EXHIBIT 4.8
REFERENCE PRICE SUBLICENSING AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Sublicense Agreement") is
entered into as of November 22, 2006 ("Effective Date"), by and among
MACROMARKETS LLC, a Delaware limited liability company ("Sublicensor"), and
Investors Bank & Trust Company, a Massachusetts trust company, not in its
individual capacity but solely (i) as trustee of the Claymore MACROshares Oil
Up Holding Trust (the "Up-MACRO Holding Trust"), (ii) as trustee of the
Claymore MACROshares Oil Down Holding Trust (the "Down-MACRO Holding Trust" and
together with the Up-MACRO Holding Trust, the "Paired Holding Trusts"), (iii)
as trustee of the Claymore MACROshares Oil Up Tradeable Trust (the "Up-MACRO
Tradeable Trust"), and (iv) as trustee of the Claymore MACROshares Oil Down
Tradeable Trust (the "Down-MACRO Tradeable Trust" and together with the
Up-MACRO Tradeable Trust, the "Tradeable Trusts" and collectively, with the
Paired Holding Trusts, the "MACRO Trusts") (such entity, in its capacities set
forth above, the "Trustee").
WHEREAS, the Sublicensor and the New York Mercantile
Exchange, Inc., a Delaware corporation ("NYMEX") have entered into a License
Agreement, dated as of November 22, 2006 (the "NYMEX License Agreement");
WHEREAS, pursuant to the NYMEX License Agreement, NYMEX has
granted the Sublicensor a limited, worldwide, non-exclusive, non-transferable
License to use certain of its proprietary settlement prices solely for the
purpose of (i) the issuance, sale, redemption and valuation of the MACRO
Securities (as defined herein), (ii) the making of distributions on the MACRO
Securities, and (iii) the preparation of disclosure in a public registration
statement or a private offering documents pursuant to the securities or other
applicable laws of the United States or any other country about any MACRO
Securities as deemed necessary or desirable by the Sublicensor under any such
laws and any related rules or regulations (such purposes, the "Permitted
Purposes");
WHEREAS, the NYMEX License Agreement includes the limited
right of the Sublicensor to grant sublicenses to its wholly-owned subsidiaries
and Affiliates, Claymore Securities Inc., and the MACRO Trusts, but solely for
the Permitted Purposes;
WHEREAS, the Up-MACRO Holding Trust was established pursuant
to a trust agreement, dated on or about November 22, 2006 (the "Up-MACRO
Holding Trust Agreement"), by and among Macro Securities Depositor, LLC, a
Delaware limited liability company, as depositor (the "Depositor"), Claymore
Securities, Inc., as administrative agent (in such capacity, the
"Administrative Agent") and marketing agent (in such capacity, the "Marketing
Agent") and the Trustee, pursuant to which the Up-MACRO Holding Trust will
issue shares representing undivided beneficial interests in and ownership of
the Up-MACRO Holding Trust (such shares, the "Up-MACRO Holding Shares");
WHEREAS, the Down-MACRO Holding Trust was established
pursuant to the Trust Agreement, dated as of November 22, 2006 (the "Down-MACRO
Holding Trust Agreement" and together with the Up-MACRO Holding Trust
Agreement, the "Holding Trust Agreements"), by and among the Depositor, the
Administrative Agent, the Marketing Agent and the Trustee, pursuant to which
the Down-MACRO Holding Trust will issue shares representing undivided
beneficial interests in and ownership of the Down-MACRO Holding Trust (such
shares, the "Down-MACRO Holding Shares");
WHEREAS, the Up-MACRO Tradeable Trust was established
pursuant to the Trust Agreement, dated as of November 22, 2006 (the "Tradeable
Trust Agreement"), by and among the Depositor, the Administrative Agent and the
Trustee, pursuant to which the Up-MACRO Tradeable Trust
will issue shares representing undivided beneficial interests in and ownership
of the Up-MACRO Tradeable Trust (such shares, the "Up-MACRO Tradeable Shares");
WHEREAS, the Down-MACRO Tradeable Trust was established
pursuant to the Trust Agreement, dated as of November 22, 2006 (the "
Down-MACRO Tradeable Trust Agreement"), by and among the Depositor, the
Administrative Agent and the Trustee, pursuant to which the Down-MACRO
Tradeable Trust will issue shares representing undivided beneficial interests
in and ownership of the Down-MACRO Tradeable Trust (such shares, the
"Down-MACRO Tradeable Shares"); and
WHEREAS, the Sublicensor now desires to grant to the
Sublicensee a sublicense under the NYMEX License Agreement under the terms set
forth herein.
NOW, THEREFORE, in consideration of the promises and the
mutual agreements herein contained, and other good and valuable consideration,
the Sublicensor and the Sublicensees (each a "Party", and collectively, the
"Parties") agree as follows:
1. DEFINITIONS.
The following terms, when used in this Sublicense Agreement
shall have the respective meanings set forth below:
1.1. "Administrative Agent" shall have the meaning set forth in the
preamble.
1.2. "Affiliate" shall mean, with respect to a legal entity, any other
legal entity which, directly or indirectly, is in control of, or controlled by,
or is under common control with, such entity. For the purposes of this
definition, control of a legal entity shall mean the power, direct or indirect,
(i) to vote more than 50% of the securities having ordinary voting power for
the election of directors of any such entity or (ii) to direct or cause the
direction of the management and policies of such entity.
1.3. "Calculation Period" shall have the meaning set forth in the
applicable Holding Trust Agreement.
1.4. "CFTC" shall mean the U.S. Commodities Futures Trading
Commission.
1.5. "Confidential Information" shall have the meaning set forth in
Section 5.1 herein.
1.6. "Depositor" shall have the meaning set forth in the preamble.
1.7. "Discloser" shall have the meaning set forth in Section 5.1
herein.
1.8. "Distribution Date" shall have the meaning set forth in the
applicable Holding Trust Agreement.
1.9. "Distribution Payment Date" shall have the meaning set forth in
the applicable Holding Trust Agreement.
1.10. "Down-MACRO Holding Trust" shall have the meaning set forth in
the preamble.
1.11. "Down-MACRO Holding Trust Agreement" shall have the meaning set
forth in the preamble.
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1.12. "Down-MACRO Tradeable Trust" shall have the meaning set forth in
the preamble.
1.13. "Down-MACRO Tradeable Trust Agreement" shall have the meaning
set forth in the preamble.
1.14. "Effective Date" shall mean the date of this Sublicense
Agreement.
1.15. "Force Majeure Event" shall mean anything beyond the reasonable
control of the NYMEX, the Sublicensor or the Sublicensees to prevent or to
remedy, including but not limited to any flood, extraordinary weather
conditions, earthquake or other act of God, fire, war, act of terrorism,
insurrection, riot, labor dispute, accident, action of government,
communications or power failures, or equipment or software malfunctions.
1.16. "Holding Trust Agreements" shall have the meaning set forth in
the preamble.
1.17. "MACRO Securities" shall mean (i) the Up-MACRO Holding Shares,
(ii) the Down-MACRO Holding Shares, (iii) the Up-MACRO Tradeable Shares and
(iv) the Down-MACRO Tradeable Shares.
1.18. "MACRO Trusts" shall have the meaning set forth in the preamble.
1.19. "Market Data" shall mean NYMEX's proprietary settlement prices
for NYMEX's Light Sweet Crude Oil Futures Contracts for the front (or spot)
month and the month immediately thereafter that are licensed to Sublicensor
under the NYMEX License Agreement.
1.20. "Marketing Agent" shall have the meaning set forth in the
preamble.
1.21. "Marks" shall mean the service marks and trade names "NEW YORK
MERCANTILE EXCHANGE" and "NYMEX" as licensed to Sublicensor under the NYMEX
License Agreement.
1.22. "Materials" shall have the meaning set forth in Section 2.2
herein.
1.23. "NASD" shall mean the National Association of Securities
Dealers.
1.24. "NYMEX" shall have the meaning set forth in the preamble.
1.25. "NYMEX License" shall mean the license granted to the Licensor
pursuant to the NYMEX License Agreement.
1.26. "NYMEX License Agreement" shall have the meaning set forth in
the preamble.
1.27. "NYMEX Sublicense" shall have the meaning set forth in Section
2.1.
1.28. "Party" shall have the meaning set forth in the preamble.
1.29. "Paired Holding Trusts" shall have the meaning set forth in the
preamble.
1.30. "Permitted Purposes" shall have the meaning set forth in the
preamble.
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1.31. "Price Determination Day" shall mean each business day (i.e.,
each day on which the NYMEX's open outcry exchange is open for trading) and,
for any day that is not a business day, the last preceding business day.
1.32. "Prospectuses" shall mean (i) the prospectus filed as part of an
amendment to the registration statement on Form S-1, file No. 333-116566, by
the Sublicensees with the SEC for the Up-MACRO Holding Shares and the Up-MACRO
Tradeable Shares issued by the Up-MACRO Holding Trust and the Up-MACRO
Tradeable Trust, respectively, that will be used in connection with the
offering and sale of such shares and (ii) the prospectus filed as part of an
amendment to the registration statement on Form S-1, file No. 333-135120 by the
Sublicensees with the SEC for the Down-MACRO Holding Shares and the Down-MACRO
Tradeable Shares issued by the Down-MACRO Holding Trust and the Down-MACRO
Tradeable Trust, respectively, that will be used in connection with the
offering and sale of such shares.
1.33. "Receiver" shall have the meaning set forth in Section 5.1.
1.34. "SEC" shall mean the U.S. Securities and Exchange Commission.
1.35. "Sublicensee" shall mean any of the Up-MACRO Holding Trust, the
Up-MACRO Tradeable Trust, the Down-MACRO Holding Trust or the Down-MACRO
Tradeable Trust, MACRO Securities Depositor, LLC, Investors Bank & Trust
Company or Claymore Securities, Inc. "Sublicensees" means all of the entities
listed in the first sentence of this paragraph 1.35.
1.36. "Sublicense Fee" shall mean the compensation that the
Sublicensees shall pay the Sublicensor pursuant to Section 6.1 herein.
1.37. "Sublicensor" shall have the meaning set forth in the preamble.
1.38. "Sublicensor Indemnitees" shall have the meaning set forth in
Section 11.
1.39. "Termination Date" shall have the meaning specified in Section
12.1 hereof.
1.40. "Tradeable Trusts" shall have the meaning set forth in the
preamble.
1.41. "Tradeable Trust Agreements" shall have the meaning set forth in
the preamble.
1.42. "Trustee" shall have meaning set forth in the preamble.
1.43. "Up-MACRO Holding Trust" shall have the meaning set forth in the
preamble.
1.44. "Up-MACRO Holding Trust Agreement" shall have the meaning set
forth in the preamble.
1.45. "Up-MACRO Tradeable Trust" shall have the meaning set forth in
the preamble.
2. SUBLICENSE.
2.1. Pursuant to Article 2 of the NYMEX License Agreement, and subject
to the terms and conditions of this Sublicense Agreement, the Sublicensor
hereby grants to the Sublicensees (a) a limited, worldwide, non-exclusive,
non-transferable (except as set forth in Article 14 herein) sublicense under
the NYMEX License to use the Market Data solely for Permitted Purposes and (b)
a limited, worldwide (to the extent NYMEX has established service xxxx rights
in the Marks in countries outside of the United
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States), non-exclusive, non-transferable (except as set forth in Article 14
herein) sublicense under the NYMEX License to use the Marks only in connection
with the identification of the source of the Market Data used in connection
with the Permitted Purposes (subsections (a) and (b) collectively, the "NYMEX
Sublicense"). It is expressly agreed and understood by the Sublicensees that no
rights to use the Market Data and Marks are granted hereunder to the
Sublicensees other than those specifically described and expressly granted
herein. Notwithstanding anything to the contrary contained in this Sublicense
Agreement, the Sublicensor has not granted to the Sublicensees any rights or
interests in any intellectual property of, or licensed to, the Sublicensor,
other than the Sublicense expressly granted in this Section 2.1 as limited by
the terms and conditions stated in this Sublicense Agreement.
2.2. The Sublicensor and NYMEX shall have the right to review and
control all uses of the Marks hereunder by the Sublicensees, and the
Sublicensees shall furnish in advance to Sublicensor and NYMEX all materials,
including, where applicable and without limitation, the Prospectuses and any
related offering, marketing and promotional materials (collectively, the
"Materials") to be used in connection with any issuance of the MACRO Securities
in which any of the Marks are used, for the Sublicensor's and NYMEX's prior
review and approval of the uses of the Marks therein, which approval shall not
be unreasonably withheld. In the event the Materials are issued in a language
other than English, the Sublicensees shall provide the Sublicensor and NYMEX
with an English translation of the relevant portion of such Materials. The
Sublicensor and NYMEX each shall notify the Sublicensees, in accordance with
Article 13 hereof, of its approval or disapproval of any Materials (which shall
include the definition of the relevant settlement price used therein) within
seventy-two (72) hours (excluding Saturday, Sunday or on any date on which
NYMEX is closed for trading) following receipt thereof from the Sublicensees.
If either the Sublicensor or NYMEX does not approve of any use, it shall advise
the Sublicensees of its reasons. In the event the Sublicensor or NYMEX fails to
approve or disapprove any Material submitted to it for review within such
seventy-two (72) hour period, the Material shall be deemed approved by
Sublicensor or NYMEX, respectively. Once Materials have been approved or deemed
approved by both NYMEX and the Sublicensor, the Sublicensees will not need to
submit any subsequent Materials to the Sublicensor or NYMEX for their approval
if such subsequent Material does not alter the use or description of the
Sublicensor, NYMEX, the Marks or the Market Data. In this regard, the
Sublicensees agree that the quality of the services, in connection with which
the Marks may or will be used, as permitted herein, by the Sublicensees will be
commensurate with the reputation of both NYMEX and the Sublicensor for
reliability and high quality in financial services, and each of NYMEX and the
Sublicensor shall have the right to require the Sublicensees to adhere to that
standard of quality. The Sublicensees shall not do anything which will impair
the validity of the Marks, NYMEX's rights in the Marks, the Sublicensor's
License in the Marks, or the good will symbolized by each of the Marks.
Notwithstanding anything to the contrary in the aforementioned paragraph, any
approval to be given by NYMEX of Materials shall only be with respect to
information related to NYMEX and shall not include any approvals that relate
solely to the business and operations of the Sublicensor.
2.3. The Sublicensees hereby expressly agree not to sublicense or
sub-sublicense the Sublicense granted hereunder to any Person without the
express prior written consent of NYMEX and the Sublicensor.
2.4. Each of the Sublicensees agrees that it is bound by the
obligations of Sublicensor under the NYMEX License Agreement as if each of the
Sublicensees was the Sublicensor. In the event of any conflict between the
terms of this Sublicense Agreement and the NYMEX License Agreement with respect
to the scope of the License or any rights of NYMEX, the NYMEX License Agreement
shall govern.
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2.5. ALL RIGHTS OF SUBLICENSOR NOT SPECIFICALLY AND EXPRESSLY
SUBLICENSED TO SUBLICENSEES IN THIS SECTION 2 ARE HEREBY RESERVED FOR
SUBLICENSOR.
3. ACKNOWLEDGMENT OF RIGHTS.
3.1. The Sublicensees will not directly or indirectly: (i) challenge
or contest the validity or enforceability of the Market Data and Marks; (ii)
dispute the validity, enforceability, or NYMEX's exclusive ownership of, any
trademark, trade name or domain name application or registration owned by NYMEX
with respect to the Marks or initiate or participate in any proceeding of any
kind opposing the grant to NYMEX of any trademark, trade name, or domain name
registration in the Marks or similar marks; (iii) fail to meet NYMEX's quality
control with respect to the Market Data or Marks or make any other use thereof
other than as expressly permitted herein; (iv) apply to register or otherwise
obtain registration of the Market Data or any works based thereon or derivative
thereof, the Marks or any marks similar thereto, in the trademark or copyright
office of any country or state, or with any business or domain name registrar;
or (v) assist any other Person to do any of the foregoing.
3.2. Any violation of this Article 3 will constitute a material breach
of this Sublicense Agreement.
4. ENFORCEMENT.
The Sublicensees shall promptly (a) notify NYMEX and the
Sublicensor of any potential or actual infringement by a third party of the
Market Data or Marks of which the Sublicensees become aware, and (b) provide to
NYMEX and the Sublicensor all evidence of such infringement in the
Sublicensees' possession, custody or control. As between Sublicensor and
Sublicensees, the Sublicensor (or its delegate) shall have the sole right, but
not the obligation, to initiate any legal action at its own expense against
such infringement and to recover damages and enforce any injunction granted as
a result of any judgment in NYMEX's or the Sublicensor's favor. NYMEX shall
have sole control over any such action, including, without limitation, the sole
right to settle and compromise such action. In the event of a dispute between
NYMEX and any third party regarding the infringement, validity or
enforceability of NYMEX Market Data and Marks, the Sublicensees agree, at
NYMEX's expense, to do all things reasonably requested by NYMEX to assist NYMEX
in connection with such dispute.
5. CONFIDENTIALITY.
5.1. Each party acknowledges that the business information of the
other party, any other information of the other party and the Market Data that
may exist from time to time which is provided to such party (the "Receiver") by
or on behalf of the other party (the "Discloser"), or to which Receiver is
given access by or on behalf of the Discloser, is, prior to such information
being disclosed to the general public, confidential to Discloser or, in the
case of the Market Data, to NYMEX (all such information being "Confidential
Information"). The Receiver shall maintain the confidentiality of the
Confidential Information in a manner using at least as great a degree of care
as the manner used by the Receiver to maintain the confidentiality of its own
confidential information, and the Receiver's other obligations under this
Section 5.1 shall not limit the generality of the foregoing; provided, however,
that Receiver shall be permitted to disclose such Confidential Information to
any entity that is involved in the issuance of the MACRO Securities, provided
that such entity agrees in writing to maintain the confidentially of such
information.
5.2. Except as set forth in this Sublicense Agreement, or with the
prior written consent of the Discloser, the Receiver shall not, at any time
hereafter, directly or indirectly communicate or otherwise
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disclose or permit the disclosure of any Confidential Information to any other
person or entity. The Receiver may disclose the Confidential Information only
to such of its employees, Affiliates, agents and service providers who have a
need to know such information in order to help the Receiver in issuing the
MACRO Securities or exercising its rights in accordance with the terms of this
Sublicense Agreement. The Receiver shall be accountable and responsible for any
acts of such employees, Affiliates, agents and service providers that in any
way constitute a breach of its obligations under this Section 5.2. The Receiver
shall ensure that its attorneys agree, and that such Affiliates, agents, and
service providers agree in writing, to be bound by the confidentiality
obligations set forth in this Section 5.2 as if such attorneys, Affiliates,
agents, and service providers were each the Receiver.
5.3. This Article 5 imposes no obligation of confidentiality upon the
Receiver in respect of information that: (i) was in the Receiver's possession
before receipt from the Discloser or others acting on behalf of the Discloser;
(ii) is or becomes a matter of public knowledge through no fault of the
Receiver (provided, that disclosure of NYMEX's settlement prices on its website
or through vendors of market data shall not be regarded as making those prices
a matter of public knowledge); (iii) is rightfully received by the Receiver
from a third party without a duty of confidentiality; (iv) is independently
developed by the Receiver; or (v) is required by law or regulation to be
disclosed, or is released, in accordance with a valid court or governmental
order, (provided, that for the purposes of this clause (v), the Receiver shall,
at its own expense, provide the Discloser, in the case of such order, with
prompt notice thereof, including copies of subpoenas or orders requesting the
Confidential Information, cooperate reasonably with the Discloser in resisting
the disclosure of the Confidential Information via a protective order or other
appropriate legal action, minimize any such disclosure to the Confidential
Information specifically required to be disclosed and not make such disclosure
until the Discloser has had a reasonable opportunity to resist such disclosure,
unless Receiver is ordered to do otherwise).
6. COMPENSATION.
6.1. As payment in full and consideration for the Sublicense granted
hereunder, the Sublicensees shall pay to the Sublicensor in arrears on each
Distribution Date, an amount equal to (i) with respect to any Distribution
Date, the sum of, for each day during the related Calculation Period, an amount
equal to a per annum rate of 0.065% multiplied by the Up-MACRO Underlying Value
on such day, which shall be payable to the Sublicensor from the amounts on
deposit in the Up-MACRO Holding Trust, plus (ii) with respect to any
Distribution Date, the sum of, for each day during the related Calculation
Period, an amount equal to a per annum rate of 0.065% multiplied by the
Down-MACRO Underlying Value on such day, which shall be payable to the
Sublicensor from the amounts on deposit in the Down-MACRO Holding Trust (such
aggregate amount, the "Sublicense Fee").
6.2. The Sublicense Fee, plus any taxes payable or reimbursable to the
Sublicensor hereunder, shall be remitted to the Sublicensor in U.S. Dollars
only, by electronic transfer of immediately available funds on each
Distribution Payment Date. Nothing herein shall be deemed to require the
Sublicensor or NYMEX to furnish any of the Market Data directly to the
Sublicensees, and the Sublicensees warrant that, during the term of this
Sublicense Agreement, the Sublicensees will be receiving, at their own expense,
the Market Data through a market data vendor which has entered into an
agreement with NYMEX, regarding the furnishing of data and information of
NYMEX, including Market Data, to subscribers.
6.3. The Sublicensees shall pay all sales, use, transfer, value added
or other taxes, if any (excluding taxes imposed on the net income of the
Sublicensor), levied or imposed by reason of the transactions contemplated
herein. All payments to be made by the Sublicensees to the Sublicensor under
this Sublicense Agreement shall be made without withholding or deduction for or
on account of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any authority
having power to tax unless the withholding or deduction of such taxes,
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duties, assessments or governmental charges is required by law. In that event,
the Sublicensees shall pay such additional amounts as may be necessary in order
that the net amounts received by the Sublicensor after such withholding or
deduction shall equal the amount which would have been receivable in respect of
this Sublicense Agreement in the absence of such withholding or deduction.
6.4. The Sublicensor shall have the right once each calendar year, and
at its expense, and upon reasonable advance notice to the Sublicensees, to have
an accountant audit, during normal business hours, at the Sublicensees'
designated place of business, the books and records of the Sublicensees, which
relate to the respective Underlying Values of the Up-MACRO and Down-MACRO
Holding Trusts, in order to verify (i) the Sublicensees' calculations of the
Sublicense Fee paid to the Sublicensor pursuant to this Sublicense Agreement,
and (ii) the elements used in such calculations. The Sublicensees shall make
all payments required to be made to eliminate any discrepancy revealed by any
such audit.
7. WARRANTIES; DISCLAIMER.
7.1. Each of the Sublicensor and each Sublicensee warrants that it has
the right and power to enter into this Sublicense Agreement and that the terms
of this Sublicense Agreement are not inconsistent with any other contractual
obligations or other legal obligations it may have.
7.2. NEITHER NYMEX NOR THE SUBLICENSOR GUARANTEES THE ACCURACY AND/OR
THE COMPLETENESS OF THE MARKET DATA OR ANY DATA USED TO CREATE IT. NEITHER
NYMEX NOR THE SUBLICENSOR GUARANTEES THE UNINTERRUPTED OR UNDELAYED CREATION OR
DISSEMINATION OF THE MARKET DATA OR ANY DATA USED IN CREATING IT. NEITHER NYMEX
NOR THE SUBLICENSOR MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE
OBTAINED BY THE SUBLICENSEES OR ANY OTHER PERSON OR ENTITY, FROM THE USE OF THE
MARKET DATA OR ANY DATA, USED TO CREATE IT, AND, FURTHER, NYMEX AND THE
SUBLICENSOR EXPRESSLY DISCLAIM ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MARKET
DATA OR ANY DATA USED IN CREATING IT.
8. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL THE SUBLICENSOR, NYMEX, OR THEIR RESPECTIVE
SUBSIDIARIES, AFFILIATES, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR
AGENTS, HAVE ANY LIABILITY WHATSOEVER TO SUBLICENSEES OR ANY OTHER PERSON OR
ENTITY FOR ANY DAMAGES WHETHER SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
(INCLUDING LOST PROFITS), ARISING FROM THE MARKET DATA, INCLUDING THE USE OF,
OR THE INABILITY TO USE, THE MARKET DATA, EVEN IF NOTIFIED OF THE POSSIBILITY
OF SUCH DAMAGES.
9. ALTERNATIVE LIMITATION OF LIABILITY.
In the event that the disclaimer of warranties and
limitations of liability set forth in Article 7 and Article 8 hereof,
respectively, are deemed invalid or ineffective by a court of competent
jurisdiction, the Sublicensor and NYMEX, and their respective subsidiaries,
Affiliates, members, directors, managers, officers, employees or agents, shall
not be liable to the Sublicensees or any other person or entity for any damage
arising out of the Sublicensees' use of the Market Data in connection with the
MACRO Securities, any interruption or delay by NYMEX in the creation or
dissemination of the Market Data, or any inability of the Sublicensees to use
any of the Market Data, beyond the actual amount
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of the damage suffered by the Sublicensees (even if the Sublicensor or NYMEX is
found liable by any court).
10. DISCLAIMER.
The Sublicensees shall ensure that there is a disclaimer
substantially in the form set forth below, which shall be stated conspicuously
in the Prospectus (including any supplement thereto), on any website maintained
by the Trustee, Administrative Agent, Calculation Agent or other service
provider on behalf of the MACRO Trusts (the address for which website shall be
disclosed in the related Prospectus), and in all offering, marketing, and
promotional materials used or furnished by the Sublicensees in connection with
the MACRO Securities.
NEW YORK MERCANTILE EXCHANGE, INC. (i) DOES NOT IN ANY
WAY PARTICIPATE IN THE OFFERING, SALE, OR ADMINISTRATION OF THE
SECURITIES, OR ANY PAYMENTS TO BE MADE ON ANY OF THE SECURITIES, (ii)
DOES NOT IN ANY WAY ENSURE THE ACCURACY OF ANY OF THE STATEMENTS MADE
IN [THE] [OR THIS] PROSPECTUS [OR ANY PROSPECTUS SUPPLEMENT] [OR THIS
DOCUMENT], (iii) IS NOT LIABLE FOR ANY ERROR OR OMISSION IN ANY
SETTLEMENT PRICE USED IN CONNECTION WITH THE SECURITIES, AND (iv) IS
NOT IN ANY WAY AN OFFEROR OF THE SECURITIES.
11. INDEMNIFICATION.
The Sublicensees shall defend, indemnify and hold the Sublicensor, NYMEX and
their respective Affiliates and subsidiaries, members, directors, managers,
officers, employees and agents, (collectively, "Sublicensor Indemnitees")
harmless from and against any and all liability, losses, claims, damages,
settlements, judgments, costs and expenses, including, but not limited to,
reasonable attorneys' fees, which the Sublicensor Indemnitees may suffer as a
result of any claim by any person arising from (a) the issuing, offering for
sale, marketing, promotion, sale, or redemption of the MACRO Securities or any
payment on the MACRO Securities, (b) the Sublicensees' use of, or inability to
use, the Market Data, or (c) the Sublicensees' use of any of the Marks as
Sublicensed herein, provided that the Sublicensees are promptly notified in
writing of any such claim. The Sublicensees shall not have the exclusive right
to control the defense of such claim. In no event shall the Sublicensees settle
or compromise any claim described above without the Sublicensor's and NYMEX's
prior written approval. Each of the Sublicensor and NYMEX shall have the right,
at its own cost and expense, to assist in the defense of any such claim and to
be represented by respective counsel of its choice.
12. TERM AND TERMINATION.
12.1. This Sublicense Agreement shall become effective as of the
Effective Date, and shall remain in effect for an initial term until the
earlier of (i) the termination of the Up-MACRO and the Down-MACRO Holding
Trusts and (ii) the termination of the NYMEX License Agreement (the Date on
which the one of the forgoing events occurs, the "Termination Date").
12.2. Upon termination of this Sublicense Agreement, the Sublicensees
shall cease all use of the Market Data hereunder and Marks sublicensed
hereunder and immediately pay to the Sublicensor all amounts due and owing to
the Sublicensor hereunder up to and including the date of termination.
13. NOTICES.
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All notices or communications to be given under this
Sublicense Agreement shall be in writing, in the English language only, and
delivered either by (a) hand with written confirmation of receipt required, (b)
internationally recognized overnight courier (e.g., Federal Express, UPS or
DHL) providing written confirmation of delivery, or (c) registered or certified
mail, return receipt requested, postage prepaid, to the parties hereto at their
respective addresses set forth below, or at such other address as either party
may from time to time designate by prior written notice to the other. All
notices will be deemed given when delivered personally, if mailed by registered
or certified mail, five (5) days from the date of mailing, or if delivered by
overnight courier, 72 hours after being delivered to such overnight courier.
If to the Sublicensor:
MACROMARKETS LLC,
00 Xxxxx Xxxx Xxxxx #0
Xxxxx, XX 00000
(888) MACROS1
Attention: Xxxxxx Xxxxxxx, III
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
Xxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Sublicensees:
Investors Bank & Trust Company
on behalf of each of the MACRO Trusts
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxxxxx XxXxxxx
If to the NYMEX:
New York Mercantile Exchange, Inc.
Xxx Xxxxx Xxx Xxxxxx
World Financial Center
New York, New York 10282
Attention: General Counsel
14. ASSIGNMENT.
(a) Sublicensor may assign or otherwise transfer (whether by operation
of law or otherwise) any right or obligation hereunder without the prior
written consent of the Sublicensees, provided, that a due notice is given to
each of the Sublicensees.
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(b) Each Sublicensee may not assign or otherwise transfer (whether by
operation of law, change of control or otherwise) any right or obligation under
this Agreement without the prior written consent of Sublicensor and NYMEX.
(c) This Agreement is binding on and inures to the benefit of the
Parties and their permitted successors and assigns. Any attempted assignment or
other transfer of rights under this Agreement in violation of this Section 14
will be void.
15. AMENDMENTS.
This Sublicense Agreement may not be modified, altered,
amended, changed, waived, or superseded except by agreement in writing signed
by the parties hereto.
16. WAIVERS.
No provision of this Sublicense Agreement may be waived
except by a written instrument signed by the party charged with the waiver.
Neither the delay nor failure of either party in exercising any right with
respect to any breach or default by the other party under any provision of this
Sublicense Agreement, nor the partial or single exercise thereof, shall be
deemed to constitute a waiver of such right with respect to any other breach or
default by such other party under that or any other provision of this
Sublicense Agreement. Furthermore, no breach, default or threatened breach or
default under any provision of this Sublicense Agreement by either party shall
relieve the other party of its obligations or liabilities under this Sublicense
Agreement. Nothing in this Article shall be construed to (a) limit the rights
of the Sublicensor to terminate this Sublicense Agreement pursuant to Article
12, or otherwise under the law, including but not limited to terminating for
uncured breach hereof by the Sublicensees, or (b) impose any obligation on the
Sublicensor, or require the performance of any obligation herein by the
Sublicensor, following termination of this Sublicense Agreement.
17. GOVERNING LAW.
This Sublicense Agreement is made in, and shall be governed
by and construed in accordance with the laws of the State of New York. The
parties hereby consent to the exclusive jurisdiction of the state and federal
courts located in the County of New York, State of New York for the purpose of
any action or proceeding brought by either of them in connection with this
Sublicense Agreement or any alleged breach thereof. Each party hereby consents
and agrees to the exercise of personal jurisdiction over such party by any such
court in the County and State of New York in any action or proceeding brought
by the other party against such party in connection with this Sublicense
Agreement or any alleged breach thereof. Each party hereby waives any objection
to venue for any such action or proceeding in any such court in the County and
State of New York. Each party hereby agrees that the other party may make
effective service of the summons and complaint in any such action or proceeding
on such party by use of an internationally recognized courier (e.g., Federal
Express, UPS, or DHL), or registered or certified mail, return receipt
requested, postage prepaid, addressed to such party and to the attention of the
individual as identified in Article 13 of this Sublicense Agreement.
18. SEVERABILITY.
The invalidity or unenforceability of any term or provision
of this Sublicense Agreement shall in no way affect the remaining terms and
provisions hereof, and such invalid or unenforceable provision shall be
replaced by a mutually acceptable provision of like economic intent and effect.
19. BINDING EFFECT.
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This Sublicense Agreement shall be binding upon and inure to
the benefit of the parties, and their respective permitted successors and
assigns.
20. CONSTRUCTION.
Whenever the word "person" or "persons" is used in this
Sublicense Agreement, it shall be deemed to include but is not limited to a
natural person, firm, partnership, corporation, proprietorship, limited
liability company, association or any other organization. Article titles in no
way limit or modify the contents of their respective articles or Sections and
are for reference purposes only. As used herein, the singular of any term
includes the plural and the plural means the singular, whenever the context so
requires.
21. ENTIRE AGREEMENT.
This Sublicense Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes all previous negotiations, representations and agreements, if any,
with respect thereto between the parties. Notwithstanding any other provision
of this Sublicense Agreement, (i) the parties hereto acknowledge that the
rights granted by the Sublicensor hereunder are subject to the NYMEX License
Agreement, and (ii) in the event of a conflict between the provisions of the
NYMEX License Agreement and the provisions of this Sublicense Agreement as to
the scope of the License or Sublicense or any of the rights of NYMEX, the
provisions of the NYMEX License Agreement shall control.
22. THIRD-PARTY BENEFICIARY
NYMEX is a third-party beneficiary of the Sublicensees'
obligations under this Sublicense Agreement.
23. SURVIVAL.
Notwithstanding anything to the contrary contained in this
Sublicense Agreement, (a) Articles 1, 3, 5, 7, 8, 9, 11, 13 and 16 through 23
hereof, (b) Section 12.2 hereof, and (c) the Sublicensees' obligation to pay
the Sublicensor all amounts due hereunder shall survive termination of this
Sublicense Agreement.
24. COUNTERPARTS.
This Sublicense Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of
which, when taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Sublicense Agreement to be duly executed and delivered by their respective
authorized officers as of the date first set forth above.
CLAYMORE MACROSHARES OIL UP
HOLDING TRUST
CLAYMORE MACROSHARES OIL DOWN
HOLDING TRUST
CLAYMORE MACROSHARES OIL UP
TRADEABLE TRUST
CLAYMORE MACROSHARES OIL DOWN
TRADEABLE TRUST
By: INVESTORS BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee of each of the
aforementioned trusts
By: /S/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
MACROMARKETS LLC
By: /S/ Xxxxxx Xxxxxxx, III
-----------------------------
Name: Xxxxxx Xxxxxxx, III
Title: President
