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
Claymore MACROshares Oil Up Holding Trust, a New
Trust:
York trust
Down-MACRO
Holding Claymore
MACROshares Oil Down Holding Trust, a
Trust:
New York trust
Up-MACRO
Tradeable Claymore
MACROshares Oil Up Tradeable Trust, a
Trust:
New York trust
Down-MACRO
Tradeable
Claymore MACROshares Oil Down Tradeable Trust, a
Trust:
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
Claymore MACROshares Oil Up Holding Shares, which
Shares:
represent units of undivided beneficial interest
in the Up-MACRO Holding Trust
Down-MACRO
Holding Claymore
MACROshares Oil Down Holding Shares,
Shares
which represent units of undivided beneficial
interest in the Down-MACRO Holding Trust
Up-MACRO
Tradeable Claymore
MACROshares Oil Up Tradeable Shares,
Shares:
which represent units of undivided beneficial
interest in the Up-MACRO Tradeable Trust
Down-MACRO
Tradeable
Claymore MACROshares Oil Down Tradeable Shares,
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, dated as of
Trust
Agreement: 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 Agreement, dated as
Trust
Agreement: 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 Agreement, dated as
Trust
Agreement: 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 Agreement, dated
Trust
Agreement: 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
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CLAYMORE MACROSHARES OIL UP HOLDING TRUST,
as Licensee
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
C-4
<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.
T-1
<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
T-3
<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.
T-4
<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 Licens
