Exhibit 4.1.1
TRUST AGREEMENT
This Trust Agreement, dated as of November 15, 2006 (the "Agreement"),
is between MACRO SECURITIES DEPOSITOR, LLC, a Delaware limited liability
company, as depositor (in such capacity, the "Depositor") and INVESTORS BANK &
TRUST COMPANY, a Massachusetts trust company, not in its individual capacity but
solely as trustee (the "Trustee").
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Creation; Governing Law. There is hereby formed a trust (the "Trust") to be
known as the "Claymore MACROshares Oil Up Holding Trust," in which name the
Trustee may engage in the activities of the Trust, make and execute contracts
and other instruments on behalf of the Trust, and xxx and be sued. The Trust is
formed under the laws of the State of New York and shall be construed in
accordance with such law. The parties hereto intend that this Agreement shall
constitute the governing instrument of the Trust. Effective as of the date
hereof, the Trustee shall have all rights, powers and authority set forth herein
and under the laws of the State of New York with respect to accomplishing the
purposes of the Trust. The Trustee is authorized to take such actions on behalf
of the Trust as the Depositor may direct in writing from time to time. In
addition, the Trustee is hereby authorized, instructed and empowered to enter
into the Income Distribution Agreement, the Settlement Contracts, the
Participants Agreement, the MACRO Licensing Agreement, the NYMEX Sublicensing
Agreement and any other agreement relating to the powers and purposes of the
Trust.
2. Trust Assets. Each of the Depositor and Claymore Securities, Inc. hereby
assigns, transfers, conveys and otherwise sets over to the Trustee, and the
Trustee hereby acknowledges receipt of, immediately available funds in the
amount of $500.00, for a total initial deposit of $1,000.00 (the "Initial
Deposit"), in exchange for which the Trust will issue 1,000 founders' shares
with a par value of $1 per share, which shall constitute the initial capital of
the Trust, and of which 500 shall be issued to the Depositor and 500 shall be
issued to Claymore Securities, Inc. The Initial Deposit shall be held in trust
for the Depositor and Claymore Securities, Inc.
3. Indemnification of Trustee. The Trustee and its directors, shareholders,
officers, employees, agents and affiliates shall be indemnified and held
harmless by the Depositor with respect to any loss, liability, claim, damage or
expense incurred by the Trustee arising out of or in connection with the
acceptance or performance by the Trustee of the trusts and duties contained in
this Agreement; provided, however, that the Trustee shall not be indemnified or
held harmless as to any such loss, liability, claim, damage or expense incurred
by reason of its gross negligence, bad faith or willful misconduct.
4. Resignation or Removal of Trustee. The Trustee may resign by giving written
notice to the Depositor; provided, that a successor trustee satisfactory to the
Depositor has been appointed.
5. Counterparts. This Agreement may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original, but
all of which counterparts shall together constitute but one and the same
instrument.
6. Third Party Beneficiaries. The Depositor and Claymore Securities, Inc., will
be the initial third party beneficiaries of the Trust in equal shares.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
MACRO SECURITIES DEPOSITOR, LLC
as Depositor
By /s/Xxxxxx Xxxxxxx, III
-------------------------
Name: Xxxxxx Xxxxxxx, III
Title: Chief Executive Officer
By /s/Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
INVESTORS BANK & TRUST COMPANY,
not in its individual capacity but solely as
Trustee
By /s/Xxxxxxx XxXxxxx
-------------------------
Name: Xxxxxxx XxXxxxx
Title: Managing Director
