EXHIBIT 9.1
SCHEDULE III
Index Licensing Schedule
By signing below, Licensee agrees that the license granted in this Schedule
shall be subject to all of the terms and conditions set forth in the License
Agreement (the "License Agreement"), dated as of May 17, 2010 by and between DJI
Opco, LLC (as successor-in-interest to CME Group Index Services LLC ("DJI
Opco")), and Guggenheim Funds Distributors, LLC. (formerly known as Claymore
Securities, Inc.) ("Licensee"), which terms and conditions are incorporated
herein by reference.
This Schedule and all addenda or amendments hereto are collectively referred to
as, the "Schedule" or "Schedule III". This Schedule shall supplement and amend
the License Agreement and together the Schedule and License Agreement (and all
addenda thereto) shall form the entire agreement between the parties regarding
the license with respect to the Licensed Index and Marks (the "License") set
forth below, and shall supersede all prior agreements, proposals or other
communications between the parties, oral or in writing, regarding the License.
Except as otherwise expressly provided herein, all capitalized terms in this
Schedule III shall have the meanings ascribed to them in the License Agreement.
If there is a conflict between the terms and conditions of the License Agreement
and this Schedule III, the terms and conditions of this Schedule III shall
control.
I. Schedule III Effective Date: November __, 2013
II. Licensed Index: The Dow 10
III. Marks: "The Dow 10"
IV. Business Unit: Not applicable.
V. Index Data:
Subject to the terms and conditions of the License Agreement and payment of the
fees set forth herein, DJI Opco will provide to Licensee for use by up to five
(5) individual users, via, at DJI Opco's option, FTP Site, an authorized
distributor or email delivery, the following data (collectively, the "Index
Data"):
On a Daily Basis:
[] A list of component stocks (the "Components") for the Licensed
Index listed in this Schedule III;
[] Divisor of the Licensed Index as of the end of each business day;
[] Closing values of the Licensed Index, on a price return basis, as
the end of each business day; and
[] Closing prices of the Components as of the end of each business
day.
From time to time, as appropriate:
o Corporate action information with respect to the Components.
VI. Product:
The Product shall be a Unit Investment Trust that has the following
characteristics: (i) the fund has the investment objective of replicating the
performance of the Licensed Index; (ii) is organized under the laws of the
Investment Company Act of the United States and (iii) is not traded or listed on
an Organized Securities Markets (as defined below) (e.g., is not exchange
traded, electronically or otherwise).
"Organized Securities Market" shall mean a U.S. national securities exchange, an
automated quotation or other electronic trading system, a foreign securities
exchange or any other domestic or foreign securities market determined by DJI
Opco in its reasonable judgment to constitute an Organized Securities Market.
The name of the Product shall be "The Dow 10"; provided, however, Informational
Materials referencing the Product name shall clearly identify Licensee as the
issuer of the Product and that this Product is one of a series of comparable
investment products offered by Licensee. Any change to the names of the Product
shall be subject to DJI Opco's approval.
VII. Territory: United States
VIII. License Fees:
As consideration for the license granted herein, Licensee shall pay to DJI Opco
a license fee for each series of the Product equal to the greater of twenty five
hundred dollars ($2,500) or five basis points (0.05%) of the aggregate daily
liquidation value of transactional sales (specifically excluding fee-based
sales) made during the primary offering period of such series (the "License
Fee") (which fee is a Product cost that Licensee expects the Product to
reimburse pursuant to the applicable trust indenture).
The 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. DJI Opco
acknowledges that (a) Licensee may at any time determine that it does not wish
to go forward with a primary offering of the Product and, if it so determines,
Licensee shall not be responsible for the payment of any License Fee under this
Agreement, (b) Licensee may delay the deposit date for a Product in its
discretion, and (c) Licensee 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.
A report detailing (i) the aggregate daily liquidation value of transactional
sales during the primary offering period for each Product and (ii) any excluded
fee-based sales will be provided by Guggenheim to DJI Opco within ten (10) days
after the Product moves to the secondary market. Licensee shall send such report
to xxxxxxxxxxxxxx@xxxxx.xxx.
All amounts will be paid in cash and will be non-refundable. All amounts are
stated in U.S. Dollars (at the applicable exchange rate prevailing at the time
payment is due, as published in The Wall Street Journal). All amounts in the
License Agreement (including, without limitation, any Schedules hereto) are
stated net of any taxes (i.e., the amount stated is the amount to be received by
DJI Opco after payment of any sales, distribution, use or similar taxes).
Licensee shall pay any taxes, fees and similar governmental charges related to
the execution or performance of this Agreement, other than taxes on DJI Opco's
net income.
The terms hereof shall be deemed "Confidential Information" for purposes of
Section 7(b) of the License Agreement.
Contact Information for Invoicing:
Name: Xxxx Xxxxxxx
Address: 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, XX 00000
Phone/Fax:
Email:
IX. Term: Notwithstanding anything to the contrary in the License Agreement, (a)
any termination pursuant to Section 2 of the License Agreement with respect to
Schedule I or Schedule II to the License Agreement shall not affect the License
Agreement with respect to this Schedule III and vice versa, (b) any termination
pursuant to Section 4 of the License Agreement (other than pursuant to Section
4(a)) and caused by a breach of Schedule I and/or II, shall not affect the
License Agreement with respect to Schedule III and vice versa; and (b) any
termination pursuant to Section 4 of the License Agreement (other than pursuant
to Section 4(a)) specific to an Index or Product on Schedule I and/or Schedule
II shall not affect the License Agreement with respect to Schedule III and vice
versa.
For clarity, it is acknowledged and agreed that the parties intend each Schedule
under the License Agreement to be deemed separate agreements with respect to
termination rights under the License Agreement, and thus, for example, except in
connection with a termination pursuant to Section 4(a) by either Party, a
termination right arising under any Schedule will not cause the termination of
the License Agreement and the License granted under any other Schedule unless
such termination right would have existed specifically to any such other
Schedule.
X. Miscellaneous:
1) Notwithstanding anything to the contrary in the License Agreement, Licensee
shall use the following short-form disclaimer in replace of the disclaimer
set forth in Section 6(a) of the License Agreement:
The "Dow Xxxxx Industrial Average" is a product of S&P Dow Xxxxx
Indices LLC ("SPDJI"), and has been licensed for use by [Licensee].
Standard & Poor's(R) and S&P(R) are registered trademarks of Standard
& Poor's Financial Services LLC ("S&P"); DJIA(R), The Dow(R), Dow
Xxxxx(R) and Dow Xxxxx Industrial Average are trademarks of Dow Xxxxx
Trademark Holdings LLC ("Dow Xxxxx"); and these trademarks have been
licensed for use by SPDJI and sublicensed for certain purposes by
[Licensee]. [Licensee]'s [Product(s)] is not sponsored, endorsed, sold
or promoted by SPDJI, Dow Xxxxx, S&P, their respective affiliates, and
none of such parties make any representation regarding the
advisability of investing in such product(s) nor do they have any
liability for any errors, omissions, or interruptions of the Dow Xxxxx
Industrial Average.
2) Notwithstanding anything to the contrary in the License Agreement, Licensee
shall use the following long-form disclaimer in replace of the disclaimer
set forth in Section 8(b) of the License Agreement and attached as Exhibit
I to the License Agreement:
The "Dow Xxxxx Industrial Average" is a product of S&P Dow Xxxxx Indices LLC
("SPDJI"), and has been licensed for use by [Licensee]. Standard & Poor's(R) and
S&P(R) are registered trademarks of Standard & Poor's Financial Services LLC
("S&P"); DJIA(R), The Dow(R), Dow Xxxxx(R) and Dow Xxxxx Industrial Average are
trademarks of Dow Xxxxx Trademark Holdings LLC ("Dow Xxxxx"); and these
trademarks have been licensed for use by SPDJI and sublicensed for certain
purposes by [Licensee]. [Licensee's Product(s)] are not sponsored, endorsed,
sold or promoted by SPDJI, Dow Xxxxx, S&P, any of their respective affiliates
(collectively, "S&P Dow Xxxxx Indices"). S&P Dow Xxxxx Indices makes no
representation or warranty, express or implied, to the owners of the [Licensee's
Product(s)] or any member of the public regarding the advisability of investing
in securities generally or in [Licensee's Product(s)] particularly or the
ability of the Dow Xxxxx Industrial Average to track general market performance.
S&P Dow Xxxxx Indices' only relationship to [Licensee] with respect to the Dow
Xxxxx Industrial Average is the licensing of the Index and certain trademarks,
service marks and/or trade names of S&P Dow Xxxxx Indices or its licensors. The
Dow Xxxxx Industrial Average is determined, composed and calculated by S&P Dow
Xxxxx Indices without regard to [Licensee] or the [Licensee's Product(s)]. S&P
Dow Xxxxx Indices have no obligation to take the needs of [Licensee] or the
owners of [Licensee's Product(s)] into consideration in determining, composing
or calculating the Dow Xxxxx Industrial Average. S&P Dow Xxxxx Indices is not
responsible for and has not participated in the determination of the prices, and
amount of [Licensee's Product(s)] or the timing of the issuance or sale of
[Licensee's Product(s)] or in the determination or calculation of the equation
by which [Licensee's Product(s)] is to be converted into cash, surrendered or
redeemed, as the case may be. S&P Dow Xxxxx Indices has no obligation or
liability in connection with the administration, marketing or trading of
[Licensee's Product(s)]. There is no assurance that investment products based on
the Dow Xxxxx Industrial Average will accurately track index performance or
provide positive investment returns. S&P Dow Xxxxx Indices LLC is not an
investment advisor. Inclusion of a security within an index is not a
recommendation by S&P Dow Xxxxx Indices to buy, sell, or hold such security, nor
is it considered to be investment advice. Notwithstanding the foregoing, CME
Group Inc. and its affiliates may independently issue and/or sponsor financial
products unrelated to [Licensee's Product(s)] currently being issued by
[Licensee], but which may be similar to and competitive with [Licensee's
Product(s)]. In addition, CME Group Inc. and its affiliates may trade financial
products which are linked to the performance of the Dow Xxxxx Industrial
Average.
S&P DOW XXXXX INDICES DOES NOT GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS
AND/OR THE COMPLETENESS OF THE DOW XXXXX INDUSTRIAL AVERAGE OR ANY DATA RELATED
THERETO OR ANY COMMUNICATION, INCLUDING BUT NOT LIMITED TO, ORAL OR WRITTEN
COMMUNICATION (INCLUDING ELECTRONIC COMMUNICATIONS) WITH RESPECT THERETO. S&P
DOW XXXXX INDICES SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY
ERRORS, OMISSIONS, OR DELAYS THEREIN. S&P DOW XXXXX INDICES MAKES NO EXPRESS OR
IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR AS TO RESULTS TO BE OBTAINED BY
[LICENSEE], OWNERS OF THE [LICENSEE'S PRODUCT(S)], OR ANY OTHER PERSON OR ENTITY
FROM THE USE OF THE DOW XXXXX INDUSTRIAL AVERAGE OR WITH RESPECT TO ANY DATA
RELATED THERETO. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT WHATSOEVER
SHALL S&P DOW XXXXX INDICES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS, TRADING LOSSES, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED
OF THE POSSIBLITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY,
OR OTHERWISE. THERE ARE NO THIRD PARTY BENEFICIARIES OF ANY AGREEMENTS OR
ARRANGEMENTS BETWEEN S&P DOW XXXXX INDICES AND [LICENSEE], OTHER THAN THE
LICENSORS OF S&P DOW XXXXX INDICES.
The terms and conditions of this Schedule III are acknowledged and agreed to:
DJI OPCO, LLC GUGGENHEIM FUNDS DISTRIBUTORS, LLC.
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxxxx
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Title: Title:
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Date: Date:
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