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
14 Main
Street, Suite 100, Madison, New Jersey 07940, 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
mark 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
anyt
