EXHIBIT 9.1
PORTFOLIO SUPPORT AND LICENSE AGREEMENT
This Agreement, dated as of November 28th, 2018, is made by and between Xxx
Xxxxx Research, Inc, a Florida corporation ("Consultant/Licensor"), and
Guggenheim Funds Distributor, LLC., ("GFD" or "Licensee") as sponsor to, NDR
Thematic Opportunities Portfolio, Series 6 (the "Trust").
RECITALS
A. Consultant/Licensor is an investment adviser federally registered or
exempt under the Investment Advisers Act of 1940, as amended.
B. GFD 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 and 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 GFD 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 GFD,
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 12:00 p.m. (C.S.T.) on the third
business day before November 28, 2018 (such prior day being the "Target Date"),
Consultant/Licensor shall provide GFD with a list of Appropriate Securities for
deposit by GFD, in its sole discretion, into the Trust. If Consultant/Licensor
fails to provide GFD with a list of Appropriate Securities prior to 12:00 p.m.
on the Target Date: (i) Consultant/Licensor shall be liable (and shall promptly
pay) for any costs and expenses incurred by GFD 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 12:00 p.m. on the Target Date. The date that the Appropriate
Securities are deposited is referred to herein as the "Deposit Date". GFD 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: (i) 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; (ii) the Appropriate Securities
shall be selected based on a completely objective, verifiable and
non-discretionary strategy; (iii) the historical performance results of
securities selected pursuant to the Strategy will be based on all of the
components of the Strategy; and (iv) Consultant/Licensor shall not tamper with
such results on a historical or "going forward" basis.
(b) Consultation. Consultant/Licensor shall:
(i) upon GFD's reasonable request, provide GFD with information about
the Appropriate Securities as reasonably necessary for use by GFD 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, (y) the historical performance of the Strategy, and (z) 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 no person or entity (including
without limitation, the Trust) other than the Licensee shall need to obtain a
License in connection with the creation, issuance, sale, marketing and promotion
of the Trust and 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, GFD
shall pay to Consultant/ Licensor the following fees (which fees are Trust costs
that GFD expects the Trust to reimburse pursuant to the applicable Trust
Indenture):
(a) a portfolio consulting fee equal to seven basis points (0.07%) of
the aggregate daily liquidation value of transactional sales (specifically
excluding fee-based sales) made during the primary offering period of the Trust
(the "Portfolio Fee"); and
(b) a license fee equal to seven basis points (0.07 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) GFD 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, GFD shall not be responsible for the payment of any Portfolio Fee or
License 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 Consultant/Licensor, and
the services provided by Consultant/Licensor shall be as an independent
contractor and not as an employee or agent of GFD. Consultant/Licensor shall
have no authority whatsoever to bind GFD on any agreement or obligation.
Consultant/Licensor 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 ("Confidential Information") during the term of this
Agreement. Each party shall keep the other party's Confidential Information
confidential and shall not use such information in any manner except as required
to perform its obligations hereunder. In no event shall the following
information be deemed a disclosing party's Confidential 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. Notwithstanding the above, a
receiving party may disclose the disclosing party's confidential Information to
the receiving party's existing and potential affiliates and its and their
respective employees, agents, advisors, directors and officers (collectively,
"Representatives"), provided, however, such Representatives are made aware of
this Agreement and agree to comply with the terms of this Agreement as if they
were parties hereto. 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) failure to comply with this Agreement or (b) breach
of a representation or warranty contained in 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) GFD. 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) 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 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, (iii) the Strategy, Intellectual Property and
Consultant/Licensor Marks are the exclusive property of Consultant/Licensor and
(iv) 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 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) 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.
CONSULTANT/LICENSOR
By
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Name: Xxxxxx Xxxxxxxx
Title: Senior Director
GUGGENHEIM FUNDS DISTRIBUTOR, LLC. AS
SPONSOR OF THE TRUST
By
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Name: Xxxxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A
THE STRATEGY
Investment Objective
The Thematic Opportunities Trust seeks to maximize total return primarily
through capital appreciation.
Principal Investment Strategy
The trust seeks to achieve its investment objective by investing in a portfolio
of U.S.- listed common stocks that may be in a position to take advantage of
current thematic opportunities. The sponsor has partnered with Xxx Xxxxx
Research, Inc. ("NDR") as portfolio consultant. NDR will identify investment
themes and suggest securities for the portfolio that it believes possess the
potential to benefit from the investment themes and market conditions as of the
security selection date.
An investment theme is a market idea that has the potential of selecting
securities of companies that may be poised to outperform the broader market. The
investment themes will be specific and constant within the trust, as selected on
the security selection date. The inspiration for a theme may be drawn from any
number of professional disciplines. NDR regularly publishes investment research
across a broad spectrum of asset classes, markets, geographies and industries.
The themes that emerge from this research become the building blocks for the
thematic opportunities. The themes are selected by (in decreasing order of
importance):
o Likelihood of success/outperformance
o Time horizon that most closely matches that of the trust
o Diversification and interaction (correlation) with the other themes
The U.S.-listed common stocks held by the trust may include common stocks of
U.S. and non-U.S. companies. The trust may invest in issuers of any market
capitalization. There can be no assurance that any security held by the trust
will benefit directly from a current thematic opportunity or that the trust will
meet its objective.
Security Selection
Security Selection
NDR begins the security selection process by identifying current market themes
that its strategists believe may outperform the broader market over the term of
the trust. These themes are picked by NDR macroeconomic and equity strategists
from a larger pool of NDR strategists' themes.
The themes selected by NDR for this trust are:
[NDR to provide themes for this trust under a separate cover.]
NDR then employs multiple processes designed to select specific securities that
it believes will benefit more than other securities if one or more of the
investment themes play out as predicted. NDR's primary method of identifying the
relevant securities to represent the theme(s) is by using the industry
classification of the individual securities. Since most stocks can be classified
by the industry in which they operate, NDR aligns the theme with the relevant
industry(s). This selection is made by both qualitative (categorization) and
quantitative (correlations of securities with industry(s)) criteria.
The sectors/industries that NDR believes may benefit from the investment themes
are:
[NDR to provide sectors for this trust under a separate cover.]
Once the favored industries have been identified, NDR reduces the broader
universe down to the final recommended 40 securities using the criteria below.
NDR analysts utilize fundamental, technical, and/or macroeconomic factors to
rank the filtered securities.
o Fundamental factors pertain to the economics of the specific business and are
typically drawn from the financial statements (i.e., income statement, balance
sheet, etc.). Some common factors are, but are not limited to, earnings growth,
dividend payout ratio and debt/equity ratio.
o Technical factors pertain to the trading of the security in the capital
markets. Technical factors are used to evaluate the supply and demand for the
security. Some common factors are, but are not limited to, price momentum, mean
reversion or level of volume of shares traded.
o Macroeconomic factors pertain to the broader economy in which a security
trades. These are factors which influence the environment in which a business
operates. Some common factors are, but are not limited to, interest rates, the
level of employment and fiscal/monetary policy.
For purposes of selecting securities for the trust, NDR focuses on two factor
groups:
o Quality. Examples include, but are not limited to, stocks with lower
price/earnings multiples, higher earnings growth, stable cash flows and positive
momentum.
o Relevant economic cycle: stock performance varies across the business/market
cycle. An example could be selecting higher beta (or volatile) stocks during the
earlier portion of an economic recovery or bull market. NDR applies these
processes against the universe of liquid, U.S.-listed common stocks that trade
on the NYSE, NASDAQ or AMEX stock exchanges. American depositary receipts and
global depositary receipts are not eligible for inclusion in the portfolio. NDR
ranks each security that passed the theme/industry filters according to quality
and relevant economic cycle. For example, a stock with a lower price/earnings
ratio would receive a higher score because a lower price/earnings ratio suggests
a better value. For the relevant economic cycle example, if the markets were in
the early stages of a bull market, a stock with a higher beta (relative to other
securities) may receive a higher score. NDR combines these factor scores for
each stock and selects the 40 highest-ranked stocks for recommendation for
inclusion in the trust. NDR uses the strength of the factor score/rank to
determine initial recommended weightings in the portfolio by having a higher
score equal a larger weight. Finally, after completing this initial portfolio
selection process, NDR reviews and evaluates the selected stocks and determines
their final recommended weighting in the trust with the assistance of a
statistical risk analysis process. The risk analysis process identifies the risk
that can be reduced through diversification and determines the optimal weights
for each recommended security in the trust.
SCHEDULE B
CONSULTANT/LICENSOR MARKS
NDR
