EXHIBIT 4.3
FORM OF CLAYMORE MACROSHARES OIL
PARTICIPANTS AGREEMENT
This Claymore MACROshares Oil Participants Agreement (the
"Participants Agreement"), dated as of [ ], 2006 is hereby entered into by and
among the parties listed from time to time on Schedule I attached hereto
(individually, an "Authorized Participant" and collectively, the "Authorized
Participants"), MACRO Securities Depositor, LLC, as depositor (the
"Depositor"), Investors Bank and Trust Company, a Massachusetts trust company,
not in its individual capacity but solely (i) as trustee of the Claymore
MACROshares Oil Up Holding Trust (the "Up-MACRO Holding Trust" and the
"Up-MACRO Holding Trust Trustee," respectively) (ii) as trustee of the Claymore
MACROshares Oil Down Holding Trust (the "Down-MACRO Holding Trust" and the
"Down-MACRO Holding Trust Trustee," respectively; the Down-MACRO Holding Trust
together with the Up-MACRO Holding Trust will be referred to herein as the
"Paired Holding Trusts"), (iii) as trustee of the Claymore MACROshares Oil Up
Tradeable Trust (the "Up-MACRO Tradeable Trust" and the "Up-MACRO Tradeable
Trust Trustee," respectively), and (iv) as trustee of the Claymore MACROshares
Oil Down Tradeable Trust (the "Down-MACRO Tradeable Trust" and the "Down-MACRO
Tradeable Trust Trustee," respectively; the Down-MACRO Tradeable Trust together
with the Up-MACRO Tradeable Trust will be referred to herein as the "Tradeable
Trusts" and collectively, with the Paired Holding Trusts, the "MACRO Trusts")
(such entity, in its capacities set forth above, the "Trustee") and Claymore
Securities, Inc., not in its individual capacity but solely as administrative
agent of the MACRO Trusts (the "Administrative Agent").
SUMMARY
Pursuant to the Claymore MACROshares Oil Up Holding Trust Agreement,
dated as of [ ], 2006 (the "Up-MACRO Holding Trust Agreement"), among the
Depositor, the Up-MACRO Holding Trustee, the Administrative Agent and Claymore
Securities, Inc., in its capacity as the Marketing Agent of the MACRO Shares
(the "Marketing Agent"), the Up-MACRO Holding Trust will issue a global
certificate which shall be registered in the name of Cede & Co., as nominee of
the Depository Trust Company ("DTC") and which will represent all of the
undivided beneficial interests in the Up-MACRO Holding Trust (such beneficial
interests, the "Up-MACRO Holding Shares"), and pursuant to the Claymore
MACROshares Oil Down Holding 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"), among the Depositor, the
Down-MACRO Holding Trustee (together with the Up-MACRO Holding Trustee, the
"Holding Trustees"), the Administrative Agent and the Marketing Agent, the
Down-MACRO Holding Trust will issue a global certificate which shall be
registered in the name of Cede & Co., as nominee of DTC and which will
represent all of the undivided beneficial interests in the Down-MACRO Holding
Trust (such beneficial interests, the "Down-MACRO Holding Shares" and together
with the Up-MACRO Holding Shares, the "Paired Holding Shares" or if referencing
either Up-MACRO Holding Share or Down-MACRO Holding Share, a "Holding Share").
Pursuant to the Claymore MACROshares Oil Up Tradeable Trust Agreement,
dated as of [ ], 2006 (the "Up-MACRO Tradeable Trust Agreement"), among the
Depositor, the Up-MACRO Tradeable Trustee, the Administrative Agent and the
Marketing Agent, the Up-MACRO Tradeable Trust will issue a global certificate
which shall be registered in the name of Cede & Co., as nominee of DTC and
which will represent all of the undivided beneficial interests in the Up-MACRO
Tradeable Trust (such beneficial interests, the "Up-MACRO Tradeable Shares"),
and pursuant to the Claymore MACROshares Oil Down Tradeable Trust Agreement,
dated as of [ ], 2006 (the "Down-MACRO Tradeable Trust Agreement" and together
with the Up-MACRO Tradeable Trust Agreement, the "Tradeable Trust Agreements"
and, together with the Holding Trust Agreements, the "Trust Agreements"), among
the Depositor, the Down-MACRO Tradeable Trustee (and, together with the
Up-MACRO Tradeable Trustee, the "Tradeable Trustees"), the Administrative Agent
and the Marketing Agent, the Down-MACRO Tradeable Trust will issue a global
certificate which shall be registered in the name of Cede & Co., as nominee of
DTC and which will represent all of the undivided beneficial interest in the
Down-MACRO Tradeable Trust (such beneficial interests, the "Down-MACRO
Tradeable Shares" and, together with the Up-MACRO Tradeable Shares, the
"Tradeable Shares" and, together with the Paired Holding Shares, the "MACRO
Shares").
The MACRO Shares are being offered pursuant to (i) a Prospectus, dated
as of [ ], 2006, relating to the Up-MACRO Holding Shares and the Up-MACRO
Tradeable Shares (the "Up-MACRO Prospectus"), which has been filed in
connection with the registration statement on Form S-1, as amended, File No.:
333-116566, as declared effective by the Securities and Exchange Commission
("SEC") on [ ], 2006 (as the same may be amended from time to time thereafter,
the "Up-MACRO Registration Statement") and (ii) a Prospectus, dated as of [ ],
2006, relating to the Down-MACRO Holding Shares and the Down-MACRO Tradeable
Shares (the "Down-MACRO Prospectus" and together with the Up-MACRO Prospectus,
each a "Prospectus"), which has been filed in connection with the registration
statement on Form S-1, as amended, File No.: 333-[ ], as declared effective by
the SEC on [ ], 2006 (as the same may be amended from time to time thereafter,
the "Down- MACRO Registration Statement" and together with the Up-MACRO
Registration Statement, the "Registration Statements").
In accordance with this Participants Agreement, the Trustee, acting
together with the Administrative Agent on behalf of the Paired Holding Trusts,
may create or redeem Paired Holding Shares in units of 50,000 Up-MACRO Holding
Shares and 50,000 Down-MACRO Holding Shares (such pairs, a "MACRO Unit") at the
instructions of an Authorized Participant and in accordance with the procedures
set forth herein.
Under the Holding Trust Agreements, the Administrative Agent will
instruct the Trustee to issue MACRO Units to, and redeem MACRO Units from,
Authorized Participants, only through the facilities of DTC or a successor
depository. In exchange for a deposit of cash with an aggregate purchase price
set forth herein and in the applicable Holding Trust Agreement, an Authorized
Participant may create MACRO Units. In exchange for a deposit of Paired Holding
Shares constituting one or more MACRO Units, an Authorized Participant may
redeem one or more MACRO Units for cash and/or Treasuries (as defined in the
Holding Trust Agreements) as further described herein. This Participants
Agreement sets forth the specific procedures by which an Authorized Participant
may create or redeem MACRO Units.
In accordance with this Participants Agreement, the Administrative
Agent may cause the Trustee to create or redeem additional Tradeable Shares in
units of 50,000 Up-MACRO Tradeable Shares or 50,000 Down-MACRO Tradeable Shares
at the instructions of an Authorized Participant. The creation or redemption of
Up-MACRO Tradeable Shares and Down-MACRO Tradeable Shares does not need to
occur simultaneously. Up-Macro Tradeable Shares may be created independently by
the deposit of Up-Macro Holding Shares into the Up-Macro Tradeable Trust, and
Down-Macro Tradeable Shares may be created independently by the deposit of
Down-Macro Holding Shares into the applicable Tradeable Trust. Accordingly,
Up-MACRO Tradeable Shares may be redeemed independently to Up-MACRO Holding
Shares by the deposit of Up-MACRO Tradeable Shares into the Up-MACRO Tradeable
Trust and Down MACRO Tradeable Shares may be redeemed independently to
Down-MACRO Holding Shares by the deposit of Down-MACRO Tradeable Shares into
the Down-MACRO Tradeable Trust.
Under the Tradeable Trust Agreements, the Administrative Agent will
authorize the Trustee to issue additional Tradeable Shares to, and redeem
Tradeable Shares from, Authorized Participants, only through the facilities of
DTC or a successor depository. This Participants Agreement sets forth the
specific procedures by which an Authorized Participant may create or redeem
Tradeable Shares.
Because new MACRO Shares can be created and issued on an ongoing
basis, at any point during the life of the MACRO Trusts, a "distribution," as
such term is used in the Securities Act of 1933, as amended ("Securities Act"),
may be occurring. Each Authorized Participant is cautioned that some of its
activities may result in its being deemed a participant in a distribution which
would render it a statutory underwriter and subject it to the
prospectus-delivery requirements and the liability provisions of the Securities
Act. Each Authorized Participant should review the "Plan of Distribution"
portion of the Prospectuses and consult with its own counsel in connection with
entering into this Participants Agreement and placing Creation Order, a
Redemption Order or an Exchange Order (as defined, herein, in Sections 3, 4 and
5, as applicable).
Capitalized terms used but not defined in this Participants Agreement
shall have the meanings assigned to such terms in the applicable Trust
Agreement. To the extent there is a conflict between any provision of this
Participants Agreement and the provisions of the Trust Agreements, the
provisions of this Participants Agreement will govern insofar as they relate to
the Procedures (as defined below).
To give effect to the foregoing premises and in consideration of the
mutual covenants and agreements set forth below, the parties hereto agree as
follows:
Section 1. Order Placement.
(a) To create one or more MACRO Units or to create one or more MACRO
Units and concurrently exchange them into Tradeable Shares, Authorized
Participants must follow the procedures for creation set forth in Section 3 of
this Participants Agreement and the procedures described in Attachment A.I
hereto (the "Creation Procedures"), as each may be amended, modified or
supplemented from time to time.
(b) To exchange Holding Shares into their respective Tradeable Shares
or to exchange Tradeable Shares into their respective Holding Shares,
Authorized Participants must follow the procedures for exchange set forth in
section 4 of this Participants Agreement and the procedures described in
Attachment A.II hereto (the "Exchange Procedures"), as each may be amended,
modified or supplemented from time to time.
(c) To redeem Holding Shares for cash and/or Treasuries upon a deposit
of Holding Shares and/or to exchange Tradeable Shares into Holding Shares and
concurrently redeem such Holding Shares as part of one or more MACRO Units,
Authorized Participants must follow the procedures for redemption set forth in
Section 5 of this Participants Agreement and the procedures described in
Attachment A.III hereto (the "Redemption Procedures" and, together with the
Creation Procedures and the Exchange Procedures, the "Procedures"), as each may
be amended, modified or supplemented from time to time.
Section 2. Status of Authorized Participant. Each Authorized
Participant, individually and severally, represents and warrants and covenants
the following:
(a) It is a DTC Participant or an Indirect Participant. If it ceases
to be a DTC Participant or an Indirect Participant, such Authorized Participant
shall give immediate notice to the Trustee, the Depositor and the
Administrative Agent of such event, and this Participants Agreement shall
terminate immediately (with respect to that Authorized Participant only) as of
the date such Authorized Participant ceases to be a DTC Participant or Indirect
Participant.
(b) Unless Section 2(c) applies, it either (i) is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and is a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD"), or (ii) is exempt from being, or
otherwise is not required to be, licensed as a broker-dealer or a member of the
NASD, and in either case is qualified to act as a broker or dealer in the
states or other jurisdictions where the nature of its business so requires.
Such Authorized Participant shall maintain any such registrations,
qualifications and membership in good standing and in full force and effect
throughout the term of this Participants Agreement. Such Authorized Participant
shall comply with all applicable federal laws, the laws of the states or other
jurisdictions concerned, and the rules and regulations promulgated thereunder,
and with the Constitution, By-Laws and Conduct Rules of the NASD (if it is a
NASD member), and will not offer or sell Holding Shares or Tradeable Shares in
any state or jurisdiction where they may not lawfully be offered and/or sold.
(c) If it is offering or selling Holding Shares or Tradeable Shares in
jurisdictions outside the several states, territories and possessions of the
United States and is not otherwise required to be registered, qualified or a
member of the NASD as set forth in Section 2(b) above, such Authorized
Participant shall (i) observe the applicable laws of the jurisdiction in which
such offer and/or sale is made, (ii) comply with the full disclosure
requirements of the Securities Act and the regulations promulgated thereunder,
and (iii) conduct its business in accordance with the spirit of the NASD
Conduct Rules.
(d) It is in compliance with the anti-money laundering and related
provisions of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot
Act") and the regulations promulgated thereunder, if such Authorized
Participant is subject to the requirements of the Patriot Act.
(e) It has the capability to send and receive communications via
authenticated electronic facilities to and from the Trustee and the
Administrative Agent. Such Authorized Participant shall confirm such capability
to the satisfaction of the Trustee and the Administrative Agent by the end of
the Business Day before placing its first Order (as defined in Sections 3, 4
and 5, as applicable) with the Administrative Agent.
(f) Each Authorized Participant, by its acquisition or holding of any
Paired Holding Share, is deemed to have represented and warranted that it is
not, and is not using assets of, any (i) "employee benefit plan" (as defined in
section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended, "ERISA"), whether or not subject to Title I of ERISA, including
without limitation governmental plans, foreign pension plans and church plans,
(ii) "plan" (as defined in section 4975(e)(1) of the Internal Revenue Code of
1986, as amended, (the "Code"), whether or not subject to section 4975 of the
Code), including without limitation individual retirement accounts and Xxxxx
plans, or (iii) entity whose underlying assets include plan assets by reason of
such an employee benefit plan's or plan's investment in such entity, including
without limitation, as applicable, an insurance company general account, (each
of (i), (ii) and (iii), a "Benefit Plan Investor"). Any purported purchase or
transfer of an up-macro holding share to a Benefit Plan Investor shall be null
and void ab initio.
Section 3. Creation Order.
(a) All orders to create one or more MACRO Units or to create one or
more MACRO Units and concurrently exchange all or part of such MACRO Units into
Tradeable Shares shall be made in accordance with the terms of the applicable
Trust Agreement, this Participants Agreement and the Creation Procedures. Each
party will comply with such foregoing terms and procedures to the extent
applicable. Each Authorized Participant hereby consents to the use of recorded
telephone lines whether or not such use is reflected in the Creation
Procedures. The Trustee, the Administrative Agent and the Depositor may issue
additional or other procedures from time to time relating to the manner of
creation of MACRO Units or creation of MACRO Units and concurrently exchanging
all or part of such shares into Tradeable Shares, which are not related to the
Creation Procedures, and each Authorized Participant shall comply with such
procedures.
(b) Each Authorized Participant acknowledges and agrees on behalf of
itself and any party for which it is acting (whether such party is a customer
or otherwise) that each order to create a MACRO Unit or to create a MACRO Unit
and concurrently exchange such MACRO Unit into Tradeable Shares (a "Creation
Order") may not be revoked by such Authorized Participant after the placement
and acceptance of such Order with the Administrative Agent. Such order shall be
a binding obligation of the Authorized Participant that placed such order. A
form of a Creation Order is attached hereto as EXHIBIT B (the "Creation Order
Form"). The Creation Order Form shall not be required if such Creation Order is
conducted through the electronic facilities of the Administrative Agent;
provided, however, that the Administrative Agent, in its sole discretion, may
require the use of the Creation Order Form for any reason as an alternative for
its electronic facilities. The information required by such electronic
facilities shall be substantially similar to the information on the Creation
Order Form attached hereto.
(c) The Administrative Agent and the Depositor shall each have the
absolute right, but shall have no obligation, to reject any Creation Order (i)
if the Administrative Agent determines that the Authorized Participant or
Authorized Participants have deposited an insufficient amount of money with the
Trustee, (ii) if the Depositor determines that such Creation Order would have
adverse tax or securities law consequences for either of the Paired Holding
Trusts, the Tradeable Trusts or the holders of any of the MACRO Shares, (iii)
the acceptance or fulfillment of which would, in the opinion of counsel to the
Depositor acceptable to the Trustee, be unlawful, (iv) if the trustee of one of
the Paired Holding Trusts or of one of the Tradeable Trusts notifies the other
applicable trustees that the Creation Order for additional MACRO Shares made in
connection with such order has been or will be rejected by it, by the Depositor
or by its Administrative Agent or (v) if circumstances outside the control of
the Trustee, the Depositor or the Administrative Agent make it impractical or
not feasible to cause the Paired Holding Trusts to issue additional Paired
Holding Shares or one, or both, of the Tradeable Trusts, as applicable, to
issue additional Tradeable Shares . None of the Trustee, the Depositor or the
Administrative Agent shall be liable to any Person by reason of the rejection
of any Purchase Order.
(d) The Administrative Agent may, in its sole discretion, and will
when so directed by the Depositor, suspend the right of creation (i) for any
period during which the American Stock Exchange is closed other than for
customary weekend or holiday closings, or trading is suspended or restricted,
(ii) for any period during which an emergency exists as a result of which
delivery, disposal or evaluation of the Treasuries is not reasonably
practicable, (iii) for any period during which, such creation will cause one of
the Tradeable Trusts to hold fifty percent or less of the outstanding related
Holding Shares; and or (iv) for such other period as the Depositor determines
to be necessary for the protection of the holders of the MACRO Shares. None of
the Trustee, the Depositor or the Administrative Agent shall be liable to any
Person or in any way for any loss or damage that may result from any such
suspension or postponement.
Section 4. Exchange Order.
(a) All orders to exchange Holding Shares into their related Tradeable
Shares or exchange Tradeable Shares for their related Holding Shares shall be
made in accordance with the terms of the applicable Trust Agreements, this
Participants Agreement and the Exchange Procedures. Each party will comply with
such foregoing terms and procedures to the extent applicable. Each Authorized
Participant hereby consents to the use of recorded telephone lines whether or
not such use is reflected in the Exchange Procedures. The Trustee, the
Administrative Agent and the Depositor may issue additional or other procedures
from time to time relating to the manner of exchanging Holding Shares or
exchanging Tradeable Shares, which are not related to the Exchange Procedures,
and each Authorized Participant shall comply with such procedures.
(b) Each Authorized Participant acknowledges and agrees on behalf of
itself and any party for which it is acting (whether such party is a customer
or otherwise) that each order to exchange Holding Shares or to exchange
Tradeable Shares (an "Exchane Order") may not be revoked by such Authorized
Participant after the placement and acceptance of such Order with the
Administrative Agent. Such order shall be a binding obligation of the
Authorized Participant that placed such order. A form of a Exchange Order is
attached hereto as EXHIBIT C (the "Exchange Order Form"). The Exchange Order
Form shall not be required if such Exchange Order is conducted through the
electronic facilities of the Administrative Agent; provided, however, that the
Administrative Agent, in its sole discretion, may require the use of the
Exchange Order Form for any reason as an alternative for its electronic
facilities. The information required by such electronic facilities shall be
substantially similar to the information on the Exchange Order Form attached
hereto.
(c) The Administrative Agent and the Depositor shall each have the
absolute right but shall have no obligation to reject any Exchange Order (i) if
the Administrative Agent determines that the Authorized Participant or
Authorized Participants have deposited an insufficient number of shares with
the Trustee, (ii) if the Depositor determines that such Exchange Order would
have adverse tax or securities law consequences for either of the MACRO Trusts
or the holders of any of the MACRO Shares, (iii) the acceptance or fulfillment
of which would, in the opinion of counsel to the Depositor acceptable to the
Trustee, be unlawful or (iv) if circumstances outside the control of the
Trustee, the Depositor or the Administrative Agent make it impractical or not
feasible to cause the Tradeable Trusts to issue additional Tradeable Shares.
None of the Trustee, the Depositor or the Administrative Agent shall be liable
to any Person by reason of the rejection of any Redemption Order.
(d) The Administrative Agent may, in its sole discretion, and will
when so directed by the Depositor, suspend the right of exchange (i) for any
period during which the American Stock Exchange is closed other than for
customary weekend or holiday closings, or trading is suspended or restricted,
(ii) for any period during which an emergency exists as a result of which
delivery, disposal or evaluation of Holding or Tradeable Shares is not
reasonably practicable, (iii) for any period during which, such exchange will
cause one of the Tradeable Trusts to hold fifty percent or less of the
outstanding related Holding Shares; and or (iv) for such other period as the
Depositor determines to be necessary for the protection of the holders of the
MACRO Shares. None of the Trustee, the Depositor or the Administrative Agent
shall be liable to any Person or in any way for any loss or damage that may
result from any such suspension or postponement.
Section 5. Redemption Order.
(a) Except as otherwise provided for herein, all orders to redeem one
or more MACRO Units upon a deposit of Paired Holding Shares consisting of one
or more MACRO Units into cash and/or Treasuries and/or exchange Tradeable
Shares and concurrently redeem such shares as part of one or more MACRO Units
upon a deposit of Tradeable Shares shall be made in accordance with the terms
of the applicable Trust Agreements, this Participants Agreement and the
Exchange Procedures. Each party will comply with such foregoing terms and
procedures to the extent applicable. Each Authorized Participant hereby
consents to the use of recorded telephone lines whether or not such use is
reflected in the Redemption Procedures. The Administrative Agent and the
Depositor may issue additional or other procedures from time to time relating
to the manner of redeeming of Paired Holding Shares consisting of one or more
MACRO Units or exchanging Tradeable Shares and concurrently redeeming such
shares as part of a MACRO-Unit which are not related to the Redemption
Procedures, and each Authorized Participant shall comply with such procedures.
(b) Each Authorized Participant acknowledges and agrees on behalf of
itself and any party for which it is acting (whether such party is a customer
or otherwise) that each order to redeem Paired Holding Shares and/or exchange
Tradeable Shares into Holding Shares and concurrently redeem such shares as
part of a MACRO Unit upon a deposit of the related Holding Shares (a
"Redemption Order," and, together with a Creation Order and an Exchange Order,
each an "Order") may not be revoked by such Authorized Participant after the
placement and acceptance of such order with the Administrative Agent. Such
Orders shall be a binding obligation of the Authorized Participant that placed
such Order. A form of Redemption Order is attached hereto as EXHIBIT D (an
"Redemption Order Form"). The Redemption Order Form shall not be required if
such Redemption Order is conducted through the electronic facilities of the
Administrative Agent; provided, however, that the Administrative Agent, in its
sole discretion, may require the use of the Redemption Order Form for any
reason as an alternative for its electronic facilities. The information
required by such electronic facilities shall be substantially similar to the
information on the Redemption Order Form attached hereto.
(c) The Administrative Agent and the Depositor shall each have the
absolute right but shall have no obligation to reject any Redemption Order (i)
if the Administrative Agent determines that the Authorized Participant or
Authorized Participants have deposited an insufficient number of shares with
the Trustee, (ii) if the Depositor has determined and advised the Trustee and
the Administrative Agent that such Redemption Order would have adverse tax
consequences to one or more of the MACRO Trusts or any holders of the MACRO
Shares, (iii) if the acceptance of which would, in the opinion of counsel to
the Depositor, be unlawful, (iv) if the trustee of one of the Paired Holding
Trusts notifies the trustee of the paired trust that the related Redemption
Order will be rejected by it, by the Depositor or by its Administrative Agent
or (v) if circumstances outside the control of the Trustee, the Depositor or
the Administrative Agent make it impractical or not feasible to process a
redemption of Holding Shares and/or an exchange of Tradeable Shares and
concurrently redeeming such shares as part of one or more MACRO Units. None of
the Trustee, the Depositor or the Administrative Agent shall be liable to any
Person by reason of the rejection of any Redemption Order.
(d) The Administrative Agent may, in its sole and absolute discretion,
and will when so directed by the Depositor suspend the right of redeem or
postpone the applicable settlement date, (i) for any period during which the
American Stock Exchange is closed other than for customary weekend or holiday
closings, or trading is suspended or restricted, (ii) for any period during
which an emergency exists as a result of which delivery of cash and/or
Treasuries, or the redemption of Holding or Tradeable Shares are not reasonably
practicable, (iii) for any period during which, such redemption will cause the
one or both of the Tradeable Trusts to hold fifty percent or less of their
related outstanding Holding Shares, (iv) if such redemption would cause the
Up-MACRO or Down-MACRO Investment Amount to equal less than 10 million dollars
or (v) for such other period as the Depositor determines to be necessary for
the protection of any of the MACRO Trusts or the holders of the MACRO Shares.
Neither the Depositor, the Administrative Agent nor the Trustee shall be liable
to any Person or in any way for any loss or damages that may result from any
such suspension or postponement.
Section 6. Transfers.
(a) Any MACRO Share or Treasuries to be transferred in connection with
any Order shall be transferred between that Authorized Participant's designated
account at DTC and the Securities Account of the applicable MACRO Trust in
accordance with the Procedures. The Authorized Participant shall be responsible
for all costs and expenses relating to or connected with any transfer of MACRO
Shares or Treasuries between its designated account and the Securities Account
of the applicable MACRO Trust. Any transfer of cash in connection with the
Orders and Quarterly Distributions shall be transferred between a bank account
designated by that Authorized Participant and the Distribution Account of the
applicable MACRO Trust in accordance with the Procedures. Any transfers of cash
shall be conducted through the Federal Wire Electronic Transfer System. The
Authorized Participant shall be responsible for all costs and expenses relating
to or in connection with any transfers of cash between its designated bank
account and the Distribution Account.
(b) Each of the MACRO Trusts, the Depositor, the Trustee and the
Administrative Agent shall have no liability for loss or damages suffered by an
Authorized Participant in respect of the Authorized Participant's Participant
Custodian Account. The Authorized Participant acknowledges that it is an
unsecured creditor of the Trustee with respect to any MACRO Shares, Treasuries
and/or cash held in each Authorized Participant's Participant Custodian Account
and that such Treasuries and/or cash are at risk in the event that the Trustee
becomes insolvent.
Section 7. Fees.
(a) In connection with each Creation Order, the Authorized Participant
shall pay to the Trustee a fee (such fee, the "Creation Transaction Fee") for
such creation. The initial Creation Transaction Fee shall be one thousand
dollars ($1,000) for the creation of one or more MACRO Units and an additional
five hundred dollars ($500) fee for an exchange of one of the Paired Holding
Shares to its related Tradeable Shares or one thousand dollars ($1,000) for the
exchange of both Paired Holding Shares to their related Tradeable Shares. The
Creation Transaction Fee may be adjusted from time to time in accordance with
Section 7(d) of this Participants Agreement. A single Creation Transaction Fee
shall be due for each Creation Order from a single Authorized Participant that
relates to creation of multiple MACRO Units or to creation of multiple MACRO
Units and a concurrent exchange of such shares into Tradeable Shares.
(b) In connection with each Exchange Order, the Authorized Participant
shall pay to the Trustee a fee (such fee, the "Exchange Transaction Fee") for
such exchange. The initial five hundred dollars ($500) for each exchange of
Holding Shares to their related Tradeable Shares or exchange of Tradeable
Shares to their related Holding Shares. The Exchange Transaction Fee may be
adjusted from time to time in accordance with Section 7(d) of this Participants
Agreement. A single Exchange Transaction Fee shall be due for each Exchange
Order from a single Authorized Participant that relates to exchange of multiple
Holding Shares or Tradeable Shares to their related Tradeable Shares.
(c) In connection with each Redemption Order the Authorized
Participant shall pay to the Trustee a fee (such fee, the "Redemption
Transaction Fee," and, together with the Creation Transaction Fee and the
Exchange Transaction Fee, the "Transaction Fee") for such redemption of shares.
The initial Redemption Transaction Fee, for each redemption of the Paired
Holding Shares consisting of one or more MACRO Units to cash and/or Treasuries
will be one thousand dollars ($1,000) and concurrent exchange of one of the
Tradeable Shares into their related Holding Shares as part of the Redemption
Order will incur an additional fee of five hundred dollars ($500). The
Redemption Transaction Fee may be adjusted from time to time in accordance with
Section 7(d) of this Participants Agreement. A single Redemption Transaction
Fee shall be due for each Redemption Order from a single Authorized Participant
regardless of the aggregate amount of redemptions on such Redemption Order.
(d) The Transaction Fee may subsequently be waived, modified, reduced,
increased or otherwise changed by the Trustee, with the prior written consent
of the Depositor, and without the required consent of the Authorized
Participants at that time, but will not in any event exceed [0.10]% of the
value of a MACRO Unit at the time of creation, redemption or exchange, as the
case may be (in each case determined at the proportionate underlying value of a
MACRO Unit on the date of either the Creation Order, the Exchange Order or the
Redemption Order). Promptly after agreeing to and prior to implementing such
change, the Trustee shall file [a From 8-K] with the Commission to notify of
any such change in the Transaction Fee and the Administrative Agent shall,
concurrently, notify the Depository and each Authorized Participant. Any such
change in the Transaction Fee shall not be implemented until thirty (30) days
after the filing of such notice. The amount of the Transaction Fee in effect at
any given time shall be made available by the Administrative Agent upon
request.
Section 8. Authorized Persons. Concurrently with the execution of this
Participants Agreement and from time to time thereafter, each Authorized
Participant shall deliver to the Administrative Agent, with copies to the
Trustee, notarized and duly certified as appropriate by its secretary or other
duly authorized official, a certificate in the form of EXHIBIT A setting forth
the names and signatures of all persons authorized to give instructions
relating to activity contemplated hereby or by any other notice, request or
instruction given on behalf of the Authorized Participant (each, an "Authorized
Person"). The Administrative Agent may accept and rely upon such certificate as
conclusive evidence of the facts set forth therein and shall consider such
certificate to be in full force and effect until the Administrative Agent
receives a superseding certificate bearing a subsequent date. Upon the
termination or revocation of authority of any Authorized Person by the
Authorized Participant, the Authorized Participant shall give immediate written
notice of such fact to the Administrative Agent and such notice shall be
effective upon receipt by the Administrative Agent. The Administrative Agent
shall issue to each Authorized Person a unique personal identification number
(the "PIN Number") by which such Authorized Person shall be identified and
which shall be used as authentication for Orders placed by that Authorized
Person. The Administrative Agent shall provide to the Depositor and the
Trustee, if so requested, a list of the Authorized Persons and their
corresponding PIN Numbers and shall promptly update such list upon any changes
to such list. The PIN Number shall be kept confidential by the Authorized
Participant and shall only be provided to the Authorized Person. If, after
issuance, the Authorized Person's PIN Number is changed, the new PIN Number
shall become effective on the second Business Day after the new PIN Number has
been issued to the Authorized Person.
Section 9. Representation regarding Securities Delivered. Each
redeeming Authorized Participant represents and warrants that it will not
obtain a Submission Number (as described in the Procedures) from the
Administrative Agent for each Order unless such Authorized Participant first
ascertains that (i) it or its customer or any other person on whose behalf it
is acting, as the case may be, owns outright or has full legal authority and
legal and beneficial right to tender the Holding Shares, Tradeable Shares, cash
or Treasuries, as applicable, and (ii) such Holding Shares, Tradeable Shares,
cash or Treasuries, as applicable, have not been loaned or pledged to another
party and are not the subject of a repurchase agreement, securities lending
agreement or any other arrangement which would preclude the delivery of such
securities to the Trustee on the first Business Day following the applicable
order date.
Section 10. Role of Authorized Participant.
(a) Each Authorized Participant acknowledges that, for all purposes of
this Participants Agreement and the Trust Agreements, it is and shall be deemed
to be an independent contractor and has and shall have no authority to act as
agent for the Paired Holding Trusts, the Tradeable Trusts, the Depositor, the
Administrative Agent or the Trustee in any matter or in any respect.
(b) Each Authorized Participant will make itself and its employees
available, upon request, during normal business hours to consult with the
Trustee and the Administrative Agent concerning the performance of such
Authorized Participant's responsibilities under this Participants Agreement.
(c) With respect to (i) any creation of one or more MACRO Units or the
creation of one or more MACRO Units and concurrently exchanging such shares
into Tradeable Shares, (ii) redemption of MACRO Units into cash and/or
Treasuries and/or any exchange of Tradeable Shares into their related Holding
Shares and concurrently redeeming such shares as part of a MACRO Unit or (iii)
any exchange of Tradeable Shares into their related Holding Shares or any
exchange of Holding Shares into their related Tradeable Shares, made by an
Authorized Participant pursuant to this Participants Agreement for the benefit
of any customer or any other DTC Participant or Indirect Participant, or any
other beneficial owner, such Authorized Participant shall extend to any such
party all of the rights, and shall be bound by all of the obligations, of a DTC
Participant in addition to any obligations that it undertakes hereunder or in
accordance with the Trust Agreements.
(d) Each Authorized Participant will maintain records of all sales and
redemptions of Holding Shares or Tradeable Shares made by or through it and
will furnish copies of such records to the Depositor upon the reasonable
request of the Depositor.
Section 11. Indemnification.
(a) Each Authorized Participant, individually and severally, hereby
indemnifies and holds harmless the Paired Holding Trusts, the Tradeable Trusts,
the Trustee, the Administrative Agent, the Depositor, their respective direct
or indirect affiliates (as defined below) and their respective directors,
officers, managers, members, employees and agents, and each person, if any, who
controls such persons within the meaning of Section 15 of the Securities Act
(each, an "AP Indemnified Party") from and against any losses, liabilities,
damages, costs and expenses (including attorney's fees and the reasonable cost
of investigation) incurred by such AP Indemnified Party as a result of or in
connection with: (i) any breach by such Authorized Participant of any
provisions of this Participants Agreement, including its representations,
warranties and covenants, (ii) any failure on the part of such Authorized
Participant to perform any of its obligations set forth in this Participants
Agreement, (iii) any failure by such Authorized Participant to comply with
applicable laws and the rules and regulations of self-regulatory organizations,
(iv) any actions of such AP Indemnified Party in reliance upon any instructions
issued in accordance with the Procedures believed by the AP Indemnified Party
to be genuine and to have been given by such Authorized Participant, or (v) (A)
any representation by such Authorized Participant, its employees or its agents
or other representatives about any type of MACRO Shares or any AP Indemnified
Party that is not consistent with the then-current Prospectuses made in
connection with the offer or the solicitation of an offer to buy or sell any
type of MACRO Shares and (B) any untrue statement or alleged untrue statement
of a material fact contained in any Participant Written Communication described
in Section 15(b) herein or any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading to the extent that such statement or omission relates to the
MACRO Shares or any AP Indemnified Party, unless, in either case, such
representation, statement or omission was made or included by the Authorized
Participant at the written direction of the Depositor or is based upon any
omission or alleged omission by the Depositor to state a material fact in
connection with such representation, statement or omission necessary to make
such representation, statement or omission not misleading.
(b) The Paired Holding Trusts, on behalf of themselves and their
related Tradeable Trusts, hereby agree to indemnify and hold harmless,
severally and not jointly, each Authorized Participant, its respective
subsidiaries, affiliates, directors, officers, employees and agents, and each
person, if any, who controls such persons within the meaning of Section 15 of
the Securities Act (each, a "Trust Indemnified Party") from and against any
losses, liabilities, damages, costs and expenses (including reasonable
attorneys' fees) incurred by such Trust Indemnified Party as a result of (i)
any breach by a MACRO Trust of any provision of this Participants Agreement
that relates to a MACRO Trust, (ii) any failure on the part of a MACRO Trust to
perform any of its obligation set forth in this Participants Agreement or (iii)
any untrue statement or alleged untrue statement of a material fact contained
in the Prospectuses as originally filed with the SEC or in any amendment
thereof, or in any amendment thereof or supplement thereto, or arising out of
or based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except those statements in the Prospectuses based on information
furnished in writing by or on behalf of the Authorized Participant expressly
for use in the Prospectuses.
(c) This Section 11 shall not apply to the extent any such losses,
liabilities, damages, costs and expenses are incurred as a result of or in
connection with any gross negligence, bad faith or willful misconduct on the
part of the AP Indemnified Party or the Trust Indemnified Party, as the case
may be. The term "affiliate" in this Section 11 shall include, with respect to
any person, entity or organization, any other person, entity or organization
which directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such person, entity or
organization.
(d) If the indemnification provided for in this Section 11 is
unavailable to an AP Indemnified Party under Section 11(a) or a Trust
Indemnified Party under Section 11(b) or insufficient to hold an indemnified
party harmless in respect of any losses, liabilities, damages, costs and
expenses referred to therein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, liabilities, damages, costs and expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by a Paired Holding
Trust, on the one hand, and by the Authorized Participant, on the other hand,
from the services provided hereunder or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of a Paired Holding Trust, on the one hand,
and of the Authorized Participant, on the other hand, in connection with, to
the extent applicable, the statements or omissions which resulted in such
losses, liabilities, damages, costs and expenses, as well as any other relevant
equitable considerations. The relative benefit of a Paired Holding Trust shall
be deemed to be in the same proportion as the total net proceeds from the
offering (after deducting expenses) received by that Paired Holding Trust. To
the extent applicable, the relative fault of a Paired Holding Trust and their
related Tradeable Trusts, on the one hand, and of the Authorized Participant,
on the other hand, shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by that trust or
by the Authorized Participant and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
liabilities, damages, costs and expenses referred to in this Section 11(d)
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any action, suit or proceeding (each, a "Proceeding") related to such
losses, liabilities, damages, costs and expenses.
(e) Each Paired Holding Trust and each Authorized Participant agree
that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in Section 11(d) above. Each Authorized Participant shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Paired Holding Shares or Tradeable Shares, as applicable, created by the
Authorized Participant and distributed to the public exceeds the amount of any
damage which the Authorized Participant has otherwise been required to pay by
reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution provisions contained in this
Section 11 shall remain in full force and effect regardless of any
investigation made by or on behalf of an Authorized Participant, its partners,
stockholders, members, directors, officers, employees and or any person
(including each partner, stockholder, member, director, officer or employee of
such person) who controls an Authorized Participant within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on
behalf of each of the Paired Holding Trusts, its managers, members, officers,
employees or any person who controls the Paired Holding Trusts within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and shall survive any termination of this Participants Agreement. Each Paired
Holding Trust and each Authorized Participant agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of a
Paired Holding Trust, against the Trustee or the Depositor, in connection with
the issuance and sale of the Paired Holding Shares or Tradeable Shares or in
connection with the Registration Statement or the Prospectuses.
(g) Pursuant to the Holding Trust Agreements, each Paired Holding
Trust hereby agrees jointly and severally to pay any Trust Indemnified Party
such amounts when due under this Section 11 (including any amount in
contribution thereof that may be owed to such Trust Indemnified Party pursuant
to this Section 11), and to pay any and all expenses (including reasonable and
documented counsel fees and expenses) incurred by the Trust Indemnified Party
in enforcing its rights under this Section 11(g).
Section 12. Limitation of Liability.
(a) None of the Depositor, the Trustee, the Administrative Agent or
the Authorized Participant shall be liable to each other or to any other
Person, including any AP Indemnified Party or any other person claiming by,
through or on behalf of an Authorized Participant, for any losses, liabilities,
damages, costs or expenses arising out of any mistake or error in data or other
information provided to any of them by any of the others or any other person or
out of any interruption or delay in the electronic means of communications used
by them.
(b) Tax Liability. Each Authorized Participant shall be responsible
for the payment of any transfer tax, sales or use tax, stamp tax, recording
tax, value added tax and any other similar tax or government charge applicable
to (i) the creation or redemption of any MACRO Unit or (ii) the creation or
redemption of Tradeable Shares made pursuant to this Participants Agreement,
regardless of whether or not such tax or charge is imposed directly on each
Authorized Participant. To the extent the Trustee, the Administrative Agent,
the Depositor, the Paired Holding Trusts or the Tradeable Trusts are required
by law to pay any such tax or charge, the Authorized Participant agrees to
promptly indemnify such party for any such payment, together with any
applicable penalties, additions to tax or interest thereon.
Section 13. Acknowledgment. Each Authorized Participant acknowledges
receipt of a copy of (i) the Trust Agreements, (ii) the current Up-MACRO
Prospectus and (iii) the current Down-MACRO Prospectus and represents that it
has reviewed and understands such documents.
Section 14. Effectiveness and Termination. Upon the execution of this
Participants Agreement by the parties hereto, this Participants Agreement shall
become effective in this form as of the date first set forth above, and may be
terminated at any time by any party upon thirty (30) days' prior written notice
to the other parties unless earlier terminated: (i) in accordance with Section
2(a), (ii) upon notice to the Authorized Participant by the Trustee in the
event of a breach by the Authorized Participant of this Participants Agreement
or the Procedures described or incorporated herein, (iii) immediately in the
circumstances described in Section 21(j), or (iv) at such time as the Paired
Holding Trusts are terminated pursuant to the Holding Trust Agreements.
Section 15. Marketing Materials; Representations Regarding Paired
Holding Shares; Identification in Registration Statement.
(a) Each Authorized Participant represents, warrants and covenants
that, (i) without the prior written consent of the Depositor, such Authorized
Participant will not make, or permit any of its representatives to make, any
representations concerning the Paired Holding Shares, the Tradeable Shares or
any AP Indemnified Party other than representations contained (A) in the
then-current Prospectuses, (B) in printed information approved by the Depositor
as information supplemental to such Prospectuses or (C) in any promotional
materials or sales literature furnished to such Authorized Participant by the
Depositor, and (ii) such Authorized Participant will not furnish or cause to be
furnished to any person or display or publish any information or material
relating to the Paired Holding Shares, the Tradeable Shares, any AP Indemnified
Person, the Paired Holding Trusts or the Tradeable Trusts that is not
consistent with the Prospectuses. Copies of the then current Prospectuses and
any such printed supplemental information will be supplied by the Depositor to
the Authorized Participant in reasonable quantities upon request.
(b) Notwithstanding the foregoing, each Authorized Participant may
without the written approval of the Depositor prepare and circulate to one or
more of its potential investors one or more "written communications" (as
defined under Rule 405 under the Securities Act) containing no more than the
following: information contemplated by Rule 134 under the Securities Act ("Rule
134 Information") and information included in the Prospectuses (a "Participant
Free Writing Prospectus", and together with Rule 134 Information, the
"Participant Written Communication").
(c) Each Authorized Participant severally represents, warrants and
agrees with the Trustee, the Administrative Agent and the Depositor that:
(i) each Participant Written Communication prepared by it
will not, as of the date such Participant Written Communication was
conveyed or delivered to any prospective purchaser of MACRO Shares,
include any untrue statement of a material fact or omit any material
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that no Authorized Participant makes such
representation, warranty or agreement to the extent such misstatements
or omissions were the result of any inaccurate information which was
included in the Prospectuses or any written information furnished to
the related Authorized Participant by the Trustee, the Administrative
Agent and the Depositor expressly for use therein, which information
was not corrected by information subsequently filed with the
Commission or by such information subsequently delivered by the
Trustee, the Administrative Agent or the Depositor to the related
Authorized Participant prior to the time of use of such Participant
Written Communication;
(ii) each Rule 134 Information prepared by it shall contain a
legend substantially in the form of and in compliance with Rule 134(b)
or (d) of the Securities Act, as applicable, and shall otherwise
conform to any requirements of Rule 134 under the Securities Act;
(iii) each Participant Free Writing Prospectus prepared by it
shall contain a legend substantially in the form of and in compliance
with Rule 433(c)(2)(i) of the Securities Act, and shall otherwise
conform to any requirements for "Free Writing Prospectus" (as defined
under Rule 405 under the Securities Act) under the Securities Act; and
(iv) each Participant Written Communication prepared by it
shall be delivered to the Trustee, the Administrative Agent and the
Depositor no later than the time of first use and, unless otherwise
agreed to by the Trustee, the Administrative Agent, the Depositor and
the Authorized Participant, such delivery shall occur no later than
the close of business for the Depositor (New York City time) on the
date of first use; provided, however, if the date of first use is not
a Business Day, such delivery shall occur no later than the close of
business for the Depositor (New York City time) on the first Business
Day preceding such date of first use.
(d) Each Authorized Participant severally represents and agrees (i)
that it did not enter into any contract of sale for any MACRO Share prior to
the time the initial time of sale as determined by the Depositor (the "Initial
Time of Sale") and (ii) that it will, at any time that such Authorized
Participant is acting as an "underwriter" (as defined in Section 2(a)(11) of
the Securities Act) with respect to any type of MACRO Share, deliver to each
investor to whom the MACRO Shares are offered a copy of the then-current
Prospectuses as required under the Securities Act.
(e) Each Authorized Participant hereby agrees that, for the term of
this Participants Agreement, the Depositor may deliver the then-current
Prospectuses, and any supplements or amendments thereto or recirculation
thereof, to such Authorized Participant in Portable Document Format ("PDF") via
electronic mail in lieu of delivering the Prospectuses in paper form. Each
Authorized Participant may revoke the foregoing agreement at any time by
delivering written notice to the Depositor and the Administrative Agent and,
whether or not such agreement is in effect, each Authorized Participant may, at
any time, request reasonable quantities of the Prospectuses, and any
supplements or amendments thereto or recirculation thereof, in paper form from
the Depositor. Each Authorized Participant acknowledges that it has the
capability to access, view, save and print material provided to it in PDF and
that it will incur no appreciable extra costs by receiving the Prospectuses in
PDF instead of in paper form.
(f) For as long as this Participants Agreement is effective, each
Authorized Participant agrees to be identified as an authorized participant of
the Paired Holding Trusts and the Tradeable Trusts (i) in the section of the
Prospectuses included within the Registration Statements entitled "Plan of
Distribution" and in any other section as may be required by the SEC and (ii)
on any website relating to the Paired Holding Trusts or the Tradeable Trusts.
Section 16. Certain Covenants of the Depositor. The Depositor
covenants and agrees:
(a) to advise the Authorized Participant promptly of the happening of
any event during the term of this Participants Agreement which could require
the making of any change in the Prospectuses then being used so that the
Prospectuses would not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading, and, during
such time, to prepare and furnish, at the expense of the Paired Holding Trusts,
to each Authorized Participant promptly such amendments or supplements to such
Prospectuses as may be necessary to reflect any such change;
(b) to deliver a certification by a duly authorized officer of the
Depositor in the form attached hereto as EXHIBIT E to each Authorized
Participant, upon the occurrence of (i) an amendment to any of the Registration
Statements or the Prospectuses by the filing of a post-effective amendment,
(ii) the filing of a new Registration Statement to register additional Paired
Holding Shares in reliance on Rule 429 of the Securities Act, or (iii)
incorporated by reference of new financial information into the Registration
Statements or the Prospectuses. In addition, any certificate signed by any
officer of the Depositor and delivered to each Authorized Participant or
counsel for each Authorized Participant pursuant hereto shall be deemed to be a
representation and warranty by the Depositor as to matters covered thereby to
each Authorized Participant;
(c) upon (i) amending any of the Registration Statements or (ii) the
filing and effectiveness of a new Registration Statement to register additional
Paired Holding Shares or Tradeable Shares in reliance on Rule 429 of the
Securities Act, to furnish to each Authorized Participant, an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Depositor, addressed
to each Authorized Participant and dated such dates substantially in the form
of Exhibit F attached hereto.
(d) to deliver letters from the MACRO Trust's accountants, dated as of
the date of such events below, that are addressed to each Authorized
Participant, certified independent public accountants and stating in effect
that they have performed certain specified procedures as a result of which they
have determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the MACRO Trusts)
set forth in the Prospectuses, agrees with the accounting records of the MACRO
Trusts, excluding any questions of legal interpretation, upon the occurrence of
(i) an amendment to any of the Registration Statements or the Prospectuses by
the filing of a post-effective amendment or (ii) incorporated by reference of
new financial information into the Registration Statements or the Prospectuses;
and
(e) [to cause each of the MACRO Trusts to file a post-effective
amendment to their respective Registration Statements no less frequently than
once per calendar quarter on or about the same time that such MACRO Trusts file
a quarterly or annual report pursuant to Section 13 or 15(d) of the Exchange
Act (including the information contained in such report), until such time as
the MACRO Trusts' reports filed pursuant to Section 13 or 15(d) of the Exchange
Act are incorporated by reference in the Registration Statement.]
Section 17. Addition and Removal of Authorized Participants.
(a) On any Business Day, any Person who satisfied the requirements set
forth in Section 2 of this Participants Agreement may notify the Administrative
Agent and the Depositor of its desire to be added to Schedule I of this
Participants Agreement. The Administrative Agent shall review such Person's
request, and if such Person is acceptable to the Depositor, the Administrative
Agent shall prepare, or cause to be prepared, a supplement to this Participants
Agreement under which such Person will be added to Schedule I attached hereto
and pursuant to which such Person shall assume the role, responsibilities and
privileges of an Authorized Participant as set forth in this Participants
Agreement. Upon instruction for the Depositor, each of the Administrative Agent
and Trustee hereby acknowledge and agree that it will execute and deliver such
supplement to the extent permitted by law. Furthermore, each Authorized
Participant acknowledges and agrees that its execution and delivery of such
supplement shall not be required to bind any future Authorized Participant to
the terms and conditions set forth herein. The Trustee shall use commercially
reasonable efforts to submit on behalf of such Person an application to create
an account at DTC pursuant to which it can effectuate creations, redemptions
and/or exchanges in accordance with Attachment A attached hereto. Upon an
approval from DTC and the execution and delivery of such supplement by such
Person, the Administrative Agent, the Trustee and the Depositor, such Person
shall be deemed to be an Authorized Participant under this Participants
Agreement. To the extent required under the Securities Exchange Act of 1934, as
amended, the Trustee shall file within four (4) Business Days of executing a
supplement a Form 8-K disclosing the addition of an Authorized Participant.
(b) Upon five (5) Business Days' written notice, an Authorized
Participant may terminate its role with respect to this Participants Agreement.
The Administrative Agent shall prepare, or cause to be prepared, an amendment
to Schedule I under which such Authorized Participant shall be removed from
such schedule. The Administrative Agent, the Depositor, the Trustee and such
Administrative Agent shall execute such amendment upon its preparation and
delivery. Each Authorized Participant acknowledges and agrees that the
execution and delivery by it of such amendment is not required for the removal
of an Authorized Participant from the Schedule. To the extent required under
the Securities Exchange Act of 1934, as amended, the Trustee shall file within
four (4) Business Days of executing an amendment a Form 8-K disclosing the
removal of such Authorized Participant.
Section 18. Third Party Beneficiaries. Each AP Indemnified Party, to
the extent it is not a party to this Participants Agreement, is a third-party
beneficiary of this Participants Agreement (each, a "Third Party Beneficiary")
and may proceed directly against each Authorized Participant (including by
bringing proceedings against each Authorized Participant in its own name) to
enforce any obligation of each Authorized Participant under this Participants
Agreement which directly or indirectly benefits such Third Party Beneficiary.
Section 19. Force Majeure. No party to this Participants Agreement
shall incur any liability for any delay in performance, or for the
non-performance, of any of its obligations under this Participants Agreement by
reason of any cause beyond its reasonable control. This includes any act of God
or war or terrorism, any breakdown, malfunction or failure of transmission in
connection with or other unavailability of any wire, communication or computer
facilities, any transport, port or airport disruption, industrial action, acts
and regulations and rules of any governmental or supra-national bodies or
authorities or regulatory or self-regulatory organization or failure of any
such body, authority or organization for any reason, to perform its
obligations.
Section 20. Ambiguous Instructions. If an Order Form otherwise in good
form contains order terms that differ from the information provided in the
telephone call at the time of issuance of the applicable order number, the
Administrative Agent will attempt to contact one of the Authorized Persons of
the Authorized Participant to request confirmation of the terms of the Order.
If an Authorized Person confirms the terms as they appear in the Order, then
the Order will be accepted and processed. If an Authorized Person contradicts
the Order terms, the Order will be deemed invalid, and a corrected Order must
be received by the Administrative Agent, as the case may be, not later than
within fifteen (15) minutes of such contact with the Authorized Person. If the
Administrative Agent is not able to contact an Authorized Person, then the
Order shall be accepted and processed in accordance with its terms
notwithstanding any inconsistency from the terms of the telephone information.
In the event that an Order contains terms that are illegible, the Order will be
deemed invalid and the Administrative Agent will attempt to contact one of the
Authorized Persons of each Authorized Participant to request retransmission of
the Order. A corrected Order must be received by the Administrative Agent not
later than within fifteen (15) minutes of such contact with the Authorized
Person. The Administrative Agent will incur no liabilities under this Section
20.
Section 21. Miscellaneous.
(a) Amendment and Modification. This Participants Agreement, the
Procedures attached hereto and the Exhibits hereto may be amended, modified or
supplemented by the Trustee, the Administrative Agent and the Depositor,
without consent of any holder of the MACRO Shares or the Authorized
Participants; provided, however, that the Trustee will not be required to enter
into any amendment or modification of this Participants Agreement that would
(i) alter the status of any Paired Holding Trust as a partnership or any of the
Tradeable Trusts as grantor trust for federal income tax purposes or (ii) cause
any Trust to be required to register as an investment company under the
Investment Company Act of 1940, as amended, or (iii) cause or potentially cause
the assets of any Trust to constitute "plan assets" within the meaning of ERISA
unless (in each case) it has obtained a favorable opinion of counsel at the
expense of the applicable trust to the effect that such amendment would not
have such effect. After the amendment, modification or supplement has been
agreed to, the Administrative Agent shall mail a copy of the proposed
amendment, modification or supplement to each Authorized Participant. The
Administrative Agent may also deliver such amendment, modification or
supplement thereto by electronic mail; provided, however, that physical
delivery via the United States postal system or similar system shall be
required. For the purposes of this Participants Agreement, mail will be deemed
received by the recipient thereof on the third (3rd) day following the deposit
of such mail into the United States postal system or similar system. Within ten
(10) calendar days after its deemed receipt, the amendment, modification or
supplement will become part of this Participants Agreement, the Attachments or
the Exhibits, as the case may be, in accordance with its terms. If at any time
there is any material amendment, modification or supplement of any Participants
Agreement (other than this Participants Agreement), the Administrative Agent
will promptly mail a copy of such amendment, modification or supplement to each
Authorized Participant.
Notwithstanding the foregoing, any amendment, modification or
supplement to any creation or redemption procedural item in the Procedures
shall be made in accordance with the terms of such agreements. After the
amendment, modification or supplement has been agreed to, the Trustee will mail
a copy of the amendment, modification or supplement to each Authorized
Participant.
(b) Waiver of Compliance. Any failure of any of the parties to comply
with any obligation, covenant, agreement or condition herein may be waived by
the party entitled to the benefits thereof only by a written instrument signed
by the party granting such waiver, but any such written waiver, or the failure
to insist upon strict compliance with any obligation, covenant, agreement or
condition herein, shall not operate as a waiver of, or estoppel with respect
to, any subsequent or other failure.
(c) Notices. Except as otherwise specifically provided in this
Participants Agreement, all notices required or permitted to be given pursuant
to this Participants Agreement shall be given in writing and delivered by
personal delivery, by postage prepaid registered or certified United States
first class mail, return receipt requested, by nationally recognized overnight
courier (delivery confirmation received) or by telex, telegram, telephonic
facsimile, electronic mail or similar means of same day delivery (transmission
confirmation received), with a confirming copy regular mail, postage prepaid.
Unless otherwise notified in writing, all notices to any MACRO Trusts shall be
given or sent to the Administrative Agent, with copies to the Trustee. All
notices shall be directed as follows:
If to the Trustee:
INVESTORS BANK AND TRUST COMPANY
Attention: [ ]
Telephone: ( )
Facsimile: ( )
If to the Depositor:
MACRO Securities Depositor, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, III
Telephone: (000) 000-0000
Facsimile: ( )
If to the Administrative Agent:
CLAYMORE SECURITIES, INC.
Attention: [ ]
Telephone: ( )
Facsimile: ( )
If to each Authorized Participant:
The information listed on Schedule I attached hereto;
or to such other address as any of the parties hereto shall have communicated
in writing to the remaining parties in compliance with the provisions hereof.
(d) Successors and Assigns. This Participants Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
(e) Assignment. Neither this Participants Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party
without the prior written consent of the other parties, except that any entity
into which a party hereto may be merged or converted or with which it may be
consolidated or any entity resulting from any merger, conversion or
consolidation to which such party hereunder shall be a party, or any entity
succeeding to all or substantially all of the business of the party, shall be
the successor of the party under this Participants Agreement. The party
resulting from any such merger, conversion, consolidation or succession shall
notify the other parties hereto of the change. Any purported assignment in
violation of the provisions hereof shall be null and void. Notwithstanding the
foregoing, this Participants Agreement shall be automatically assigned to any
successor Trustee, Administrative Agent or Depositor at such time such
successor qualifies as a successor Trustee, Administrative Agent or Depositor
under the terms of the Trust Agreements.
(f) Governing Law; Consent to Jurisdiction. This Participants
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (regardless of the laws that might otherwise govern under
applicable New York conflict of laws principles other than Section 5-1401 et
seq. of the General Obligations Law of the State of New York) as to all
matters, including matters of validity, construction, effect, performance and
remedies. Each party hereto irrevocably consents to the jurisdiction of the
courts of the State of New York and of any federal court located in the Borough
of Manhattan in such state in connection with any action, suit or other
proceeding arising out of or relating to this Participants Agreement or any
action taken or omitted hereunder, and waives any claim of forum non conveniens
and any objections as to laying of venue. Each party further waives personal
service of any summons, complaint or other process and agrees that service
thereof may be made by certified or registered mail directed to such party at
such party's address for purposes of notices hereunder.
(g) Counterparts. This Participants Agreement may be executed in one
or more counterparts, each of which will be deemed to be an original copy of
this Participants Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement, and it shall not be necessary
in making proof of this Participants Agreement as to any party hereto to
produce or account for more than one such counterpart executed and delivered by
such party.
(h) Interpretation. The article and section headings contained in this
Participants Agreement are solely for the purpose of reference, are not part of
the agreement of the parties and shall not in any way affect the meaning or
interpretation of this Participants Agreement.
(i) Entire Agreement. This Participants Agreement and the Trust
Agreements, along with any other agreement or instrument delivered pursuant to
this Participants Agreement and the Trust Agreements, supersede all prior
agreements and understandings between the parties with respect to the subject
matter hereof, provided, however, that each Authorized Participant shall not be
deemed by this provision to be a party to the Trust Agreements.
(j) Severance. If any provision of this Participants Agreement is held
by any court or any act, regulation, rule or decision of any other governmental
or supra-national body or authority or regulatory or self-regulatory
organization to be invalid, illegal or unenforceable for any reason, it shall
be invalid, illegal or unenforceable only to the extent so held and shall not
affect the validity, legality or enforceability of the other provisions of this
Participants Agreement and this Participants Agreement will be construed as if
such invalid, illegal, or unenforceable provision had never been contained
herein, unless the Depositor determines in its discretion, after consulting
with the Trustee and the Administrative Agent, that the provision of this
Participants Agreement that was held invalid, illegal or unenforceable does
affect the validity, legality or enforceability of one or more other provisions
of this Participants Agreement, and that this Participants Agreement should not
be continued without the provision that was held invalid, illegal or
unenforceable, and in that case, upon the Depositor's notification of the
Trustee and the Administrative Agent of such a determination, this Participants
Agreement shall immediately terminate and the Administrative Agent will so
notify each Authorized Participant immediately.
(k) No Strict Construction. The language used in this Participants
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied against
any party.
(l) Survival. Section 11 (Indemnification) and Section 18 (Third Party
Beneficiaries) hereof shall survive the termination of this Participants
Agreement.
(m) Other Usages. The following usages shall apply in interpreting
this Participants Agreement: (i) references to a governmental or
quasi-governmental agency, authority or instrumentality shall also refer to a
regulatory body that succeeds to the functions of such agency, authority or
instrumentality; and (ii) "including" means "including, but not limited to."
[Signature Page Follows]
IN WITNESS WHEREOF, each Authorized Participant, the Depositor, the
Administrative Agent and the Trustee have caused this Participants Agreement to
be executed by their duly authorized representatives as of the date first set
forth above.
INVESTORS BANK AND TRUST COMPANY
not in its individual capacity, but solely
as the Trustee for the Paired Holding
Trusts and the Tradeable Trusts
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address:
--------------------------------
Telephone:
--------------------------------
Facsimile:
--------------------------------
CLAYMORE SECURITIES, INC.
not in its individual capacity, but solely
as Administrative Agent of the Paired
Holding Trusts and the Tradeable Trusts
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address:
---------------------------------
Telephone:
---------------------------------
Facsimile:
---------------------------------
MACRO SECURITIES DEPOSITOR, LLC
Depositor of the Paired Holding Trusts and
the Tradeable Trusts
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: [ ]
[Name of Authorized Participant]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address: [ ]
Telephone: [ ]
Facsimile: [ ]
[Name of Authorized Participant]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address: [ ]
Telephone: [ ]
Facsimile: [ ]
[Name of Authorized Participant]
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: [ ]
Telephone: [ ]
Facsimile: [ ]
[Name of Authorized Participant]
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: [ ]
Telephone: [ ]
Facsimile: [ ]
SCHEDULE I
[LIST OF AUTHORIZED PARTICIPANTS]
EXHIBIT A
CLAYMORE MACROSHARES OIL UP HOLDING TRUST
CLAYMORE MACROSHARES OIL DOWN HOLDING TRUST
CLAYMORE MACROSHARES OIL UP TRADEABLE TRUST
CLAYMORE MACROSHARES OIL DOWN TRADEABLE TRUST
FORM OF CERTIFIED AUTHORIZED PERSONS OF AUTHORIZED PARTICIPANT
The following are the names, titles and signatures of all persons
(each, an "Authorized Person") authorized to give instructions relating to any
activity contemplated by the Participants Agreement or any other notice,
request or instruction on behalf of the Authorized Participant pursuant to the
Participants Agreement.
Authorized Participant: _______________________ (the "Authorized Participant")
Name: Name:
------------------------------ ---------------------------
Title: Title:
----------------------------- --------------------------
Signature: Signature:
------------------------- ----------------------
Name: Name:
------------------------------ --------------------------
Title: Title:
----------------------------- --------------------------
Signature: Signature:
------------------------- ----------------------
The undersigned, [name], [title] of [company], does hereby certify
that the persons listed above have been duly elected to the offices set forth
beneath their names, that they presently hold such offices, that they have been
duly authorized to act as Authorized Persons pursuant to the Participants
Agreement, dated as of [date], by and among the Authorized Participant, the
Trustee, the Administrative Agent and the Depositor, and that their signatures
set forth above are their own true and genuine signatures.
IN WITNESS WHEREOF, I, the undersigned, a duly authorized officer of
the Authorized Participant hereby execute this certificate as of the date first
set forth above.
---------------------------------
NAME OF AUTHORIZED PARTICIPANT
By:
------------------------------
Name:
Title:
Subscribed and sworn to before me
this ____ day of ____________, 20___
By:
-------------------------
Name:
--------------------------
Title:
-------------------------
Date:
--------------------------
Notary Public:
------------------
EXHIBIT B
FORM OF
CLAYMORE MACROSHARES OIL
CREATION ORDER
Authorized Participant: (the "Authorized Participant")
---------------------
Date:
--------------------
Submission Number:
----------------------
PIN Number:
-----------------------------
Number of MACRO Units to be Issued:
Does the Authorized Participant wants its Up-MACRO Holding Shares to be
exchanged into Up-MACRO Tradeable Shares?
------- -------
Yes No
The Number of Up-MACRO Holding Shares to be exchanged into Up-MACRO Tradeable
Shares: ______________
Does the Authorized Participant wants its Down-MACRO Holding Shares to be
exchanged into Down-MACRO Tradeable Shares?
------- -------
Yes No
The Number of Down-MACRO Holding Shares to be exchanged into Down-MACRO
Tradeable Shares: ________________
All Creation Orders are subject to the terms and conditions of the
applicable Trust Agreements as currently in effect and the Participants
Agreement, dated as of [ ] (the "Participants Agreement"), among the Authorized
Participant, the Trustee, the Administrative Agent and the Depositor named
therein.
The Authorized Participant by executing this Creation Order hereby
makes each of the representations and warranties set forth in the Participants
Agreement as of the date hereof and as of the settlement date related to this
Purchase Order.
The undersigned does hereby certify as of the date set forth below
that he/she is an Authorized Person under the Participants Agreement and that
he/she is authorized to deliver this Creation Order Form to the Administrative
Agent and the Trustee on behalf of the Authorized Participant.
The Authorized Participant, by placing this order, acknowledges that a
"distribution" as such term is used in the Securities Act of 1933, as amended
(the "Securities Act"), may be occurring. The Authorized Participant is
cautioned that some of its activities may result in its being deemed a
participant in a distribution which would render it a statutory underwriter and
subject it to the prospectus-delivery requirements and the liability provisions
of the Securities Act. The Authorized Participant should review the "Plan of
Distribution" portion of the Prospectuses and consult with its own counsel
prior to placing this Creation Order.
IN WITNESS WHEREOF, I, the undersigned, an Authorized Person of the
Authorized Participant, hereby execute this Creation Order as of the date set
forth below.
NAME OF AUTHORIZED PARTICIPANT
By:
-----------------------------
Name:
Title:
Date:
--------------------------
EXHIBIT C
FORM OF
CLAYMORE MACROSHARES OIL EXCHANGE ORDER
Authorized Participant: (the "Authorized Participant")
------------------------
Date:
-----------------------------
Submission Number:
-------------------------
PIN Number:
------------------------------
Number of Up-MACRO Holding Shares to be Exchanged into Up-MACRO Tradeable
Shares:
_______________ (Number) ______ (check if not applicable)
Number of Down-MACRO Holding Shares to be Exchanged into Down-MACRO Tradeable
Shares:
_______________ (Number) ______ (check if not applicable)
Number of Up-MACRO Shares Tradeable to be Exchanged into Up-MACRO Holding
Shares:
_______________ (Number) ______ (check if not applicable)
Number of Down-MACRO Tradeable Shares to be Exchanged into Down-MACRO Holding
Shares:
______________ (Number) ______ (check if not applicable)
CUSIP Number(s):
--------------------------- ----------------------------------------
Up -MACRO Holding Shares Down -MACRO Holding Shares
--------------------------- ----------------------------------------
Up-MACRO Tradeable Shares Down -MACRO Tradeable Shares
All Exchange Orders are subject to the terms and conditions of the
applicable Trust Agreements as currently in effect and the Participants
Agreement, dated as of [ ] (the "Participants Agreement"), among the Authorized
Participant, the Trustee, the Administrative Agent and the Depositor named
therein.
The Authorized Participant by executing this Exchange Order hereby
makes each of the representations and warranties set forth in the Participants
Agreement as of the date hereof and as of the settlement date related to this
Exchange Order.
The undersigned does hereby certify as of the date set forth below
that he/she is an Authorized Person under the Participants Agreement and that
he/she is authorized to deliver this Exchange Order Form to the Trustee on
behalf of the Authorized Participant.
The Authorized Participant, by placing this order, acknowledges that a
"distribution" as such term is used in the Securities Act of 1933, as amended
(the "Securities Act"), may be occurring. The Authorized Participant is
cautioned that some of its activities may result in its being deemed a
participant in a distribution which would render it a statutory underwriter and
subject it to the prospectus-delivery requirements and the liability provisions
of the Securities Act. The Authorized Participant should review the "Plan of
Distribution" portion of the Prospectuses and consult with its own counsel
prior to placing this Exchange Order.
IN WITNESS WHEREOF, I, the undersigned, an Authorized Person of the
Authorized Participant, hereby execute this Exchange Order as of the date set
forth below.
NAME OF AUTHORIZED PARTICIPANT
By:
-----------------------------
Name:
Title:
Date:
---------------------------
EXHIBIT D
FORM OF
CLAYMORE MACROSHARES OIL REDEMPTION ORDER
Authorized Participant: (the "Authorized Participant")
-------------------------
Date:
-----------------------------
Submission Number:
-----------------------------
PIN Number:
-------------------------------
Number of MACRO Units to be Redeemed:
Number of Up-MACRO Holding Shares to be Redeemed:
______________________ (Number) ________ (check if not applicable)
Number of Down-MACRO Holding Shares to be Redeemed:
______________________ (Number) ________ (check if not applicable)
Up-MACRO Tradeable Shares to be Exchanged into Up-MACRO Holding Shares and
immediately redeemed:
_____________________ (Number) _______ (check if not applicable)
The Number of Up-MACRO Tradeable Shares to be exchanged into Up-MACRO Holding
Shares and immediately to be redeemed:
___________________ (Number) ________ (check if not applicable)
CUSIP Numbers:
------------------------------------ -----------------------------------
Up -MACRO Holding Shares Down -MACRO Holding Shares
------------------------------------- -----------------------------------
Up-MACRO Tradeable Shares Down -MACRO Tradeable Shares
All Redemption Orders are subject to the terms and conditions of the
applicable Trust Agreements as currently in effect and the Participants
Agreement, dated as of [ ] (the "Participants Agreement"), among the Authorized
Participant, the Trustee, the Administrative Agent and the Depositor named
therein.
The Authorized Participant by executing this Redemption Order hereby
makes each of the representations and warranties set forth in the Participants
Agreement as of the date hereof and as of the settlement date related to this
Redemption Order.
The undersigned does hereby certify as of the date set forth below
that he/she is an Authorized Person under the Participants Agreement and that
he/she is authorized to deliver this Redemption Order Form to the Trustee on
behalf of the Authorized Participant.
IN WITNESS WHEREOF, I, the undersigned, an Authorized Person of the
Authorized Participant, hereby execute this Redemption Order as of the date set
forth below.
NAME OF AUTHORIZED PARTICIPANT
By:
----------------------------
Name:
Title:
Date:
---------------------------
EXHIBIT E
MACRO SECURITIES DEPOSITOR, LLC
[month][date], [year]
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of MACRO Securities
Depositor, LLC, a Delaware limited liability company (the "Depositor"), and
pursuant to Section 15(d) of the Participants Agreement (the "Agreement"),
dated as of __________, 2006 by and among the parties listed on Schedule I
attached hereto (individually, an "Authorized Participant" and collectively,
the "Authorized Participants"), the Depositor, Investors Bank and Trust
Company, a Massachusetts trust company, not in its individual capacity but
solely (i) as trustee of the Claymore/MACROshares Oil Up Holding Trust (the
"Up-MACRO Holding Trust") (ii) as trustee of the Claymore/MACROshares Oil Down
Holding Trust (the "Down-MACRO Holding Trust" and together with the Up-MACRO
Holding Trust, the "Paired Holding Trusts"), (iii) as trustee of the
Claymore/MACROshares Oil Up Tradeable Trust (the "Up-MACRO Tradeable Trust"),
and (iv) as trustee of the Claymore/MACROshares Oil Down 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")
and Claymore Securities, Inc., not in its individual capacity but solely as
administrative agent of the MACRO Trusts (the "Administrative Agent"), hereby
certifies, based on his/her actual knowledge and acting solely in his/her
capacity as a duly authorized officer of the Depositor, that:
1. Each of the following representations and warranties of the Depositor
is true and correct in all material respects as of the date hereof:
(a) the Prospectuses do not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; each Registration Statement complies in all material
respects with the requirements of the Securities Act and each
Prospectus complies in all material respects with the
requirements of the Securities Act and any statutes,
regulations, contracts or other documents that are required to
be described in the applicable Prospectus or to be filed as
exhibits to the applicable Registration Statement have been so
described or filed; the conditions to the use of Form S-1 or
S-3, if applicable, have been satisfied; each Prospectus does
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however,
that the Depositor makes no warranty or representation with
respect to any statement contained in any Registration Statement
or any Prospectus in reliance upon and in conformity with
information concerning any Authorized Participant and furnished
in writing by or on behalf of any Authorized Participant to the
Depositor expressly for use in such Registration Statement or
such Prospectus; and neither the Depositor nor any person known
to the Depositor acting on behalf of the MACRO Trusts has
distributed nor will distribute any offering material other than
a Prospectus;
(b) each Paired Holding Trust has been duly formed and is validly
existing as a trust under the laws of the State of New York, as
described in the applicable Prospectus relating to such Paired
Holding Trust, and the Holding Trust Agreements authorize the
Trustee to issue and deliver the Paired Holding Shares to each
Authorized Participant pursuant to the Holding Trust Agreements
and the related Participants Agreement as contemplated in each
such Registration Statement and Prospectus;
(c) each Tradeable Trust has been duly formed and is validly
existing as a trust under the laws of the State of New York, as
described in the applicable Prospectus relating to such
Tradeable Trust, and the Tradeable Trust Agreements authorize
the Trustee to issue and deliver the applicable Tradeable Shares
to each Authorized Participant pursuant to the Tradeable Trust
Agreements and the related Participants Agreement as
contemplated in each such Registration Statement and Prospectus;
(d) the Depositor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the
State of Delaware, with full power and authority to conduct its
business as described in the applicable Prospectus, and has all
requisite power and authority to execute and deliver the
Participants Agreement;
(e) the Depositor is duly qualified and is in good standing in each
jurisdiction where the conduct of its business requires such
qualification; and each of the MACRO Trusts is not required to
so qualify in any jurisdiction;
(f) complete and correct copies of the Trust Agreements, and any and
all amendments, modifications and supplements thereto, have been
delivered to each Authorized Participant, and no changes thereto
have been made;
(g) the outstanding Paired Holding Shares have been duly and validly
issued and are fully paid and non-assessable and free of
statutory and contractual preemptive rights, rights of first
refusal and similar rights;
(h) the outstanding Tradeable Shares have been duly and validly
issued and are fully paid and non-assessable and free of
statutory and contractual preemptive rights, rights of first
refusal and similar rights;
(i) the Paired Holding Shares conform in all material respects to
the description thereof contained in the applicable Registration
Statement and Prospectus, and the holders of the Paired Holding
Shares will not be subject to personal liability by reason of
being such holders;
(j) the Tradeable Shares conform in all material respects to the
description thereof contained in the applicable Registration
Statement and Prospectus, and the holders of the Tradeable
Shares will not be subject to personal liability by reason of
being such holders;
(k) the Participants Agreement has been duly authorized, executed
and delivered by the Depositor and constitutes the valid and
binding obligations of the Depositor, enforceable against the
Depositor in accordance with its terms;
(l) the Depositor is not in breach or violation of or in default
under any of its respective constitutive documents, or any
agreement, mortgage, deed of trust, loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Depositor is a
party or by which any of its properties may be bound or
affected, and the execution, delivery and performance of the
Participants Agreement, the issuance and sale of Paired Holding
Shares and Tradeable Shares to each Authorized Participant party
to the Trust Agreements and the consummation of the transactions
contemplated thereto does not conflict with, result in any
breach or violation of or constitute a default under any of its
respective constitutive documents, the Trust Agreements, or any
agreement, mortgage, deed of trust, loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Depositor is a
party or by which the Depositor or any of its properties may be
bound or affected, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable
to the Depositor;
(m) no approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of Paired Holding Shares
or Tradeable Shares to any Authorized Participant under the
Trust Agreements and the related Participants Agreement or the
consummation by the Depositor of the transactions contemplated
hereunder other than registration of the Paired Holding Shares
and the Tradeable Shares under the Securities Act, which has
been effected, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in
which the Paired Holding Shares and Tradeable Shares are being
offered or under the rules and regulations of the National
Association of Securities Dealers (the "NASD");
(n) the Depositor has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in
order to conduct its respective business; the Depositor is not
in violation of, or in default under, or has received notice of
any proceedings relating to revocation or modification of, any
such license, authorization, consent or approval or any federal,
state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Depositor;
(o) except as set forth in the applicable Registration Statement and
Prospectus, there are no actions, suits, claims, investigations
or proceedings pending or threatened or contemplated to which
the Depositor is or would be a party or of which any of their
respective properties are or would be subject at law or in
equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency;
(p) [ ], whose report on the audited financial statements of the
MACRO Trusts are filed with the SEC as part of each Registration
Statement and each Form 10-K, are independent public accountants
as required by the Securities Act;
(q) the audited financial statement(s) included in each Prospectus,
together with the related notes and schedules, presents fairly
the financial position of each MACRO Trust as of the date
indicated and has been prepared in compliance with the
requirements of the Securities Act and in conformity with
generally accepted accounting principles; there are no financial
statements (historical or pro forma) that are required to be
included in each Registration Statement and each Prospectus that
are not included as required, and the MACRO Trusts do not have
any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not disclosed in
the applicable Prospectus;
(r) subsequent to the respective dates of each Prospectus, there has
not been (i) any material adverse change, or any development
involving a prospective material adverse change affecting the
Depositor or the MACRO Trusts, (ii) any transaction which is
material to the Depositor or the MACRO Trusts taken as a whole,
(iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by the Depositor or the
MACRO Trusts, which is material to the MACRO Trusts (other than
any action taken by a MACRO Trust relating to a subsequent
issuance, paired optional redemption or exchange or creation of
Tradeable Shares, and (iv) any change in the Paired Holding
Shares or Tradeable Shares purchased by each Authorized
Participant (collectively, a "Material Change") which has not
been the subject of a filing as required under the Exchange Act;
(s) each of the MACRO Trusts is not and, after giving effect to the
offering and sale of the Paired Holding Shares, will not be an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company
Act of 1940, as amended;
(t) all tax returns required to be filed by the MACRO Trusts have
been filed, and all taxes and other assessments of a similar
nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been
paid;
(u) any statistical and market-related data included in the
Prospectuses are based on or derived from sources that the
Depositor believes to be reliable and accurate, and the
Depositor has obtained the written consent (if such consent is
required) to the use of such data from such sources to the
extent required; and
(v) neither the Depositor, nor any of the Depositor's managers,
members, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security or asset of a MACRO
Trust to facilitate the sale or resale of the Paired Holding
Shares or Tradeable Shares; and there are no affiliations or
associations between any member of the NASD and any of the
Depositor's officers, managers or 5% or greater security
holders, except as set forth in the Prospectuses.
2. Each of the obligations of the Depositor to be performed by it on or
before the date hereof pursuant to the terms of the Trust Agreement,
and each of the provisions thereof to be complied with by the
Depositor on or before the date hereof, has been duly performed and
complied with in all material respects.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the applicable Trust Agreement, and if such defined
term is not set forth therein, then such defined terms shall have the meanings
assigned to such terms in the Participants Agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, I, a duly authorized officer of the Depositor, on
behalf of the Depositor, have caused this Officer's Certificate to be executed
as of the date first written above.
By:
--------------------------
Name:
Title:
I, _______________, in my capacity as [Vice President], hereby certify
that _______________ is the duly elected [President] of the Depositor, and that
the signature set forth immediately above is [his/her] genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first
set forth above.
By:
--------------------------
Name:
Title:
EXHIBIT F
FORM OF THE DEPOSITOR'S COUNSEL OPINION
ATTACHMENT A
PROCEDURES FOR THE
CLAYMORE MACROSHARES OIL TRUSTS
I. CREATION OF PAIRED HOLDING SHARES AND CREATION OF PAIRED HOLDING SHARES
AND CONCURRENT EXCHANGE TO TRADEABLE SHARES
Scope of Procedures and Overview
These procedures (the "Creation Procedures") describe the processes by
which an Authorized Participant (as defined below) may create one or more MACRO
units (as defined below), consisting of Claymore MACROshares Oil Up Holding
Shares (the "Up-MACRO Holding Shares") and Claymore MACROshares Oil Down
Holding Shares (the "Down-MACRO Holding Shares" and together with the Up-MACRO
Holding Shares, the "Paired Holding Shares" or each a "Holding Share") or
create one or more MACRO Units and exchange all or part of the Holding Shares
created into their respective Claymore MACROshares Oil Up Tradeable Shares (the
"Up-MACRO Tradeable Shares") and/or Claymore MACROshares Oil Down Tradeable
Shares (the "Down-MACRO Tradeable Shares" and together with the Up-MACRO
Tradeable Shares, the "Tradeable Shares", and, collectively with the Paired
Holding Shares, the "MACRO Shares"). The Paired Holding Shares constituting a
MACRO Unit and their related Tradeable Shares, if applicable, shall only be
issued in connection with the instructions set forth herein and in coordination
with Investors Bank and Trust Company, not in its individual capacity but
solely (i) as trustee (the "Up-MACRO Holding Trustee") of the Claymore
MACROshares Oil Up Holding Trust (the "Up-MACRO Holding Trust"), (ii) as
trustee (the "Down-MACRO Holding Trustee") of the Claymore MACROshares Oil Down
Holding Trust (the "Down-MACRO Holding Trust" and together with the Up-MACRO
Holding Trust, the "Paired Holding Trusts"), (iii) as trustee (the "Up-MACRO
Tradeable Trustee") of the Claymore MACROshares Oil Up Tradeable Trust (the
"Up-MACRO Tradeable Trust") and (iv) as trustee (the "Down-MACRO Tradeable
Trustee" and, in its various capacities under the applicable Trust Agreements,
the "Trustee") of the Claymore MACROshares Oil Down Tradeable Trust (the
"Down-MACRO Tradeable Trust" and together with the Up-MACRO Tradeable Trust,
the "Tradeable Trusts"; the Paired Holding Trusts and the Tradeable Trusts,
collectively, the "MACRO Trusts") and Claymore Securities, Inc., not in its
individual capacity but solely as administrative agent of the MACRO Trusts (the
"Administrative Agent").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Participants Agreement and if such defined term
is not set forth therein, then such defined term shall have the meaning
assigned to such term in either (i) the Claymore MACROshares Oil Up Holding
Trust Agreement, dated as of [ ], 2006 (the "Up-MACRO Holding Trust
Agreement"), among the Up-MACRO Holding Trustee, the Administrative Agent,
Claymore Securities, Inc., not in its individual capacity but as the Marketing
Agent (in such capacity, the "Marketing Agent") and MACRO Securities Depositor,
LLC (the "Depositor"), (ii) the Claymore MACROshares Oil Down Holding 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"), among the Down-MACRO Holding Trustee, the Administrative Agent,
the Marketing Agent and the Depositor, (iii) the Claymore MACROshares Oil Up
Tradeable Trust Agreement, dated as of [ ], 2006 (the "Up-MACRO Tradeable Trust
Agreement"), among the Down-MACRO Holding Trustee, the Administrative Agent,
the Marketing Agent and the Depositor or (iv) the Claymore MACROshares Oil Down
Tradeable Trust Agreement, dated as of [ ], 2006 (the "Down-MACRO Tradeable
Trust Agreement" and, together with the Up-MACRO Tradeable Trust Agreement, the
" Tradeable Trust Agreements", and, collectively with the Holding Trust
Agreements the "Trusts Agreements"), among the Down-MACRO Holding Trustee, the
Administrative Agent, the Marketing Agent and the Depositor.
The Paired Holding Shares may be created solely by the parties listed
on Schedule I attached to the Participants Agreement (each, an "Authorized
Participant"). The Paired Holding Shares may be created only in pairs of 50,000
Up-MACRO Holding Shares and 50,000 Down-MACRO Holding Shares (each such pair, a
"MACRO Unit"). The Holding Shares may be exchanged into their respective
Tradeable Shares concurrently with the creation of the Paired Holding Shares
solely by the instructions of Authorized Participants. In accordance with this
Participants Agreement, the Administrative Agent may cause the Trustee to
create additional Tradeable Shares in units of 50,000 Up-MACRO Tradeable Shares
or 50,000 Down-MACRO Tradeable Shares. The creation of Up-MACRO Tradeable
Shares and Down-MACRO Tradeable Shares does not need to occur simultaneously.
Up-Macro Tradeable Shares may be created independently by the deposit of
Up-Macro Holding Shares into the Up-Macro Tradeable Trust, and Down-Macro
Tradeable Shares may be created independently by the deposit of Down-Macro
Holding Shares into the applicable Tradeable Trust.
The MACRO Shares will be created on a net daily basis. In the event
that the number of MACRO Units to be created based on the Creation Orders of
such date exceeds the number of MACRO Units to be redeemed pursuant to the
Redemption Orders on such date, the newly MACRO Units that will be issued will
be equal to the number of MACRO Units created minus the number of MACRO Units
redeemed. In contrast, in the event that the number of MACRO Units to be
redeemed pursuant to the Redemption Orders on such date exceeds the number of
MACRO Units to be created based on the Creation Orders on such date, the actual
number of MACRO Units to be issued will be zero. The Settlement Contracts
created on each date, if any, any adjustment to amounts allocated under the
Income Distribution Agreement and the purchase of new Treasuries, if any, will
also be done on a net daily basis, in accordance to the daily netting of
creation and redemption of MACRO Units. Similarly, in the event that the number
of Up-MACRO or Down-MACRO Tradeable Shares to be created based on the Creation
Orders and the Exchange Orders, if applicable, of such date exceeds the number
of such Tradeable Shares to be redeemed pursuant to the Redemption Orders and,
if applicable, the Exchange Orders on such date, the newly Tradeable Shares
that will be issued will be equal to the number of such Tradeable Shares
created minus the number of such Tradeable Shares redeemed. In contrast, in the
event that the number of Up-MACRO or Down-MACRO Tradeable Shares to be redeemed
pursuant to the Redemption Orders and, if applicable, the Exchange Orders on
such date exceeds the number of such Tradeable Shares to be created based on
the Creation Orders and the Exchange Orders, if applicable, on such date, the
actual number of such Tradeable Shares to be issued will be zero (such netting,
collectively, the "Net Daily Basis").
Upon acceptance of the Participants Agreement by the Authorized
Participant, the Administrative Agent will assign a personal identification
number (a "PIN number") to each Authorized Person authorized to act for an
Authorized Participant. This will allow an Authorized Participant through its
Authorized Person(s) to place Creation Order(s), Exchange Order(s) or
Redemption Order(s) for MACRO Shares.
Important Notes:
o Any Order is subject to rejection by the Depositor and the
Administrative Agent for the reasons set forth in the Trust
Agreements or the Participants Agreement.
o All Orders are subject to the provisions of the Trust Agreements and
the Participants Agreement relating to unclear or ambiguous
instructions.
CREATION PROCESS
On any Business Day, an Authorized Participant may submit a Creation
Order, substantially in the form of EXHIBIT B to the Participants Agreement (or
to the extent that such order is electronic, such order shall include the
information set forth on such exhibit), to the Administrative Agent to create
one or more MACRO Units or to create one or more MACRO Units and concurrently
exchange all or some of the such Holding Shares to their related Tradeable
Shares by the Order Cut-Off Time (as defined below) on such Business Day (such
Business Day, "T" and any number added to T shall refer to such order day plus
the number of Business Days following such day).
In connection with the Creation Order, the Authorized Participant
shall have wired to the Trustee by 10:00 a.m. New York City time on T+1 the
following:
o a Transaction Fee for the MACRO Units and the Tradeable Shares, if
applicable, being created;
o cash equal to the Aggregate Underlying Value on T of the Up-MACRO
Holding Shares being created; and
o cash equal to the Aggregate Underlying Value on T of the Down-MACRO
Holding Shares being created, (such deposits for each MACRO Unit, the
"MACRO Unit Deposit").
Upon the satisfaction of the conditions set forth below, the Paired
Holding Trusts shall issue and deliver MACRO Units to the creating Authorized
Participant in accordance to the Creation Order prior to 3:00 p.m. New York
City time on T+1. In the event that the Creation Order includes a concurrent
exchange of all or part of the newly created Holding Shares into their related
Tradeable Shares, the Tradeable Trusts shall issue and deliver Tradeable Shares
to the creating Authorized Participant in accordance to the Creation Order
prior to 3:00 p.m. New York City time on T+3. The Trustee shall transfer to the
Authorized Participant's account at The Depository Trust Company ("DTC") the
number and type of MACRO Shares ordered and paid for by the Authorized
Participant. The Trustee, upon written instruction from the Administrative
Agent on a Net Daily Basis, shall adjust the amount to be allocated under the
Income Distribution Agreement in the next Distribution Date and enter, if
applicable, into additional Settlement Contracts associated with the MACRO
Units being created.
CREATION PROCEDURES
CREATION T (ORDER DATE)
1. By the earlier of (i) 2:00 p.m. New York City time or (ii) if the
close of trading of the Light Sweet Crude Oil Futures Contract on the
New York Mercantile Exchange (the "NYMEX") is earlier than 2:30 p.m.
New York City time, thirty (30) minutes prior to the close of trading
of the Light Sweet Crude Oil Futures Contract on the NYMEX (such
time, the "Order Cut-Off Time"), an Authorized Person of the
Authorized Participant shall notify the Administrative Agent through
the Administrative Agent's electronic facilities that the Authorized
Participant wishes to place a Creation Order. The Authorized Person
shall provide its PIN number as identification to the Administrative
Agent. The Authorized Participant shall indicate through the
Administrative Agent's electronic facilities the following
information:
(a) the Authorized Participant's name;
(b) its PIN Number;
(c) the number of MACRO Units requested; and
(d) whether the Authorized Participant wishes to exchange its newly
created Up-MACRO Holding Shares, and the number of shares he
wishes to exchange if any in integral of 50,000 shares, into
Up-MACRO Tradeable Shares, and whether it wishes to exchange its
newly created Down-MACRO Holding Shares, and the number of
shares he wants to exchange, if any, in integral of 50,000
shares, into Down-MACRO Tradeable Shares (the "Concurrent
Tradeable Shares Order").
Any deposit of cash with the intention of concurrently
exchanging some or all of the newly created Paired Holding
Shares into Tradeable Shares shall occur in accordance with
the procedures set forth herein and the Authorized
Participant shall receive its Holding Shares, if any, on T+1
and its Tradeable Shares, if any, on T+3.
2. Within fifteen (15) minutes of receipt of the Authorized
Participant's Creation Order through its electronic facilities (and
no later than 2:15 New York City time), the Administrative Agent's
automated electronic system shall send a notice to the Authorized
Participant confirming electronically the receipt of such Creation
Order and generate a submission number (a "Submission Number")
relating to such Creation Order and communicate that number to the
Authorized Participant.
3. By 3:00 p.m. New York City time, the Administrative Agent shall send
to the Trustee an electronic file indicating the Creation Orders
received from Authorized Participants on T prior to the Order Cut-Off
Time (such file, the "Order File"). The transmission of the Order
File shall be conducted on a best efforts basis.
4. If the Administrative Agent has received the Authorized Participant's
Creation Order Form on time and in accordance with the preceding
rules, then by 4:00 p.m. New York City time the Administrative Agent
shall return to the Authorized Participant and the Trustee via fax
(or electronic mail) a copy of the Creation Order Form submitted,
marking it "Affirmed." If the Administrative Agent has not received
the Authorized Participant's Creation Order Form on time and in
accordance with the preceding rules, then by 4:00 p.m. New York City
time the Administrative Agent shall return to the Authorized
Participant and the Trustee via fax (or electronic mail) a copy of
the Creation Order Form submitted, marking it "Cancelled."
5. By 4:00 p.m. New York City time, the Administrative Agent shall
confirm the Order File and send any corrections to the Trustee and
the Authorized Participant.
6. By 7:00 p.m. New York City time, the Administrative Agent shall send
an authenticated electronic message to the Authorized Participant,
with a copy to the Trustee, indicating:
(a) the Transaction Fee;
(b) the MACRO Unit Deposit; and,
(c) the Distribution Accounts information for each Holding Trust.
CREATION T+1
1. By 10:00 a.m. New York City time, each Authorized Participant
submitting a Creation Order shall deposit the MACRO Unit Deposit into
the Distribution Accounts using the Federal Wire Electronic Transfer
System and provide to the Administrative Agent and the Trustee the
appropriate Federal Reference Number for such transaction.
2. By 10:30 a.m. New York City time, if the Trustee has not received the
full amount of funds owed to the Paired Holding Trust for the MACRO
Units, the Trustee shall contact the Authorized Participant to
inquire about any missing amounts. If the Trustee does not receive
the full amount of the MACRO Unit Deposits, the Trustee shall not be
obligated to make any issuances.
3. By 12:00 p.m. New York City time, if the Trustee has not received the
full amount of funds and a Federal Reference Number (or other form of
authenticated confirmation) for such transfer, then the
Administrative Agent shall notify the Authorized Participant of the
amount owed to the Paired Holding Trusts. The deficient Authorized
Participant shall immediately wire such amount through the Federal
Wire Electronic Transfer System and provide to the Administrative
Agent and the Trustee the appropriate Federal Reference Number for
such transaction or its order shall be cancelled and it will incur
any costs associated with such cancellation.
4. By 3:00 p.m. New York City time, the Trustee shall release the
Up-MACRO Holding Shares and Down-MACRO Holding Shares constituting
the MACRO Units ordered to the Authorized Participants in accordance
to the Creation Orders. The creation and issuance of MACRO Units will
occur through the DTC System. Paired Holding Shares that are to be
exchanged into Tradeable Shares will be deposited by the Trustee in
the Securities Account of the applicable Tradeable Trust through the
DTC System.
CREATION T+3
1. By 3:00 p.m. New York City time, the Trustee shall release the
Up-MACRO Tradeable Shares and Down-MACRO Tradeable Shares
constituting the Concurrent Tradeable Shares Order to the Authorized
Participants in accordance with the Creation Orders. The creation and
issuance of Tradeable Shares will occur through the DTC system on a
Net Daily Basis.
****
II. EXCHANGE OF HOLDING SHARES TO THEIR RESPECTIVE TRADEABLE SHARES AND
EXCHANGE OF TRADEABLE SHARES TO THEIR RESPECTIVE HOLDING SHARES
Scope of Procedures and Overview
These procedures (the "Exchange Procedures") describe the processes by
which an Authorized Participant (as defined below) (i) may exchange Up-MACRO
Holding Shares or Down-MACRO Holding Shares or both, into Up-MACRO Tradeable
Shares or Down-MACRO Tradeable Shares or both, as applicable, or (ii) may
exchange Up-MACRO Tradeable Shares or Down-MACRO Tradeable Shares or both, into
Up-MACRO Holding Shares or Down-MACRO Holding Shares or both, as applicable.
The Tradeable Shares can only be exchanged into Holding Shares and, the Holding
Shares shall only be exchanged into Tradeable Shares in connection with the
instructions set forth herein and in coordination with the Trustee and the
Administrative Agent.
The Holding Shares may be exchanged into their respective Tradeable
Shares and the Tradeable Shares may be exchanged into their respective Holding
Shares solely by the instructions of Authorized Participants. In accordance
with this Participants Agreement, the Administrative Agent may cause the
Trustee to create additional Tradeable Shares in units of 50,000 Up-MACRO
Tradeable Shares or 50,000 Down-MACRO Tradeable Shares and to exchange
Tradeable Shares to their respective Holding Shares in units of 50,000 Up-MACRO
Tradeable Shares or 50,000 Down-MACRO Tradeable Shares. The exchange of
Up-MACRO Tradeable Shares or Up-MACRO Holding Shares and Down-MACRO Tradeable
Shares or Down-MACRO Holding Shares to their respective MACRO Shares does not
need to occur simultaneously. Up-Macro Tradeable Shares may be created
independently by the deposit of Up-Macro Holding Shares into the Up-Macro
Tradeable Trust, and Down-Macro Tradeable Shares may be created independently
by the deposit of Down-Macro Holding Shares into the Down-MACRO Tradeable
Trust. Similarly, Up-Macro Holding Shares may be exchanged independently by the
deposit of Up-Macro Tradeable Shares into the Up-Macro Tradeable Trust, and
Down-Macro Holding Shares may be exchanged independently by the deposit of
Down-Macro Tradeable Shares into the Down-MACRO Tradeable Trust.
The MACRO Shares will be exchanged on a net daily basis. In the event
that the number of Up-MACRO or Down-MACRO Tradeable Shares to be created based
on the Creation Orders and the Exchange Orders, as applicable, of such date
exceeds the number of such Tradeable Shares to be redeemed pursuant to the
Redemption Orders and the Exchange Orders, as applicable, on such date, the
newly Tradeable Shares that will be issued will be equal to the number of such
Tradeable Shares created minus the number of such Tradeable Shares redeemed. In
contrast, in the event that the number of Up-MACRO or Down-MACRO Tradeable
Shares to be redeemed pursuant to the Exchange Orders or the Redemption Orders,
as applicable, on such date exceeds the number of such Tradeable Shares to be
created based on the Creation Orders and the Exchange Orders, as applicable, on
such date, the actual number of such Tradeable Shares to be redeemed will be
zero (such netting, collectively, the "Net Daily Basis").
Important Notes:
o Any Order is subject to rejection by the Depositor and the
Administrative Agent for the reasons set forth in the Trust
Agreements or the Participants Agreement.
o All Orders are subject to the provisions of the Trust Agreements and
the Participants Agreement relating to unclear or ambiguous
instructions.
EXCHANGE PROCESS
On any Business Day, an Authorized Participant may submit an Exchange
Order, substantially in the form of EXHIBIT C to the Participants Agreement (or
to the extent that such order is electronic, such order shall include the
information set forth on such exhibit), to the Trustee and the Administrative
Agent to exchange Holding Shares to their related Tradeable Shares or to
exchange Tradeable Shares to their related Holding Shares by the Order Cut-Off
Time on such Business Day (such Business Day, "T" and any number added to T
shall refer to such day plus the number of Business Days following such day).
In connection with this Exchange Order, the Authorized Participant shall
deliver to the Trustee by 10:00 a.m. New York City time on T+1 the following:
o a Transaction Fee for the for the Holding Shares and/or the Tradeable
Shares being exchanged;
o Up- MACRO Holding Shares, Down-MACRO Holding Shares or both, in
integral multiple of 50,000 shares of each, for exchange into the
respective Tradeable Shares, if applicable; and
o Up- MACRO Tradeable Shares, Down-MACRO Tradeable Shares or both, in
integral multiple of 50,000 shares of each. for exchange into the
respective Holding Shares, if applicable.
Upon the satisfaction of the conditions set forth below, the
applicable trustees shall (i) deliver the respective Tradeable Shares, if
applicable, to the designated account of the Authorized Participant in DTC to
fill the Exchange Orders prior to 3:00 p.m. New York City time on T+3 or (ii)
deliver the respective Holding Shares, if applicable, to the designated account
of the Authorized Participant in DTC to fill the Exchange Order prior to 3:00
p.m. New York City time on T+3.
EXCHANGE PROCEDURES
EXCHANGE T (EXCHANGE ORDER DATE)
1. By the Order Cut-Off Time, an Authorized Person of the Authorized
Participant shall notify the Administrative Agent through the
Administrative Agent's electronic facilities that the Authorized
Participant wishes to place an Exchange Order. The Authorized Person
shall provide its PIN number as identification to the Administrative
Agent. The Authorized Participant shall indicate through the
Administrative Agent's electronic facilities the following
information:
(a) the Authorized Participant's name;
(b) its PIN Number;
(c) the number and type of Holding Shares being exchanged, if any;
(d) the number and type of Tradeable Shares being exchanged, if any;
and
(e) the CUSIP numbers of the MACRO Shares being tendered.
2. Within fifteen (15) minutes of receipt of the Authorized
Participant's Redemption or Exchange Order through the Administrative
Agent's automated electronic system shall send a notice to the
Authorized Participant confirming the receipt of such Exchange Order
and generate a submission number (a "Submission Number") relating to
such Order and communicate that number to the Authorized Participant.
3. By 3:00 p.m. New York City time, the Administrative Agent shall send
to the Trustee an electronic file indicating the Exchange Orders
received from Authorized Participants on T prior to the Order Cut-Off
Time (such file, the "Order File"). The transmission of the Order
File shall be conducted on a best efforts basis.
4. By 4:00 p.m. New York City time, the Administrative Agent shall
confirm the Order File and send any corrections to the Trustee and
the Authorized Participant.
5. By 7:00 p.m. New York City time, the Administrative Agent shall send
an authenticated electronic message to the Authorized Participant,
with a copy to the Trustee, indicating:
(a) the Transaction Fee payable to the Trustee;
(b) the number and type of Holding Shares to be tendered, if any, to
the Authorized Participant and the CUSIP numbers of the shares
which will be delivered;
(c) the number and type of Tradeable Shares to be tendered, if any,
to the Authorized Participant and the CUSIP numbers of the
shares which will be delivered;
(d) The Securities Accounts information of the applicable Tradeable
Trusts to which the Holding Shares and/or the Tradeable Shares
will be delivered; and
(e) the Distribution Account of the applicable Holding Trusts, to
which the Transaction Fee will be delivered, and amount due to
each of the Paired Holding Trusts;
EXCHANGE T+1
1. By 10:00 a.m. New York City time, each Authorized Participant
submitting an Exchange Order shall have deposited the
Transaction Fee into the Distribution Account of the applicable
Holding Trust and delivered to the Trustee the MACRO Shares to
be exchanged.
2. By 10:30 a.m. New York City time, if the Trustee has not
received the foregoing, as applicable, the Trustee shall contact
the Authorized Participant to inquire about any missing funds or
securities.
3. By 12:00 p.m. New York City time, if the Trustee has still not
received the foregoing, as applicable, then the Administrative
Agent shall notify the Authorized Participant of the amount or
securities owed to the Holding Trusts. The deficient Authorized
Participant must immediately wire such amount through the
Federal Wire Electronic Transfer System or transfer such shares
to the Trustee or its order shall be cancelled and the
Authorized Participant shall incur all costs associated with
such cancellation.
EXCHANGE T+3
1. By 3:00 p.m. New York City time on T+3, the Trustee shall, in
accordance with the instructions of the Administrative Agent,
deliver to the Authorized Participant's account in DTC, the
Holding Shares and/or the Tradeable Shares as ordered by it in
the Exchange Order.
* * * *
III. REDEMPTION OF PAIRED HOLDING SHARES AND EXCHANGE OF TRADEABLE SHARES AND
CONCURRENT REDEMPTION OF THOSE SHARES AS PART OF ONE OR MORE MACRO UNITS
Scope of Procedures and Overview
These procedures (the "Redemption Procedures") describe the processes
by which an Authorized Participant may (i) redeem one or more MACRO units or
(ii) exchange its Tradeable Shares into the applicable Holding Shares and
concurrently redeem such shares as part of one or more MACRO Units. The Paired
Holding Shares constituting a MACRO Unit shall only be redeemed and the
Tradeable Shares can only be exchanged into Holding Shares and concurrently
redeemed as part of one or more MACRO Units in accordance to the Redemption
Procedures set forth herein and in coordination with the Trustee and the
Administrative Agent.
The Paired Holding Shares may be redeemed solely in accordance to the
instructions of the Authorized Participants. The Holding Shares may be redeemed
only as Paired Holding Shares consisting of one or more MACRO Units. In
accordance with this Participants Agreement, the Administrative Agent may cause
the Trustee to exchange Tradeable Shares in units of 50,000 Up-MACRO Tradeable
Shares or 50,000 Down-MACRO Tradeable Shares. The exchange of Up-MACRO
Tradeable Shares and Down-MACRO Tradeable Shares does not need to occur
simultaneously. Up-Macro Tradeable Shares may be exchanged independently into
Up-Macro Holding Shares and Down-Macro Tradeable Shares may be exchanged
independently into Down-MACRO Holding Shares. The Tradeable Shares may be
exchanged into their respective Holding Shares and concurrently redeem such
Holding Shares as part of one or more MACRO Units solely by the instructions of
an Authorized Participants.
The MACRO Shares will be redeemed on a net daily basis. In the event
that the number of MACRO Units to be redeemed based on the Redemption Orders of
such date, exceeds the number of MACRO Units to be created pursuant to the
Creation Orders on such date, the MACRO Units that will be redeemed will be
equal to the number of MACRO Units redeemed minus the number of MACRO Units
created. In contrast, in the event that the number of MACRO Units to be created
based on the Creation Orders of such date exceeds the number of MACRO Units to
be redeemed pursuant to the Redemption Orders on such date, the actual number
of MACRO Units that will be redeemed will equal to zero. The Settlement
Contracts settled on each date, if any, and any adjustment to amounts allocated
under the Income Distribution Agreement, will also be done on a net daily
basis, in accordance to the daily netting of creation and redemption of MACRO
Units. Similarly, Tradeable Shares will be redeemed on a net daily basis. In
the event that the number of Up-MACRO or Down-MACRO Tradeable Shares to be
redeemed pursuant to the Redemption Orders and Exchange Orders, as applicable,
on such date exceeds the number of such Tradeable Shares to be created based on
the Creation Orders and Exchange Orders, as applicable, of such date, the
Tradeable Shares that will actually be redeemed will be equal to the number of
such Tradeable Shares redeemed minus the number of such Tradeable Shares
created. In contrast, in the event that the number of Up-MACRO or Down-MACRO
Tradeable Shares to be created based on the Creation Orders and the Exchange
Orders, as applicable, on such date exceeds the number of such Tradeable Shares
to be redeemed pursuant to the Redemption Orders and the Exchange Orders, as
applicable, on such date, the actual number of such Tradeable Shares to be
redeemed will be zero (such netting, collectively, the "Net Daily Basis").
Important Notes:
o Any Order is subject to rejection by the Depositor and the
Administrative Agent for the reasons set forth in the Trust
Agreements or the Participants Agreement.
o All Orders are subject to the provisions of the Trust Agreements and
the Participants Agreement relating to unclear or ambiguous
instructions.
REDEMPTION PROCESS
On any Business Day, an Authorized Participant may submit a Redemption
Order, substantially in the form of EXHIBIT D to the Participants Agreement (or
to the extent that such order is electronic, such order shall include the
information set forth on such exhibit), to the Administrative Agent by the
Order Cut-Off Time on such Business Day (such Business Day, "T" and any number
added to T shall refer to such day plus the number of Business Days following
such day) to redeem Paired Holding Shares consisting of at least one MACRO Unit
or integral thereof and/or to exchange 50,000 existing Tradeable Shares or an
integral multiple thereof for their related Holding Shares and redeem such
Holding Shares as part of one or more MACRO Units. In connection with the
Redemption Order, the Authorized Participant shall have on deposit in its
Participant Custodian Account and available to the Trustee by 10:00 a.m. New
York City time on T+1 the following:
o the Transaction Fee for the MACRO Units being redeemed and for the
Tradeable Shares, if any, being exchanged and concurrently redeemed
as communicated by the Administrative Agent in accordance with these
Procedures;
o Paired Holding Shares consisting of one or more MACRO Units;
o 50,000 or an integral multiple thereof of either Up-MACRO Tradeable
Shares or Down-MACRO Tradeable Shares or both, which shall be
exchanged into their related Holding Shares and concurrently
redeemed, together with additional Holding Shares, if needed, as part
of one or more MACRO Units (the "Tradeable Share Deposit"); and
o The Redemption Cash Component, if needed, (such amount, the "The
Redemption Cash Component Amount"), which is an amount equal to the
excess of the fair market value of the Treasuries delivered by the
Trustee to the Authorized Participant over the aggregate Underlying
Value of the Paired Holding Shares being redeemed due to minimum
denominations on the Treasuries on deposit in the Paired Holding
Trusts.
Upon the satisfaction of the conditions set forth below, the Trustee,
on behalf of the applicable MACRO Trusts and written instruction from the
Authorized Participant, shall (i) in the event that only Paired Holding Shares
were tendered for redemption, deliver cash and/or Treasuries to the redeeming
Authorized Participant to fill the Redemption Order prior to 3:00 p.m. New York
City time on T+1 to an account designated by the Authorized Participant (ii) in
the event that Tradeable Shares, or a combination of Holding Shares and
Tradeable Shares were tendered as part of the Redemption Order, deliver cash
and/or Treasuries to the redeeming Authorized Participant to fill the
Redemption Order prior to 3:00 p.m. New York City time on T+3 to an account
designated by the Authorized Participant and (iii) on a Net Daily Basis, adjust
the notional amount of the Income Distribution Agreement and, if required,
cancel the Settlement Contracts associated with the MACRO Units being redeemed.
REDEMPTION PROCEDURES
REDEMPTION T (REDEMPTION ORDER DATE)
1. By the Order Cut-Off Time, an Authorized Person of the Authorized
Participant shall notify the Administrative Agent through the
Administrative Agent's electronic facilities that the Authorized
Participant wishes to place a Redemption Order. The Authorized
Participant shall indicate through the Administrative Agent's
electronic facilities the following information:
(a) the Authorized Participant's name;
(b) its PIN Number;
(c) the number of Up-MACRO Holding Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any, and their CUSIP Number;
(d) the number of Down-MACRO Holding Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any, and their CUSIP Number;
(e) the number of Up-MACRO Tradeable Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any, and their CUSIP Number; and
(f) the number of Down-MACRO Tradeable Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any, and their CUSIP Number;
2. Within fifteen (15) minutes of receipt of the Authorized
Participant's Exchange Order through its electronic facilities (and
no later than 2:15 p.m. New York City time), the Administrative
Agent's automated electronic system shall send a notice to the
Authorized Participant confirming electronically the receipt of such
Redemption Order and generate a submission number (a "Submission
Number") relating to such Redemption Order and communicate that
number to the Authorized Participant.
3. By 3:00 p.m. New York City time, the Administrative Agent shall send
to the Trustee an electronic file indicating the Redemption Orders
received from Authorized Participants on T prior to the Order Cut-Off
Time (such file, the "Order File"). The transmission of the Order
File shall be conducted on a best efforts basis.
4. By 4:00 p.m. New York City time, the Administrative Agent shall
confirm the Order File and send any corrections to the Trustee or any
Authorized Participant redeeming its MACRO Shares.
5. By 7:00 p.m. New York City time, the Administrative Agent shall send
an authenticated electronic message to the Authorized Participant,
with a copy to the Trustee, indicating:
(a) the Transaction Fee payable to the Trustee;
(b) the number of Up-MACRO Holding Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any;
(c) the number of Down-MACRO Holding Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any;
(d) the number of Up-MACRO Tradeable Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any;
(e) the number of Down-MACRO Tradeable Shares that the Authorized
Participant will deliver, which number shall be in integral
multiples of 50,000, if any; and
(f) the Securities and Distribution Accounts information of the
Paired Holding Trusts;
(g) the Redemption Cash Component, if any;
REDEMPTION T+1
1. By 10:00 a.m. New York City time, each Authorized Participant
submitting a Redemption Order shall deposit (i) the Transaction Fee
and the Redemption Cash Component, if any, into the Distribution
Accounts of the Paired Holding Trusts as designated by the Trustee
using the Federal Wire Electronic Transfer System, (ii) the Paired
Holding Shares constituting at least a MACRO Unit or integral
multiples thereof, if any, and (iii) the Up-MACRO Tradeable Shares
and/or Down-MACRO Tradeable Shares, if any, in integral multiples of
50,000 each, into the Securities Account of the applicable Tradeable
Trust together with the requisite type and number of Holding Shares
to constitute one or more MACRO Units.
2. By 10:30 a.m. New York City time, if the Trustee has not received the
requisite number of MACRO Shares, the Trustee shall contact the
Authorized Participant to inquire about any missing shares. If the
Trustee does not receive the requisite number of such shares, the
Trustee shall not be obligated to make any redemption.
3. By 12:00 p.m. New York City time, if the Trustee has not received the
requisite number of MACRO Shares, the Administrative Agent shall
notify the Authorized Participant of the number and type of the MACRO
Shares that it needs to deposit. The deficient Authorized Participant
shall immediately transfer such shares to the Trustee or its order
shall be cancelled and the Authorized Participant shall incur any
costs associated with such cancellation.
4. By 3:00 p.m. New York City time, the Trustee, pursuant to the
instructions of the Administrative Agent shall, in the event that
only Paired Holding Shares were tendered for redemption, deliver the
cash and/or Treasuries to the redeeming Authorized Participant's
account as indicated by such Authorized Participant.
REDEMPTION T+3
1. By 3:00 p.m. New York City time, the Trustee, pursuant to the
instructions of the Administrative Agent shall, in the event that
Tradeable Shares or Holding and Tradeable Shares were tendered for
redemption deliver cash and/or Treasuries to the Authorized
Participant's Account, as indicated by such the Authorized
Participant.
* * *
