TRANSFER AGENCY AND SERVICE AGREEMENT
Exhibit 99.H.29
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT is made as of the :2nd day) of November, 2017. by and between EXCHANGE TRADED CONCEPTS TRUST (the “Trust”) on behalf of each series listed on Appendix A hereto (hereinafter each a “Series” and collectely, the “Series”) (as such Appendix be amended from time to time) and THE BANK OF NEW YORK MELLON. a New York corporation authorized to do a banking business having its principal office and place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Bank”).
WHEREAS. each Series will ordinarily issue for purchase and redeem shares of such Series (the “Shares”) only in aggregations of Shares known as “Creation Units” (currently) __shares) (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 registered owner (the “Shareholder”) of all Shares; and WHEREAS. the Trust. on behalf of the Series. di:sires to appoint the Bank as its transfer agent. di\'idend disbursing agi:nt. and agent in connection with cenain 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:
I. Terms of Appointment: Duties of the Bank
1.1 Subject to the tems and conditions set forth in this Agreement. the Trust 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, and as the Trust's dividend disbursing agent.
1.2 Pursuant to such appointment the Bank agrees that it will perfonn the following services:
(a) In accordance with the terms and conditions of this Agreement and Panicipant Agreements prepared by the Trust's distributor (“Distributor”), a copy of which is attached hereto as Exhibit A. the Bank shall:
(i) Perfom1 and facilitate the performance of purchases and redemption of Creation Units:
(ii} Prepare and transmit b means of DTC"s book-cntr: system payments for dividends and distributions on orw ith respect to the Shares declared b) the Trust on behalf of the applicable Series: (iii) Maintain the record of the name and address or the Shareholder and the number of Shares issued b) the Series and held b) the Shareholder:
(iv) Record the issuance of Shares of the Series and maintain a record of the total number of Shares of the Series which are outstanding. an<l. based upon data pro, ided to it b) the Trust, the total number of authorized Shares. The Bank shall ha\'e no obligation, ,,hen recording the issuance of Shares. to monitor the issuance of such Shares or to take cognizance or any law s relating to the issue or sale of such Shares, "hich functions shall he the sole rcsponsibilit) of the Trust.
(\) Prepare and transmit to the Trust and lhe Trust's administrator and to an) applicablr securities exchange (a.s specified to the Bank b) the Trust or its administrator) information ,, ith respect to purchases and redemptions of Shares:
(vi) On days that the Trust ma) accept orders for purchases or redemptions, calculate and trnnsmit to the Distributor and the Trusrs administrator the number of outstanding Shares:
(, ii) On da) s that the Series ma) accept orders for purchases or redemptions (pursuant to the Panicipant Agreement). transmit to the Bank. the Trust and DTC the amount of Shares purchased on such dn);
(viii) Confirm to DTC the numher of Shares issued tu the Shareholder. as DTC ma) reasonabl) request:
( ix) Prepare and delh er other repons. infonnation and documents to DTC as DTC ma) reasonabl) request:
(x) Extend the ,oting rights to the Shareholder for extension h} DTC to DTC participants and the beneficial owners of Shares in accordance with policies and procedures of DTC for bool..-cnt onl) securities:
(xi) Distribute or maintain. us dircclcd by lhc Trust. amounts related to purchases and redemptions of Creation Units. di\·ide nds and distributions. variation margin on dcrivati\'e securities and collate ral:
(xii) Maintain those books and records of lhe Trust specified by lhe Trust in Schedule A attached hereto: (xiii) Prepare a month!) report or all purchases and redemptions or Shares during such month on a gross transaction basis. and identify on a dail) basis the net number of Shares either redeemed or purchased on such Busi ness Day and w i1h respect to each Authorized Pnnicipant purchasing or redeeming Shares, the amount of Shares purchased or redeemed:
(xh) RccdH from lhc Distributor (ns defined in the Purticipanl Agreement) or from its agent purchase orders from Authorized Panicipams (ns defined in thl? Participant Agreement) for Creation Unit Aggregations of Shares received in good form and accepted b) or on behalf of the applicable Series b) the Distributor. transmit appropriate trade ins truction . to the National Securities Clearance Corporation. if applicable. and pursuant 10 such
orders issue the appropriate number of Shares of such Serie:. and hold such Shares in the account of the Shareholder for each of the respective Series:
(X\) The Distributor will recdve from the Authorized Participants redemption requests and ddi,er the appropriate documentation thereof to The Bank of New York Mellon as ustodian for the Trust and the Bunk will transmit appropriate trade instructions to the National Securities Ch:arance Corporation. if applicable. and redeem the appropriate number of Creation Unit Aggregations of Shares held in the account of the Shareholder: and
(xvi) Confinn the name, U.S taxpa) er identification number and principle place of business of each Authorized Pnnicipnm.
(xvii) The Bank ma)' execute transactions directl "ith Authorized Participants to the c:-.tenl neccSSa!) or appropriate to enable the Bani.. to xxxx) out an) of the duties set forth in items (i) through (xvi) abo, e.
(:.,;, iii) Except as otherwise instructed by the Trust. the Bank shall process alI transactions in each Series in accordance w ith the policies and procedures mutually agreed upon betw een the Trust and the Bank. receh ed in good order from the Distributor before an) cu1-01Ts estoblishcd b) the Trust. and such other matters set forth in items (i) through IX\'i) abO\ e as these policies and procedures are intended to address.
(b) The Bank ma) maintain and manage. ns agent for the Trust. such accounts as the Bank shall deem necessa!') for the perfonnance of its duties under this Ag.reemenl. including. but not limited to. the processing. of Creation Unit purchases and redemptions: and the pa) menl of dividends and distributions. The Bank ntll) maintain such accounts u1 financial institutions deemed appropriate b) the Bank in accordance w ith applicable la,, .
(c) In addition to the ser\'ices sci forth in the above sub-section I . 2ta). the Bani.. shall: perfonn the customary services of a transfer agent and dividend disbursing agent including. but not limited 10. maintaining the account of the Shareholder. maintaining the items set forth on Schedule A attached hereto. and perfonning such ser\'ices identified in each Participant Agreement.
(d) The follon ing shall be deli\'crcd to OTC participants as identified by OTC as the Shareholder for book-entl) onl) securities:
( i) Annual and semi-annual reports of the Series:
(ii) ) Trust proxies. proX) stalemenb and olht!r pros) soliciting. materials:
including stickers: and
(iii) Series prospectus and amendments and supplemen t!. ther to,
(i\) Other communications as the· 1 rust ma) from time 10 time
identit as required b) law or as the Trust ma) rcasonabl) request
(v) The Bank shall provide additional servici:s. if an). as ma) be agreed upon in writing by the Trust and the Bank.
(e·1 The Bank shall keep records relating to the services 10 be performed hereunder. in the form and manner required b) applicable law5, rules. and regulations under the 1940 Act and 10 the extent required b) Section 31 of the 1940 Act and the rules thereunder (the "Rules''), all such books and records shall be the propcrl) of the Trust. w ill be preserved. maintained and made available in accordance "ith such Section and Rules. nnd w ill be surrendered prompt)) to the Trust on and in accordancew ith its request.
:?. Fees and Expenses
2.1 The Bank shall receive from the Trust such compensation for the Transfer Agent's services provided pursuant to this Agreement as ma be ugri:cd to from time to time in a w rittcn fee schedule appro\'cd b) the panics. The fees are accrued dail) and billed month!) and shall be due and payaole upon receipt of the invoice. Upon the termination of this Agreement before the end of any month. the fee for the pan of the month before such termination shall be prorated according to the proportion which such part bears 10 the full monthly period and shall be pa)ablc upon the date oftennination of this Agreement.
2.2 In addition to the foe paid under Section 2.1 above, the Trust agrces to reimburse the Bank for reasonable out-of-pocket expenses. including hut not limited to conlirmation production, postage. fonns. telephone, microfilm, microliche. tabulating proxies, records storage. or advances incurred bj the Bank for 1hc items set out in the fee schedule or relating to di\'idend distributions and reports ( whereas all expenses related to creations and redemptions of Trust securities shall be borne b) the rele\"ant Authorized Participant in such creations and redemptions ), In addition. an) other expi:?nses incurred b) the Bani.. at the request or with the consent of the Trust, w ill he reimbursed by the Trust.
2 .3 The Trust agrees to pa) all fees and reimbursable expenses "ithin ten business da) s following the receipt of the respcctiH billing. notice accompanied by supponing documemation . as appropriate. Postage for mailing of dividends. proxies. Trust rcpons and other mailings 10 all shareholder accounts shall be advanced ro the Bank b) the Trust al least seven (7) days prior to the mailing date of such mate rials .
2 4 The Trust hcrcb) ' represents and warrants 10 the Bank that i) the 1cm1s of this Agreement. (iiJ the fees and c:-..penscs associated w ith this Agreement. and (iii) an) bcndits accruing to the Bank or to the advis er to. or sponsor of. the Trust in connection with this Agreement. includ ing. hut not limited ,to an foe waivers . reimbursements, or payments mad!.!, or to be made. b) the Bank to such adviser or sponsor or to any affiliate of the Trust relating to this Agrt!ement ha,e been full) disclosed to the Board of Trustees of the Trust and that. if required b applicable law. such Board of Trustees has apprmcd or will approve the tcnns of this Agreement, and any such foes. expenses. and benefits.
J . Representations anJ Warranties of the Bani,;
The Bank represents and warrants to the Trusl that :
It is a banl,,.ing company dul) organized and existing and in good standing under the laws of the State of Ne,, Yori...
It is dul) qualified to carry on its business in the State of New York.
It is empo,\ ered under applicable la\,s and b) its Chaner and B)·Law s to act as transfer ngen1 and dh idend disbursing agent and to cnrer into. and perfonn its obligations under. this Agreement
All requisite corporate proceedings ha\'C been taken to authorize ii to enter into and pcrfonn this Agreement.
It has and will con1lnue to ha\.: access to th.: necessary facilities. equipment and personnel to perfonn its duucs and obligations under this Agre.:ment.
-L Rcpresentntions and Warranties of the frust
Del.m are .
fhe 1 rust represents and warrants 10 the Bank that· It is duly organized and existing and in good standing under the l,ms of
It is empowered under applicable laws and b} its Declaration of Trust and B).
Laws 10 enter into and perfonn this Agreemen t.
It is an open nd management in\'estmenl compan) registered under the 1940 Act.
A registration statement under the Securities Act of 1QJJ. as amended. on behalf or each of the Series has or will hecome effecti\'e, will remain effecti, e. and appropriate state securities la,\ filings ha\ e been made and will continue 10 be made. w ith respect to all Shares of the Series being offered for sale.
5. Indemnification
5.1 The Bank shall not be responsible for. and the 1 rust shall indemnif) and hold the Bank and its directors. officers, employees and agents harmless from and against. any and all losses, damages. costs. charges. counsel fees. including . n ithout limitation. those incurred b) the Bank in a successful defense of an claims b) the Trust. pa)·mcnts. e.xpenses and liabilil) (..Losses'') which ma) be sustained or incurred b)· or which may be assened against the Bank (i) in connection "ith or relating to this Agreement or the Bank's actions or omissions with respect to this Agreement. unless such Losses ha,oe arisen as a result of the Bank's bad fai1h. gross negligence. or willful misconduct. or h) the Bank·s reckless disregard of its duties and obligations under this Agreement. or (ii) as a result of acting upon any instructions rcasonnbl) believed b) the Bank to ha\e been dul authorized b) the Trust or upon reasonable reliance of infonnation or records given or made b the Trust: e.xcept for an) Losses for which the Bank has accepted liabilit) pursuant to Anicle 6 of this Agreeme nt.
5.:! Th-: Trust shall not be respons ible for. and the Bank shall indernnif) and hold the Trust hannless against. an) and all Losses caused b}: Ii) the Bank"s bad faith. gross negligence. or w illful misconduct. or of the Bank"s reckless disregard of its duties or obligations under this Agr eeme nt: (ii) the Bank·s material breach of an) representation or warrant) hereunder; or (iii'I the Bank·s materia,l iola1ion of an) applicabh: la,, or n:gulation of an) gm ernmental authorit) that maintains jurisdiction over the Bank as such relates to the Ban i....
6. Standard of Care and Limitation of Liabilit,
The Bank shall have no responsibility and shall not be liable for an) Losses, except 1hnt the Bank shall be liable to the Tnsst for direct mone damages caused b) its o,,n bad faith, gross negligence or ,, illfu1 misconduct or that of its emplo) ees. or its breach of any of its representation s or ,,arranties hereunder. or material violation of an) applicable la,, or rr.!gulation of an) go,·emmenta l authority thnt maintains jurisdictions o, er the Bank as such relates to the Bank. The panics agree that an) encoding or payment processing errors shall bc govcmcd b) this standard of care, and not Section -i-209 of the Uniform Commercial Code which shall be superseded b) th is Article. In no e, ent shall either party be liable to 1he other for special. indirect or consequential damages. regardless of the fonn of action and even if the same were foreseeable. For purposes of this Agreement. none of the foliow ing shall be or be JeemeJ a breacl1 of the Banl,;'s standard or care:
(a) The reasonable reliance on or use by the Bank or its agents or subcontractors of information, records. documenls or ser"ices "hich (i) are received b) the Bank or its agents or subcontractors. and (ii} have been prepared. maintained or pcrfonncd b) the Trust or an) other person or firm on behalf of the Trust including but not Jimited to nn) prc\'ious transfer agent or registrar.
(b) rhe reasonable reliance on. or the cal"I') ing out by the Bani.: or its agents or subcon1rac1ors of. an) instructions or requests of the Trust or instructions or requests on behalf of the Trust.
(cJ The offer or sak of Shares b) or for the Trust in \'iolation of any requiremem undcr thc federal securities li:ms or regulations, or the securities laws or regulations of an) state that such Shares be registered in such state. or an) \ iola1ion of an) stop order or other detem1ination or ruling b) an) federal agenc . orb) an) state ,, ith respect to the offer or sale of Shares in such stati:.
7. Concerninu the Bank
7.1
ta) The Bank may cmplo) agents or attomc)s-in-fac1 which arc not affiliates of the Bani-.. ,, ith the prior written consent of the Trust (w hich consent shall not be unreasonablj "ithheld ), and shall not be liable for an) lo ss or expense arising out of. or in connection w ith. the actions or omissions to act of such a ents or altomej s-in-foct. rrnvided rhat the B:mk :ic1s in good faith and with reasonable care in the selection and rr.!tention of such agents or attorneys-in-fact and provided that such delegation shall nm discharge the Bank of any of its obligations hereunder.
(b) The Bank ma), without the prior consent or the Trust. enter into subco ntracts. agreements and understandings with any Bank affiliate. wheneve r and on such terms and conditions as it deems ncccssal') or appropriate to pcrfonn its services hereunder. No such subcontract. agreement or understanding shall discharge Bank from its ob ligatio ns hcn: under.
7.'2 The Bani.. shall be entitled to rcasonabl) rel) upon an) ,uitten or oral instruction uctual l) recchcd b)' the Bank and n:asonabl) believed b) the Bank to bl! dul) authorizi:d und ddivered. The Trust agrees to forward to the Bank Mitten instructions confirming or.ii instructions b) the close of business of the same da) that such oral instructions are gin m to the Bank. The Trust agrees that the fact that such confirming \Xxxxxx instruccions are noc received or that con trlll)· wriuen instructions are recei\ed b) the Bank shall in no ,,a) affect the ,alidil) or enforceabilit) of transactions authorized b) such oral instructions and effected b) the Bank. If the Trust elects to transmit \Xxxxxx instructions through an on-line communication system offorcd b) the Bank. Trust's use thereof shall be subjecl 10 the tcm1s and condi t io ns associated with such S) Stem.
7.3 The Bank shall eslablish and maintain a disaster reco\'ery plan and back-up system satisfying the requirements of its regulators (the ..Disaster RecO\ ery Phm and Back-Up S)stem..). The Bank shall not be responsible or liable for an)' failun: or delay in the perfonnancc of its obligalions under Ihis Agreement arising out of or caused. directl) or indirectl), b) circumstances be) ond ils control which are 1101 a result of its gross negligence. includingw ith.out limitation, acts of God: earthquakes: fires: floods: ,,ars: civil or milital} disturbances: epidemics: riots: interruption. loss or malfunctions of transportation. computer (l1ardware or soft,,are) or communication sen ices: labor dis putes ; nets of ci, ii or military nutho rit) : go,ernmemal actions : or inabilit) to obtain labor. material. equipment or tra nsportation. provided that the Bank has l!stnblished and is maintaining the Disaster RecO\el') Phm and Back-Up S) stem . or i f not. that such delay or failure would have occurred e,,m if the Bunk had established and ,,as maintaining the Disaster RecO\el") Plan and Back-Up S) stem. Upon the occurrence of an) such dcla) or failure the Bani... shall usl! cornrner ciatly reasonable bl!s t efforts to rl!sumc performa nce as soon as practicable under the circumstances .
7 4 fhe Bani,. shall ha, e no duties or rcspom,ibilitics what.:io c, er except such duties anJ responsib ilities as an: specificall) set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agn:cment. except as set forth in this Agri:cment and the Partic1pa1ion Agreement
7.5 At an) lime the Bank ma} appl to an officer of the Trust. but is not obligated to do so. for wrinen ins1ructions ,,ith respect to an) xxxxx arising in connection "ith the! Bank's duties and obligations under 1his Agreement. and the Bank. its agents. and subcontractors shall not bl! liable for llllY action taken or omined to be taken in good faith in accordance "ith such instructions. Such application b) the Bani,. for instructions from an officl!r of the Trust ma . at the option of 1he Bank. set forth in \Hiting an action proposed 10 be taken or omitted to be taken b) thi: Bani.. w ith respect lo its duties or obligntions under this Agrct!mcnt and the date on and'or niter which such action shall be taken. and the Bank shall not be liable for any action taken or omitted to be taken in accordancew ith a proposal included in an) such application on or after the date sped lied therein unless. prior to taking or omitting to take an such action. the Bank has received w riuen or oral instructions in response 10 such application specifying the action to be
rnkcn or omitted. In connection" ith the foregoin g. the Bank ma) consult w ith legal counsel of its m,n choosing and at the Banl,."s expense. but is not ob1igated to do so, and advise the· 1rust if an) instructions provided b) the Trust at the request of the Bank pursuant to this Articl!! or othem ise would. to the Bank' s Imo,, ledge.cause the Bank to take an) action or omit to tah.e On) action contra!') 10 an hiw . rule, regulation or commen:ially reasonable practice for similar( situated service pro\'iders. In the event a situation or circumstance arises whcreb) the Bank adopts a course of conduct in reliance upo n written legal ad, ice it has received (which need not be a formal opinion of couns el) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trust. the Bank ma)' rel) upon and foliow the written legal ad, ice without liab ility hereunder provided the advice obtained is reasonablt.: and was in accordance wilh genemll) accepted industr:, standards. the Bank othem ise acts in compliance,, ith th is Agreement and the Bank notifies the Trust of its detennina tion .
7.6 The Bank. its agents and subcontractors ma: act upon an) paper or document. reasonably believed to be genuine and to have been signed by the proper person or persons. or upon any instruction. xxxxxxxxxxx.xxxx. records or documents provided 10 the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input. telex. CRT data entf) or other similar mean s authorized b: the Trust, and shall not be held 10 ha,e notice of an) change of authorit) of an) person. until receipt of ,uinen notice thereof from the Trust.
7.7 The Bank shall retain title 10 and Ow nership of any and all data bases. computer programs. screen ti.1m1ats. repon formats. interactive design techniques, derivative works. in\'entions. discoveries. patentable or cop) rightable matters. concepts. expertise. patents. cop) rights. trade si:crets. and other related legal rights utfliud b) the Bank in connection w ith the ser.ices pro, ided b) the Bani. hereunder. Not,, ithstanding the foregoing. the panics hereto acknow ledge that the Trust shall retnin all o,,ner:ship rights in Trust data residing on the Bank's electronic system.
7.8 Not,\ ithstanding an) pro, isions of this Agreement to the contral). the Bank shall he under no dut) or obligation to inquire into. and shall not be liable for:
(a) The legalit) of the issue. sale or transfer of an) Shares. the sufficienc) of the amount 10 be received in connection there,, ith. or the authorit) of the Trust to request such issuance. sale or transfer:
(b) The legalit:, of the purchase of an) Shares. the sufficiency of the amount to he paid in connection there\,ith. or the authorit) of the Trust to request such i,urchase:
(c) The legalit) of the declaration of an) di\'idend b> the Trust. or the legalil) of the issue of an) Shares in payment of an) stock di\ idend: or
(d) The legality ofan) recapitalization or readjustment of the Shares.
8. Providing of Documents b, the Trust and Transfers of Shan:s
8.1 The Trust shall prompll) furnish to the Bank with a cop) of its Declaration of Trust and all amendments thereto.
8.1 In the e\cnt that DTC ceases to be the Shareholder, the Bank shall re-register the Shares in the name of the successor 10 OTC os Shareholder upon receipt b) the Bani... of such documentation and assurances as ii may reasonabl) require.
8.3 The Bani. xxxx xx\e no responsibilil) what!>OC\er with respec1 to of an) bcndicial interest in an) of the Shares Ow xxx b) the Shareholder.
8.4 The Trust shall deli\ er 10 the Bank the follow ing documents on or before the effecth e date of an) increase. decrease or other change in the total number of Shares authorized to be issued:
(a) A cenilied cop) of the amendment to the Trust's Declaration of Trust "ith respect to such increase:. decrease or change:. and
(b) An opinion of counsd for the Trust. in a fonn satisfuctot: to the Bank. w ith respect 10 (i) the validit) of the Shan!S. the obtaining of all nt!cessary govemmcntol consents. whether such Shares ore fUII) paid and non-assessable and the stalllS of such Shares under the Securities Act of 1933. as amended. and an other applkable federal law or regulations ( i.e.o if subject 10 registration. that the) ha\e been registered and that the Registration Statement has become effective or. if e:-.empl. the specific grounds therefore). Iii) the status of the Trust ,, ilh regard to the 0000 Xxx. and (iii) the due and proper listing of the Shares on all applicable securities e:-.changes.
8.5 Prior to the issuance of an) additional Shan:s pursuant to stock di\'idends, stock splits or othcrn ise. and prior 10 any reduction in the number of Shares outstanding. the Trust shall deli\'er to the Bank:
(a) A l!ertified cop) of the order or consent of each governmental or rcgulator: amhority required b) law as a prerequislle to the issuance or reduction of such Shares. ns the case ma) be. and an opinion of counsel for the Trust that no other order or consent is required: and
, b) An opinion of counsel for the Trust. in a form satisfactol') to the Bani.... w ith respect to (i) the validit) of the Shares. the obmining of all necessary gO\ r;:mmcntnl consents, whe1her such Shares are full) paid and non-assessable and the status of such Shares under the Sr;:curities Act of 1933. as amcnMd, and an} other applicable foderal (aw or regulations I Le.o if subjr;:ct to registration. that the) ha\ e been rr;:gistered and thal the Registration Statement has become cffecthc or. if e cmpt. the specific grounds therefore). (iiJ the status of the Trust with regard 10 1he 1940 Act. and (iii) the due and propcr listing of the Shares on ull applicable securities exchanges.
8,6 The Bank and the Trust agree that all books. records. confidential. non-public. or proprictal') information and data pertninmg lo thr;: business of the other part) w hich arr;: exchanged or reci?ived pursuant to the negotiation or the can)ing out of this Agreement shall remain confidential. and shall not be \'oluntarily disclosed 10 any pcrson other than its auditors. accoumants. regula1ors. employees. agents. attorneys-in-foci or counsel. except as may be, or ma) become required b) la,w b) administrative or judicial order or by rule. The foregoing confidentiality obligati on shall not app l · to an) information to the extent: (i) it is alread) known 10 the receh ing part) at the time it is obtained: (ii) it is or becomes publicl) known or a,ailable
through no w rongful act of the receh ing part · (iii) it is rightfull received from a third pa ,, ho. to 1he receh ing pa ··s kno,,ledge. is nor under a dur) of confidentialit) ; th) it is released b) the protected pan to a third part) ,, ithout restriction: or (\') it hns been or is independent!) developed or obtained b) the receiving part) w ithout reference to the information pro\'ided b) the protected part) . Without limiting the genemlit) of the foregoing. the Bani.. acknm, ledges und agrees 1hat the Series are prohibited b) l,m from making selecrh e public disclosure of infonnntion regarding portfolio holdings. that disclosure of an) and all such information to the Bank hereunder is made strictl) under rhe conditions of confidemiality set forth in this Section 8.6 and sole!) for the purposes of the performance of sel'\ ices hereunder. thai any misuse of such infomrntion (including "ithout limitation any disclosure to others by the Bank or an) of its emplo) ees or agents. or an) trading on the basis of such infonnaiion b) an)·one in receipt of sm.h infonnation) ma) constitute a criminal offense of trading on or tipping of material inside information regarding public!) traded securit ies. that access to an) and all such infomrntion regarding portfolio holdings of a Series should be restricted 10 those persons needing such infonnation in the course of the perfom10nce of duties hereunder. and xxxxx the Bank shall apprise all such persons having access of the obligation hereunder and under applicable law.
8.7 In case of an} requests or demands for the inspection of the Shareholder records of the Trust. the Bank w ill promptI) cmplo reasonable commercial efforts to notif) the Trust and secure instructions from an authorized officer of the Trust as to such inspection. The Bank resc:rves the right. ho,, evc:r. 10 c:xhibi1 the Shareholder records 10 an) person whcnc\ er it is ad,ised b) its counsel that it ma) be held liable for the failure 10 exhibit the Shareholder records to such person.
9. Tcnnination of Agrc:emem
9. . l The tcm1 of this Agreement shall be one year commencing upon the date hereof (lhc "Initial Term'' ) and shall automatically rencw for additional one-)ear 1em1s (each a "Subsequent Term'') unless either pan) provides wfinen notk e of 1em1ination at least ninety (<lO) xx x prior to the end of the Initial Tenn or an} Subsequent Term or. unkss earlier terminated as prO\ id d bclm,:
(a) Either part) hereto ma) terminate this Agreerni:nt prior to the expiration of the Ini tial Tenn in the event the other part) bri:aches an) materia l pro, ision of this Agreemc"nt. including. "ithout limitation in thi: cnse of the Trust. its obligations under Section .1. provided that the non-breaching part) gh es \Hitten notice of such breach to the breaching part) and the breaching party does not cure such \ xxxx tion w i1hin 90 days of receipt of such notice.
(b) Either part) hereto ma) tc"rminale this Agreement immediate!) b) sending notice thereof to the other part) upon the happening of any of the following: (ii a part) commences as debtor an) case or proceeding under an) bankruptc). insolvcnc) or similar law, or there is commenced againsr such part) an) such case or proceeding: (ii) a pan commences as debtor an) case or proceeding sei:king the appointment of a recci\er. conscnaior, 1rus1ee. custodian or similar official for such pan) or an subs tantial part of its propert) or there is commenced against the party nn such case or proceeding: (iii) a part) mal..es a general assignment for the bc:nt!lit of creditors: or ( t, la part) states in any medium. wrinen. electronic or 01hemise. any pub lic communication or in an) other public manner its inabilit) 10 pa) debts as the) come due. Either party hereto ma)' exercise its tem1ination righr under this Section 9. 11b) at
any lime after the occurrence of an) of the foregoing e, ents notwithslanding thal such evcnl ma> cease 10 be continuing prior to such exercise. and an) dela) in exercising this right shall not be construed as a waiver or other e;x1ing.uishment of that right.
9.2 Should the Trust exercise its righl to terminate. ull out-of-pocket expenses associated "i1h the movement of records and material ,, ill be borne b) the Trust
9.3 I he tem1s of Article ::? ( w ith respect to fees and expenses incurred prior to tcnnination). Article 5 and Article 6 shal\ sun ivc an) termination of this Agreement.
I 0. Additional Series
In the event that the Tnist establishes one or mor..: additional series of Shares w ith respect to ,, hich it desires to ha\ e the Bank render services as transfor agent under the terms hereof. it shall so notif)· the Bank in w xxxxxx. and if the Bani. agrees in writing to provide such sen ices. such additional issuance shall become Shares hereunder .
11. Assignment
11.1 Neither this Agreement nor any rights or ohligations hereunder ma} be assigned b) either part) ,, ithout the written consent of the other part).
11.2 This Agreement shall inure to the benefit of and be binding upon thc partii:s and their rcspccthc pem1i11cd successors and assig ns.
l 2. Se\'erabilitv and Beneficiaries
12.1 In case any pro\'ision m or obligation under this Agreement shall be invalid. illegal or unenforceable in an) jurisdiction. th,e alidit). the legalit) and enforceability of the remaining provisions shall not in any w a) be affected thereby prO\ ided obligation of th!:! rrust to pay is conditioned upon provision of sel'\ ices, 12.2 This Agreement is solel) for the benefit of the Bank nnd the Trust. nnd none of an) Participant (as defined in the Participation Agreement). the Distributor, an) Shareholder or beneficial owner of any Shares shall be or be deemed a third part bcncliciar) of this Agn:cment
13. Amendment
This Agreement may be amended or modified b) a \Hitten agreement executed b: both parties.
14. New York Law lo Appl\
This Agreement shall be construed in accordance with the substantive law s of the State of New York. without rc:gard 10 conflicts of laws principles thereof. The Trust and the Bank hereb consent to the jurisdiction of a state or foderal court situated in Ne,\ York Cit . Ne,, York in connection with any dispute arising hereunder. The Trust hereby irrevocabl) "ah es, to the fullest extent pennitted by applicable la,,. an) objection which it may nm, or hc:reafter have to the laying of venue of any such proceeding brought in such a court and an) claim that such
proceeding brought in such a court has been brought in an incom enicnt forum. The Trust and the Bank each hereby irre,ocabl) ,, ah·es an) and all rights to trial by ju!'} in an) legal proceeding arising out of or relating. to this Agreement.
15. l\.leruer of Al!reemcnt
This Agreement constitutes the entire agreement bet,,ecn the panies hereto and supersedes an) prior agreement ,, ith rt:spect to the subjecl matter hereof whether oral orw rittcn. , 6. No1ices A11 notices and other communications as required or permitted hereunder shall be in wTiling and sent b) first class mail. postage prepaid. addressed as follm, s or to such other address or addresses of" hich the respccti, pan) shall ha, e notified the other.
If to the Bank'.
The Bank of New York 1\lellon 0 X xxxxxx Xxxxx Xxxxxx)x. XX 00000 Attention: ETF Operations "ith a cop) to : The Bank of Ne,, York Xxxxx n
000 Xxxxxx) Xxxxxx
l':cw York. NI!'w York 10186
Attention : Legar Dept. - Asset SeT\ icing
Ifto the Trust:
Exchange Traded Concepts Trust
I 0000 Xxxxxx Xxxxxx Xxx'x. Xxxxx 000 Xxxxxxxx Cit) . Oklahoma 73120 Attenti on. X. Xxxxxxx Ste,ens
17. Information Sharing
The Bank of New York l\lcllon Corporation is a global financial organization that provides serYices to clients through its affiliates and subsidiaries in multiple juris dict ions (!he ..BNY l\·!ellon Group'"). The BNY Mellon Group ma centralize functions including audit. accouming. risk. legal. compliance, sales. udrninistracion, product communication. rdationship management, storage. compiln1ion and anal) sis of customcNcla1cd data, and ocher functions (the ..Centralized Functions..) in one or more affiliates. subsidiaries and third-puny sen·ice prm iders. Solel) in connection with the Centralized Functions. (i) the Trust consents to the disclosure of and au1horizes the Bank to disclose information regarding the Trust (..Customer-Related Datn..) to the BNY l\!ellon Group and to its third-part) sen ice providers who arc subject to confidentialit) ohligotions with respect to . uch infom1ation and (ii) the Bank ma) store the names and business contact infonnation of the Trust's employees and rcprcscn!Dtivcs on the systems or in the records of the BNY Xxxxx n Group or its sel'\ kc providm . The BNY Mellon Group ma} aggregate Customer-Related Data with othi:?r data collected and.lo r calculated by the BNY l\.tellon Group. and notwithst ai1ding anything in this Agreemem to the contra!) the BNY Mellon Group" ill Ow n all such aggregated data. pro\'ided that the BNY tvlellon Group shall not distribute the aggregated data in a fonnat that identifies Customer-Rdated Data with a particular customer The Trust conlimts that it is authorized to consent to the foregoing.
18. Counterparts
This Agreement may he executed b) the parties hereto in an number of coumerparts. and all of said coun1erparts taken togethershall be deemed to constitu1e one and the same instrument,
[Signature page follm\s.]
IN WITNESS w' HEREOr . 1he parties hereto ha\ c caused 1his Agreement 10 be executed in their names and on their behalf by and through their du! authorized omccrs. as of the la1es1 date set fonh below.
EACH SERIES OF THE TRUST LISTED ON APPENDIX A
Title:
Date:
Tl-IE BANK OF NEW YORK t\.1ELLON
Date: IA /1:L. / ( 7
APPE XXX A
ROBO Global lt Robotics and Automation Index CTF
SCHEDULE A
Books And Records To Be Maintained B,· The Bank
Source Documents requesting Crealions and Redempt ioni:; Correspondenc, c AP Inquiri es Reconciliations. xxxx statements. copies of canceled checks. cash proofs
Dail t:'vlonth\y rcconciliaiion of outstanding Share s belween the Trust and OTC Dividend Records Year-end Statements and Tax Forms
21
EXHIBIT A
Fonn of Authorized Participant Agreement
22