DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (the "Agreement") made as of August 16, 2006, by
and between Claymore Securities, Inc., a Kansas corporation (the "Distributor"),
and Claymore Exchange-Traded Fund Trust 2, a Delaware statutory trust (the
"Trust") organized under the laws of the State of Delaware, and The Bank of New
York as custodian of the Trust (the "Custodian" and "Transfer Agent").
WITNESSETH
WHEREAS, the Trust is governed by an Agreement and Declaration of Trust
(the "Trust Agreement") pursuant to which there will be created units of
beneficial ownership, in one or more series (each, a "Fund"), which will
represent a proportionate interest in the Trust's investment portfolio: as
listed in Exhibit A hereto (the "Shares").
WHEREAS, the Trust has filed with the Securities and Exchange (the
"SEC") a registration statement on Form N-1A, as amended, and under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the Securities
Act of 1933, as amended (the "1933 Act"), the forms of which have heretofore
been delivered to the Distributor; and
WHEREAS, the Trust will create and redeem the Shares only in
aggregations constituting a Creation Unit, as such term is used in the
Registration Statement (as defined herein), in accordance with the terms and
conditions set forth therein; and
WHEREAS, the Distributor is a registered broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
WHEREAS, the Trust desires to retain the Distributor to act as
distributor with respect to the creation and distribution of Shares in Creation
Unit size aggregations as set forth in the Trust's Registration Statement, to
hold itself available to receive and process orders for Shares in the manner set
forth in each Fund's then-current prospectus and to enter into arrangements with
dealers; and
WHEREAS, the Distributor desires to render these services to the Trust;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the Trust and the Distributor hereby agree as follows:
SECTION 1
DISTRIBUTION AND BENEFICIAL OWNERS
1.1. Appointment. The Trust hereby appoints the Distributor as the
exclusive distributor for Shares in Creation Unit size aggregations on the terms
and for the periods set forth in this Agreement, and the Distributor hereby
accepts such appointment and agrees to act in such capacity hereunder.
1.2. Definitions.
(a) The term "Registration Statement" shall mean the registration
statement most recently filed from time to time by the Trust with the SEC and
effective under the 1933 Act and the 1940 Act, as such registration statement is
amended by any amendments thereto at the time in effect.
(b) The term "Prospectus" shall mean the prospectus, with respect
to each Fund, included as part of the Trust's Registration Statement, as such
prospectus may be amended or supplemented from time to time.
(c) The term "DTC" shall mean The Depository Trust Company, New
York, New York.
(d) All capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to such terms in the Registration Statement.
1.3. Distributor's Duties. The Distributor shall have the following
duties:
(a) The Distributor agrees, as agent for the Trust, that all orders to
create Shares in Creation Unit size aggregations must be placed with the
Distributor, and it is the responsibility of the Distributor to transmit and
process such orders and deliver them to the Trust, as described in the
Registration Statement and in accordance with the provisions thereof.
(b) The right granted to the Distributor to receive all orders to
create Shares in Creation Unit size aggregations and to transmit such orders to
the Custodian and Transfer Agent for each Fund shall be exclusive, and no other
principal underwriter or distributor shall be granted such right; provided,
however, that nothing herein shall affect or limit the right and ability of the
Custodian to accept Portfolio Deposits and related Cash Components (each as
defined in the Prospectus), and as provided in and in accordance with each
Fund's then-current Prospectus. The exclusive right to place creation orders for
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Shares granted to the Distributor may be waived by the Distributor by notice to
the Trust and the Custodian in writing, either unconditionally or subject to
such conditions and limitations as may be set forth in such notice to the Trust
and the Custodian. The Trust hereby acknowledges that the Distributor may render
principal underwriting, distribution and other services to other parties,
including other exchange-traded funds.
(c) At the request of the Trust, the Distributor shall enter into
Participant Agreements, in the form attached hereto as Exhibit A, between and
among Participating Parties, the Distributor, the Transfer Agent and the Trust,
in accordance with the provisions of the Registration Statement and current
Prospectus. The Distributor shall make available for inspection during normal
business hours at its offices at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, XX 00000, a
list of the Participating Parties who have entered into Participant Agreements
with the Distributor and the Trust.
(d) The Distributor shall (i) generate and transmit confirmations of
Creation Unit purchase order acceptances to the purchaser, (ii) deliver copies
of the current Prospectus, included in the Registration Statement, to purchasers
of such Creation Units and upon request the current Statement of Additional
Information and (iii) maintain telephonic, facsimile and/or access to direct
computer communications links with the Transfer Agent.
(e) The Distributor shall provide toll-free lines, by way of the
American Stock Exchange Index Share Product Hotline (0-000-XXX-XXXX) for direct
investor and shareholder use between the hours of 9:00 a.m. and 8:00 p.m.
Eastern standard time on each day the New York Stock Exchange is open for
business, with appropriate National Association of Securities Dealers, Inc.
("NASD") licensed order taking and distribution services staff.
(f) Except as otherwise noted in the Registration Statement and each
Fund's current Prospectus, the offering price for all Creation Units sold to
investors by the Distributor will be the net asset value per Creation Unit
calculated in the manner described in the Registration Statement and current
Prospectus.
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(g) In performing its duties hereunder, the Distributor shall act in
conformity with the Trust Agreement, Registration Statement and each Fund's
then-current Prospectus relating to Shares and the Trust, and in conformity with
the instructions and directions of Claymore Advisors, LLC (the "Adviser") and
the Board of Trustees (as defined in the Registration Statement) of the Trust,
and will comply with and conform in all material respects to the requirements of
the 1933 Act, the 1934 Act and the 1940 Act and all other applicable federal and
state laws, regulations and rulings, and the rules and regulations of the
American Stock Exchange (the "Amex") and the NASD.
(h) The Distributor shall not be obligated to accept any certain number
of orders for Creation Unit size aggregations of Shares; provided, however, that
the Distributor shall accept all orders submitted in proper form; except, the
Distributor shall not accept orders for Creation Units if the Adviser advises
that it is in the best interests of a Fund to suspend issuance of Creation
Units. Nothing herein contained shall prevent the Distributor from entering into
like distribution arrangements with other investment companies.
(i) The Distributor shall review all sales and marketing materials for
compliance with applicable laws and the conditions of any applicable exemptive
order, clear and file all advertising, sales, marketing and promotional
materials of the Trust provided to the Distributor, or in the preparation of
which it has participated, with the NASD as required by the 1933 Act and the
1940 Act, and the rules promulgated thereunder, and by the rules of the NASD.
The Distributor is not authorized to give any information or to make any
representations other than those contained in the Registration Statement or
current Prospectus, as amended from time to time, or contained in reports to
Beneficial Owners or other materials that may be prepared on behalf of the Trust
for the Distributor.
(j) The Distributor shall consult with the Adviser and the Trust with
respect to the production and printing of Prospectuses to be used in connection
with creations by creators of Creation Unit size aggregations of Shares. The
Distributor shall instruct broker-dealers that a Prospectus or a Product
Description, as applicable, must be distributed in accordance with all rules and
regulations made
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or adopted pursuant to the 1933 Act and the 1940 Act by the Commission or any
national securities exchange or securities association registered under the 1934
Act, including the NASD and the Amex.
(k) In performing its duties hereunder the Distributor shall be
entitled to rely on and shall not be responsible in any way for information
provided to it by the Board of Trustees, the Adviser, the Custodian or the Trust
and their respective service providers and shall not be liable or responsible
for the errors and omissions of such service providers, provided that the
foregoing shall not be construed to protect the Distributor against any
liability to the Board of Trustees, the Adviser, the Trust or any Fund's
beneficial owners to which the Distributor would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(l) The Distributor has as of the date hereof, and shall at all times
have and maintain, net capital of not less than that required by Rule 15c3-1 of
the 1934 Act, or any successor provision thereto. In the event that the net
capital of the Distributor shall fall below that required by Rule 15c3-1, or any
successor provision thereto, the Distributor shall promptly provide notice to
the Trust and the Adviser of such event.
1.4. The Trust's Duties. The Trust shall have the following duties:
(a) The Trust agrees to issue Creation Unit size aggregations of
Shares, subject to paragraph (e) of this Section 1.4, and to request DTC to
record on its books the ownership of such Shares in accordance with the
book-entry system procedures described in each Fund's Prospectus in such amounts
as the Distributor has requested in writing or other means of data transmission,
as promptly as practicable after receipt by the Custodian on behalf of the Trust
of the requisite Portfolio Deposit and Cash Component, if any (together with any
fees), for such creations and acceptance by the Custodian or by the Distributor
on behalf of the Trust of a creation order for such Shares, upon the terms
described in the Registration Statement.
(b) The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the
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distribution of Creation Units. The Trust and the Adviser shall make available
to the Distributor such number of copies of each Fund's current Prospectus as
the Distributor may reasonably request. The Trust and the Adviser authorize the
Distributor to use such Prospectus, but the Trust and the Adviser shall not be
responsible in any way for any information, statements or representations given
or made by the Distributor or its representatives or agents other than such
information, statements or representations as are contained in such Prospectus
or financial reports filed on behalf of the Trust or in any sales literature or
advertisements specifically approved by the Trust and the Adviser in writing.
(c) The Trust agrees that it will take all necessary action to
register an indefinite number of Shares under the 1933 Act. The Trust shall
take, from time to time, such steps, including payment of the related filing
fees, as may be necessary to register Shares under the 1933 Act and the Trust
under the 1940 Act to the end that all Creation Unit size aggregations of Shares
will be properly registered under the 1933 Act and the 1940 Act. The Trust
agrees to file from time to time such amendments, reports and other documents as
may be necessary in order that there may be in the Registration Statement or a
Fund's Prospectus no (i) untrue statement of a material fact or (ii) omission to
state a material fact necessary in order to make the statements therein, in the
case of the Prospectus, in light of the circumstances in which made, not
misleading. The Distributor shall furnish such information and other material
relating to its affairs and activities as may be required by the Trust for
inclusion in the Registration Statement or a Fund's Prospectus.
(d) The Trust shall keep the Distributor informed of the states and
other foreign and domestic jurisdictions in which the Trust has effected notice
filings of Shares for sale under the securities laws thereof. The Distributor
shall furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such filings.
(e) In accordance with the provisions of each Fund's then-current
Prospectus, the Trust may reject any creation order for Creation Unit size
aggregations of Shares or stop all receipts of creation orders for Shares at any
time or from time to time upon reasonable notice to the Distributor.
(f) The Trust shall notify the Distributor promptly of:
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1. any amendments to the Trust's Registration Statement or
Prospectus;
2. any inquiries by the SEC regarding additional information
or of any stop order suspending the effectiveness of the
Trust's Registration Statement or the initiation of any
proceeding for that purpose; and
3. all significant actions of the SEC having a material impact
with respect to any amendment to the Trust's Registration
Statement or a Fund's Prospectus.
1.5. Representations.
(a) The Distributor represents and warrants to the Trust that (i)
it is duly organized as a Kansas corporation and is and at all times will remain
duly authorized and licensed to carry out its services as contemplated herein;
(ii) the execution, delivery and performance of this Agreement are within its
power and have been duly authorized by all necessary action; (iii) its entering
into this Agreement or providing the services contemplated hereby does not
conflict with or constitute a default or require a consent under or breach of
any provision of any agreement or document to which the Distributor is a party
or by which it is bound, including, but not limited to, any Members Agreement
with the Amex (except for any consent in writing which shall have been obtained
by the date hereof); (iv) it has in place compliance policies and procedures
reasonably designed to assure compliance with the Federal Securities Laws as
that term is defined in Rule 38a-1 under the 1940 Act; (v) it understands that
pursuant to various U.S. regulations, it is required to establish an anti-money
laundering program, which satisfies the requirements of Title III of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001; (vi) it has developed, implemented, and will
maintain such an anti-money laundering program and will comply with all
applicable laws and regulations designed to guard against money laundering
activities set out in such program; (vii) it will allow for appropriate
regulators to examine its anti-money laundering books and records; and (viii) it
has procedures in place reasonably designed to protect the privacy of non-public
personal consumer/customer financial information to the extent required by
applicable law, rule and regulation.
(b) The Trust represents and warrants to the Distributor that (i)
the Registration Statement and each Fund's Prospectus have been prepared in
conformity in all material respects with the
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1933 Act, the 1940 Act and the rules and regulations of the SEC (the "Rules and
Regulations"); (ii) the Registration Statement and each Fund's Prospectus
contain all statements required to be stated therein in accordance with the 1933
Act, the 1940 Act and the Rules and Regulations; and (iii) all statements of
fact contained therein are true and correct in all material respects at the time
indicated or the effective date, as the case may be, and neither the
Registration Statement nor each Fund's Prospectus shall include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the case of each
Fund's Prospectus in light of the circumstances in which made, not misleading.
The Trust shall from time to time file such amendment or amendments to the
Registration Statement and each Fund's Prospectus as, in the light of future
developments, shall, in the opinion of the Trust's counsel, be necessary in
order to have the Registration Statement and each Fund's Prospectus at all times
contain all material facts required to be stated therein or necessary to make
the statements therein, in the case of each Fund's Prospectus in light of the
circumstances in which made, not misleading to a purchaser of Shares. The Trust
shall not file any amendment to the Registration Statement or each Fund's
Prospectus without giving the Distributor reasonable notice thereof in advance,
provided that nothing in this Agreement shall in any way limit the Trust's right
to file at any time such amendments to the Registration Statement or each Fund's
Prospectus as the Trust may deem advisable. Notwithstanding the foregoing, the
Trust shall not be deemed to make any representation or warranty as to any
information or statement provided by the Distributor for inclusion in the
Registration Statement or each Fund's Prospectus.
SECTION 2
FEES AND EXPENSES
2.1. Expenses.
(a) Each party hereto will bear its own expenses in connection
with this Agreement unless otherwise agreed by the parties hereto in writing. In
addition, the expenses of the Trust shall be borne by the Trust as described
under the caption "Fees and Expenses of the Fund" in each Fund's Prospectus.
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(b) The Distributor shall bear the following costs and expenses
relating to the distribution of Shares: (i) the costs (other than those payable
pursuant to the Trust's agreement with the DTC) of processing and maintaining
records of creations of Creation Units; (ii) all costs of maintaining the
records required of a broker/dealer registered under the 1934 Act; (iii) the
expenses of maintaining its registration or qualification as a dealer or broker
under federal or state laws; (iv) the expenses incurred by the Distributor in
connection with normal NASD filing fees (expedited NASD filing fees will be
billed to the Adviser); and (v) all other expenses incurred in connection with
the distribution services as contemplated herein, except as otherwise
specifically provided in this Agreement.
SECTION 3
INDEMNIFICATION
3.1. Indemnification of Distributor. The Trust agrees to indemnify,
defend and hold the Distributor, any person who controls the Distributor within
the meaning of Section 15 of the 1933 Act, and their respective officers and
directors (any of the Distributor, such control persons, and their respective
officers and directors, for purposes of this Section 3.1, an "Indemnitee"), free
and harmless from and against any and all claims, demands, liabilities, and
expenses (including costs reasonably incurred in connection with investigating
or defending such claims, demands or liabilities and any counsel fees reasonably
incurred in connection therewith) which the Indemnitee may incur, under the 1933
Act or under common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Trust's Registration Statement, or the omission or alleged omission to state in
such document a material fact required to be stated thereon or necessary to make
the statements therein not misleading or, with respect to the Prospectus or any
amendment or supplement thereto, any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state in such
document a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made,
not misleading; provided, however, that nothing in this Section 3.1 shall
protect the Indemnitee against any liability to the Trust or its beneficial
owners that the Indemnitee would otherwise be subject to (i) by reason of
willful
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malfeasance, bad faith, or gross negligence in the performance of its duties,
(ii) by reason of the Indemnitee's reckless disregard of its obligations and
duties under this Agreement, or (iii) where such liability arises out of or is
based upon an untrue statement or omission or alleged untrue statement or
omission in the Trust's Registration Statement or each Fund's Prospectus that
was made in reliance upon and in conformity with written information furnished
by the Distributor to the Trust and the Adviser; and provided, further, that the
Trust will not be liable in any such case to the Indemnitee with respect to any
untrue statement or omission or alleged untrue statement or omission made in the
Registration Statement or each Fund's Prospectus that is subsequently corrected
in such document (or an amendment thereof or supplement thereto), if a copy of
such Prospectus (or such amendment thereof or supplement thereto) was not sent
or given to the person asserting any such claim, demand, liability or expense at
or before the written confirmation of the sale to such person in any case where
such delivery is required by the 1933 Act, and the Trust had notified the
Distributor of the amendment or supplement prior to the sending of the written
confirmation of sale.
The Trust's obligation to indemnify the Indemnitee is expressly
conditioned upon the Indemnitee's notification of the Trust of the commencement
of any action against the Indemnitee, which notification shall be given by
letter or by facsimile transmission addressed to the Trust at its principal
offices in Lisle, Illinois, and sent to the Trust by the person against whom
such action is brought within 10 days after the summons or other first legal
process shall have been served. The Indemnitee's failure to so notify the Trust
shall not relieve the Trust of any liability which it may have to the Indemnitee
by reason of any such untrue statement or omission or alleged untrue statement
or omission independent of this indemnification. The Trust will be entitled to
assume the defense of any suit brought to enforce any such claim, demand or
liability and to retain legal counsel of good standing chosen by the Trust and
approved by the Indemnitee (such approval not to be unreasonably withheld). If
the Trust elects to assume the defense of any such suit and retain counsel
approved by the Indemnitee, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them. In the
event the Trust does not elect to assume the defense of any such suit and retain
counsel of good
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standing approved by the Indemnitee, or the Indemnitee does not approve of the
counsel chosen by the Trust (such approval not to be unreasonably withheld), the
Trust shall bear the fees and expenses of any counsel retained by the
Indemnitee. The indemnification agreement contained in this Section 3.1 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Indemnitee and shall survive the sale of any
Creation Units made pursuant to purchase orders obtained by the Indemnitee or
the termination of this Agreement. This indemnification will inure exclusively
to the benefit of the Indemnitee and its successors, assigns and estate. The
Trust shall promptly notify the Distributor of the commencement of any
litigation or proceeding against the Trust in connection with the issue and sale
of any Creation Units.
3.2. Indemnification of the Trust. The Distributor agrees to indemnify,
defend, and hold the Trust and each of its trustees and officers and any person
who controls the Trust within the meaning of Section 15 of the 1933 Act (for
purposes of this Section 3.2, the Trust and each of its trustees and officers
and its controlling persons are collectively referred to as the "Trust
Affiliates"), free and harmless from and against any and all claims, demands,
liabilities, and expenses (including costs reasonably incurred in investigating
or defending such claims, demands or liabilities and any counsel fees reasonably
incurred in connection therewith) which the Trust Affiliates may incur, under
the 1933 Act or under common law or otherwise, arising out of or based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
information furnished by the Distributor to the Trust for use in the
Registration Statement or Prospectus in effect from time to time, or (ii) any
omission or alleged omission, on the part of the Distributor, to state a
material fact in connection with such information required to be stated in the
Registration Statement or Prospectus or necessary to make such information not
misleading, it being understood that the Trust will rely upon the information
provided by the Distributor for use in the preparation of the Registration
Statement and the Prospectus, or (iii) any alleged act or omission on the
Distributor's part as the Trust's agent that has not been expressly authorized
by the Trust in writing.
The Distributor's obligation to indemnify the Trust Affiliates is
expressly conditioned upon the Distributor being notified of the commencement of
any action brought against the Trust Affiliates, which
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notification shall be given by letter or facsimile transmission addressed to the
Distributor at its principal offices in New York, New York, and sent to the
Distributor by the person against whom such action is brought within 10 days
after the summons or other first legal process shall have been served. The Trust
Affiliates' failure to notify the Distributor of the commencement of any such
action shall not relieve the Distributor from any liability which it may have to
the Trust Affiliates by reason of any such untrue statement or omission, alleged
untrue statement or omission, or alleged act or omission on the part of the
Distributor independent of this indemnification. The Distributor will be
entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability and to retain legal counsel of good standing chosen by the
Distributor and approved by the Trust Affiliate (such approval not to be
unreasonably withheld). If the Distributor elects to assume the defense of any
such suit and retain counsel approved by the Trust Affiliate, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them. In the event the Distributor does not elect to
assume the defense of any such suit and retain counsel of good standing approved
by the Trust Affiliate, or the Trust Affiliate does not approve of the counsel
chosen by the Distributor (such approval not to be unreasonably withheld), the
Distributor shall bear the fees and expenses of any counsel retained by the
Trust Affiliate. The indemnification agreement contained in this Section 3.2
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Trust Affiliate and shall survive the
sale of any Creation Units made pursuant to purchase orders obtained by the
Distributor or the termination of this Agreement. This indemnification will
inure exclusively to the benefit of the Trust Affiliate and its successors,
assigns and estate. The Distributor shall promptly notify the Trust of the
commencement of any litigation or proceeding against the Distributor in
connection with the issue and sale of any Creation Units.
3.3. Settlement of Claims. No Indemnitee or indemnified Trust Affiliate
shall settle any claim against it for which it intends to seek indemnification
from the indemnifying party, under the terms of Section 3.1 or 3.2 above,
without the prior written notice to and consent from the indemnifying party,
which consent shall not be unreasonably withheld. No indemnified or indemnifying
party shall settle any
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claim unless the settlement contains a full release of liability with respect to
the other party in respect of such action. This section shall survive the
termination of this Agreement.
SECTION 4
DURATION, TERMINATION, AND AMENDMENT
4.1. Duration. This Agreement shall become effective on August 16,
2006, and continue for two years from its effective date, and thereafter from
year to year, provided such continuance is approved annually by the vote of a
majority of the Board of Trustees, and by the vote of those Trustees who are not
"interested persons" of the Trust (the "Independent Trustees") and if a plan
under Rule 12b-l under the 1940 Act (a "Plan") is in effect, by the vote of
those Trustees who are not "interested persons" of the Trust and who are not
parties to such Plan or this Agreement and have no financial interest in the
operation of such Plan or in any agreements related to such Plan, cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
may be terminated at any time, without the payment of any penalty, as to each
Fund (i) by vote of a majority of the Independent Trustees or (ii) by vote of a
majority (as defined in the 0000 Xxx) of the outstanding voting securities of
the Fund, on at least sixty (60) days' prior written notice to the Distributor.
In addition, this Agreement may be terminated at any time by the Distributor
upon at least sixty (60) days prior written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph, the terms "assignment" and "interested persons" shall have the
respective meanings specified in the 1940 Act.
4.2. Amendment. This Agreement may be amended by mutual consent,
provided that no provision of this Agreement may be changed, waived, discharged
or terminated except by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
SECTION 5
NOTICE
5.1. Notification of Parties. Any notice or other communication
required or permitted to be given pursuant to this Agreement shall be deemed
duly given if addressed and delivered, mailed by registered
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mail, postage prepaid, or sent by facsimile transmission (with confirmation of
receipt) to (1) Claymore Securities, Inc., at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx,
XX 00000, Attention: General Counsel, facsimile # 000-000-0000, and (2) Claymore
Exchange-Traded Fund Trust 2 c/o Claymore Advisors, LLC, at 0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxx, XX 00000, Attention: General Counsel, facsimile # 000-000-0000.
SECTION 6
MISCELLANEOUS
6.1. Choice of Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. 6.2. Captions. The
captions in this Agreement are included for convenience only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction.
6.3. Severability. If any provisions of this Agreement shall be held or
made invalid, in whole or in part, then the other provisions of this Agreement
shall remain in force. Invalid provisions shall, in accordance with this
Agreement's intent and purpose, be amended, to the extent legally possible, by
valid provisions in order to effectuate the intended results of the invalid
provisions.
6.4. Limitations of Liability of the Trustees and Shareholders. 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.
6.5. Insurance. The Distributor will maintain at its expense an errors
and omissions insurance policy which covers services by the Distributor
hereunder.
6.6. Force Majeure. In the event a party hereto is unable to perform
its obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage
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reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable to any other party for any damages resulting from
such failure to perform or otherwise from such causes.
6.7. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first written above.
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
By:
--------------------------------
Name:
Title:
CLAYMORE SECURITIES, INC.
By:
--------------------------------
Name:
Title:
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EXHIBIT A
NAME OF SERIES
Claymore/Robeco Developed International Equity ETF
Claymore/Robeco Developed World Equity ETF
