bylaws")',
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(iii) Resolutions of the Trust's Board of Trustees authorizing the
execution, delivery and performance of this Agreement by the Trust;
(iv) The registration statement most recently filed with the
Securities and Exchange Commission (the "SEC") relating to the shares of
each Fund (each, a "Registration Statement")',
(v) The Trust's Notification of Registration under the 1940 Act on
Form N-8A filed with the SEC; and
(vi) The Prospectus and Statement of Additional Information
pertaining to each Fund (collectively, the "Prospectus").
(b) The copy of the Trust Agreement shall be certified by the Secretary of
State (or other appropriate official) of the state of organization, and if the
Trust Agreement is required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a
certified copy submitted to BNYM. Each copy of the Bylaws, Registration
Statement and Prospectus, and all amendments thereto, and copies of Board
resolutions, shall be certified by the Secretary or an Assistant Secretary of
the Trust.
(c) It shall be the sole responsibility of the Trust to deliver to BNYM
the currently effective Prospectus for each Fund and BNYM shall not be deemed to
have notice of any information contained in such Prospectus until it is actually
received or a copy is obtained by BNYM.
4. Duties and Obligations of BNYM. (a) Subject to the direction and
control of the Trust's Trustees and the provisions of this Agreement, BNYM shall
provide to the Trust (i) the administrative services set forth on Schedule I
attached hereto and (ii) the valuation and computation services listed on
Schedule //attached hereto.
(b) In performing hereunder, BNYM shall provide, at its expense, office
space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management,
investment advisory or sub-advisory functions of the Trust, distribution of
shares of any Fund, maintenance of the Trust's financial records, except to the
extent specifically set forth herein or the schedules hereto or other services
normally performed by the Trusts' respective counsel or independent auditors.
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(d) Upon receipt of the Trust's prior written consent (which shall not be
unreasonably withheld), BNYM may delegate any of its duties and obligations
hereunder to any delegee or agent whenever and on such terms and conditions as
it deems necessary or appropriate. BNYM shall bear any costs and expenses
associated with BNYM's delegation to such delegees and agents. Notwithstanding
the foregoing, no Trust consent shall be required for any such delegation to any
other subsidiary of The Bank of New York Mellon Corporation. BNYM shall not be
liable to the Trust or any Fund for any loss or damage arising out of, or in
connection with, the actions or omissions to act of any delegee or agent
unaffiliated with BNYM and utilized hereunder so long as BNYM acts in good faith
and without negligence or willful misconduct in the selection or retention of
such delegee or agent, provided, however, that BNYM shall use commercially
reasonable efforts to pursue any rights or remedies in respect of such loss or
damage which BNYM may have against any such unaffiliated delegee or agent in the
event of its default; any recovery shall be for the account of the Trust and
applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the
applicable Fund for any cost incurred in pursuing the same. For purposes of this
Agreement, BNYM shall be subject to the same standard of care with respect to
and liable for, the actions and omissions of any such delegee or agent who is a
BNYM affiliate to the same extent a BNYM's direct actions or omissions under
this Agreement.
(e) The Trust shall cause its officers, advisors, sponsor, distributor,
legal counsel, independent accountants, current administrator (if any) and
transfer agent to cooperate with BNYM and to provide BNYM, upon request, with
such information or documents relating to the Trust as is within the possession
or knowledge of such persons, in order to enable BNYM to perform its duties
hereunder. In connection with its duties hereunder, BNYM shall be entitled to
rely, and shall be held harmless by the Trust when acting in reasonable
reliance, upon the instructions, advice or any documents provided to BNYM from
(i) a person reasonably believed by BNYM to have been identified by the Trust as
authorized to give advice on behalf of the Trust or its advisors (each an
"Authorized Person"), (ii) Trust counsel, (iii) the Trust's independent
accountants, (iv) the Trust's adviser and (v) the Trust's distributor. BNYM
shall not be liable for any loss, damage or expense resulting from or arising
out of the failure of the Trust to cause any information, documents or advice
from legal counsel or independent accountants to be provided to BNYM as provided
herein. All fees or costs charged by such persons shall be borne by the
applicable Fund.
(f) Nothing in this Agreement shall limit or restrict BNYM, any affiliate
of BNYM or any officer or employee thereof from acting for the Trust or any Fund
in other capacities or acting for or with any third parties, and providing
services similar or identical to some or all of the services provided hereunder.
The Trust acknowledges that in performing services under this Agreement, BNYM
may be required to review or calculate amounts due BNYM or its affiliates from
the Trust and its respective Funds, and agrees that such conflicting interests
shall not prevent BNYM from so acting.
(g) The Trust shall furnish BNYM with any and all instructions,
explanations, information, specifications and documentation deemed necessary by
BNYM in the performance of its duties hereunder, including, without limitation,
the amounts or written formula for calculating the amounts and times of accrual
of liabilities and expenses for each Fund. BNYM shall not be required to include
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as liabilities and expenses, nor as a reduction of net asset value, any accrual
for any federal, state, or foreign income taxes unless the Trust shall have
specified to BNYM the precise amount of the same to be included in liabilities
and expenses or used to reduce net asset value. The Trust shall also furnish
BNYM with bid, offer, or market values of the portfolio securities
("Securities") of any Fund if BNYM notifies the Trust that same are not
available to BNYM from a security pricing or similar service utilized, or
subscribed to, by BNYM which BNYM in its judgment deems reliable at the time
such information is required for calculations hereunder. At any time and from
time to time, the Trust also may furnish BNYM with bid, offer, or market values
of Securities and instruct BNYM to use such information in its calculations
hereunder. BNYM shall at no time be required or obligated to commence or
maintain any utilization of, or subscriptions to, any securities pricing or
similar service. In no event shall BNYM be required to determine, or have any
obligations with respect to, whether a market price represents any fair or true
value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof, it
being agreed that all such determinations and considerations shall be solely for
the Trust.
(h) BNYM may apply to an officer of the Trust for written instructions
with respect to any matter arising in connection with BNYM's performance
hereunder for the Trust, and BNYM shall not be liable for any action taken or
omitted to be taken by it in good faith and without negligence or willful
misconduct in accordance with such instructions. Such application for
instructions may, at the option of BNYM, set forth in writing any action
proposed to be taken or omitted to be taken by BNYM with respect to its duties
or obligations under this Agreement and the date on and/or after which such
action shall be taken, and BNYM shall not be liable for any action taken or
omitted to be taken in good faith and without negligence or willful misconduct
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, BNYM has received written instructions in response to such application
specifying the action to be taken or omitted.
(i) If BNYM shall be in doubt as to any question of law pertaining to any
action it should or should not take, BNYM may, with prior notice to the Trust,
request advice from outside counsel of its own choosing (who may be counsel for
the Trust, the Trust's investment adviser or BNYM, at the option of BNYM),
provided, however, that the Trust may request BNYM to obtain and consider advice
of counsel for the Trust or its investment advisor before engaging counsel of
its own choosing. Expense of counsel to the Trust or its investment advisor
shall be borne by the Trust on behalf of the applicable Fund; expense of other
counsel shall be borne by BNYM.
(j) Notwithstanding any other provision contained in this Agreement or
Schedule I or II attached hereto, BNYM shall have no duty or obligation with
respect to, including, without limitation, any duty or obligation to determine,
or advise or notify the Trust of: (i) the taxable nature of any distribution or
amount received or deemed received by, or payable to, any Fund (ii) the taxable
nature or effect on any Fund or its shareholders of any corporate actions, class
actions, tax reclaims, tax refunds or similar events, (iii) the taxable nature
or taxable amount of any distribution or dividend paid, payable or deemed paid,
by any Fund to its shareholders, or (iv) the effect under any federal, state, or
foreign income tax laws of any Fund making or not making any distribution or
dividend payment, or any election with respect thereto.
(k) BNYM shall have no duties or responsibilities whatsoever except such
duties and responsibilities as are specifically set forth in this Agreement and
Schedules I and II attached hereto, and no covenant or obligation shall be
implied against BNYM in connection with this Agreement.
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(l) BNYM, in performing the services required of it under the terms of
this Agreement, shall be entitled to rely fully on the accuracy and validity of
any and all instructions, explanations, information, specifications and
documentation furnished to it by any Authorized Person on behalf of the Trust
and shall have no duty or obligation to review the accuracy, validity or
propriety of such instructions, explanations, information, specifications or
documentation, including, without limitation, evaluations of securities; the
amounts or formula for calculating the amounts and times of accrual of the
liabilities and expenses of any Fund; the amounts receivable and the amounts
payable on the sale or purchase of Securities; and amounts receivable or amounts
payable for the sale or redemption of the shares of any Fund effected by or on
behalf of the Trust. In the event BNYM's computations hereunder rely, in whole
or in part, upon information, including, without limitation, bid, offer or
market values of securities or other assets, or accruals of interest or earnings
thereon, from a pricing or similar service utilized, or subscribed to, by BNYM
which BNYM in its judgment deems reliable, BNYM shall not be responsible for,
under any duty to inquire into, or deemed to make any assurances with respect
to, the accuracy or completeness of such information. Without limiting the
generality of the foregoing, BNYM shall not be required to inquire into any
valuation of securities or other assets by the Trust or any third party
described in this paragraph (1) even though BNYM in performing services similar
to the services provided pursuant to this Agreement for others may receive
different valuations of the same or different securities of the same issuers.
(m) BNYM, in performing the services required of it under the terms of
this Agreement, shall not be responsible for determining whether any interest
accruable to any Fund is or will be actually paid, but will accrue such interest
until otherwise instructed by the Trust.
(n) BNYM shall not be responsible for delays or errors which occur by
reason of circumstances beyond its control in the performance of its duties
under this Agreement, including, without limitation, labor difficulties within
or without BNYM, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, interruptions, loss, or malfunctions of utilities,
communications or computer (hardware or software) services (a "Force Majeure
Event"), provided that BNYM has established and maintained a disaster recovery
and contingency plans and systems as described in Section 4(o) below or, if not,
that such delay or error would have occurred even if BNYM had established and
maintained such plans and systems. Nor shall BNYM be responsible for delays or
failures to supply the information or services specified in this Agreement where
such delays or failures are caused by the failure of any person(s) other than
BNYM to supply any instructions, explanations, information, specifications or
documentation deemed necessaiy by BNYM in the performance of its duties under
this Agreement.
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(o) BNYM will maintain throughout the term of this Agreement, such
disaster recovery and contingency plans and systems as it reasonably believes to
be necessaiy and appropriate to recover its operations from the occurrence of a
Force Majeure Event and which are consistent with the requirements of any
statute, regulation or rule to which it is subject that imposes business
resumption and contingency planning standards. BNYM shall employ commercially
reasonable efforts to resume performance as soon as practicable under the
circumstances, following the occurrence of a Force Majeure Event.
5. Allocation of Expenses. Except as otherwise provided herein, including
Section 17(b) and 17(c)hereunder, all costs and expenses arising or incurred in
connection with the performance of this Agreement shall be paid by the Trust on
behalf of the applicable Fund, including but not limited to, organizational
costs and costs of maintaining the existence of the Trust and the applicable
Fund, taxes, interest, brokerage fees and commissions, insurance premiums,
compensation and expenses of the Trust's Trustees, directors, officers or
employees, legal, accounting and audit expenses, management, advisory,
sub-advisory, administration and shareholder servicing fees, charges of
custodians, transfer and dividend disbursing agents, expenses (including
clerical expenses) incident to the issuance, redemption or repurchase of the
shares of any Fund, fees and expenses incident to the registration or
qualification under federal or state securities laws of the Trust, any Fund or
the shares of any Fund, costs (including printing and mailing costs) of
preparing and distributing Prospectuses, reports, notices and proxy material to
the shareholders of any Fund, all expenses incidental to holding meetings of the
Trust's Trustees, directors and shareholders, and extraordinary expenses as may
arise, including litigation affecting the Trust or any Fund and legal
obligations relating thereto for which the Trust may have to indemnify its
Trustees, directors and officers.
6. Standard of Care; Indemnification, (a) Except as otherwise provided
herein, BNYM shall not be liable for any costs, expenses, damages, liabilities
or claims (including attorneys' and accountants' fees) incurred by the Trust or
any Fund, except those costs, expenses, damages, liabilities or claims arising
out of BNYM's own negligence, bad faith or willful misconduct. In no event shall
BNYM be liable to the Trust, any Fund or any third party for special, indirect
or consequential damages, or lost profits or loss of business, arising under or
in connection with this Agreement, even if previously informed of the
possibility of such damages and regardless of the form of action, but BNYM shall
be liable to the Trust and the applicable Fund for direct money damages caused
by BNYM's own negligence, bad faith or willful misconduct. BNYM shall not be
liable for any loss, damage or expense, including counsel fees and other costs
and expenses of a defense against any claim or liability, resulting from,
arising out of, or in connection with its performance hereunder, including its
actions or omissions, the incompleteness or inaccuracy of any specifications or
other information furnished by the Trust, or for delays caused by circumstances
beyond BNYM's control, unless such loss, damage or expense arises out of the
negligence, bad faith or willful misconduct of BNYM. BNYM shall indemnify and
hold harmless each Fund from and against any and all direct costs, expenses,
damages, liabilities and claims, and reasonable attorneys' and accountants' fees
relating thereto ("Losses") where such Losses have been finally determined by a
court of competent jurisdiction (pursuant to the terms of this Agreement) to
have arisen out of BNYM's failure to discharge its duties in accordance with its
standard of care as set forth hereunder. This indemnity shall be a continuing
obligation of BNYM, its successors and assigns, notwithstanding the termination
of this Agreement.
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(b) The Trust on behalf of the applicable Fund shall indemnify and hold
harmless BNYM from and against any and all costs, expenses, damages, liabilities
and claims, and reasonable attorneys' and accountants' fees relating thereto,
which are sustained or incurred or which may be asserted against BNYM, by reason
of or as a result of any action taken or omitted to be taken by BNYM in good
faith and without negligence or willful misconduct hereunder or in reliance upon
(i) any law, act, regulation or interpretation of the same, (ii) the
Registration Statement or Prospectus of any Fund, (iii) any instructions of an
Authorized Person, or (iv) any opinion of legal counsel for the Trust or BNYM,
or arising out of transactions or other activities of the Trust which occurred
prior to the commencement of this Agreement; provided, that neither the Trust
nor any applicable Fund shall indemnify BNYM for costs, expenses, damages,
liabilities or claims for which BNYM is liable under preceding 6(a). This
indemnity shall be a continuing obligation of the Trust on behalf of the
applicable Fund, its successors and assigns, notwithstanding the termination of
this Agreement. Without limiting the generality of the foregoing, the Trust on
behalf of the applicable Fund shall indemnify BNYM against and save BNYM
harmless from any loss, damage or expense, including counsel fees and other
costs and expenses of a defense against any claim or liability, arising from any
one or more of the following:
(i) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied
to BNYM by any third party described above in 4(e) or 4(h) above;
(ii) Action or inaction taken or omitted to be taken by BNYM
pursuant to written or oral instructions of the Trust or otherwise without
negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNYM in good faith
and without negligence or willful misconduct in accordance with the advice
or opinion of counsel for the Trust or its own outside counsel, provided
that any such action or omission by BNYM in conformity with such advice or
opinion of its own counsel is consistent with BNYM's rights and
responsibilities under this Agreement;
(iv) Any improper use by the Trust or its agents, distributor or
investment advisor of any valuations or computations supplied by BNYM
pursuant to this Agreement;
(v) The method of valuation of the securities and the method of
computing each Fund's net asset value; or
(vi) Any valuations of securities or net asset value provided by the
Trust.
(c) Actions taken or omitted in reliance on oral or written instructions,
or upon any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument reasonably believed by BNYM to be
genuine or bearing the signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for the Trust or its own outside counsel, shall be presumed (in
BNYM's reasonable judgment) to have been taken or omitted in good faith.
7. Record Retention and Confidentiality, (a) BNYM shall keep and maintain
on behalf of the Trust all books and records which the Trust and BNYM are, or
may be, required to keep and maintain in connection with the services to be
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provided hereunder pursuant to any applicable statutes, rules and regulations,
including, without limitation, Rules 3la-1 and 3la-2 under the 1940 Act. BNYM
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust,
by the investment adviser to the Trust, or by the SEC at reasonable times.
(b) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential Information
shall include (1) 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 BNYM and their respective
subsidiaries and affiliated companies; (2) 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 BNYM a competitive advantage over its competitors; (3) 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 (4) 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 BNYM 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
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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
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 BNYM to release such information
to BNYM's internal or external accountants or legal counsel who are subject to a
duty of confidentiality. BNYM 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. BNYM
agrees that, subject to the foregoing provisions of and the exceptions set forth
in this Section 7(b) (other than the exception set forth above in this Section
7(b) as sub-item (1), which exception set forth in sub-item (1) shall not be
applicable to the Trust's Portfolio Information), BNYM 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 7(b) to the contrary, the
Trust's Portfolio Information may be disclosed to third party pricing services
which are engaged by BNYM 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.
(c) 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 BNYM 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)
BNYM 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.
8. Regulation S-P. BNYM agrees to make reasonable efforts to adhere to the
Trust's policy regarding the use of shareholder and potential shareholder
information as required by Regulation S-P. BNYM shall be free to share
information regarding shareholders and potential shareholders of the Funds of
the Trust, on an as needed basis in order to fulfill its role as administrator,
with other authorized agents of the Trust including service providers and
brokers. BNYM shall also be free to provide such information to its internal and
external auditors, counsel and accountants, its regulators and examiners, and to
any other person when advised by its counsel that it could be liable for failure
to provide such information.
9. Compensation. For the services provided hereunder, the Trust agrees to
pay BNYM such compensation as is mutually agreed from time to time and such
out-of-pocket expenses (e.g. telecommunication charges, postage and delivery
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charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by BNYM in performing its duties hereunder.
Except as hereinafter set forth, compensation shall be calculated and accrued
daily and paid monthly. The Trust authorizes BNYM to debit the custody account
of the applicable Fund for all amounts due and payable by such Fund or the Trust
in respect of such Fund in connection with any and all obligations of the Trust
in respect of such Fund to BNYM under this Agreement. BNYM shall deliver to the
Trust invoices for services rendered after debiting the applicable custody
account with an indication that payment has been made. Upon termination of this
Agreement before the end of any month, the compensation for such part of a month
shall be prorated according to the proportion which such period bears to the
full monthly period and shall be payable upon the effective date of termination
of this Agreement. For the purpose of determining compensation payable to BNYM,
the Trust's net asset value shall be computed at the times and in the manner
specified in the Prospectus of the respective Fund.
10. Term of Agreement, (a) This Agreement shall continue until terminated
by either BNYM giving to the Trust, or the Trust giving to BNYM, a notice in
writing specifying the date of such termination, which date shall be not less
than 90 days after the date of the giving of such notice. Upon termination
hereof, the Trust shall pay to BNYM such compensation as may be due as of the
date of such termination, and shall reimburse BNYM for any disbursements and
expenses made or incurred by BNYM and payable or reimbursable hereunder.
(b) Notwithstanding the foregoing, BNYM may terminate this Agreement upon
30 days prior written notice to the Trust if the Trust shall terminate its
custody agreement with The Bank of New York Mellon, or fail to perform its
obligations hereunder in a material respect.
11. Authorized Persons. Attached hereto as Exhibit B is a list of persons
duly authorized by the Trustees of the Trust to execute this Agreement and give
any written or oral instructions, or written or oral specifications, by or on
behalf of the Trust. From time to time the Trust may deliver a new Exhibit B to
add or delete any person and BNYM shall be entitled to rely on the last Exhibit
B actually received by BNYM.
12. Amendment. This Agreement may not be amended or modified in any manner
except by a written agreement executed by BNYM and the Trust, and authorized or
approved by the Trust's Trustees. Notwithstanding the foregoing, in the event
that the Trust establishes one or more series of shares in addition to the Funds
listed on Exhibit A attached hereto with respect to which it desires to have
BNYM render services under the terms hereof and if BNYM wishes to provide such
services, the parties will execute a revised Exhibit A adding such additional
series. Upon execution of such revised Exhibit A, the series so added shall
become a Fund hereunder.
13. Assignment. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Trust without the
written consent of BNYM, or by BNYM without the written consent of the Trust
accompanied by the authorization or approval of the Trust's Trustees.
14. Governing Law; Consent to Jurisdiction. This Agreement shall be
construed in accordance with the laws of the State of New York, without regard
to conflict of laws principles thereof. The Trust and BNYM each hereby consents
to the jurisdiction of a state or federal court situated in New York City, New
York in connection with any dispute arising hereunder, and waives to the fullest
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extent permitted by law its right to a trial by jury. To the extent that in any
jurisdiction the Trust may now or hereafter be entitled to claim, for itself or
its assets, immunity from suit, execution, attachment (before or after judgment)
or other legal process, the Trust irrevocably agrees not to claim, and it hereby
waives, such immunity.
15. Severability. 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 or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
16. No Waiver. Each and every right granted to BNYM and the Trust
hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of BNYM or the Trust to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by BNYM or the Trust of any
right preclude any other or future exercise thereof or the exercise of any other
right.
17. Limitations of Liability of the Trustees and Shareholders, (a) 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.
(b) This Agreement is an agreement entered into between BNYM 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, BNYM 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 BNYM had separately contracted with the Trust by
separate written instrument with respect to each Fund.
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(c) As used herein, the "applicable Fund" shall be each Fund in respect of
which any amount due BNYM arises, and if any amount due BNYM arises in respect
of more than one Fund, the same shall be allocated by BNYM among such Funds in
accordance with Section 17(b) hereof. Any amounts due BNYM 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. The parties
acknowledge that the obligations of the Funds hereunder are several and not
joint, that no Fund shall be liable for any amount owing by another Fund and
that the Funds have executed one instrument for convenience only.
18. Notices. 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
If to BNYM: The Bank of New York Mellon
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx 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.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts together shall constitute only one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
FIRST TRUST EXCHANGE-TRADED FUND VIII
By /s/ Xxxxx X. Xxxxx
------------------------------
Title: President
-----------------------
Xxxxx X. Xxxxx
THE BANK OF NEW YORK MELLON
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Managing Director
-----------------------
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EXHIBIT A
EXHIBIT B
I, ______________________, General Counsel of First Trust Advisors L.P.
and ________________________________________ of FIRST TRUST EXCHANGE-TRADED FUND
VIII, a Massachusetts business trust (the "Trust"), do hereby certify that:
The following individuals serve in the following positions with the First
Trust Advisors L.P., and each has been duly authorized by the Board of Trustees
of the Trust to give written or oral instructions or written or oral
specifications by or on behalf of the Trust to BNYM and the signatures set forth
opposite their respective names are their true and correct signatures.
NAME POSITION SIGNATURE
MANAGING DIRECTOR AND
CHIEF FINANCIAL OFFICER
ASSISTANT VICE PRESIDENT
VICE PRESIDENT
GENERAL COUNSEL
SENIOR VICE PRESIDENT
DEPUTY GENERAL COUNSEL
SENIOR VICE PRESIDENT
SENIOR VICE PRESIDENT
VICE PRESIDENT
VICE PRESIDENT
ASSOCIATE
MANAGING DIRECTOR
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Oversee the maintenance by the Trust's custodian of certain books and
records of the Trust as required under Rule 31 a-1 (b) of the 1940 Act.
2. Establish appropriate expense accruals, maintain expense files and
coordinate the payment of invoices.
3. Prepare for review and approval by the treasurer for the Trust, its
counsel and its independent accountants financial information for the
semi-annual and annual reports of the Funds of the Trust, proxy statements and
other communications required or otherwise to be sent to the shareholders of a
Fund or the Securities and Exchange Commission ("SEC") and arrange for the
printing and dissemination of such reports and communications to record and
beneficial shareholders through The Depository Trust Company.
4. Prepare federal, state and local income tax returns for each Fund and
file such returns upon the approval of the Trust's independent accountants;
monitor and report on SubChapter M qualifications; prepare and file all Form
1099s with respect to the Trust's directors or trustees; monitor compliance with
Section 4982 of the Internal Revenue Code; calculate and maintain records
pertaining to original issue discount and premium amortization as required;
perform ongoing wash sales review (i.epurchases and sales of investments of a
Fund within 30 days of each other). Prepare and maintain tax lot schedules for
each security purchased for each Fund.
5. Prepare and, subject to approval of the Trust's treasurer, disseminate
to the Trust's board quarterly unaudited financial statements and schedules of
investments of each Fund and make presentations to the board, as appropriate.
6. Prepare for review and approval by the treasurer and chief executive
officer of the Trust, its counsel and its independent accountants the Trust's
periodic financial reports for its respective Funds required to be filed with
the SEC on Form N-SAR, Form N-Q, FormN-CSR and financial information required by
Form N-l A and such other reports, forms or filings as may be mutually agreed
upon.
7. Prepare recommendations as to each Fund's income and capital gains
available for distribution; calculate such distributions for each Fund in
accordance with applicable regulations and the distribution for each Fund in
accordance with applicable regulations and the distribution policies set forth
in the Fund's registration statement, and assist Trust management in making
final determination of distribution amounts.
8. Oversee and review calculation of fees paid to the Trust's investment
adviser, custodian and transfer agent.
9. Respond to, or refer to the Trust's officers or the distributor or the
transfer agent, shareholder inquiries relating to the Trust.
10. Provide testing of portfolios on a weekly basis, to assist the Trust's
investment adviser in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the 1940 Act and a Fund's
Prospectus and Statement of Additional Information limitations as may be
mutually agreed upon.
11. Review and provide assistance on shareholder communications.
12. Prepare for review and approval by the treasurer of the Trust, its
counsel and its independent accountants and file annual and semi-annual
shareholder reports with the appropriate regulatory agencies; review text of
"President's letters" to shareholders and "Management's Discussion of Fund
Performance" (which shall also be subject to review by the Trust's legal
counsel).
13. Organize, attend and prepare minutes of shareholder meetings.
14. Counsel and assist the Trust in the handling of routine regulatory
examinations and work closely with the Trust's legal counsel in response to any
non-routine regulatory matters.
15. Prepare for review and approval by the treasurer for the Trust, its
counsel and its independent accountants and file with the SEC amendments to the
registration statement for a Fund, including updating a Fund's Prospectus and
Statement of Additional Information, where applicable.
16. Prepare for review and approval by the treasurer for the Trust, its
counsel and its independent accountants and file with the SEC proxy statements
and proxy cards; provide consultation on proxy solicitation matters.
17. Prepare agenda and board materials for board meetings, make
presentations where appropriate, prepare minutes and follow-up on matters raised
at board meetings and maintain minute books.
18. Prepare and file with the SEC Rule 24f-2 notices.
19. Prepare statistical reports for outside information services
(e.g. IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
20. Prepare and execute periodic certifications and sub-certifications, in
a form agreed to by the Trust and BNYM, with respect to Form N-Qs, Form N-CSRs,
compliance policies and procedures under Rule 38a-l of the Investment Company
Act of 1940, as amended ("Rule 38a- 1"), and such other matters that may be
reasonably requested by the Trust or the Trust's Chief Compliance Officer from
time to time.
21. Periodically provide a written assessment of BNYM's Rule 38a-l
compliance program to the Trust in conformity with current industry standards
that is reasonably acceptable to the Trust.
22. As appropriate, compute yields, total returns, expense ratios,
portfolio turnover rate and, if requested, portfolio average dollar-weighted
maturity.
SCHEDULE II
VALUATION AND COMPUTATION SERVICES
I. BNYM shall maintain the following records on a daily basis for each
Fund.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. BNYM shall prepare on behalf of the Trust all books and records of the
Trust as required by Rule31a-1 under the 1940 Act, and as such rule or any
successor rule, may be amended from time to time, that are applicable to the
fulfillment of BNYM's duties hereunder, as well as any other documents necessary
or advisable for compliance with applicable regulation as may be mutually agreed
to between the Trust and BNYM. Without limiting the generality of the foregoing,
BNYM will prepare and maintain the following records upon receipt of information
in proper form from the Trust or its authorized agents for each Fund:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. BNYM shall prepare a Holdings Ledger on a quarterly basis, and a
Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Fund. Schedule
D shall be produced on an annual basis for each Fund. The above reports may be
printed according to any other required frequency to meet the requirements of
the Internal Revenue Service, the Securities and Exchange Commission and the
Trust's Auditors.
IV. For internal control purposes, BNYM uses the Account Journals produced
by The Bank of New York Mellon Custody System to record daily settlements of the
following for each Fund:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Trust are recorded to reflect expected
maturity value and total cost including any prepaid interest.
