TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT is made as of the 3rd day of May, 2005, by and between
RYDEX ETF TRUST, a Delaware statutory trust, having its principal office and
place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
(the "FUND"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "TRANSFER AGENT").
WHEREAS, the Fund is authorized to issue shares in separate series (the
"SHARES"), with each such series representing interests in a separate portfolio
of securities and other assets;
WHEREAS, the Fund is currently offering its Shares in two (2) series, as
named in the attached SCHEDULE A which may be amended by the parties from time
to time (such series, together with all other series subsequently established by
the Fund and made subject to this Agreement in accordance with Article 10, being
herein referred to as a "PORTFOLIO", and collectively as the "PORTFOLIOS");
WHEREAS, the Fund will issue and redeem Shares of each Portfolio only in
aggregations of Shares known as "CREATION UNITS," generally in exchange for a
basket of certain equity securities and a specified cash payment, as more fully
described in the currently effective prospectus and statement of additional
information of the Fund for each Portfolio (collectively, the "PROSPECTUS");
WHEREAS, only those entities that are party to an Authorized Participant
Agreement with the Fund (the "AUTHORIZED PARTICIPANTS") are eligible to place
order for Creation Units to the Fund's distributor, currently Rydex
Distributors, Inc. (the "DISTRIBUTOR");
WHEREAS, The Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York ("DTC"), or its nominee, will
be the record or registered owner of all Shares; and
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the
Transfer Agent as its transfer agent, and agent in connection with certain other
activities, and the Transfer Agent 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
1.1 Subject to the terms and conditions set forth in this Agreement, the
Fund, on behalf of the Portfolios, hereby employs and appoints the
Transfer Agent to act as, and the Transfer Agent agrees to act as
its transfer agent for the Creation Units.
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1.2 TRANSFER AGENCY SERVICES. In accordance with procedures established
from time to time by agreement between the Fund on behalf of each of
the Portfolios, as applicable and the Transfer Agent, the Transfer
Agent, shall:
(i) Receive orders for the purchase of Creation Units from the
Fund or Distributor, and promptly deliver payment and
appropriate documentation thereof to the Custodian of the Fund
as identified by the Fund (the "CUSTODIAN");
(ii) Generate or cause to be generated and transmitted confirmation
of receipt of such purchase orders to the Authorized
Participants; transmit appropriate trade instruction to the
National Securities Clearance Corporation, if applicable;
(iii) Receive redemption requests and directions from the Fund or
Distributor and deliver the appropriate documentation thereof
to the Custodian;
(iv) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such
monies, if any, to the redeeming Authorized Participant as
instructed by the Fund;
(v) Prepare and transmit by means of DTC's book-entry system
payments for any dividends and declared by the Fund on behalf
of a Portfolio; and
(vi) Record the issuance of Shares and maintain a record of the
total number of Shares which are issued and outstanding.
Notwithstanding any provision to the contrary, (1) the Transfer
Agent shall have no obligation, when recording the issuance of
Shares or otherwise, to monitor the issuance of such Shares to
determine if there are authorized Shares available for issuance or
to take cognizance of any laws relating to, or corporate actions
required for, the issue or sale of such Shares, which functions
shall be the sole responsibility of the Fund; and (2) excluding DTC
or its nominee as the record or registered owner, the Transfer Agent
shall have no obligations or responsibilities to account for, keep
records of, or otherwise related to, the beneficial owners of the
Shares.
1.3 STATE TRANSACTION REPORTING. The Fund shall be solely responsible
for its "blue sky" compliance and state registration requirements.
1.4 NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). The Transfer
Agent shall issue instructions to Fund's banks for the settlement of
transactions between the Fund and NSCC (acting on behalf of its
broker-dealer and bank participants).
1.5 AUTHORIZED PERSONS. The Fund, on behalf of each Portfolio, hereby
agrees and acknowledges that the Transfer Agent may rely on the
current list of authorized persons, including the Distributor, as
provided or agreed to by the Fund and as may be amended from time to
time, in receiving instructions to issue or redeem Creation
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Units. The Fund agrees and covenants for itself and each such
authorized person that any order, sale or other transfer of or
transaction in the Creation Units received by it after the close of
the regular trading session on the New York Stock Exchange shall be
effectuated at the net asset value determined on the next business
day or as otherwise required pursuant to the Fund's then-effective
prospectus, and the Fund or such authorized person shall so instruct
the Transfer Agent of the proper effective date of the transaction.
1.6 ANTI-MONEY LAUNDERING AND CLIENT SCREENING. With respect to the
Fund's or any Portfolio's offering and sale of Creation Units at any
time, and for all subsequent transfers of such interests, the Fund
shall, directly or indirectly and to the extent required by law, (i)
conduct know your customer/client identity due diligence with
respect to potential investors and transferees in the Shares and
Creation Units and shall obtain and retain due diligence records for
each investor and transferee, (ii) use its best efforts to ensure
that each investor's and any transferee's funds used to purchase
Creation Units or Shares shall not be derived from, nor the product
of, any criminal activity, (iii) if requested, provide periodic
written verifications that such investors/transferees have been
checked against the United States Department of the Treasury Office
of Foreign Assets Control database for any non-compliance or
exceptions, and (iv) perform its obligations under this Section 1.6
in accordance with all applicable anti-money laundering laws and
regulations. In the event that the Transfer Agent has received
advice from counsel that access to underlying due diligence records
pertaining to the investors/transferees is necessary to ensure
compliance by the Transfer Agent with relevant anti-money laundering
(or other applicable) laws or regulations, the Fund shall, upon
receipt of written request from the Transfer Agent, provide the
Transfer Agent copies of such due diligence records.
1.7 TAX LAW. The Transfer Agent shall have no responsibility or
liability for any obligations now or hereafter imposed on the Fund,
a Portfolio, any Creation Units, any Shares, a beneficial owner
thereof, an Authorized Participants or the Transfer Agent as
transfer agent for the Creation Units by the tax laws of any country
or of any state or political subdivision thereof. It shall be the
responsibility of the Fund to notify the Transfer Agent of the
obligations imposed on the Fund, a Portfolio, the Creation Units,
the Shares, or the Transfer Agent as transfer agent for the Creation
Units by the tax law of countries, states and political subdivisions
thereof, including responsibility for withholding and other taxes,
assessments or other governmental charges, certifications and
governmental reporting.
2. FEES AND EXPENSES
2.1 For the performance by the Transfer Agent pursuant to this
Agreement, the Fund agrees on behalf of each of the Portfolios to
pay the Transfer Agent the fees set out in the attached fee
schedule. Such fees and any out-of-pocket expenses and advances
identified under Section 2.2 below may be changed from time to time
subject to mutual written agreement between the Fund and the
Transfer Agent.
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2.2 In addition to the fees paid under Section 2.1 above, the Fund
agrees on behalf of each of the Portfolios to reimburse the Transfer
Agent for 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 Transfer Agent for the items set out in the fee
schedule attached hereto. In addition, any other expenses incurred
by the Transfer Agent at the request or with the consent of the
Fund, will be reimbursed by the Fund on behalf of the applicable
Portfolio.
2.3 The Fund agrees on behalf of each of the Portfolios to pay all fees
and reimbursable expenses within five days following the receipt of
the respective billing notice. Postage for mailing of proxies, Fund
reports and other mailings to all Authorized Participants shall be
advanced to the Transfer Agent by the Fund at least seven (7) days
prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents, warrants and covenants to the Fund that:
3.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents, warrants and covenants to the Transfer Agent that:
4.1 It is a statutory trust duly organized and existing and in good
standing under the laws of the State of Delaware.
4.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
4.3 All proceedings required by said Agreement and Declaration of Trust
and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
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4.5 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and all
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the fund being
offered for sale.
5. DATA ACCESS AND PROPRIETARY INFORMATION
5.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Transfer Agent as
part of the Fund's ability to access certain Fund-related data
("CUSTOMER DATA") maintained by the Transfer Agent on databases
under the control and ownership of the Transfer Agent ("DATA ACCESS
SERVICES") constitute copyrighted, trade secret, or other
proprietary information (collectively, "PROPRIETARY INFORMATION") of
substantial value to the Transfer Agent or other third party. In no
event shall Proprietary Information be deemed Customer Data. The
Fund agrees to treat all Proprietary Information as proprietary to
the Transfer Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as may
be provided hereunder. Without limiting the foregoing, the Fund
agrees for itself and its employees and agents:
(a) to use such programs and databases (i) solely on the Fund's
computers, or solely from equipment at the location agreed to
between the Fund and the Transfer Agent and (ii) solely in
accordance with the Transfer Agent's applicable user
documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such
fact and dispose of such information in accordance with the
Transfer Agent's instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Transfer Agent;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
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Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 5. The obligations of this Section shall
survive any earlier termination of this Agreement.
5.2 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most
recently issued user documentation for such services, the Transfer
Agent shall endeavor in a timely manner to correct such failure.
Organizations from which the Transfer Agent may obtain certain data
included in the Data Access Services are solely responsible for the
contents of such data and the Fund agrees to make no claim against
the Transfer Agent arising out of the contents of such third-party
data, including, but not limited to, the accuracy thereof. DATA
ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
5.3 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Creation Units or
(ii) transmit Authorized Participant information or other
information, then in such event the Transfer Agent shall be entitled
to rely on the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by the
Transfer Agent from time to time.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM COMMERCIAL
CODE
6.1 OBLIGATION OF SENDER. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"SECURITY PROCEDURE") chosen for funds transfer in the Funds
Transfer Addendum to this Agreement and in the amount of money that
the Transfer Agent has been instructed to transfer. The Transfer
Agent shall execute payment orders in compliance with the Security
Procedure and with the Fund instructions on the execution date
provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications
received after this the customary deadline will be deemed to have
been received the next business day.
6.2 SECURITY PROCEDURE. The Fund acknowledges that the Security
Procedure it has designated on the Funds Transfer Addendum was
selected by the Fund from security procedures offered by the
Transfer Agent. The Fund shall restrict access to confidential
information relating to the Security Procedure to authorized persons
as communicated to the Transfer Agent in writing. The Fund must
notify the Transfer Agent immediately if it has reason to believe
unauthorized persons may have obtained access to such information or
of any change in the Fund's authorized
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personnel. The Transfer Agent shall verify the authenticity of all
Fund instructions according to the Security Procedure.
6.3 ACCOUNT NUMBERS. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order.
In the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall take
precedence and govern.
6.4 REJECTION. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time of the Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Transfer Agent, in the
Transfer Agent's sole judgment, to exceed any volume, aggregate
dollar, network, time, credit or similar limits which are applicable
to the Transfer Agent; or (c) if the Transfer Agent, in good faith,
is unable to satisfy itself that the transaction has been properly
authorized.
6.5 CANCELLATION AMENDMENT. The Transfer Agent shall use reasonable
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the Transfer
Agent assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 ERRORS. The Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions as
received and the Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of
errors in payment orders.
6.7 INTEREST. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the
unauthorized payment order within thirty (30) days of notification
by the Transfer Agent of the acceptance of such payment order.
6.8 ACH CREDIT ENTRIES/PROVISIONAL PAYMENTS. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
the Transfer Agent will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as
the case may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are provisional
until the Transfer Agent receives final settlement for such entry
from the Federal Reserve Bank. If the Transfer Agent does not
receive such final settlement, the Fund agrees that the Transfer
Agent shall receive a refund of the amount credited to the Fund in
connection with such entry, and the party making payment to the Fund
via such entry shall not be deemed to have paid the amount of the
entry.
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6.9 CONFIRMATION. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back. Fund
must report any objections to the execution of an order within
thirty (30) days.
7. INDEMNIFICATION
7.1 The Transfer Agent shall not be responsible for, and the Fund shall
on behalf of the applicable Portfolio indemnify and hold the
Transfer Agent harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken without gross
negligence or willful misconduct;
(b) The Fund's breach of any representation, warranty or covenant
of the Fund hereunder;
(c) The reliance upon, and any subsequent use of or action taken
or omitted, by the Transfer Agent, or its agents or
subcontractors on: (i) any information, records, documents,
data, stock certificates or services, which are received by
the Transfer Agent or its agents or subcontractors by machine
readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund,
and which have been prepared, maintained or performed by the
Fund or any other person or firm on behalf of the Fund,
including but not limited to any broker-dealer, TPA or
previous transfer agent; (ii) any instructions or requests of
the Fund or any of its employees, agents or subcontractors;
(iii) any instructions or opinions of legal counsel to the
Fund or any Portfolio with respect to any matter arising in
connection with the services to be performed by the Transfer
Agent under this Agreement which are provided to the Transfer
Agent after consultation with such legal counsel; or (iv) any
paper or document, reasonably believed to be genuine,
authentic, or signed by the proper person or persons;
(d) The offer or sale of Shares and Creation Units in violation of
any requirement under the federal securities laws or
regulations or the securities laws or regulations of any state
that such Shares or Creation Units 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 or Creation Units in such state;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained by the Transfer Agent;
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(f) All actions relating to the transmission of Fund, Creation
Unit or Authorized Participant data through the NSCC clearing
systems; and
(g) Any tax obligations under the tax laws of any country or of
any state or political subdivision thereof, including taxes,
withholding and reporting requirements, claims for exemption
and refund, additions for late payment, interest, penalties
and other expense (including legal expenses) that may be
assessed, imposed or charged against the Transfer Agent as
transfer agent hereunder.
7.2 At any time the Transfer Agent may apply to any officer of the Fund
for instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be performed
by the Transfer Agent under this Agreement, and the Transfer Agent
and its agents or subcontractors shall not be liable and shall be
indemnified by the Fund on behalf of the applicable Portfolio for
any action taken or omitted by it in reliance upon such instructions
or upon the opinion of such counsel. The Transfer Agent, its agents
and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund,
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 the Transfer Agent or its agents
or subcontractors by machine readable input, telex, CRT data entry
or other similar means authorized by the Fund, and shall not be held
to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund. The Transfer Agent,
its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the
officers of the Fund, and the proper countersignature of any former
transfer agent or former registrar, or of a co-transfer agent or
co-registrar.
7.3 In order that the indemnification provisions contained in this
Section 7 shall apply, upon the assertion of a claim for which the
Fund may be required to indemnify the Transfer Agent, the Transfer
Agent shall notify the Fund of such assertion, and shall keep the
Fund advised with respect to all material developments concerning
such claim. The Fund shall have the option to participate with the
Transfer Agent in the defense of such claim or to defend against
said claim in its own name. The Transfer Agent shall in no case
confess any claim or make any compromise in any case in which the
Fund may be required to indemnify the Transfer Agent except with the
Fund's prior written consent which shall not be unreasonably
withheld.
8. STANDARD OF CARE/ LIMITATION OF LIABILITY
The Transfer Agent shall at all times act in good faith in its performance
of services under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors, including , but not
limited to, encoding and payment processing errors, unless said errors are
caused by its gross negligence or willful misconduct or that of its
employees. The parties agree that any encoding or payment processing
errors shall be governed by this standard of care and Section 4-209 of the
Uniform Commercial Code
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is superseded by this Section 8 of this Agreement. Notwithstanding the
foregoing, the Transfer Agent's aggregate liability during any term of
this Agreement with respect to, arising from or arising in connection with
this Agreement, or from all services provided or omitted to be provided by
the Transfer Agent under this Agreement, whether in contract, or in tort,
or otherwise, is limited to, and shall not exceed, the aggregate of the
amounts actually received hereunder by the Transfer Agent as fees and
charges, but not including reimbursable expenses, during the six (6)
calendar months immediately preceding the event for which recovery from
the Transfer Agent is being sought.
9. ADDITIONAL COVENANTS OF THE FUND AND THE TRANSFER AGENT
9.1 The Fund shall on behalf of each of the Portfolios promptly furnish
to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Transfer Agent and
the execution and delivery of this Agreement.
(b) A copy of the Agreement and Declaration of Trust and By-Laws
of the Fund and all amendments thereto.
9.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures for safekeeping of stock certificates,
check forms and facsimile signature imprinting devices, if any; and
for the preparation or use, and for keeping account of, such
certificates, forms and devices.
9.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment
Company Act of 1940, as amended, and the Rules thereunder, the
Transfer Agent agrees that all such records prepared or maintained
by the Transfer Agent relating to the services to be performed by
the Transfer Agent hereunder are the property of the Fund and will
be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Fund on
and in accordance with its request.
9.4 The Transfer Agent and the Fund agree that all books, records,
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 (i) for the
purposes set forth in or contemplated by this Agreement, (ii) as is
authorized by the Fund and the Transfer Agent, (iii) as is publicly
available without breach of this Agreement; (iv) as is already in
the possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement, or (v) as
requested or required in any legal or regulatory proceeding,
investigation, audit, examination, subpoena, civil investigative
demand or other similar process, or required by operation of law or
regulation.
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10. TERMINATION OF AGREEMENT
10.1 This Agreement may be terminated by either party upon ninety (90)
days written notice to the other.
10.2 BANKRUPTCY. Either party hereto may terminate this Agreement by
notice to the other party, immediately or effective at any time
specified therein, in the event that (a) the other party ceases to
carry on its business or (b) an action is commenced by or against
the other party under Title 11 of the United States Code or a
receiver, conservator or similar officer is appointed for the other
party and such suit, conservatorship or receivership is not
discharged within thirty (30) days.
10.3 All out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund on behalf of the applicable
Portfolio(s). Additionally, the Transfer Agent reserves the right to
charge for any other reasonable expenses associated with such
termination and/or a charge equivalent to the average of three (3)
months' fees in the event the Fund terminates the Agreement under
this Section 10.
11. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Creation
Units in addition to the Portfolio identified in the recitals, with
respect to which it desires to have the Transfer Agent render services as
transfer agent under the terms hereof, it shall so notify the Transfer
Agent in writing, and if the Transfer Agent agrees in writing to provide
such services, such series of Creation Units shall become a Portfolio
hereunder.
12. ASSIGNMENT
12.1 Except as provided in Section 12.3 below, 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.
12.3 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS")
which is duly registered as a transfer agent pursuant to Section
17A(c)(2) of the Securities Exchange Act of 1934, as amended
("SECTION 17A(C)(2)"), (ii) a BFDS subsidiary duly registered as a
transfer agent pursuant to Section 17A(c)(2) or (iii) a BFDS
affiliate duly registered as a transfer agent; PROVIDED, HOWEVER,
that the Transfer Agent shall remain liable to the Fund for the acts
and omissions of any subcontractor under this Section 12.3 as it is
for its own acts and omissions under this Agreement.
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13. AMENDMENT
This Agreement may be amended or modified by a written agreement executed
by both parties.
14. MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts
without regard to the conflict of laws provisions thereof.
15. FORCE MAJEURE
In the event either party is unable to perform its obligations under the
terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to
perform or otherwise from such causes.
16. CONSEQUENTIAL DAMAGES
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
17. MERGER OF AGREEMENT
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.
18. NOTICE
Any notice, instruction or other instrument required to be given hereunder
may be delivered in person to the offices of the parties as set forth
herein during normal business hours or sent via prepaid registered mail to
the parties at the following addresses or such other addresses as may be
notified by any party from time to time. Such notice, instruction or other
instrument shall be deemed to have been given at the earliest of (a) upon
personal delivery, or (b) five business days following deposit in the
United States Mail, registered mail, postage prepaid, return receipt
requested.
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(a) If to Transfer Agent, to:
State Street Bank and Trust Company
Lafayette Corporate Center, 6th Floor
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Vice President
(b) If to the Fund, to:
Rydex ETF Fund
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: XXX XXXXX
19. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
20. SURVIVAL
All provisions regarding indemnification, warranty, liability, and limits
thereon, and confidentiality and/or protections of proprietary rights and
trade secrets shall survive the termination of this Agreement.
21. SEVERABILITY
If any provision or provisions of this Agreement shall be held invalid,
unlawful, or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired.
22. PRIORITIES CLAUSE
In the event of any conflict, discrepancy or ambiguity between the terms
and conditions contained in this Agreement and any schedules or
attachments hereto, the terms and conditions contained in this Agreement
shall take precedence.
23. WAIVER
No waiver by either party or any breach or default of any of the covenants
or conditions herein contained and performed by the other party shall be
construed as a waiver of any succeeding breach of the same or of any other
covenant or condition.
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24. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
hereto all/each agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
RYDEX ETF TRUST
By: /s/ Xxxx Xxxxx
---------------
Name: Xxxx Xxxxx
Title: Vice President and Treasurer,
Duly Authorized
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Executive Vice President,
Duly Authorized
-15-
SCHEDULE A
LIST OF PORTFOLIOS
RYDEX XXXXXXX TOP 50 ETF
