EXHIBIT 9.1
PORTFOLIO SUPPORT AND LICENSE AGREEMENT
This Agreement, dated as of May 17th 2018 is made by and between Xxxxxxxx &
Xxxxxxxx Incorporated, a California corporation ("Consultant/Licensor"), and
Guggenheim Funds Distributors, LLC., ("Guggenheim" or "Licensee") as sponsor to,
Xxxxxxxx & Xxxxxxxx Preferred Portfolio, Series 46 (the "Trust").
RECITALS
A. Consultant/Licensor is an investment adviser federally registered or
exempt under the Investment Advisers Act of 1940, as amended.
X. Xxxxxxxxxx sponsors, underwrites and distributes a wide array of unit
investment trusts ("UITs").
C. Consultant/Licensor has developed an investment strategy (which includes
without limitation selection criteria and methodology) set forth in Schedule A
(the "Strategy"), and Consultant/Licensor owns rights in and to the Strategy and
the proprietary data relating to the Strategy (such rights, including without
limitation, copyright, trademark or proprietary rights and trade secrets, being
hereinafter collectively referred to as the "Intellectual Property").
D. The parties desire to enter into an agreement whereby
Consultant/Licensor, shall provide to Guggenheim a list of securities selected
in accordance with the Strategy (any securities selected in accordance with the
Strategy are referred to herein as "Appropriate Securities") for deposit by
Guggenheim, in its discretion, into the Trust.
E. Consultant/Licensor uses in commerce and has trade name, trademark
and/or service xxxx rights to the marks set forth in Schedule B (such rights are
individually and collectively referred to herein as the "Marks").
F. Licensee wishes to use the Strategy, Intellectual Property and the Marks
in connection with the Trust.
The parties agree as follows:
1. Consultant/Licensor Services.
(a) Selection of Securities. Prior to 4:00 p.m. (C.S.T.) on the third
business day before May 18th , 2018 (such prior day being the "Target Date"),
Consultant/Licensor shall provide Guggenheim with a list of Appropriate
Securities for deposit by Guggenheim, in its sole discretion, into the Trust. If
Consultant/Licensor fails to provide Guggenheim with a list of Appropriate
Securities prior to 4:00 p.m. on the Target Date: (i) Consultant/Licensor shall
be liable (and shall promptly pay) for any costs and expenses incurred by
Guggenheim and the Trust resulting from such delay and (ii) the Portfolio Fee
and the License Fee set forth in Section 4, below, shall each be reduced by one
(1) basis point for each 24-hour period of delay following 4:00 p.m. on the
Target Date. The date that the Appropriate Securities are deposited is referred
to herein as the "Deposit Date". Guggenheim shall provide to Consultant/Licensor
the registration statement relating to the Trust (the "Registration Statement").
Consultant/Licensor hereby covenants, represents and warrants that, as of any
Trust's Deposit Date, any list of Appropriate Securities furnished pursuant to
this Agreement shall be appropriate for inclusion in such Trust based on the
investment objectives and criteria set forth in the Trust's Registration
Statement. Consultant/Licensor further covenants, represents and warrants that
as of the Trust's Deposit Date, the Appropriate Securities and any consultation
it provides with respect to the Trust will be consistent, and not conflict, with
that provided to other Consultant/Licensor clients with similar investment
objectives and strategies and a substantially similar investment program.
(b) Consultation. Consultant/Licensor shall:
(i) upon Guggenheim's reasonable request, provide Guggenheim with
information about the Appropriate Securities as reasonably necessary for use by
Guggenheim in preparing and updating Registration Statement disclosures and
marketing materials for the Trust; and
(ii) promptly review for accuracy and completeness information provided and
disclosures made in the Registration Statement for the Trust in which the
Appropriate Securities are deposited.
(c) Key Personnel and Standard of Performance. Consultant/Licensor
represents and warrants that: (i) the services will be performed with that
degree of skill and care generally observed by companies performing the same or
similar services and (ii) the services will be provided in compliance with all
applicable statutes, acts, ordinances, laws, rules, regulations, codes and
standards.
(d) Non-disclosure. Neither Consultant/Licensor nor any if its officers,
directors, employees, members or agents shall disclose in any manner any
information concerning the Trust, including any Appropriate Securities, prior to
the Trust's Deposit Date.
2. Grant of License.
(a) Grant. Subject to the terms and conditions of this Agreement,
Consultant/Licensor hereby grants to the Licensee a non-transferable (except as
otherwise provided herein), license to use and refer to the Consultant/Licensor
Marks, Strategy and Intellectual Property (i) in connection with the creation,
issuance, sale, marketing and promotion of the Trust in order to indicate (x)
that the securities included in the Trust are determined through the use of the
Strategy, and (y) that Consultant/Licensor is the source of the Strategy; (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 Trust
(collectively, the "License").
(b) Scope. Consultant/Licensor agrees that Licensee has the right to
sublicense the License to the Trust or other appropriate party if necessary or
helpful in achieving the intent of this Agreement.
(c) Ownership and Retention of Rights. The Licensee acknowledges that the
Strategy and the Consultant/Licensor Marks are the exclusive property of
Consultant/Licensor and that Consultant/Licensor has and retains all
Intellectual Property rights therein. Except as otherwise specifically provided
herein, Consultant/Licensor reserves all rights to the Strategy and the
Consultant/Licensor Marks, and this Agreement shall not be construed to transfer
to the Licensee any ownership right to, or equity interest in, any of the
Strategy or the Consultant/Licensor Marks, or in any Intellectual Property or
other proprietary rights pertaining thereto.
(d) Duty to Maintain. During the term of this Agreement,
Consultant/Licensor shall use its best efforts to maintain in full force and
effect U.S. federal registrations for the Consultant/Licensor 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
Trust.
4. Fees. As consideration for the services and license granted herein,
Guggenheim shall pay to Consultant/ Licensor the following fees (which fees are
Trust costs that Guggenheim expects the Trust to reimburse pursuant to the
applicable Trust Indenture):
(a) a portfolio consulting fee equal to eighteen basis points (.18%) of the
aggregate daily liquidation value of transactional sales (specifically excluding
fee-based sales) made during the primary offering period of the Trust (the
"Portfolio Fee"); and
(b) a license fee equal to seven basis points (.07%) of the aggregate daily
liquidation value of transactional sales (specifically excluding fee-based
sales) made during the primary offering period of the Trust (the "License Fee").
The Portfolio Fee and License 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. Consultant/Licensor acknowledges that (a) Guggenheim may at any time
determine that it does not wish to go forward with a primary offering of the
Trust and, if it so determines, Guggenheim shall not be responsible for the
payment of any Portfolio Fee or License Fee under this Agreement, (b) Guggenheim
may delay the Deposit Date in its discretion, and (c) Guggenheim 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 Guggenheim and
Consultant/Licensor, and the services provided by Consultant/Licensor shall be
as an independent contractor and not as an employee or agent of Guggenheim.
Consultant/Licensor shall have no authority whatsoever to bind Guggenheim on any
agreement or obligation. Consultant/Licensor agrees that it shall not hold
itself out as an employee or agent of Guggenheim.
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. 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. Consultant/Licensor shall defend, indemnify and hold
harmless Guggenheim from any and all liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees) ("Losses") which Guggenheim
suffers by reason of any claims, demands, actions or suits brought by a third
party arising from Consultant/Licensor's (a) failure to comply with this
Agreement or (b) breach of a representation or warranty contained in this
Agreement. .Guggenheim will indemnify Consultant/Licensor against, and hold it
harmless from, any and all Losses which Consultant/Licensor suffers by reasons
of any claims, demands, actions or suits brought by a third party in connection
with the Trust; provided, however, Guggenheim shall not be obligated pursuant to
the foregoing to indemnify Consultant/Licensor for any Losses directly resulting
from the willful misfeasance, bad faith or gross negligence on the part of
Consultant/Licensor in the performance of its duties, or from reckless disregard
by it of its obligations and duties, under this Agreement.
8. Limitation of Liability. Neither party shall be liable to the other
party for any liabilities, damages, costs and expenses except for those
resulting from the other party's breach of a representation or warranty
contained in this Agreement, gross negligence or willful misfeasance.
Notwithstanding the above, in no event shall either party be liable to the other
party for any punitive, special, indirect, consequential, incidental or similar
damages or losses, regardless of how such damages or losses arise. Nothing in
this paragraph is intended to limit a party's right to indemnification under
Section 7.
9. Representations and Warranties.
(a) Guggenheim. Guggenheim represents, warrants and covenants that it is a
corporation duly organized, existing and in good standing under the laws of the
State of Kansas, 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 Articles of Incorporation or Bylaws.
(b) Consultant/Licensor. Consultant/Licensor represents, warrants and
covenants that it is a corporation duly formed, existing and in good standing
under the laws of the state of its incorporation, 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. Consultant/Licensor further represents, warrants and
covenants that (i) it is an investment adviser federally registered or exempt
from registration under the Investment Advisers Act of 1940, as amended, and any
applicable state statutes, (ii) the Strategy, Intellectual Property and
Consultant/Licensor Marks are the exclusive property of Consultant/Licensor and
(iii) neither the selection of Appropriate Securities pursuant to the Strategy
nor the Intellectual Property or the License granted pursuant to this Agreement
infringes or otherwise violates any third-party's intellectual property rights
or other proprietary rights.
10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois without giving
effect to any conflict of laws principles.
(b) Arbitration. Except as to any matter as to which the parties may seek
equitable relief, any dispute arising out of this Agreement shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association. Any such arbitration shall be held in the city of Chicago, in the
State of Illinois. The arbitrator of any such controversy shall not have the
authority to modify or alter any express condition or provision of this
Agreement. Any arbitration award rendered under this Section shall be final and
binding, and judgment may be entered on the award in any court of competent
jurisdiction.
(c) Entire Agreement. This Agreement, including the Appendices and
Schedules 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. Consultant/Licensor shall not assign any rights or delegate
any obligations under this Agreement without the prior written consent of
Guggenheim, which consent shall not be unreasonably withheld. Any assignment in
violation of this provision shall be void. Guggenheim may assign its rights and
obligations under this Agreement to any successor in interest to all or
substantially all of Guggenheim's assets, provided, however, such assignee
agrees to be bound by all of the terms and conditions of this Agreement. 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) Survival. The provisions of Sections 6, 7, 8, 10(a), 10(b), and 10(f)
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.
XXXXXXXX & XXXXXXXX INCORPORATED
By /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President
GUGGENHEIM FUNDS DISTRIBUTORS, LLC.,
AS SPONSOR OF THE TRUST
By /s/ Xxxxxx Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A
THE STRATEGY
Investment Objective
The primary objective is to provide high current income with a secondary
objective of capital appreciation.
Principal Investment Strategy
The sponsor has selected Xxxxxxxx & Xxxxxxxx, Incorporated to serve as the
Trust's portfolio consultant. The portfolio consultant is responsible for
assisting the sponsor with the selection of the Trust's portfolio.
The Trust will consist of a diversified portfolio of exchange-listed preferred
stocks and trust preferred securities based upon Xxxxxxxx & Xxxxxxxx'x
proprietary preferred securities database and its internally generated credit
research
In choosing the securities the primary factors include, but are not limited to;
credit quality of the issuer and the liquidity and dividend yield of the
security.
SCHEDULE B
CONSULTANT/LICENSOR MARKS
Xxxxxxxx & Xxxxxxxx Incorporated
[Xxxxxxxx & Xxxxxxxx Incorporated]
