EXHIBIT 9.1
PORTFOLIO SERVICE AND LICENSE AGREEMENT
This Agreement, effective as of February 6, 2020, is made by and between
FactSet Research Systems Inc. ("FactSet"), and Guggenheim Funds Distributor,
LLC., a Delaware limited liability company ("GFD"), as sponsor to the
Multi-National Titans Portfolios, Series 18 (collectively, the "Trusts").
RECITALS
A. GFD sponsors, underwrites and distributes a wide array of unit
investment trusts, including the Trusts.
B. FactSet is a U.S. publicly listed company that combines integrated
financial information, analytical applications, and client service to enhance
the workflow and productivity of the global investment community. FactSet
GeoRev(TM) datafeed is among FactSet's suite of products. FactSet owns all
rights in and to the FactSet GeoRev(TM) datafeed and all proprietary data
relating to such datafeed (such rights, including without limitation, all
copyright, trademark or other proprietary rights and trade secrets, collectively
referred to as the "Intellectual Property").
C. FactSet uses in commerce and has trade name, trademark and/or service
xxxx rights to FactSet GeoRev(TM) (collectively referred to herein as the
"Marks").
D. GFD wishes to engage FactSet to, and FactSet wishes to, provide the
services set forth on Schedule A (collectively the "FactSet Services") and to
grant a license to use and refer to the Marks, all as more fully set forth in
this Agreement.
The parties agree as follows:
1. Services. Subject to the terms and conditions of this Agreement, FactSet
shall provide to GFD the FactSet Services.
2. Grant of License.
(a) Grant. Subject to the terms and conditions of this Agreement, FactSet
hereby grants to the GFD a limited, non-exclusive, non-transferable (except as
set forth in 9(d) below) license to use and refer to the Marks (i) in connection
with the creation, issuance, sale, marketing and promotion of the Trusts; (ii)
as may otherwise be required by applicable laws, rules or regulations and court
orders or under this Agreement; and (iii) in the name of the Trusts (the
"License").
(b) Ownership and Retention of Rights. GFD acknowledges that the FactSet
GeoRev(TM) datafeed and the Marks are the exclusive property of FactSet. Except
as otherwise specifically provided herein, FactSet reserves all rights to the
FactSet GeoRev(TM) datafeed and the Marks, and this Agreement shall not be
construed to transfer to GFD any ownership right to, or equity interest in, any
of the foregoing or the Intellectual Property rights pertaining thereto.
(c) Duty to Maintain. During the term of this Agreement, FactSet shall use
its best efforts to maintain in full force and effect U.S. federal registrations
for the Marks.
3. Term. The term of this Agreement shall commence as of the date set forth
above and shall remain in full force and effect until the termination of the
Trusts.
4. Fees. As consideration for the services provided and license granted
herein, GFD shall pay to FactSet a fee equal to 6 basis points (0.06%) of the
aggregate daily liquidation value of transactional sales (specifically excluding
fee-based sales) made during the primary offering period of the Trusts (the
"Fee").
The Fee shall be paid on a one-time basis on or before the 15th day of the
second month after the close of the primary offering period. FactSet
acknowledges that (a) GFD may at any time determine that it does not wish to go
forward with a primary offering of the Trusts and, if it so determines, GFD
shall not be responsible for the payment of any Fee under this Agreement, (b)
GFD may delay the Deposit Date in its discretion, and (c) GFD has full authority
to determine the length of any offering period, and may shorten or lengthen such
offering period for any reason in its sole discretion.
5. Relationship of the Parties. This Agreement shall not be deemed to
create any partnership or joint venture between GFD and FactSet, and the
services provided by FactSet shall be as an independent contractor and not as an
employee or agent of GFD. FactSet shall have no authority whatsoever to bind GFD
on any agreement or obligation. FactSet agrees that it shall not hold itself out
as an employee or agent of GFD.
6. Confidentiality. A party may obtain proprietary, non-public information
concerning the other party during the term of this Agreement. Each party shall
keep such information confidential and shall not use such information in any
manner other than in fulfilling its obligations under this Agreement. In
addition, neither FactSet nor any of its officers, directors, employees, members
or agents shall disclose in any manner any information concerning the Trusts
prior to the applicable Trust's deposit date.
In no event shall the following information be deemed a disclosing party's
proprietary, non-public information: (a) information that is or becomes
generally available to the public other than as a result of disclosure by the
receiving party; (b) information that was within the receiving party's
possession prior to its being furnished by the disclosing party; (c) information
that becomes available to the receiving party from a third party who is not, to
the receiving party's knowledge, bound by an obligation of confidentiality to
the disclosing party and (d) information that is independently developed by the
receiving party without the receiving party violating its obligations under this
agreement. Each party acknowledges that a breach of this Section would cause
permanent and irreparable damage for which money damages would be an inadequate
remedy. Therefore, each party shall be entitled to seek equitable relief in the
event of any breach of the provisions of this Section in addition to all other
remedies available at law or in equity.
7. Indemnification. Each party shall defend, indemnify and hold harmless
the other party from any and all liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees) which the other party suffers by
reason of any claims, demands, actions or suits brought by a third party arising
from the other party's (a) breach of Section 6 or (b) breach of a representation
or warranty contained in this Agreement.
8. Limitation of Liability.
Neither party will have any liability for indirect, incidental, special,
punitive, exemplary or consequential damages, including lost profits or lost
goodwill, arising out of this Agreement, even if advised in advance of the
possibility of these types of damages, whether alleged in tort, contract or
otherwise, except for those resulting from the other party's indemnification
obligations hereunder. Each party's maximum cumulative liability in connection
with this Agreement for all causes of action whatsoever and regardless of the
form of action shall be limited to the Fee payable hereunder, and this amount
will be each party's exclusive remedy. Neither party will be liable for any
delay or default resulting from force majeure. Guggenheim may not bring any
action arising out of the FactSet Service more than one year after the cause of
action has accrued.
9. Representations and Warranties.
(a) Guggenheim. Guggenheim represents, warrants and covenants that it is a
limited liability company duly formed, existing and in good standing under the
laws of the state of Delaware, with full right, power and authority to enter
into and perform this Agreement, and the execution and performance of this
Agreement does not conflict with or violate any agreement to which it is a
party, any court order to which it is subject, or its governing documents.
(b) FactSet. FactSet represents, warrants and covenants that it is a
corporation duly formed, existing and in good standing under the laws of the
state of its organization, with full right, power and authority to enter into
and perform this Agreement, and the execution and performance of this Agreement
does not conflict with or violate any agreement to which it is a party, any
court order to which it is subject, or any of its organizational documents.
FactSet further represents, warrants and covenants that none of the FactSet
GeoRev(TM) datafeed, the Marks, the Intellectual Property, the FactSet Services
or the license granted pursuant to this Agreement will infringe, misappropriate
or otherwise violate any third-party's intellectual property rights or other
proprietary rights, .
(c) FACTSET DOES NOT WARRANT THAT THE PROVISION OF FACTSET SERVICES WILL BE
UNINTERRUPTED, ERROR FREE, TIMELY, COMPLETE OR ACCURATE, NOR DOES FACTSET MAKE
ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE RESULTS TO BE OBTAINED FROM THE
USE OF THE FACTSET SERVICE AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. GUGGENHEIM
ACKNOWLEDGES THAT NOTHING IN THE FACTSET SERVICE CONSTITUTES INVESTMENT ADVICE
OF ANY KIND AND THAT THE SERVICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
Guggenheim expressly agrees that its use of the FactSet Service is at its own
risk. Accordingly, FactSet will not in any way be liable for inaccuracies,
errors, omissions, delays, damages, claims, liabilities or losses, regardless of
cause, in or arising from the use of the FactSet Service.
10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to any conflict of laws principles.
(b) Forum. The exclusive forum for any dispute arising out of this
Agreement shall be the courts located in New York County, NY.
(c) Entire Agreement. This Agreement, including Schedule A hereto,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior oral or written agreements relating to
the subject matter hereof.
(d) Assignment. FactSet shall not assign any rights or delegate any
obligations under this Agreement without the prior written consent of GFD, which
consent shall not be unreasonably withheld. Any assignment in violation of this
provision shall be void. GFD may assign its rights and obligations under this
Agreement to any successor in interest to all or substantially all of GFD's
assets. This Agreement shall be binding upon the heirs, successors, legal
representatives and permitted assigns of the parties.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(f) Third Party Beneficiary. FactSet acknowledges and agrees that the
Trusts are intended third party beneficiaries of the Services provided and
License granted under this Agreement. Except for the Trusts, there are no other
intended third party beneficiaries to this Agreement.
(g) Survival. The provisions of Sections 6, 7, 9, 10(a), 10(b), 10(c),
10(d), 10(f) and 10(g) shall survive the termination of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
FactSet Research Systems Inc.
By /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Director, FactSet Revere
Date: February 6, 2020
GUGGENHEIM FUNDS DISTRIBUTOR, LLC, AS SPONSOR OF THE
TRUSTS
By /s/ Xxxxxx Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Date: February 6, 2020
SCHEDULE A
THE FACTSET SERVICES
Services:
On or before February 4, 2020, FactSet shall provide a list of all stocks
within FactSet's proprietary GeoRev(TM) database that meet all of the
selection criteria provided by GFD as set forth below (the "Selection
Criteria"). Following GFD's review of such list (the "List"), GFD may
request revisions (including without limitation, further screening
criteria) to the List. FactSet shall promptly complete any such requested
revisions.
Selection Criteria:
1. The company must be publicly-traded.
2. The company must have a Market Capitalization greater or equal to $12
Billion in U.S. dollars.
3. Fifty percent (50%) or more of the company's most recent annual
revenues should be derived from countries outside of the company's
home country as defined by the location of its headquarter.
4. Fifty percent (50%) or more of the company's most recent annual
revenues should be derived from Emerging or Frontier countries as
defined by GFD.
5. If 3) and/or 4) results in a smaller than expected List (less than 75
companies), then a twenty-five (25%) can be used in 3) and/or 4) to
expand the List.
6. The company must have been growing its annual revenues from Emerging
and Frontier countries as defined by GFD.
