EXHIBIT 9.1
ORDER SCHEDULE NUMBER 7
INDEX IP
This Order Schedule 7 ("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, Inc.
(formerly known as Claymore Securities, Inc.) 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, Inc.
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Effective Date of the S&P Contract No. of the
Agreement: Agreement: 00025576.0
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S&P Client Coverage
Representative: Xxxx Xxxxxxxx S&P Account No.:
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1. Commencement Date:
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2. Billing Commencement Date (if different from The Billing Commencement Date shall be the date upon
Commencement Date): which any assets are deposited into the Trust (as defined
under Exhibit B). Licensee shall notify S&P of such date as
soon as reasonably practicable.
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3. Term ([section]3A of the Agreement): Notwithstanding anything to the contrary in this Order
Schedule or the Agreement, the Term of this Order Schedule
shall commence on the Commencement Date and shall continue
in effect for as long as the Product (including all series
thereof) described in Exhibit B remains outstanding, and
there shall be no Renewal Term(s).
(a) Initial Term (from Commencement Date): See description of the Index/Indices on the attached
Exhibit A.
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(b) Xxxxxxx Xxxx (if not one (1) year): See description of the Mark(s) on the attached Exhibit A.
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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
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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
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55 Water Street, 27th Floor
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New York, NY 10041
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Attention: Xxxx Xxxxxxxx
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Fax (if less than 20 pages and legible
after transmission): 000-000-0000
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Email (if less than 5 mb in attachment
size): XXXXX.xxx
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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:
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Guggenheim Funds Distributors, Inc. S&P Opco, LLC
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42-40 Bell Blvd, Suite 505 c/o S&P Dow Xxxxx Indices LLC
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Bayside, NY 11361 00 Xxxxx Xxxxxx, 00xx Xxxxx
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New York, New York 10041
Attention: Xxxx Xxxxxxx Attention: Xx Xxxxx, Managing Director
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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, INC. S&P OPCO, LLC
Signature: Signature:
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Name: Name: Xx Xxxxx
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(Please print)
Title: Title: Managing Director
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(Please print)
Email: Date:
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(Please print) (Please print)
Date:
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(Please print)
EXHIBIT A
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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:
S&P 500 Dividend Aristocrats
Marks:
Dividend Aristocrats[R]
S&P 500 Dividend Aristocrats[R]
Standard & Poor's[R]
S&P[R]
Third Party Licensor Trademarks (and respective Third Party Licensor(s)):
Notwithstanding anything to the contrary in this Order Schedule or the
Agreement, S&P represents and warrants that (a) the above-referenced Index is
not a third party Index as referenced in Section 9(A) of the Agreement and (b)
the above-referenced Marks are not third party Marks as referenced in Section
9(A) of the Agreement.
EXHIBIT B
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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, meaning any publicly offered or privately
placed mutual fund, open-ended investment company, closed-end (or closed-ended)
investment company or 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 Indexed Fund only: S&P
Dividend Aristocrats Select 25 Strategy Portfolio (the "Trust"), an unit
investment trust with constituents in the final portfolio that are selected by
Licensee using the following criteria:
a. Begin with all of the securities listed in the Index and exclude
companies with average or low sensitivity to market moves.
b. Rank the remaining securities based on the attractiveness of key
fundamentals: free cash flow yield, return on assets, and earnings
before interest, taxes, depreciation and amortization divided by
enterprise value (EBITDA/EV).
c. Select the 50 securities with the best overall fundamental rankings
listed in Step 2, while assuring balanced diversification across
portfolio characteristics of size, sector, and growth/value styles.
2. Exclusions:
2.1. The Trust specifically excludes shares or any other security,
financial instrument or investment representing an ownership interest in the
Trust that can be purchased, sold or otherwise listed or traded on an Organized
Securities Market (as defined below).
2.2. 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.
2.3. 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
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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
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FEES
1. License Fees. Commencing on the Billing Commencement Date and at each three
(3) month period thereafter during the first year following such Billing
Commencement Date (the "Initial Year"), Licensee shall pay to S&P two
thousand five hundred U.S. Dollars ($2,500) for a total annual payment of
Ten Thousand U.S. Dollars ($10,000) (the "Year 1 Minimum Fee"). Following
the Initial Year, Licensee shall pay S&P a minimum fee of two thousand five
hundred U.S. Dollars ($2,500) for every series of the Product launched by
Licensee (the "Series Minimum Fee") after that Initial Year, provided,
however that the total Series Minimum Fees in aggregate paid by Licensee to
S&P for any one (1) year period shall not exceed Ten Thousand U.S. Dollars
($10,000). In addition, Licensee shall pay to S&P (a) within thirty (30)
days following the end of the Initial Year, the overage (if any) between
the Year 1 Minimum Fee and three basis points (0.0003) of the aggregate
daily liquidation value of transactional sales (specifically excluding
fee-based sales) made during the primary offering period of the Product
(and every series thereof) launched in the first year and (b) within thirty
(30) days following the anniversary of the Initial Year and each one (1)
year period thereafter, the overage (if any) between the aggregate of all
Series Minimum Fees paid in such annual period and three basis points
(0.0003) of the aggregate daily liquidation value of transactional sales
(specifically excluding fee-based sales) made during the primary offering
period of every series of the Product launched in such annual period.
2. Reporting. Licensee shall report to S&P within thirty (30) days of the end
of the Initial Year and each anniversary thereof (unless there are no
further issuances of any series of the Product after the Initial Year such
that the initial reporting is all inclusive in order for S&P to calculate
the entire License Fees due and payable to S&P under this Order Schedule
for the Product (including all series thereof)) the following details
related to the Product and each and every series thereof: 1) the aggregate
daily liquidation value of transactional sales (specifically excluding
fee-based sales) made during the offering period of the Product and all
series thereof that launched during such reported on period; 2) Term to
Maturity and 3) any other information S&P reasonably requires. All
statements of usage outlined in this Section shall be sent to S&P in the
same manner as Informational Materials as described under Section 6 of the
Agreement.
All License Fees are due within thirty (30) days of receipt of an invoice.
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
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Tel: (XXX) XXX-XXXX
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Email: XXXXX.xxx
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Address: 00-00 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
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