EXHIBIT 9.1
S&P DOW XXXXX
INDICES
ORDER SCHEDULE NUMBER 9
INDEX IP
This Order Schedule ("Order Schedule") entered into as of the Commencement Date
set forth below by and between S&P (as set forth herein) and Licensee (as set
forth below), is issued pursuant to, and incorporates herein, the Master Index
License Agreement by and between Guggenheim Funds Distributors LLC and S&P
Opco, LLC (a subsidiary of S&P Dow Xxxxx Indices LLC), a Delaware limited
liability company ("S&P"), dated as of the Effective Date set forth below
("Agreement"). Terms used herein and not otherwise defined have the meanings
ascribed to them in the Agreement.
Licensee: Guggenheim Funds Distributors LLC
----------------------------------------------------------------------------------------------------------
Effective Date of the S&P Contract No. of the
Agreement: August 3, 2010 Agreement: 00025576.0
----------------------------------------------- -------------------------------
S&P Client Coverage
Representative: Xxxx Xxxxxxx S&P Account No.:
----------------------------------- -------------------------------
1. Commencement Date: November 1, 2017
-------------------------------------------------------
2. Billing Commencement Date (if different from The Billing Commence Date shall be the date upon
Commencement Date): which any assets are deposited in the Trust (as defined
in Exhibit B), Licensee shall notify S&P the initial
offering period of each issued UIT
-------------------------------------------------------
3. Term ([section]3A of the Agreement):
(a) Initial Term (from Commencement Date): one (1) year
-------------------------------------------------------
(b) Renewal Term (if not one (1) year):
-------------------------------------------------------
4. Index/Indices: See description of the Index/Indices on the attached
Exhibit A.
-----------------------
5. Xxxx(s): See description of the Mark(s) on the attached Exhibit
A.
-----------------------
6. Product(s): See description of the Product(s) on the attached
Exhibit B.
-----------------------
7. Territory (list country/region/global): North America
-------------------------------------------------------
8. Use and Restrictions on Use: See Use and Restrictions on Use on the attached
Exhibit C.
-----------------------
9. License Fees: See License Fees on the attached Exhibit D.
10. Informational Materials (pursuant to [section]6 of the
Agreement): S&P Dow Xxxxx Indices
-------------------------------------------------------
55 Water Street, 39th Floor
-------------------------------------------------------
New York, NY 10041
-------------------------------------------------------
Attn: Xxxx Xxxxxxx
------------------------------------------------------
Fax (if less than 20 pages and legible after
transmission):
------------------------------------------------------
Email (if less than 5 mb in attachment size): xxxx.xxxxxxx@xxxxxxxx.xxx
------------------------------------------------------
Where Informational Materials are not in the English
language, Licensee shall also submit an accurate
English translation of the same at time of submission.
Where S&P's approval pursuant to this Section 10 and
Section 6 of the Agreement is with respect to the
English translation provided by Licensee, Licensee
shall make accurate corresponding changes to
versions in other languages. Licensee shall submit to
S&P the final version of the approved Informational
Material in hard copy within ten (10) days following
printing.
Time frame for S&P response: Forty-eight (48) hours (excluding Saturday, Sunday
and New York Stock Exchange Holidays, and
calendar holidays of the Trans-European Automated
Real-Time Gross Settlement Express Transfer
(TARGET)).
11. Notices (in addition to [section]12(J) of the Agreement):
Notice to Licensee: Notice to S&P:
------------------------------------------------------ ------------------------------------------------------
Guggenheim Funds Distributors LLC S&P Opco, LLC
------------------------------------------------------ ------------------------------------------------------
42-40 Bell Bld, Suite 505 c/o S&P Dow Xxxxx Indices LLC
------------------------------------------------------ ------------------------------------------------------
Bayside, NY 11361 00 Xxxxx Xxxxxx, 00xx Floor
------------------------------------------------------ ------------------------------------------------------
New York, New York 10041
------------------------------------------------------ ------------------------------------------------------
Attention: Xxxx Xxxxxxx Attention: Xx Xxxxx, Managing Director
------------------------------------------- ------------------------------------------------------
12. Electronic Agreement Subject to the Opt Out provision in this Order
Schedule, the parties agree that this Order Schedule
may be executed and delivered in counterparts
(including by electronic transmission), and that the
electronic copy of this Order Schedule retained by
S&P constitutes the "original", complete and
exclusive statement of this Order Schedule.
13. Electronic Agreement "Opt Out": [_] Check here if a party executing this Order
Schedule does not consent to the electronic copy of
this Order Schedule serving as the "original" pursuant
to Section 12 above and requires that the original
Order Schedule be maintained in paper form. This
section shall survive termination of the Order
Schedule.
This Order Schedule, including the accompanying Exhibits, supersedes all
previous Order Schedules between the parties with respect to its subject
matter. Each of the undersigned acknowledges that he/she is authorized to
execute this Order Schedule on behalf of Licensee and S&P, respectively. The
signatures below are evidence of each party's agreement to be bound by the
terms and conditions of this Order Schedule and the Agreement, the terms and
conditions of which are incorporated herein by reference as if set forth at
length. Where Licensee is not a party to the Agreement, Licensee expressly
acknowledges and agrees that, by entering into this Order Schedule, it shall be
bound by and shall comply in all respects with the terms and conditions
contained in the Agreement. In the event of any conflict between the terms of
the Agreement and the terms of this Order Schedule, the terms of this Order
Schedule shall prevail with respect to such conflicting terms.
GUGGENHEIM FUNDS DISTRIBUTORS S&P OPCO, LLC
LLC
Signature: Signature:
------------------ -----------------
Name: Name: Xx Xxxxx
------------------ -----------------
(Please print)
Title: Title: Managing Director
------------------ -----------------
(Please print)
Email: Date:
------------------ -----------------
(Please print) (Please print)
Date: ------------------
(Please print)
EXHIBIT A
-------------
INDEX/INDICES
MARKS
Unless expressly stated below, no license is granted to any sub-index including
any GICS[R] level sub-indices such as sector, industry group, industry, or
sub-industry indices.
Index/Indices:
Dow Xxxxx U.S. Top-Cap Index
Marks:
Xxx Xxxxx[R]
EXHIBIT B
-------------
DESCRIPTION OF THE LICENSEE PRODUCT(S)
Subject to the terms and conditions of this Order Schedule and the Agreement,
Licensee is hereby authorized to create the following Product(s):
1. Indexed Fund or Indexed Funds, a unit investment trust (or UIT)
established, organized, sponsored or managed by Licensee where the return on
such Indexed Fund is linked to or derived from the performance of an Index or
the investment objective of which is to track the price and yield performance of
publicly traded common stocks of companies as represented by an Index.
For purposes of this Order Schedule, Licensee is authorized to issue the
following UITs only: Guggenehim Dow Xxxxx Top-Cap Series.
Licensee acknowledges and agrees that the establishment, organization,
sponsorship or management of any other Indexed Fund shall require Licensee and
S&P to enter into a separate Order Schedule.
2. Exclusions:
2.1. In no event may any Product constitute a futures contract, or an
option on a futures contract as determined by S&P in its sole discretion.
2.2. Indexed Funds exclude funds that can be purchased, sold or otherwise
listed or traded on an Organized Securities Market (as defined below), such as
ETFs, except for closed-end funds which may trade on a secondary market
following an initial public offering which does not involve an Organized
Securities Market, provided, however, in no event may such closed-end fund be an
ETF as determined by S&P in its sole discretion.
3. Definitions; Interpretation.
3.1. An "Exchange-Traded Fund" or "ETF" means an open-ended pooled
investment vehicle, unit trust, investment company or other collective or
commingled investment vehicle that has the following characteristics: (i) it
issues, sells and redeems blocks of shares, units or other interests, which
blocks are sometimes referred to as "creation units"; (ii) the shares, units or
similar interests thereof are listed or traded on an Organized Securities
Market; and (iii) the investment objective thereof is, and at all times remains,
to own a basket of securities and/or other financial instruments, such as
futures, options, forward contracts and other derivative contracts in an attempt
to track the performance of the securities represented by an Index. As used
herein, the term "ETF" excludes, without limitation, ETNs, indexed warrants,
indexed debt instruments, options, futures contracts or other derivative
contracts based on the value of ETF shares or on an underlying Index, or other
securities or index-linked contracts that are traded on Organized Securities
Markets but that are not pooled investment vehicles.
3.2. "Exchange-Traded Notes" or "ETNs" means any notes or similar
instruments issued by an underwriting bank that: (i) are linked to the
performance of the Index; (ii) are listed or traded on any Organized Securities
Market; (iii) have a maturity period of more than one year; (iv) may or may not
provide for interest or other payments prior to maturity; and (v) may be
redeemed at the option of the holder thereof at a value based on or derived
from, at the time of redemption, the performance of such underlying Index.
3.3. An "Organized Securities Market" means any broker dealer, automated
quotation system of a registered securities association, exchange, or other
entity or organization located in any part of the world that (i) is subject to
regulation as an exchange under applicable laws, rules or regulations of its
jurisdiction; or (ii) acts in an exchange-like capacity, with or without a
recognized status or formal exemptive or no-action relief from the applicable
government or regulatory authority in its jurisdiction, by virtue of it, as
principal or agent, acting on a regular basis as an intermediary between buyers
and sellers, or constituting, maintaining or providing a market place or
facilities for bringing together buyers and sellers or for otherwise performing
the functions commonly provided by an exchange; through the medium or with the
assistance of which Financial Instruments (as defined herein) are offered,
traded, listed, purchased, sold, crossed, exchanged, or cleared. "Financial
Instruments" means commodities, securities, and derivatives of all types,
including, without limitation, stocks and other equity instruments, bonds and
other debt instruments, commodities and futures, forwards, swaps, and options
that derive their value from bonds, equities, commodities or indices thereof.
EXHIBIT C
-------------
USE AND RESTRICTIONS ON USE
1. Sub-Advisory Services. Licensee shall not use the Index or Marks to perform
any sub-advisory services for any third party under this Order Schedule without
S&P's prior written consent. If S&P provides such consent, then Licensee shall
provide S&P with a list of such third parties along with any usage reports as
required under Exhibit D attached hereto.
2. Index Data. Licensee agrees and acknowledges that the provision of Index
related data (e.g. index levels, index constituents, constituent weights, etc.)
to Licensee will be contracted under and governed by the relevant S&P data
license agreement (the "MSA"), which is separate from this Agreement and Order
Schedule, and separate fees may be payable by Licensee to S&P or its affiliates
under the MSA. S&P distributes Index data directly to its clients via FTP and
via third party vendors. Certain third party vendors charge S&P to distribute
Index data on their platform. Licensee agrees and acknowledges that such charges
may be passed through to Licensee if S&P distributes Index data via such vendor
at Licensee's direction. Any such charges as of the Commencement Date are set
forth in Exhibit D.
3. Post-Termination Use of Printed Materials. Upon termination of this Order
Schedule pursuant to Section 3A of the Agreement and provided that S&P's
agreement(s) with the applicable third party licensor(s) permits, Licensee may
continue to utilize any previously printed Informational Materials which contain
the Marks for a period of ninety (90) days following such termination. This
paragraph shall survive termination of this Order Schedule.
EXHIBIT D
-------------
FEES
1. License Fees. Licensee shall pay to S&P the following annual fees on a
per Indexed Fund basis: The greater of the Minimum Fee or the Variable Fee set
forth below due as of the close of the IPO.
Aggregate Minimum Fee: The Minimum Fee is equal to $10,000 per year. The
Minimum Fee is due as of the Commencement Date and each one year anniversary
thereof and payable within thirty (30) days of the date of invoice from S&P.
Variable Fee: Five basis points (0.0005) multiplied by the total amount of
assets raised during the initial public offering (IPO), payable at the close of
such IPO.
By way of example, and without limiting the generality of the foregoing, in the
event that Licensee issues a mutual fund with average daily assets under
management equal to $100 million on January 1, the License Fee for the period
ending March 30 will be equal to $100,000,000 [] 0.0005 / 4 or $12,500; OR a
closed-end fund with assets raised during the IPO closing on January 1 equal to
$100 million, the License Fee shall be equal to to $100,000,000 [] 0.0005 or
$50,000.
2. Reporting. Licensee shall report to S&P the following details related to
each Indexed Fund within thirty (30) days of the issue date of such Product and
quarterly in arrears thereafter: (i) type of Indexed Fund(s) issued (per the
classifications on Exhibit B); (ii) average daily assets under management /
assets raised during IPO (as applicable); (iii) term to maturity (as
applicable); (iv) date(s) of first sale / start and end dates of the IPO (as
applicable); and (v) any other information S&P reasonably requires. Licensee
shall submit all reports outlined in this Section to S&P in the same manner as
Informational Materials as described in Section 6 of the Agreement and Section
10 hereof.
3. Confidentiality. The parties agree that the fees set forth in this
Exhibit D shall be considered "Confidential Information" for purposes of Section
12(C) of the Agreement.
4. Fee Increases. S&P reserves the right to increase its fees under this
Order Schedule effective on the anniversary of the Commencement Date by
providing at least sixty (60) days advance written notice to Licensee prior to
the expiration of the Term then in effect.
5. Licensee Billing Contact:
Attn: Xxxx Xxxxxxx
--------------------------------------
Tel: 000 000 0000
--------------------------------------
Email: Xxxx.Xxxxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
--------------------------------------
Address: Guggenheim Funds Distributors LLC
00-00 Xxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
--------------------------------------
