ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of April 11, 2012 by and between BNY MELLON
INVESTMENT SERVICING (US) INC., a Massachusetts corporation ("BNY") and FIRST
TRUST VARIABLE INSURANCE TRUST, a Massachusetts business trust (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain BNY to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each, a "Portfolio"), and BNY wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation
in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by BNY from an
Authorized Person or from a person reasonably believed by BNY to be
an Authorized Person. BNY may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
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(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" means the 1933 Act, the 1934 Act and the ▇▇▇▇ ▇▇▇.
(g) "Shares" mean the shares of beneficial interest of the Fund. (h)
"Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by BNY or (ii) trade instructions
transmitted (and received by BNY) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints BNY to provide administration and
accounting services to each of the Portfolios, in accordance with the
terms set forth in this Agreement. BNY accepts such appointment and agrees
to furnish such services. BNY shall be under no duty to take any action
hereunder on behalf of the Fund or any Portfolio except as specifically
set forth herein or as may be specifically agreed to by BNY and the Fund
in a written amendment hereto. BNY shall not bear, or otherwise be
responsible for, any fees, costs or expenses charged by any third party
service providers engaged by the Fund or by any other third party service
provider to the Fund.
3. COMPLIANCE WITH RULES AND REGULATIONS.
BNY undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by BNY hereunder. Except as specifically set forth herein, BNY assumes no
responsibility for such compliance by the Fund or other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, BNY shall act only upon
Oral Instructions or Written Instructions.
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(b) BNY shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by BNY to be an Authorized Person) pursuant to
this Agreement. BNY may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's board of directors
or of the Fund's shareholders, unless and until BNY receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to BNY Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
BNY or its affiliates) so that BNY receives the Written Instructions
by the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by BNY or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or BNY's ability to
rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If BNY is in doubt as to any action it should or
should not take, BNY may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If BNY shall be in doubt as to any question of
law pertaining to any action it should or should not take, BNY may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or BNY, at the option of
BNY). The Fund shall pay the reasonable cost of any counsel retained
by BNY with prior notice to the Fund.
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(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions BNY receives
from the Fund and the advice BNY receives from counsel, BNY may rely
upon and follow the advice of counsel.
(d) Protection of BNY. BNY shall be indemnified by the Fund and without
liability for any action BNY takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions
BNY receives from or on behalf of the Fund or from counsel and which
BNY believes, in good faith, to be consistent with those directions
or advice and Oral Instructions or Written Instructions. Nothing in
this section shall be construed so as to impose an obligation upon
BNY (i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund which are in the
possession or under the control of BNY shall be the property of the
Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations provided the Fund provides BNY with written notice
of such laws, rules and regulations, other than the 1940 Act and the
Internal Revenue Code of 1986, as amended, that are applicable. The
Fund and Authorized Persons shall have access to such books and
records at all times during BNY's normal business hours upon
reasonable advance notice. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by BNY to the
Fund or to an Authorized Person, at the Fund's expense.
(b) BNY shall keep the following records:
(i) all books and records with respect to each Portfolio's books
of account;
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(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as BNY is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or BNY and their respective subsidiaries and
affiliated companies; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund or BNY a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if: (a) it is necessary for BNY to release such information in connection
with the provision of services under this Agreement; (b) it is already
known to the receiving party at the time it is obtained; (c) it is or
becomes publicly known or available through no wrongful act of the
receiving party; (d) it is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (e) it is released by the protected party to a third
party without restriction; (f) it is requested or required to be disclosed
by the receiving party pursuant to a court order, subpoena, governmental
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or regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (g) it is Fund information provided by BNY in
connection with an independent third party compliance or other review; (h)
it is relevant to the defense of any claim or cause of action asserted
against the receiving party; or (i) it has been or is independently
developed or obtained by the receiving party. BNY acknowledges and agrees
that in connection with its services under this Agreement it receives
non-public confidential portfolio holdings information ("Portfolio
Information") with respect to the Fund. BNY agrees that, subject to the
foregoing provisions of and the exceptions set forth in this Section 7
(other than the exception set forth above in this Section 7 as sub-item
(a), which exception set forth in sub-item (a) shall not be applicable to
the Fund's Portfolio Information), BNY will keep confidential the Fund's
Portfolio Information and will not disclose the Fund's Portfolio
Information other than pursuant to a Written Instruction (which Written
Instruction may be a standing Written Instruction); provided that without
the need for such a Written Instruction and notwithstanding any other
provision of this Section 7 to the contrary, the Fund's Portfolio
Information may be disclosed to third party pricing services which are
engaged by BNY in connection with the provision of services under this
Agreement and which shall be subject to a duty of confidentiality with
respect to such Portfolio Information.
8. LIAISON WITH ACCOUNTANTS. BNY shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Portfolio. BNY shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Fund.
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9. BNY SYSTEM. BNY shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by BNY in connection with
the services provided by BNY to the Fund.
10. DISASTER RECOVERY. BNY shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions
for emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
BNY shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. BNY shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by BNY's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by BNY during the term of this
Agreement, the Fund, on behalf of each Portfolio, will pay to BNY a
fee or fees as may be agreed to in writing by the Fund and BNY.
(b) The undersigned hereby represents and warrants to BNY that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to BNY or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by BNY to such adviser or sponsor or any
affiliate of the Fund relating to this Agreement have been fully
disclosed to the board of directors of the Fund and that, if
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required by applicable law, such board of directors has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless BNY and its
affiliates providing services under this Agreement, including their
respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) ("Claims")
arising directly from any action or omission to act which BNY takes
in connection with the provision of services to the Fund. Neither
BNY, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by
BNY's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard in the performance of BNY's or its
affiliates activities under this Agreement. The provisions of this
Section 12 shall survive termination of this Agreement.
(b) Indemnification of the Fund. BNY agrees to defend, indemnify and
hold the Fund and its officers, directors and employees harmless
from any and all Claims arising directly from the gross negligence,
bad faith, reckless disregard or willful misfeasance of BNY and its
affiliates in the performance of its duties hereunder.
Notwithstanding the foregoing, the Fund shall not be indemnified
against any Claim caused by the Fund's or the Fund's other service
providers' willful misfeasance, bad faith or gross negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks indemnification under
this Agreement must promptly give the other party notice of
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any legal action; provided, however, that a delay in notice
does not relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying party
shows that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the
other party;
(2) is not liable to the other party for any later attorney's fees or
for any other later expenses that the other party incurs, except for
reasonable investigation costs;
(3) must not compromise or settle the action without the other party's
consent (but the other party must not unreasonably withhold its
consent); and
(4) is not liable for any compromise or settlement made without its
consent.
(iii) Failing to Assume the Defense. If the indemnifying party fails
to participate in or assume the defense within 15 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party.
13. RESPONSIBILITY OF BNY.
(a) BNY shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by BNY and the Fund in a written amendment
hereto. BNY shall be obligated to exercise commercially reasonable
care and diligence in the performance of its duties hereunder and to
act in good faith in performing services provided for under this
Agreement. As set forth herein, and as may be agreed to in writing
from time to time by BNY and the Fund with regard to such matters of
liability, BNY shall be liable only for any damages arising out of
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BNY's failure to perform its duties under this Agreement to the
extent such damages arise out of BNY's willful misfeasance, bad
faith, gross negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, BNY
shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; failure of the mails; or functions
or malfunctions of the internet, firewalls, encryption systems or
security devices caused by any of the above; and (ii) BNY shall not
be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which BNY
reasonably believes to be genuine. BNY shall not be liable for any
damages arising out of any action or omission to act by any prior
service provider of the Fund or for any failure to discover any such
error or omission.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party to this Agreement nor their respective affiliates shall be
liable for any consequential, incidental, exemplary, punitive,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by such party.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
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(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
BNY will perform the following accounting services with respect to each
Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for a Portfolio (the "Adviser") and transmit
trades to the Fund's custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of each Portfolio's investments in accordance with
the Fund's valuation policies or guidelines; provided, however,
that BNY shall not under any circumstances be under a duty to
independently price or value any of the Fund's investments itself,
which includes any securities lending related collateral investment
accounts, or to confirm or validate any information or valuation
provided by the Adviser or any other pricing source, nor shall BNY
have any liability related to inaccuracies or otherwise with
respect to such information or valuations;
(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
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(xv) Compute net asset value; and
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
BNY will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
(iv) Prepare and provide each Portfolio's fiscal year end tax provision
to support the preparation of each Portfolio's Federal and state
tax returns;
(v) Monitor each Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vi) Prepare the Fund's annual and semi-annual shareholder reports;
(vii) If the chief executive officer or chief financial officer of the
Fund is required to provide a certification as part of the Fund's
Form N-Q or Form N-CSR filing pursuant to regulations promulgated
by the Securities and Exchange Commission under Section 302 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, BNY will provide (to such person or
entity as agreed between the Fund and BNY) a sub-certification in
support of certain matters set forth in the aforementioned
certification, such sub-certification to be in such form and
relating to such matters as agreed between the Fund and BNY from
time to time. BNY shall be required to provide the
sub-certification only during the term of the Agreement and only if
it receives such cooperation as it may request to perform its
investigations with respect to the sub-certification. For clarity,
the sub-certification is not itself a certification under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or under any other regulatory
requirement; and
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue until
June 12, 2013 (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Fund or BNY provides written notice to the
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other of its intent not to renew. Such notice must be received not
less than ninety (90) days prior to the expiration of the Initial
Term or the then current Renewal Term.
(c) In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor accounting and administration
services agent(s) (and any other service provider(s)), and all
trailing expenses incurred by BNY, will be borne by the Fund and
paid to BNY if known at such time prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement
by giving thirty (30) days written notice of such termination to
the Defaulting Party. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to BNY, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (or such other
address as BNY may inform the Fund in writing); (b) if to the Fund, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇; fax
(▇▇▇) ▇▇▇-▇▇▇▇ (or such other address as the Fund may inform BNY in
writing); or (c) if to neither of the foregoing, at such other address as
shall have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to
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have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given three days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought
19. ASSIGNMENT. BNY may assign its rights hereunder to any affiliate of BNY
provided that BNY gives the Fund thirty (30) days prior written notice of
such assignment.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. 21. FURTHER ACTIONS. Each party
agrees to perform such further acts and execute such further documents as
are necessary to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the
Fund agrees not to make any modifications to its registration
statement or adopt any policies which would affect materially the
obligations or responsibilities of BNY hereunder without the prior
written approval of BNY, which approval shall not be unreasonably
withheld or delayed. The scope of services to be provided by BNY
under this Agreement shall not be increased as a result of new or
revised regulatory or other requirements that may become applicable
with respect to the Fund, unless the parties hereto expressly agree
in writing to any such increase.
(b) During the term of this Agreement and for one year thereafter, the
Fund shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or
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hire any of BNY's employees, and the Fund shall cause the Fund's
sponsor and the Fund's affiliates to not (with the exceptions noted
in the immediately succeeding sentence) knowingly solicit or
recruit for employment or hire any of BNY's employees. To
"knowingly" solicit, recruit or hire within the meaning of this
provision does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a BNY employee by the Fund,
the Fund's sponsor or an affiliate of the Fund if the BNY employee
was identified by such entity solely as a result of the BNY
employee's response to a general advertisement by such entity in a
publication of trade or industry interest or other similar general
solicitation by such entity
(c) Except as expressly provided in this Agreement, BNY hereby
disclaims all representations and warranties, express or implied,
made to the Fund or any other person, including, without
limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade),
of any services or any goods provided incidental to services
provided under this Agreement. BNY disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
(d) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(e) The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(f) Notwithstanding any provision hereof, the services of BNY are not,
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nor shall they be, construed as constituting legal advice or the
provision of legal services for or on behalf of the Fund or any
other person. Neither this Agreement nor the provision of services
under this Agreement establishes or is intended to establish an
attorney-client relationship between the Fund and BNY.
(g) The Fund will provide such information and documentation as BNY may
reasonably request in connection with services provided by BNY to
the Fund.
(h) This Agreement shall be deemed to be a contract made in Delaware
and governed by Delaware law, without regard to principles of
conflicts of law.
(i) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(j) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. Except as may be explicitly stated in this Agreement, (i)
this Agreement is not for the benefit of any other person or entity
and (ii) there shall be no third party beneficiaries hereof.
(k) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(l) The Fund and BNY agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether
past, present or future, of the Fund individually, but are binding
only upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution
and delivery of this Agreement have been authorized by the
directors of the Fund, and signed by an authorized officer of the
Fund, acting as such, and neither such authorization by such
directors nor such execution and delivery by such officer shall be
deemed to have been made by any of them or any shareholder of the
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Fund individually or to impose any liability on any of them or any
shareholder of the Fund personally, but shall bind only the assets
and property of the Fund (or applicable series thereof), as
provided in the Articles of Incorporation or Declaration of Trust.
(m) To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each
financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an
account with that financial institution on or after October 1,
2003. Certain of BNY's affiliates are financial institutions, and
BNY may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer identification
number or other government-issued identification number, and, if
such party is a natural person, that party's date of birth. BNY may
also ask (and may have already asked) for additional identifying
information, and BNY may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data
elements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BNY MELLON INVESTMENT SERVICING (US) INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
FIRST TRUST VARIABLE INSURANCE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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EXHIBIT A
THIS EXHIBIT A, dated as of April 11, 2012, is Exhibit A to that certain
Administration and Accounting Services Agreement dated as of April 11, 2012
between BNY Mellon Investment Servicing (US) Inc. and First Trust Variable
Insurance Trust.
Portfolios
First Trust/Dow ▇▇▇▇▇ Dividend & Income Allocation Portfolio
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