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EXHIBIT 4(f)
X.X. XXXXXX COMMODITY INDEX LICENSE AGREEMENT
THIS AGREEMENT made of this [ ] day of [ ], 199[ ], by and between
Xxxxxx Guaranty Trust Company of New York ("Xxxxxx") and X.X. Xxxxxx Index
Funding Company I (the "Trust"). Xxxxxx and the Trust agree as follows:
WHEREAS, Xxxxxx generates commodity indices and commodity sub-indices relating
to the commodities markets, such indices and sub-indices collectively known as
the X.X. Xxxxxx Commodity Index (such indices and all sub-indices relating
thereto being collectively referred to herein as the "Index");
WHEREAS, the Trust may issue one or more series of "ComPS" preferred
securities, the redemption value of which shall be, and the dividend rate on
which may be, determined with reference to the Index (the "Securities");
NOW, THEREFORE, the parties hereto agree as follows:
1. LICENSE. Xxxxxx hereby grants to the Trust, and the Trust hereby accepts,a
non-exclusive, non-transferable license to use and refer to the Index in
connection with the registration, listing, marketing and distribution of the
Securities and all activities reasonably incidental thereto. Xxxxxx represents
that it has all such rights in, and licenses to, the Index as may be required
in order to permit it to grant to the Trust the license granted hereby.
2. TERM. The term of this Agreement shall continue indefinitely. Either party
may terminate this Agreement, for any reason whatsoever, upon providing to the
other party at least 90 days' prior written notice.
3. CONFIDENTIALITY. Except for use of and reference to the Index in
accordance with the terms and conditions herein, the Trust recognizes that the
Index is the sole and exclusive property of Xxxxxx and shall use utmost care in
protecting the proprietary and confidential nature of the Index.
4. ALTERNATIVE DETERMINATION. In the event that Xxxxxx shall fail to provide
the Index to the Trust on a regular basis, Xxxxxx shall provide the Trust or
its authorized designee (which shall be a major accounting firm appointed by
the Trust) with any and all information which may be necessary in order to
allow the Trust or such designee to calculate the redemption value and/or
dividend rate of any series of ComPS.
5. WARRANTY DISCLAIMER. Xxxxxx makes no express or implied warranties
relating to the Index or any alternative information, including but not limited
to warranties of merchantability of fitness for a particular purpose, or as to
any results to be obtained by the Trust, any holder of Securities or others
from the use of the Index, such alternative information or information derived
from the Index.
6. LIMITATION OF LIABILITY. Xxxxxx does not guarantee the sequence,
timeliness, accuracy or completeness of the Index or any alternative
information. Xxxxxx shall not be liable in any way to the Trust, to any of its
clients, to any holder of Securities or to any person whosoever, for any delays,
inaccuracies, errors in, or omissions of, the Index, any alternative
information or any information contained therein or in the transmission
thereof, or for any damages arising therefrom or occasioned thereby, whether
or not resulting from negligence on Xxxxxx'x part.
7. INDEMNIFICATION. The Trust shall indemnify Xxxxxx for any claim,
liability, loss, injury, damage, cost or expense (including attorney's fees)
incurred by Xxxxxx to any third party arising from any use by the Trust of the
Index, any alternative information or any information contained therein
supplied pursuant to this Agreement.
8. TAXES. The Trust shall be liable for, and shall pay, any taxes, however
designated, based upon the use of or reference to the Index or any
alternative information by the Trust (but not including taxes on income earned
by Xxxxxx), including, but not limited to, any sales, use, or other tax that
may be imposed by any governmental body.
9. GENERAL.
a) If any term or provision of this Agreement should be declared invalid by a
qualified legal counsel approved by both parties or by a court of competent
jurisdiction, (i) the remaining terms and provisions of
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this Agreement shall be unimpaired and (ii) the invalid term or provision shall
be replaced by such valid term or provision as comes closest to the intention
underlying the invalid term or provision.
(b) This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes in all respects all prior
proposals, negotiations, conversations, discussions and agreements between the
parties concerning the subject matter hereof and no subsequent alterations,
amendments, changes or additions hereto shall be binding and valid unless
reduced to writing and signed by each party.
(c) Neither this Agreement nor any rights or obligations under this Agreement
shall be assigned or otherwise transferred by either party without the prior
written consent of the other party.
(d) This Agreement and any modification thereto shall be governed and
construed under the laws of the State of New York.
(e) Any notice to either party shall be deemed given when mailed by either
party to the other party's address herein. Any notice to Xxxxxx shall be deemed
given when mailed by certified mail, return receipt requested, by the Trust
to: Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, X.X.,
00000, Xxxxxxxxx: Commodity Derivatives Desk. Any notice to the Trust shall be
deemed given when mailed by certified mail, return receipt requested by Xxxxxx
to: X.X. Xxxxxx Index Funding Company I, x/x X.X. Xxxxxx & Xx. Xxxxxxxxxxxx, 00
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Commodity Derivatives Desk.
(f) In the event of a conflict between the provisions of any exhibit hereto
and the provisions set forth in the body of this Agreement, the provisions of
such exhibit shall govern.
(g) No amendment, modification, termination or waiver of any provision of this
Agreement, nor consent to any departure by either party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the other
party, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(h) Except to the extent contemplated by this Agreement, neither party shall
furnish the name of the other party or any affiliate or subsidiary of the other
party as a reference or utilize the name of the other party or any affiliate of
the other party in any advertising or promotional materials without the prior
written consent of the other party or the affiliate whose name is desired to be
furnished or used.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement.
X.X. XXXXXX INDEX FUNDING XXXXXX GUARANTY TRUST COMPANY
COMPANY I OF NEW YORK
by [ ], as Regular Trustee,
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By: By:
Title: Title:
Date: Date:
by [ ], as Regular Trustee,
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By:
Title:
Date:
