NYMEX Sublicensing Agreement, dated June 23, 2008

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 during which this Sublicense License is in effect, 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 MacroShares 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.

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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 notic e 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 Asset Amount on such day, which shall be payable to the Sublicensor from the amounts on deposit in the Up 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 Asset Amount on such day, which shall be payable to the Sublicensor from the amounts on deposit in the Down 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, 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 Up Asset Amount and Down Asset Amount 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.  

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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.

8.1.

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.

8.2.

The Trustee has no liability in its individual corporate capacity with respect to any contractual or other claim or obligation relating to the Sublicense Agreement or the related Macro Trust and any party which is asserting any claims or seeking the payment or discharge or any liabilities with respect to either of the Macro Trust Agreements or the related Macro Trust should look solely to the assets of that Macro Trust.

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 MacroShares, 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 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 MacroShares.

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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 PROSPECTUS OR ANY OTHER 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 MacroShares or any payment on the MacroShares, (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 Macro 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 immediately pay to the Sublicensor all amounts due and owing to the Sublicensor 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 Sublicensor:

MACROMARKETS LLC,

73 Green Tree Drive #9

Dover, DE 19904

Facsimile: (973) 453-8212

Attention: Samuel Masucci, III

With a copy to:

Skadden, Arps, Slate, Meagher & Flom, LLP

Four Times Square,

New York, New York 10036

Facsimile: (212) 735-2000

Attention: Richard F. Kadlick, Esq.

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If to the Macro Trusts:

MacroShares $100 Up Trust and MacroShares $100 Oil Down Trust

c/o State Street Bank and Trust Company, N.A.

Two World Financial Center

225 Liberty Street

New York, New York 10281

Attention:  James Casey

Facsimile:   ###-###-####

                   and ###-###-####

With a copy to:

State Street Bank and Trust Company

Box 5501

Boston, Massachusetts 02206

Facsimile: (617) 662-3805

Attention: Julie Tedesco, Esq.

If to Macro Securities Depositor:

73 Green Tree Drive #9

Dover, DE 19904

Attention:  Samuel Masucci, III

Facsimile: (973) 453-8212

If to the NYMEX:

New York Mercantile Exchange, Inc.

One North End Avenue

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.

(b)

None of the Sublicensees may 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.

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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 servic e 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.

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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.

[Signature Page to NYMEX Sublicensing Agreement]