TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ______ day of ________, 200_, by and between
the Claymore Exchange-Traded Fund Trust 2, a Delaware statutory trust, having
its principal office and place of business at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx,
Xxxxxxxx 00000 (the "Trust"), and THE BANK OF NEW YORK, a New York banking
company having its principal office and place of business at Xxx Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Bank").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust and designated agents will issue for purchase and
redeem shares of funds of the Trust (each a "Fund" and together, "Funds") only
in aggregations of shares known as "Creation Units" (currently 50,000 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 initial record or registered owner (the "Shareholder") of
all shares;
WHEREAS, the Trust on behalf of the Funds desires to appoint the Bank
as its transfer agent, dividend disbursing agent, and agent in connection with
certain other activities, and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Bank
1.1 Subject to the terms and conditions set forth in this Agreement,
the Trust, on behalf of the Funds, hereby employs and appoints the Bank to act
as, and the Bank agrees to act as its transfer agent for the authorized and
issued shares of beneficial interest of the Trust ("Shares"), and as the Trust's
dividend disbursing agent.
1.2 The Bank agrees that it will perform the following services:
(a) In accordance with the terms and conditions of the form of
Participant Agreement, attached hereto as Exhibit A, the Bank shall:
(i) Perform and facilitate the performance of purchases and
redemption of Creation Units;
(ii) Prepare and transmit by means of DTC's book-entry system
payments for dividends and distributions declared by the Trust on behalf of the
applicable Fund;
(iii) Maintain the record of the name and address of the
Shareholder and the number of Shares issued by the Trust and held by the
Shareholder;
(iv) Record the issuance of Shares of the Trust and maintain a
record of the total number of Shares of the Trust, and, which are authorized,
based upon data provided to it by the Trust. The Bank shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of
such Shares or to take cognizance of any laws relating to the issue or sale of
such Shares, which functions shall be the sole responsibility of the Trust.
(v) Prepare and transmit to the Trust and the Trust's
administrator and to any applicable securities exchange (as specified to the
Bank by the Trust or its administrator) information with respect to purchases
and redemptions of Shares;
(vi) On days that the Trust may accept orders for purchases or
redemptions, calculate and transmit to the Bank and the Trust's administrator
the number of outstanding Shares for each Fund;
(vii) On days that the Trust may accept orders for purchases
or redemptions (pursuant to the Participant Agreement), transmit to the Bank,
the Trust and DTC the amount of Shares purchased on such day;
(viii) Confirm to DTC the number of Shares issued to the
Shareholder, as DTC may reasonably request;
(ix) Prepare and deliver other reports, information and
documents to DTC as DTC may reasonably request;
(x) Extend the voting rights to the Shareholder and/or
beneficial owners of Shares in accordance with the policies and procedures of
DTC for book-entry only securities;
(xi) Maintain those books and records of the Trust specified
by the Trust in Schedule A attached hereto; and
(xii) Prepare a monthly report of all purchases and
redemptions during such month on a gross transaction basis. The monthly report
shall show the counterparty and amount of each purchase on a daily basis net
number of shares either redeemed or created for such Business Day.
(xiii) Receive from the Distributor (as defined in the
Participant Agreement) purchase orders from Authorized Participants (as defined
in the Participant Agreement) for Creation Unit aggregations of Shares received
in good form and accepted by or on behalf of the Trust by the Distributor,
transmit appropriate trade instructions to the National Securities Clearance
Corporation, if applicable, and pursuant to such orders issue the appropriate
number of Shares of the applicable fund and hold such Shares in the account of
the Shareholder for each of the respective Funds of the Trust;
(xiv) Receive from the Authorized Participants (as defined in
the Participant Agreement) redemption requests, deliver the appropriate
documentation thereof to The Bank of New York as custodian for the Trust,
generate and transmit or cause to be generated and transmitted confirmation of
receipt of such redemption requests to the Authorized Participants submitting
the same; transmit appropriate trade instructions to the National Securities
Clearance Corporation, if applicable, and redeem the appropriate number of
Creation Unit Aggregations of Shares held in the account of the Shareholder.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: perform the
customary services of a transfer agent and dividend disbursing agent including
but not limited to: maintaining the account of the Shareholder, obtaining a list
of DTC participants holding interests in the Global Certificate at the request
of the Trust, mailing proxy
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materials, shareholder reports and prospectuses to the Shareholder or DTC
participants or beneficial owners of Shares at the request of the Trust and
those services set forth on Schedule A attached hereto.
(c) The following shall be delivered to DTC for delivery to
beneficial owners in accordance with the procedures for book-entry only
securities of DTC:
(i) Annual and semi-annual reports of the Trust;
(ii) Proxies, proxy statements and other proxy soliciting
materials;
(iii) Prospectus and amendments and supplements to the
Prospectus, including stickers; and
(iv) Other communications as may be required by law or
reasonably requested by the Trust.
(d) If the Shares are represented by individual Certificates, the
Bank shall perform the services agreed to in writing by the Bank and the Trust.
(e) The Bank shall provide additional services (if any) on behalf
of the Trust (i.e., escheatment services) which may be agreed upon in writing
between the Trust and the Bank.
(f) The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner required by applicable laws, rules,
and regulations. To the extent required by Section 31 of the 1940 Act and the
rules thereunder (the "Rules"), the Bank agrees that all such records prepared
or maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Trust and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Trust on and in accordance with its request.
2. 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 may be agreed
to from time to time in a written fee schedule approved by the parties. The fees
are accrued daily and billed monthly and shall be due and payable upon receipt
of the invoice. Upon the termination of this Agreement before the end of any
month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this Agreement.
2.2 In addition to the fee paid under Section 2.1 above, the Trust
agrees to reimburse the Bank for reasonable out-of-pocket expenses, including
but not limited to confirmation production, postage, forms, telephone,
microfilm, microfiche, tabulating proxies, records storage, or advances incurred
by the Bank for the items set out in the fee schedule attached hereto or
relating to dividend distributions and reports (whereas all expenses related to
creations and redemptions of Fund securities shall be borne by the relevant
authorized participant in such creations and redemptions). In addition, any
other expenses incurred by the Bank at the request or with the consent of the
Trust, will be reimbursed by the Trust on behalf of the applicable Fund.
2.3 The Trust agrees to pay all fees and reimbursable expenses within
ten business days following the receipt of the respective billing notice
accompanied by supporting documentation, as appropriate. Postage for mailing of
dividends, proxies, Trust reports and other mailings to all shareholder
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accounts shall be advanced to the Bank by the Trust at least seven (7) days
prior to the mailing date of such materials.
3. Representations and Warranties of the Bank
3.1 The Bank represents and warrants to the Trust that:
It is a banking company duly organized and existing and in
good standing under the laws of the State of New York.
It is duly qualified to carry on its business in the State of
New York.
It is empowered under applicable laws and by its Charter and
By-Laws to act as transfer agent and dividend disbursing agent and to enter
into, and perform its obligations under, this Agreement.
All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
4. Representations and Warranties of the Trust
4.1 The Trust represents and warrants to the Bank that:
It is a business trust duly organized and existing and in good
standing under the laws of Delaware.
It is empowered under applicable laws and by its Declaration
of Trust and By-Laws to enter into and perform this Agreement.
All corporate proceedings required by said Declaration of
Trust and By-Laws have been taken to authorize it to enter into, and perform its
obligations under, this Agreement.
It is an open-end management investment company registered
under the 1940 Act.
A registration statement under the Securities Act of 1933, as
amended, on behalf of each of the Funds when it becomes effective, will remain
effective, and appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Trust being offered for
sale.
5. Anti-Money Laundering
The Bank shall provide the "Anti-Money Laundering Services" described
in Schedule I attached hereto subject to the terms and conditions of this
Agreement and the following additional terms and conditions:
(a) The Bank shall utilize systems and/or software designed, and
databases provided, by certain third parties, and shall not be liable for any
loss, damage or expense that occurs as a result of the failure of any such
systems, software, and/or databases.
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(b) The Bank shall perform the AML Services in good faith and with
due care. However, the Bank does not warrant that (x) its performance of the
Anti-Money Laundering Services will achieve any particular intended result, and
that its performance will satisfy any legal obligations of the Fund, (y) that
its performance will be uninterrupted, or (z) that it will detect all possible
instances of money laundering or transactions involving money laundering or
other unlawful activities. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE BANK MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
(c) The Bank may assume the authenticity and accuracy of any
document provided by a Shareholder or potential Shareholder if in the reasonable
opinion of the Bank the same on its face appears to be genuine.
(d) The Bank shall provide prompt notice to the Fund of any
potential Shareholder with respect to whom the Bank has anti-money laundering
concerns based on the result of its Anti-Money Laundering Services.
(e) In the event of any failure by the Bank to provide any of the
Anti-Money Laundering Services in accordance with its standard of care and not
otherwise, the Bank's liability shall be limited to the greater of (x) the
actual direct money damages suffered by the Fund as a direct result of such
failure and (y) the amounts paid by the Fund under this Agreement for the
providing of such services.
(f) The Bank is providing the Anti-Money Laundering Services based
on the following representations, warranties and covenants of the Fund, each of
which shall be deemed continued and repeated on each day on which the Bank
provides such services: (x) the Anti-Money Laundering Services together with the
activities of the Fund in accordance with its internal policies, procedures and
anti-money laundering controls shall together satisfy all the requirements of
the laws with respect to money laundering applicable to the Fund; (y) the Fund
shall provide each Participant Agreement to the Bank a reasonable time before
accepting any initial payment from a Shareholder or potential Shareholder and
shall not accept any such payment unless and until the Bank shall have completed
its providing of the Anti-Money Laundering Services; and (z) the Fund shall
instruct the Bank not to accept any payment on behalf of the Fund from a
Shareholder or potential Shareholder or pay on behalf of the Fund any redemption
or repurchase proceeds to a Shareholder or potential Shareholder if the Fund
determines that such acceptance or payment would violate any money laundering
laws applicable to the Fund.
6. Indemnification
6.1 The Bank shall not be responsible for, and the Trust shall
indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
("Losses") to the extent such losses arise out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors
required to be taken pursuant to, and performed in accordance with the terms and
conditions of this Agreement.
(b) The Trust's negligence or willful misconduct.
(c) The breach of any representation or warranty of the Trust
hereunder.
(d) The conclusive reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services which (i) are
received by the Bank or its agents or
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subcontractors, and (ii) have been prepared, maintained or performed by the
Trust or any other person or firm on behalf of the Trust including but not
limited to any previous transfer agent or registrar.
(e) The conclusive reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests of the Trust on
behalf of the Trust.
(f) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
6.2 At any time the Bank may apply to any officer of the Trust for
instructions, and may consult with legal counsel of their choosing with respect
to any matter arising in connection with the services to be performed by the
Bank under this Agreement, and the Bank and its agents or subcontractors shall
not be liable for any action taken or omitted by it in reliance upon such
instructions received from the Trust and shall promptly advise the Trust of such
advice or opinion (except for actions or omissions by Bank taken with negligence
or willful misconduct). The Bank, its agents and subcontractors may act upon any
paper or document, reasonably believed to be genuine and to have been signed by
the proper person or persons, or upon any instruction, information, data,
records or documents provided to the Bank or its agents or subcontractors by or
on behalf of the Trust by machine readable input, telex, CRT data entry or other
similar means authorized by the Trust, and shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Trust.
6.3 The Trust shall not be responsible for, and the Bank shall be
liable for and shall indemnify the Trust against direct money damages arising
out of or attributable to:
(a) The Bank's own negligence or willful misconduct.
(b) The breach of any representation or warranty of the Bank
hereunder.
6.4 This indemnification provision shall apply to actions taken
pursuant to this Agreement and the Participant Agreement.
7. Standard of Care
The Bank shall have no responsibility and shall not be liable for any
loss or damage unless such loss or damage is caused by its own negligence or
willful misconduct or that of its employees, or its breach of any of its
representations. In no event shall either party be liable for special, indirect
or consequential damages regardless of the form of action and even if the same
were foreseeable.
8. Concerning the Bank
8.1 (a) Bank may employ agents or attorneys-in-fact which are not
affiliates of Bank with the prior written consent of the Trust (which consent
shall not be unreasonably withheld), and shall not be liable for any loss or
expense arising out of, or in connection with, the actions or omissions to act
of such agents or attorneys-in-fact, provided that Bank acts in good faith and
with reasonable care in the selection and retention of such agents or
attorneys-in-fact.
(b) Bank may, without the prior consent of the Trust, enter into
subcontracts, agreements and understandings with any Bank affiliate, whenever
and on such terms and conditions as it
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deems necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall discharge Bank from its
obligations hereunder.
8.2 Bank shall be entitled to conclusively rely upon any written or
oral instruction actually received by Bank and reasonably believed by Bank to be
duly authorized and delivered. Trust agrees to forward to Bank written
instructions confirming oral instructions by the close of business of the same
day that such oral instructions are given to Bank. Trust agrees that the fact
that such confirming written instructions are not received or that contrary
written instructions are received by Bank shall in no way affect the validity or
enforceability of transactions authorized by such oral instructions and effected
by Bank. If Trust elects to transmit written instructions through an on-line
communication system offered by Bank, Trust's use thereof shall be subject to
the terms and conditions attached hereto as Appendix A.
8.3 Bank shall establish and maintain a disaster recovery plan and
back-up system at all times satisfying the requirements of all applicable law,
rules, and regulations and which is reasonable under the circumstances (the
"Disaster Recovery Plan and Back-Up System"). Bank shall not be responsible or
liable for any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its control which are not a result of its negligence, including without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; loss or malfunctions of utilities,
labor disputes; acts of civil or military authority; governmental actions; or
inability to obtain labor, material, equipment or transportation, provided that
the Bank has established and is maintaining the Disaster Recovery Plan and
Back-Up System, or if not, that such delay or failure would have occurred even
if Bank had established and was maintaining the Disaster Recovery Plan and
Back-Up System. Upon the occurrence of any such delay or failure Bank shall use
commercially reasonable best efforts to resume performance as soon as
practicable under the circumstances.
8.4 Bank shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this Agreement
and the Participation Agreement, and no covenant or obligation shall be implied
against Bank in connection with this Agreement except as set forth in this
Agreement and the Participation Agreement.
8.5 At any time the Bank may apply to an officer of the Trust for
written instructions with respect to any matter arising in connection with the
Bank's duties and obligations under this Agreement, and the Bank shall not be
liable for any action taken or omitted to be taken by the Bank in good faith in
accordance with such instructions. Such application by the Bank for instructions
from an officer of the Trust may, at the option of the Bank, set forth in
writing any action proposed to be taken or omitted to be taken by the Bank with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken, and the Bank shall not be liable for any
action taken or omitted to be taken in accordance with a proposal included in
any such application on or after the date specified therein unless, prior to
taking or omitting to take any such action, the Bank has received written or
oral instructions in response to such application specifying the action to be
taken or omitted.
8.6 Notwithstanding any provisions of this Agreement to the contrary,
the Bank shall be under no duty or obligation to inquire into, and shall not be
liable for:
(a) The legality of the issue, sale or transfer of any Shares, the
sufficiency of the amount to be received in connection therewith, or the
authority of the Trust to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency of
the amount to be paid in connection therewith, or the authority of the Trust to
request such purchase;
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(c) The legality of the declaration of any dividend by the Trust,
or the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the
Shares.
9. Covenants of the Trust and the Bank
9.1 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the sole Trustee of the
Trust authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the Amended and Restated Declaration of Trust and
By-Laws of the Trust and all amendments thereto.
9.2 Shares will be transferred upon presentation to the Bank of Shares
to its electronic account at DTC, accompanied by such documents as the Bank
deems necessary to evidence the authority of the person making such transfer,
and bearing satisfactory evidence of the payment of applicable stock transfer
taxes, if any. In the case of small estates where no administration is
contemplated, the Bank may, when furnished with an appropriate surety bond, and
without further approval of the Trust, transfer Shares registered in the name of
the decedent where the current market value of the Shares being transferred does
not exceed such amount as may from time to time be prescribed by the various
states. The Bank reserves the right to refuse to transfer Shares until it is
satisfied that the endorsements on documents submitted to it are valid and
genuine, and for that purpose it may require, unless otherwise instructed by an
Officer of the Trust, a guaranty of signature by an "eligible guarantor
institution" meeting the requirements of the Bank, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Bank in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended. The Bank
also reserves the right to refuse to transfer Shares until it is satisfied that
the requested transfer is legally authorized, and it shall incur no liability
for the refusal in good faith to make transfers which the Bank, in its
reasonable judgment, deems improper or unauthorized, or until it is satisfied
that there is no basis to any claims adverse to such transfer. The Bank may, in
effecting transfers of Shares, rely upon those provisions of the Uniform Act for
the Simplification of Fiduciary Security Transfers or the Uniform Commercial
Code, as the same may be amended from time to time, applicable to the transfer
of securities, and the Trust shall indemnify the Bank for any act done or
omitted by it in good faith in reliance upon such laws.
9.3 The Bank assumes no responsibility with respect to the transfer of
restricted securities where counsel for the Trust advises that such transfer may
be properly effected.
9.4 The Trust shall deliver to the Bank the following documents on or
before the effective date of any increase, decrease or other change in the total
number of Shares authorized to be issued:
(a) An opinion of counsel for the Trust, in a form satisfactory to
the Bank, with respect to (i) the validity of the Shares, the obtaining of all
necessary governmental consents, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and any other
applicable federal law or regulations (i.e., if subject to registration, that
they have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefore), (ii) the status of the
Trust with regard to the 1940 Act, and (iii) the due and proper listing of the
Shares on all applicable securities exchanges; and
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(b) In the case of an increase, if the appointment of the Bank was
theretofore expressly limited, a certified copy of a resolution of the Board of
Directors of the Trust increasing the authority of the Bank.
9.5 Prior to the issuance of any additional Shares pursuant to stock
dividends, stock splits or otherwise, and prior to any reduction in the number
of Shares outstanding, the Trust shall deliver the following documents to the
Bank:
(a) A certified copy of the resolutions adopted by the Board of
Directors and/or the shareholders of the Trust authorizing such issuance of
additional Shares of the Trust or such reduction, as the case may be;
(b) A certified copy of the order or consent of each governmental
or regulatory authority required by law as a prerequisite to the issuance or
reduction of such Shares, as the case may be, and an opinion of counsel for the
Trust that no other order or consent is required; and
(c) An opinion of counsel for the Trust, in a form satisfactory to
the Bank, with respect to (i) the validity of the Shares, the obtaining of all
necessary governmental consents, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and any other
applicable federal law or regulations (i.e., if subject to registration, that
they have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefore), (ii) the status of the
Trust with regard to the 1940 Act, and (iii) the due and proper listing of the
Shares on all applicable securities exchanges.
9.6 The Bank agrees that all records prepared or maintained by the Bank
relating to the services to be performed by the Bank hereunder are the property
of the Trust and will be preserved, maintained and made available upon
reasonable request, and will be surrendered promptly to the Trust on and in
accordance with its request.
9.7 The Bank and the Trust agree that all books, records, confidential,
non-public, or proprietary information and data pertaining to the business of
the other party which are exchanged or received pursuant to the negotiation or
the carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be, or may become
required by law, by administrative or judicial order or by rule.
9.8 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Bank will promptly employ reasonable
commercial efforts to notify the Trust and secure instructions from an
authorized officer of the Trust as to such inspection. The Bank reserves the
right, however, to exhibit the Shareholder records to any person whenever it is
advised by its counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
9.9 Bank shall file such appropriate information returns concerning the
payment and composition of dividends and capital gain distributions and tax
withholding with the proper Federal, State and local authorities as are required
by law to be filed by the Trust and shall withhold such sums as are required to
be withheld by applicable law.
10. Termination of Agreement
10.1 The term of this Agreement shall be one year commencing upon the
date hereof (the "Initial Term") and shall automatically renew for additional
one-year terms unless either party provides
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written notice of termination at least ninety (90) days prior to the end of any
one year term or, unless earlier terminated as provided below:
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party breaches any
material provision of this Agreement, including, without limitation in the case
of the Trust, its obligations under Section 2.1, provided that the non-breaching
party gives written notice of such breach to the breaching party and the
breaching party does not cure such violation within 90 days of receipt of such
notice.
(b) The Trust may terminate this Agreement at any time upon ninety
(90) days' prior written notice.
10.2 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Trust.
10.3 The terms of Article 2 (with respect to fees and expenses incurred
prior to termination), Article 6, and Section 9.4 shall survive the termination
of this Agreement.
11. Additional Series
11.1 In the event that the Trust establishes one or more additional
series of Shares with respect to which it desires to have the Bank render
services as transfer agent under the terms hereof, it shall so notify the Bank
in writing, and if the Bank agrees in writing to provide such services, such
additional issuance shall become Shares hereunder.
12. Assignment
12.1 Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the other party.
12.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
13. Severability and Beneficiaries
13.1 In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby provided obligation of Trust to pay is conditioned upon provision of
services.
14. Amendment
14.1 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Trustees of the Trust.
15. New York Law to Apply
15.1 This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of laws
principles thereof. The Trust and Bank hereby consent to the jurisdiction of a
state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Trust hereby irrevocably waives, to the
fullest extent permitted by
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applicable law, any objection which it may now or hereafter have to the laying
of venue of any such proceeding brought in such a court and any claim that such
proceeding brought in such a court has been brought in an inconvenient forum.
The Trust and Bank each hereby irrevocably waives any and all rights to trial by
jury in any legal proceeding arising out of or relating to this Agreement.
16. Merger of Agreement
16.1 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
17. Limitations of Liability of the Trustees and Shareholders
17.1 It is expressly acknowledged and agreed that the obligations of
the Trust hereunder shall not be binding upon any of the shareholders, Trustees,
officers, employees or agents of the Trust, personally, but shall bind only the
trust property of the Trust, as provided in its 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 as provided in its Declaration of Trust.
18. Counterparts
18.1 This Agreement may be executed by the parties hereto in any number
of counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
By: _______________________________________
Name:
Title:
THE BANK OF NEW YORK
By: _______________________________________
Name:
Title:
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SCHEDULE A
BOOKS AND RECORDS TO BE MAINTAINED BY BANK
Source Documents requesting Creations and Redemptions
Correspondence/AP Inquiries
Reconciliations, bank statements, copies of canceled checks, cash proofs
Daily/Monthly reconciliation of outstanding units between the Trust and DTC
Net Asset Computation Documentation
Dividend Records
Year-end Statements and Tax Forms
12
EXHIBIT A
Form of Authorized Participant Agreement
