Exhibit 4.8
FORM OF NYMEX SUBLICENSE AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Sublicense Agreement") is entered
into this ___ day of [ ], 2006 ("Effective Date"), by and among MACROMARKETS,
LLC, a Delaware limited liability company ("Licensor"), located at 00 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxxxx 00000, and [ ], a [ ], located at [ ],
not in its individual capacity but solely (i) as trustee of the MACROShares Up
Oil Benchmark Holding Trust (the "Up-MACRO Holding Trust"), (ii) as trustee of
the MACROShares Down Oil Benchmark Tradeable Trust (the "Down-MACRO Holding
Trust" and together with the Up-MACRO Holding Trust, the "Paired Holding
Trusts"), (iii) as trustee of the MACROShares Up Oil Benchmark Tradeable Trust
(the "Up-MACRO Tradeable Trust"), and (iv) as trustee of the MACROShares Down
Oil Benchmark 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 Licensor and the New York Mercantile Exchange, Inc., a
Delaware corporation ("NYMEX") have entered into a License Agreement, dated as
of [ ] [ ], 2006 (the "NYMEX License Agreement");
WHEREAS, pursuant to the NYMEX License Agreement, NYMEX has granted
the Licensor a limited, worldwide, non-exclusive, nontransferable 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 about any MACRO Securities as the Licensor deems
necessary or desirable under any applicable laws, rules or regulations (such
purposes, the "Permitted Purposes");
WHEREAS, the NYMEX License Agreement includes the limited right of
the Licensor to grant sublicenses to its wholly-owned subsidiaries or
Affiliates, [ ] and the MACRO Trusts, but solely for the Permitted Purposes;
WHEREAS, the Up-MACRO Holding Trust was established pursuant to a
trust agreement, dated as of [ ] [ ], 2006 (the "Up-MACRO Holding Trust
Agreement"), by and among Macro Securities Depositor, LLC, a Delaware limited
liability company, as depositor (the "Depositor"), [ ], not in its individual
capacity, but solely 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
a global certificate representing all of the undivided beneficial interests in
and ownership of the Up-MACRO Holding Trust (such security, the "Light Sweet
Crude Oil Up-MACRO Holding Share");
WHEREAS, the Down-MACRO Holding Trust was established pursuant to
the Trust Agreement, dated as of [ ] [ ], 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 a global certificate representing all of the undivided beneficial
interests in and ownership of the Down-MACRO Holding Trust (such security, the
"Light Sweet Crude Oil Down-MACRO Holding Share"); WHEREAS, the Up-MACRO
Tradeable Trust was established pursuant to the Trust Agreement, dated as of [
], 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 a global certificate representing all of the undivided
beneficial interests in and ownership of the Up-MACRO Tradeable Trust (such
security, the "Light Sweet Crude Oil Up-MACRO Tradeable Share");
WHEREAS, the Down-MACRO Tradeable Trust was established pursuant to
the Trust Agreement, dated as of [ ], 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 a global
certificate representing all of the undivided beneficial interests in and
ownership of the Down-MACRO Tradeable Trust (such security, the "Light Sweet
Crude Oil Down-MACRO Tradeable Share"); and
WHEREAS, pursuant to the terms and conditions of the NYMEX License
Agreement, the Licensor now desires to grant to the Licensee 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
Licensor and the Licensees (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 Asset Amount" shall have the meaning set forth in
the Down-MACRO Holding Trust Agreement.
1.11. "Down-MACRO Holding Trust" shall have the meaning set forth in
the preamble.
1.12. "Down-MACRO Holding Trust Agreement" shall have the meaning
set forth in the preamble.
1.13. "Down-MACRO Tradeable Trust" shall have the meaning set forth
in the preamble.
1.14. "Down-MACRO Tradeable Trust Agreement" shall have the meaning
set forth in the preamble.
1.15. "Effective Date" shall mean the date of this Sublicense
Agreement.
1.16. "Force Majeure Event" shall mean anything beyond the
reasonable control of the NYMEX, the Licensor or the Licensees 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.
1.17. "Holding Trust Agreement" shall have the meaning set forth in
the preamble.
1.18. "License Fee" shall mean the compensation that the Licensees
shall pay the Licensor pursuant to Section 6.1 herein.
1.19. "Licensee" shall mean any of the MACROShares Up Oil Benchmark
Holding Trust, the MACROShares Down Oil Benchmark Tradeable Trust, the Light
Sweet Crude Up-MACRO Tradeable Trust or the Light Sweet Crude Down-MACRO
Tradeable Trust.
1.20. "Licensor" shall have the meaning set forth in the preamble.
1.21. "Licensor Indemnitees" shall have the meaning set forth in
Section 11.
1.22. "MACRO Securities" shall mean (i) the Light Sweet Crude Oil
Up-MACRO Tradeable Shares and Light Sweet Crude Oil Down-MACRO Tradeable Shares
issued by the MACROShares Up Oil Benchmark Tradeable Trust and the MACROShares
Down Oil Benchmark Tradeable Trust, respectively, and (ii) the Light Sweet Crude
Oil Up-MACRO Holding Shares and Light Sweet Crude Oil Down-MACRO Holding Shares
issued by the MACROShares Up Oil Benchmark Holding Trust and the MACROShares
Down Oil Benchmark Tradeable Trust, respectively.
1.23. "MACRO Trusts" shall have the meaning set forth in the
preamble.
1.24. "Market Data" shall mean the NYMEX's proprietary settlement
prices for the NYMEX's Light Sweet Crude Oil Futures Contracts for the front (or
spot) month and the month immediately thereafter that are licensed to Licensor
under the NYMEX License Agreement.
1.25. "Marketing Agent" shall have the meaning set forth in the
preamble.
1.26. "Marks" shall mean the service marks and trade names "NEW YORK
MERCANTILE EXCHANGE" and "NYMEX" as licensed to Licensor under the NYMEX License
Agreement.
1.27. "Materials" shall have the meaning set forth in Section 2.2
herein.
1.28. "NASD" shall mean the National Association of Securities
Dealers.
1.29. "NYMEX" shall have the meaning set forth in the preamble.
1.30. "NYMEX License" shall mean the license granted to the Licensor
pursuant to the NYMEX License Agreement.
1.31. "NYMEX Sublicense" shall have the meaning set forth in Section
2.1.
1.32. "NYMEX License Agreement" shall have the meaning set forth in
the preamble.
1.33. "Party" shall have the meaning set forth in the preamble.
1.34. "Paired Holding Trust" shall have the meaning set forth in the
preamble.
1.35. "Permitted Purposes" shall have the meaning set forth in the
preamble.
1.36. "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 preceding business day.
1.37. "Prospectuses" shall mean (i) the prospectus filed, on or
around the date of this Sublicense Agreement, by the Licensor or Licensees with
the SEC for the Light Sweet Crude Oil Up-MACRO Tradeable Shares and the Light
Sweet Crude Oil Up-MACRO Holding Shares issued by the Up-MACRO Tradeable Trust
and the Up-MACRO Holding Trust, respectively, that will be used in connection
with the offering and sale of such shares and (ii) the prospectus filed, on or
around the date of this Sublicense Agreement, by the Licensor or Licensees with
the SEC for the Light Sweet Crude Oil Down-MACRO Tradeable Shares and the Light
Sweet Crude Oil Down-MACRO Holding Shares issued by the Down-MACRO Tradeable
Trust and the Down-MACRO Holding Trust, respectively, that will be used in
connection with the offering and sale of such shares.
1.38. "Receiver" shall have the meaning set forth in Section 5.1.
1.39. "SEC" shall mean the U.S. Securities and Exchange Commission.
1.40. "Sublicense Agreement" shall have the meaning set forth in the
preamble.
1.41. "Termination Date" shall mean the day on which the NYMEX
License Agreement terminates in accordance with its terms.
1.42. "Tradeable Trusts" shall have the meaning set forth in the
preamble.
1.43. "Tradeable Trust Agreement" shall have the meaning set forth
in the preamble.
1.44. "Trustee" shall have meaning set forth in the preamble.
1.45. "Up-MACRO Asset Amount" shall have the meaning set forth in
the Up-MACRO Holding Trust Agreement.
1.46. "Up-MACRO Holding Trust" shall have the meaning set forth in
the preamble.
1.47. "Up-MACRO Holding Trust Agreement" shall have the meaning set
forth in the preamble.
1.48. "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 Licensor
hereby grants to the Licensees (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 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 Licensees that no rights to use the Market Data and
Marks are granted hereunder to the Licensees other than those specifically
described and expressly granted herein. Notwithstanding anything to the contrary
contained in this Sublicense Agreement, the Licensor has not granted to the
Licensees any rights or interests in any intellectual property of the Licensor,
other than the license expressly granted in this Section 2.1 as limited by the
terms and conditions stated in this Sublicense Agreement.
2.2. The Licensor and NYMEX shall have the right to review and
control all uses of the Marks hereunder by the Licensees, and the Licensees
shall furnish in advance to Licensor and the 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 MACRO Securities in which any of the
Marks are used, for the Licensor'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
Licensees shall provide the Licensor and NYMEX with an English translation of
the relevant portion of such Materials. The Licensor and NYMEX each shall notify
the Licensees, in accordance with Article 13 hereof, of its approval or
disapproval of any Materials (which shall include the definition of the relevant
settlement price contained therein) within seventy-two (72) hours (excluding
Saturday, Sunday or on any date on which the New York Mercantile Exchange is
closed for trading) following receipt thereof from the Licensees. If either the
Licensor or the NYMEX does not approve of any use, it shall advise the Licensees
of its reasons. In the event the Licensor 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 Licensor or NYMEX
respectively. Once Materials have been approved or deemed approved by both the
NYMEX and the Licensor, the Licensees will not need to submit any subsequent
Materials to the Licensor or NYMEX for their approval if such subsequent
Material does not alter the use or description of the Licensor, NYMEX, the Marks
or the Market Data. In this regard, the Licensees agree that the quality of the
services, in connection with which the Marks may or will be used, as permitted
herein, by the Licensees will be commensurate with the reputation of both NYMEX
and the Licensor for reliability and high quality in financial services, and
each of NYMEX and the Licensor shall have the right to require the Licensees to
adhere to that standard of quality. The Licensees shall not do anything which
will impair the validity of the Marks, NYMEX's rights in the Marks, the
Licensor'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 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 Licensor.
2.3. No Right to Sublicense. The Licensees hereby expressly agree
not to sublicense the Licenses to any Person without the express prior written
consent of the Licensor in Licensor's sole discretion.
2.4. ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO LICENSEES
IN THIS SECTION 2 ARE HEREBY RESERVED FOR LICENSOR.
3. ACKNOWLEDGMENT OF RIGHTS.
3.1. The Licensees 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 the 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 (except if
required by court order or subpoena); provided, however, the foregoing shall in
no way limit the Licensees' ability to defend against or to mitigate any claim
brought by the Licensor or the NYMEX against the Licensees.
3.2. Any violation of this Article 3 will constitute a material
breach of this Sublicense Agreement.
4. ENFORCEMENT.
The Licensees shall promptly (a) notify NYMEX and the Licensor of
any potential or actual infringement by a third party of the Market Data or
Marks of which the Licensees become aware, and (b) provide to NYMEX and the
Licensor all evidence of such infringement in the Licensees' possession, custody
or control. As between Licensor and Licensees, the Licensor (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 Licensor's
favor. The Licensor (or its delegate) 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 Licensees 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, including the Market Data and any other information 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 (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 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 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
such Affiliates, agents and service providers agree in writing (other than its
attorneys) to be bound by confidentiality obligations set forth in this Section
5.2 as if such 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 (the disclosure of the Licensor'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 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 license granted
hereunder, the Licensees shall pay to the Licensor 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 Asset Amount on
such day, which shall be payable to the Licensor 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 Asset Amount on such
day, which shall be payable to the Licensor from the amounts on deposit in the
Down-MACRO Holding Trust (such aggregate amount, the "License Fee")].
6.2. The License Fee, plus any taxes payable or reimbursable to the
Licensor hereunder, shall be remitted to the Licensor in U.S. Dollars only, by
electronic transfer of immediately available funds. Nothing herein shall be
deemed to require the Licensor or NYMEX to furnish any of the Market Data
directly to the Licensees, and the Licensees warrant that, during the term of
this Sublicense Agreement, the Licensees will be receiving, at their own
expense, the Market Data through a market data vendor which has entered into an
agreement with the Licensor and/or NYMEX, regarding the furnishing of data and
information of the Licensor and/or NYMEX, including Market Data, to subscribers.
6.3. The Licensees shall pay all sales, use, transfer, value added
or other taxes, if any (excluding taxes imposed on the net income of the
Licensor), levied or imposed by reason of the transactions contemplated herein.
All payments to be made by the Licensees to the Licensor 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, duties, assessments or
governmental charges is required by law. In that event, the Licensees shall pay
such additional amounts as may be necessary in order that the net amounts
received by the Licensor 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 Licensor shall have the right once each calendar year, and
at its expense, and upon reasonable advance notice to the Licensees, to have an
accountant audit, during normal business hours, at the Licensees' designated
place of business, the books and records of the Licensees, which relate to the
Up-MACRO Asset Amount or the Down-MACRO Asset Amount, in order to verify (i) the
Licensees' calculations of the License Fee paid to the Licensor pursuant to this
Sublicense Agreement, and (ii) the elements used in such calculations. The
Licensees shall make all payments required to be made to eliminate any
discrepancy revealed by any such audit.
7. WARRANTIES; DISCLAIMER.
7.1. The Licensor and the Licensees each warrant 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. THE LICENSOR DOES NOT GUARANTEE THE ACCURACY AND/OR THE
COMPLETENESS OF THE MARKET DATA OR ANY DATA USED TO CREATE IT. THE LICENSOR DOES
NOT GUARANTEE THE UNINTERRUPTED OR UNDELAYED CREATION OR DISSEMINATION OF THE
MARKET DATA OR ANY DATA USED IN CREATING IT. THE LICENSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY THE LICENSEES OR ANY OTHER
PERSON OR ENTITY, FROM THE USE OF THE MARKET DATA OR ANY DATA, USED TO CREATE
IT, AND, FURTHER, EXPRESSLY DISCLAIMS 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 LICENSOR, NYMEX, OR THEIR RESPECTIVE
SUBSIDIARIES, AFFILIATES, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR
AGENTS, HAVE ANY LIABILITY WHATSOEVER TO LICENSEES 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 Licensor and
NYMEX, and their respective subsidiaries, Affiliates, members, directors,
managers, officers, employees or agents, shall not be liable to the Licensees or
any other person or entity for any damage arising out of the Licensees' use of
the Market Data in connection with the MACRO Securities, any interruption or
delay by the Licensor in the creation or dissemination of the Market Data, or
any inability of the Licensees to use any of the Market Data, beyond the actual
amount of the damage suffered by the Licensees (even if the Licensor or NYMEX is
found liable by any court).
10. DISCLAIMER.
The Licensees 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 a
trustee, calculation agent, administrative agent or other service provider on
behalf of the trust or trusts which issue the MACRO Securities (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
Licensees 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 Licensees shall defend, indemnify and hold the Licensor, and its
Affiliates and subsidiaries, and its members, directors, managers, officers,
employees and agents, (collectively, "Licensor 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 Licensor 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 Licensees' use of, or inability to use, the Market Data, or (c) the
Licensees' use of any of the Marks as licensed herein, provided that the
Licensees are promptly notified in writing of any such claim. The Licensees
shall not have the exclusive right to control the defense of such claim. In no
event shall the Licensees settle or compromise any claim described above without
the Licensor's prior written approval. The Licensor shall have the right, at its
own cost and expense, to assist in the defense of any such claim and to be
represented by 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 through the
Termination Date.
12.2. Upon termination of this Sublicense Agreement, the Licensees
shall cease all use of the Market Data hereunder and Marks licensed hereunder
and immediately pay to the Licensor all amounts due and owing to the Licensor
hereunder up to and including the date of termination.
13. NOTICES.
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 Licensor:
MACRO Securities Depositor, LLC,
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
If to the Licensees:
[ ]
on behalf of each of the MACRO Trusts
[ ]
[ ]
Attention: [ ]
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) Licensor may assign or otherwise transfer (whether by operation
of law or otherwise) any right or obligation hereunder without the prior written
consent of the Licensees, provided, a due notice is given to each of the
Licensees.
(b) Each Licensee 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 Licensor.
(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 11(b)
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 the 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 Licensor 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 Licensees, or (b) impose any obligation on the Licensor, or require the
performance of any obligation herein by the Licensor, 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, without
reference to its choice of law rules. 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.
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 Licensor 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, the provisions of the NYMEX
License Agreement shall control.
22. SURVIVAL.
Notwithstanding anything to the contrary contained in this
Sublicense Agreement, (a) Articles 1, 3, 5, 7, 8, 11, 13 and 16 through 22
hereof, (b) Section 12.2 hereof, and (c) the Licensees' obligation to pay the
Licensor all amounts due hereunder shall survive termination of this Sublicense
Agreement.
23. 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.
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.
MACROSHARES UP OIL BENCHMARK HOLDING TRUST
MACROSHARES DOWN OIL BENCHMARK TRADEABLE TRUST
MACROSHARES UP OIL BENCHMARK TRADEABLE TRUST
MACROSHARES DOWN OIL BENCHMARK TRADEABLE TRUST
By:[ ],
not in its individual capacity but solely as Trustee
of each of the aforementioned trusts
By:____________________________________
Name:
Title:
MACROMARKETS LLC
By: ____________________________________
Name: Xxxxxx Xxxxxxx, III
Title: President
ACKNOWLEDGED AND ACCEPTED BY:
NEW YORK MERCANTILE EXCHANGE, INC.
By: ____________________________________
Name:
Title:
