EXHIBIT 4.7
LICENSE AGREEMENT COVER PAGE
THIS LICENSE AGREEMENT COVER PAGE (the "Cover Page," and
together with the attached License Terms, the "License Agreement")
is entered
into as of November 22, 2006 (the "Effective Date"), by the
following parties:
PARTIES
-------
Licensor:
MacroMarkets LLC, a Delaware limited
liability company
Up-MACRO Holding Trust:
Claymore MACROshares Oil Up Holding
Trust, a New York trust
Down-MACRO Holding Trust:
Claymore MACROshares Oil Down
Holding Trust, a New York trust
Up-MACRO Tradeable Trust:
Claymore MACROshares Oil Up
Tradeable Trust, a New York trust
Down-MACRO Tradeable Trust:
Claymore MACROshares Oil Down
Tradeable Trust, a New York trust
Initially capitalized terms (including the following terms)
shall have the meaning ascribed to them in this Cover Page and in
the License
Terms.
SHARES
------
Up-MACRO Holding Shares:
Claymore MACROshares Oil Up Holding
Shares, which represent units of
undivided beneficial interest in the
Up-MACRO Holding Trust
Down-MACRO Holding Shares Claymore
MACROshares Oil Down Holding
Shares, which represent units of
undivided beneficial interest in the
Down-MACRO Holding Trust
Up-MACRO Tradeable Shares:
Claymore MACROshares Oil Up Tradeable
Shares, which represent units of
undivided beneficial interest in the
Up-MACRO Tradeable Trust
Down-MACRO Tradeable Shares: Claymore
MACROshares Oil Down
Tradeable Shares, which represent
units of undivided beneficial
interest in the Down-MACRO Tradeable
Trust
TRUSTS
------
Trustee:
Investors Bank & Trust Company, a
Massachusetts trust company
Up-MACRO Holding
The Up-MACRO Holding Trust Agreement,
Trust Agreement:
dated as of the date hereof, by and
among MACROs Securities Depositor,
LLC, the
<PAGE>
Trustee, the Administrative
Agent and the Marketing Agents
Down-MACRO Holding
The Down-MACRO Holding Trust
Trust Agreement:
Agreement, dated as of the date
hereof, by and among MACROs
Securities Depositor, LLC, the
Trustee, the Administrative Agent and
the Marketing Agents
Up-MACRO Tradeable
The Up-MACRO Tradeable Trust
Trust Agreement:
Agreement, dated as of the date
hereof, by and among MACROs
Securities Depositor, LLC, the
Trustee, the Administrative Agent
and the Marketing Agents
Down-MACRO Tradeable
The Down-MACRO Tradeable Trust
Trust Agreement:
Agreement, dated as of the date
hereof, by and among MACROs
Securities Depositor, LLC, the
Trustee, the Administrative Agent
and the Marketing Agents
TERMS
-----
Administrative Agent:
Claymore Securities, Inc.
Annual Fee Rate:
0.20% (two tenths of one percent)
Marketing Agent:
Claymore Securities, Inc. and MACRO
Financial, LLC, as marketing agents
Product Name:
"Claymore MACROshares"
Territory:
Worldwide
CONTACT INFORMATION
-------------------
CONTACT INFORMATION FOR LICENSOR:
MacroMarkets LLC
73 Green Tree Drive #9
Dover, DE 19904
Attention: Samuel
Masucci, III
Telephone: (888)
MACROS1
CONTACT INFORMATION FOR LICENSEES:
If to the Up-MACRO Holding Trust:
Claymore MACROshares Oil Up Holding Trust
c/o Investors Bank & Trust Company
200 Clarendon Street
Boston,
Massachusetts 02116
Attention: Timothy
McGowan
Telephone: (617) 937-6369
Facsimile: (617)
937-6033
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If to the Down-MACRO Holding Trust:
Claymore MACROshares Oil Down Holding Trust
c/o Investors Bank & Trust Company
200 Clarendon Street
Boston, Massachusetts 02116
Attention: Timothy
McGowan
Telephone: (917) 637-6369
Facsimile: (617)
937-6033
If to the Up-MACRO Tradeable Trust:
Claymore MACROshares Oil Up Tradeable Trust
c/o Investors Bank & Trust Company
200 Clarendon Street
Boston, Massachusetts 02116
Attention: Timothy
McGowan
Telephone: (917) 637-6369
Facsimile: (617)
937-6033
If to the Down-MACRO Tradeable Trust:
Claymore MACROshares Oil Down Tradeable Trust
c/o Investors Bank & Trust Company
200 Clarendon Street
Boston, Massachusetts 02116
Attention: Timothy
McGowan
Telephone: (917) 637-6369
Facsimile: (617)
937-6033
Licensor and each Licensee (each a "Party," and collectively,
the "Parties") hereby acknowledge and agree that they have
reviewed, and shall
be bound by, this Cover Page and the License Terms, which License
Terms are
incorporated into this Cover Page by reference.
IN WITNESS WHEREOF, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties have
caused the License Agreement to be executed by their duly
authorized
representatives as of the Effective Date.
MACROMARKETS LLC,
as Licensor
By:
/S/ Samuel Masucci,
III
------------------------
Name: Samuel
Masucci, III
Title: President
CLAYMORE MACROSHARES OIL UP HOLDING TRUST,
as Licensee
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By: INVESTORS BANK
& TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Claymore MACROshares Oil Up
Holding Trust
By:
/S/ Michael F.
Rogers
----------------------
Name: Michael F.
Rogers
Title: President
CLAYMORE MACROSHARES OIL DOWN HOLDING TRUST,
as Licensee
By: INVESTORS BANK
& TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Claymore MACROshares Oil Down
Holding Trust
By:
/S/ Michael F.
Rogers
----------------------
Name: Michael F.
Rogers
Title: President
CLAYMORE MACROSHARES OIL UP TRADEABLE TRUST,
as Licensee
By: INVESTORS BANK
& TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Claymore MACROshares Oil Up
Tradeable Trust
By:
/S/ Michael F.
Rogers
----------------------
Name: Michael F.
Rogers
Title: President
CLAYMORE MACROSHARES OIL DOWN TRADEABLE
TRUST, as Licensee
By: INVESTORS BANK
& TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Claymore MACROshares Oil Down
Tradeable Trust
By:
/S/ Michael F.
Rogers
----------------------
Name: Michael F.
Rogers
Title: President
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<PAGE>
LICENSE TERMS
These LICENSE TERMS (the "License Terms ") are incorporated
into the Cover Page to which these License Terms are attached, and
form part of
the License Agreement.
1.
DEFINITIONS.
For the purposes of the License Agreement, initially capitalized
terms
shall have the meaning ascribed to them in this Cover Page and in
the License
Terms, including the following terms:
(a)
"Administrative Agent" means the "Administrative Agent", not
in its individual capacity but solely as Administrative Agent
under the Up-MACRO Holding Trust Agreement, the Down-MACRO
Holding Trust Agreement, the Up-MACRO Tradeable Trust
Agreement, and the Down-MACRO Tradeable Trust Agreement.
(b)
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under
common Control with, such Person.
(c) "Annual
Fee Rate" has the meaning set forth in the Cover
Page.
(d)
"Calculation Period" means, with respect to any Distribution
Date, the period from but excluding the second Business Day
prior to the last Distribution Date (or, in the case of the
first Distribution Date, from and including November 22,
2006, which is the closing date for the transaction) to and
including the second Business Day prior to the current
Distribution Date. The Calculation Period that precedes a
particular Distribution Date is referred to herein as being
"related" to such Distribution Date.
(e) "Claymore
Marks" means the name and mark "Claymore."
(f)
"Confidential Information" has the meaning set forth in
Section 10 hereunder.
(g) "Control"
means, with respect to any Person, the possession,
directly or
indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
(h)
"Distribution Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(i)
"Distribution Payment Date" has the meaning set forth in the
applicable Holding Trust Agreement.
(j)
"Down-MACRO Asset Amount" has the meaning set forth in the
Down-MACRO Holding Trust Agreement.
(k)
"Down-MACRO Holding Shares" has the meaning set forth in the
Cover Page.
(l)
"Down-MACRO Holding Trust" has the meaning set forth in the
Cover Page.
(m)
"Down-MACRO Holding Trust Agreement" has the meaning set
forth in the Cover Page.
(n)
"Down-MACRO Tradeable Shares" has the meaning set forth in
the Cover Page.
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<PAGE>
(o)
"Down-MACRO Tradeable Trust" has the meaning set forth in the
Cover Page.
(p)
"Down-MACRO Tradeable Trust Agreement" has the meaning set
forth in the Cover Page.
(q) "Effective
Date" has the meaning set forth in the preamble.
(r) "Holding
Trust" means the Up-MACRO Holding Trust and the
Down-MACRO Holding Trust.
(s)
"Improvements" has the meaning set forth in Section 3(d)
hereunder.
(t)
"Indemnified Party" has the meaning set forth in Section 8(c)
hereunder.
(u)
"Indemnifying Party" has the meaning set forth in Section
8(c) hereunder.
(v) "License
Agreement" has the meaning set forth in the preamble
to the Cover Page.
(w) "Licensed
Patents" means any patents and patent applications
of Licensor in the Territory that are related to the MACROs
Structure, including the patent applications as set forth on
Schedule I attached hereto.
(x)
"Licensed
Patents and Know-How" means the Licensed Patents
and any related know-how provided by Licensor to Licensees.
(y) "Licensee"
has the meaning set forth in the preamble to the
Cover Page.
(z) "Licenses"
has the meaning set forth in Section 2(a)
hereunder.
(aa)
"Licensor" has the meaning set forth in the preamble to the
Cover Page.
(bb)
"Licensing Fee" has the meaning set forth in Section 5(a)
hereunder.
(cc)
"Losses" has the meaning set forth in Section 8(a) hereunder.
(dd)
"MACROs Structure" means any synthetic structured products
which transform various economic goods and services, and
aggregate economic measures, into interests (the value of
which is linked to the performance of a reference index or
price) that can be acquired by investors in the form of
securities and are based on the Patented Products.
(ee)
"MACRO Holding Shares" means the Up-MACRO Holding Shares
together with the Down-MACRO Holding Shares.
(ff)
"MACRO Tradeable Shares" means the Up-MACRO Tradeable Shares
together with the Down-MACRO Tradeable Shares.
(gg)
"Marketing Agent" means the Marketing Agent, not in its
individual capacity but solely as the marketing agent of the
Up-MACRO Holding Trust, the Down-MACRO Holding Trust, the
Up-MACRO Tradeable Trust, and the Down-MACRO Tradeable Trust.
(hh)
"Marks" means the names "MACRO," "MacroMarkets," and
"MACROshares."
T-2
<PAGE>
(ii)
"Party(ies)" has the meaning set forth in the Cover Page.
(jj)
"Person" shall be construed broadly and shall include an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or another
entity, including a governmental entity (or any department,
agency or political subdivision thereof).
(kk)
"Proceeding" has the meaning set forth in Section 8(c)
hereunder.
(ll)
"Product Name" has the meaning set forth in the Cover Page.
(mm)
"Territory" has the meaning set forth in the Cover Page.
(nn)
"Tradeable Trusts" means the Up-MACRO Tradeable Trust and the
Down-MACRO Tradeable Trust.
(oo)
"Trustee" means the Trustee, not in its individual capacity
but solely as trustee of the Up-MACRO Holding Trust, the
Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust, and
the Down-MACRO Tradeable Trust.
(pp)
"Trusts" means the Holding Trusts and the Tradeable Trusts.
(qq)
"Up-MACRO Asset Amount" has the meaning as defined in the
Up-MACRO Holding Trust Agreement.
(rr)
"Up-MACRO Holding Shares" has the meaning set forth in the
Cover Page.
(ss)
"Up-MACRO Holding Trust" has the meaning set forth in the
Cover Page.
(tt)
"Up-MACRO Holding Trust Agreement" has the meaning set forth
in the Cover Page.
(uu)
"Up-MACRO Tradeable Shares" has the meaning set forth in the
Cover Page.
(vv)
"Up-MACRO Tradeable Trust" has the meaning set forth in the
Cover Page.
(ww)
"Up-MACRO Tradeable Trust Agreement" has the meaning set
forth in the Cover Page.
Additionally, the term "including" shall mean including, but
not
limited to.
2.
LICENSES.
(a) The
Licenses. Subject to the terms and conditions of the
License Agreement, Licensor hereby grants to:
(i) each of
the Holding Trusts (x) a limited,
non-exclusive, non-transferable, fee-based license,
throughout the Territory for the Term to use the
Licensed Patents and Know-How solely in connection
with each Licensee's activities as an issuer of the
Holding Shares that employ the MACROs Structure, (y)
a limited, non-exclusive, and non-transferable,
fee-based license throughout the Territory for the
Term to use the Marks solely as a part of the name
of each Holding Trust and the MACRO Holding Shares
issued by such Holding Trust, and (z) a limited,
non-exclusive, and non-transferable, fee-based
sub-license throughout the
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<PAGE>
Territory for the Term to use the Claymore Mark
solely as part of the Product Name in connection
with each Holding Trust's name and the names of the
MACRO Holding Shares issued by such Holding Trust;
and
(ii)
each of the Tradeable Trusts (x) a limited,
non-exclusive, non-transferable, license throughout
the Territory for the Term to use the Licensed
Patents and Know-How solely in connection with each
Licensee's activities as an issuer of the respective
MACRO Tradeable Shares that employ the MACROs
Structure, (y) a limited, non-exclusive, and
non-transferable, royalty-free license throughout
the Territory for the Term to use the Marks solely
as a part of the name of each Tradeable Trust and
the MACRO Tradeable Shares issued by such Tradeable
Trust, and (z) a limited, non-exclusive, and
non-transferable, fee-based sub-license throughout
the Territory for the Term to use the Claymore Mark
solely as part of the Product Name in connection
with each Tradeable Trust's name and the names of
the MACRO Tradeable Shares issued by such Tradeable
Trust (collectively with (i), the "Licenses").
(b) No Right to Sublicense. Each Licensee hereby expressly agrees
not
to sublicense the Licenses to any Person without the express prior
written
consent of Licensor.
(c) Invalidation of Licensed Patents. Each Licensee acknowledges
that
the overall value of the licensed system is a function of, among
other factors,
the total Asset Amounts of the Holding Trusts. Accordingly, for
administrative
convenience, the royalties set forth in Section 5(a) hereunder are
calculated
based on the total Asset Amounts of the Holding Trusts regardless
of whether a
portion of such MACRO Holding Shares or MACRO Trading Shares are
sold and/or
administered in countries in which there are no pending, or in
force, Licensed
Patents. However, in the event that all of the patent claims in all
of the
Licensed Patents in the United States and any other jurisdiction
within the
Territory in which a substantial amount of revenue is derived
and/or a
substantial portion of the administration occurs (collectively,
with the United
States, the "Main Markets") have expired, or in the event that all
of the
patent claims in all remaining unexpired Licensed Patents in the
Main Markets
are finally determined (i.e., after exhaustion of all potential
appeals) to be
unpatentable, invalid or unenforceable by a court or other
government agency of
competent jurisdiction in all jurisdictions in which the Holding
Shares and
Offering Shares are sold, offered for sale, issued, or
administered, the
Licensing Fees payable under Section 5(a) hereunder shall
automatically be
reduced by five (5%) percent. Notwithstanding the foregoing, no
such royalty
reduction shall apply to the Licensing Fee if a Licensed Patent
that is pending
or in force in the Main Markets.
(d) Marking; Usage Guidelines. Each Licensee shall mark patent
rights
with respect to any patents licensed hereunder in a manner as
reasonably
directed by Licensor and/or approved by Licensor in writing in
advance, such
approval not to be unreasonably withheld. Each Licensee shall
include
appropriate service mark and trademark notices, including the
following written
notice in connection with its use of the Licensed Marks (or such
other written
ownership notice as reasonably requested by Licensor from time to
time):
"[insert Mark] are service marks of Macro Markets, LLC and are used
under
license to [Licensee]." Each Licensee shall designate the MACRO
Structure, the
MACRO Holding Shares and the MACRO Tradeable Shares only through
the use of the
Product Name. Each Licensee shall adhere to Licensor's trademark
usage
guidelines with respect to the Marks and the Claymore Marks as
issued by
Licensor from time to time.
(e) Compliance with Law. Licensee shall comply with all
applicable
laws and regulations in connection with the creation, development,
and
marketing of the MACRO Structured Product, including all
regulations of the
SEC, NASD and any other applicable federal or state regulatory
authorities.
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<PAGE>
(f) ALL RIGHTS NOT SPECIFICALLY AND EXPRESSLY GRANTED TO LICENSEES
IN
THIS ARTICLE 2 ARE HEREBY RESERVED TO LICENSOR.
(g) Quality Control. Licensor shall have the right to review all
uses
of the Marks and the Claymore Marks by each Licensee hereunder, and
Licensees
shall furnish in advance to Licensor all materials, including,
where
applicable, any prospectus, or other offering, marketing, and
promotional
materials, to be used hereunder (collectively, the "Materials") in
connection
with the Trusts in which any of the Marks and the Claymore Marks
are used, for
Licensor's prior review and approval of the uses of the Marks and
Claymore
Marks therein. In the event the Materials are issued in a language
other than
English, Licensee shall provide Licensor with an English
translation of the
relevant portion of such materials. Licensor shall promptly notify
Licensee
following receipt thereof from Licensee. If Licensor does not
approve of any
use, it shall advise Licensee of its reasons. In this regard, each
Licensee
agrees that the quality of the services, in connection with which
the Marks and
the Claymore Marks may or will be used by such Licensee as
permitted herein,
will be commensurate with Licensor's reputation for reliability and
high
quality in financial services, and Licensor shall have the right to
require
each Licensee to adhere to that standard of quality. Each Licensee
shall do
nothing hereunder which will impair the validity of the Marks or
the Claymore
Marks, Licensor's or Claymore's rights in the Marks or the Claymore
Marks,
respectively, or the good will symbolized by each of the Marks.
3.
ACKNOWLEDGMENT OF RIGHTS.
(a) Property Rights. Each Licensee acknowledges that the
Licensed
Patents and Know-How, the MACROs Structure and the Marks are and,
under all
circumstances shall remain, the sole and exclusive property of
Licensor. All
goodwill resulting from usage of the Licenses by Licensees pursuant
to the
License Agreement shall accrue to the benefit of Licensor.
(b) Acknowledgement of Rights. Each Licensee agrees and
acknowledges
that the marks are the valuable property of, and are owned by,
Licensor. Each
Licensee will not directly or indirectly: (i) challenge or contest
the validity
or enforceability of the Licenses; (ii) dispute the validity,
enforceability or
Licensor's ownership of the Marks, or initiate or participate in
any proceeding
of any kind opposing the grant of Marks, or challenging any
trademark
application in connection with the Marks; (iii) apply to register
or otherwise
obtain registration of (A) the Licenses, or (B) the Marks or any
variation
thereon or derivative thereof with any trademark, business or
domain name
registrar; or (iv) assist any other Person to do any of the
foregoing (except
if and to the extent required by court order or subpoena). Any
violation of
this Section 3(b) will constitute a material breach of the License
Agreement.
(c) Maintaining the Licenses. Each Licensee shall, at
Licensor's
expense, fully cooperate with and assist Licensor in the
maintenance of any
patent, trademark, or other applications and shall execute or
obtain execution
of any documents that Licensor shall reasonably request in
connection
therewith, including but not limited to any assignment of invention
rights.
(d) Improvements. Licensees acknowledge that Licensor shall own
all
improvements, modifications and derivative works of the MACROs
Structure and
the Licensed Patents and Know-How whether made by Licensor or any
Licensee,
alone or in combination (collectively, "Improvements"). Each
Licensee hereby
assigns all its rights in and to any Improvements to
