EXHIBIT 4.2
FORM OF
CLAYMORE MACROSHARES OIL DOWN
TRADEABLE TRUST AGREEMENT
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MACRO SECURITIES DEPOSITOR, LLC,
as Depositor
INVESTORS BANK & TRUST COMPANY,
as Trustee,
and
CLAYMORE SECURITIES, INC.,
as Administrative Agent and Marketing Agent
CLAYMORE MACROSHARES OIL DOWN TRADEABLE TRUST
TRUST AGREEMENT
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TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions..................................................1
ARTICLE 2
CERTAIN RIGHTS OF HOLDERS
SECTION 2.1 Trust Indenture Act; Application............................10
SECTION 2.2 Lists of Holders of Down-MACRO Tradeable Shares.............10
SECTION 2.3 Reports and Filings by the Trustee..........................10
SECTION 2.4 Registration (Initial and Continuing) of the Down-MACRO
Tradeable Shares; Certain Securities Laws Filings...........11
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name........................................................12
SECTION 3.2 Office......................................................12
SECTION 3.3 Nature and Purpose of the Trust.............................12
SECTION 3.4 Authority...................................................12
SECTION 3.5 Powers and Duties of the Trustee............................13
SECTION 3.6 Certain Responsibilities of the Trustee.....................15
SECTION 3.7 Certain Rights of the Trustee...............................15
SECTION 3.8 Prohibition of Actions by the Trust and the Trustee.........17
SECTION 3.9 Execution of Documents......................................18
SECTION 3.10 No Representations of the Trustee...........................18
SECTION 3.11 Duration of Trust...........................................18
SECTION 3.12 Mergers.....................................................18
SECTION 3.13 Limitation on Directions to Trustee.........................19
ARTICLE 4
THE DEPOSITOR
SECTION 4.1 Responsibilities of the Depositor...........................19
SECTION 4.2 Certain Matters Regarding a Successor Depositor.............19
SECTION 4.3 Compensation of the Depositor...............................19
SECTION 4.4 Counsel.....................................................20
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ARTICLE 5
THE TRUSTEE AND THE ADMINISTRATIVE AGENT
SECTION 5.1 Trustee; Eligibility........................................20
SECTION 5.2 Appointment, Removal and Resignation of Trustee.............21
SECTION 5.3 Trustee's Delegation of Power...............................21
SECTION 5.4 The Trustee's Merger, Conversion or Consolidation or
Succession to Business of Trustee...........................22
SECTION 5.5 Books and Records; Taxes and Audits.........................22
SECTION 5.6 Appointment, Removal and Resignation of the Administrative
Agent.......................................................23
SECTION 5.7 Administrative Agent's Delegation of Power..................24
SECTION 5.8 The Administrative Agent's Merger, Conversion or
Consolidation or Succession to Business of the
Administrative Agent........................................24
ARTICLE 6
TERMS OF THE DOWN-MACRO TRADEABLE SHARES
SECTION 6.1 Initial Deposit; Authorization and Designation of
Down-MACRO Tradeable Shares.................................25
SECTION 6.2 Subsequent Issuances and Issuance of Down-MACRO Tradeable
Shares......................................................26
SECTION 6.3 Status of Down-MACRO Tradeable Shares.......................27
SECTION 6.4 CUSIP Numbers...............................................27
SECTION 6.5 Distributions...............................................28
SECTION 6.6 Exchange of Down-MACRO Tradeable Shares for Down-MACRO
Holding Shares..............................................28
ARTICLE 7
ACCOUNTING AND RECORDS
SECTION 7.1 Annual Tax Information......................................30
SECTION 7.2 Outside Advisors............................................30
SECTION 7.3 Certain Accounting Matters..................................30
ARTICLE 8
DISSOLUTION AND TERMINATION;
LIQUIDATION; REDEMPTION
SECTION 8.1 Dissolution and Termination of the Trust....................31
SECTION 8.2 Liquidation; Redemption.....................................31
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ARTICLE 9
AUTHENTICATION AND TRANSFER OF DOWN-MACRO TRADEABLE SHARES
SECTION 9.1 Authentication and Transfer of Certificates.................31
SECTION 9.2 Deemed Security Holders.....................................32
SECTION 9.3 Book Entry Interests........................................32
SECTION 9.4 Notices to Clearing Agency..................................33
SECTION 9.5 Appointment of Authenticating Agent.........................33
SECTION 9.6 Appointment of Successor Clearing Agency....................34
SECTION 9.7 Mutilated, Destroyed, Lost or Stolen Certificate............34
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS,
THE DEPOSITOR, THE ADMINISTRATIVE AGENT, THE TRUSTEE OR OTHERS
SECTION 10.1 Liability...................................................34
SECTION 10.2 Outside Businesses..........................................35
ARTICLE 11
VOTING AND AMENDMENTS
SECTION 11.1 Voting......................................................36
SECTION 11.2 Amendments..................................................36
SECTION 11.3 Other Matters...............................................38
ARTICLE 12
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE
ADMINISTRATIVE AGENT
SECTION 12.1 Representations and Warranties of the Trustee...............38
SECTION 12.2 Representations and Warranties of the Administrative Agent..40
ARTICLE 13
ESTABLISHMENT OF ACCOUNTS
SECTION 13.1 Securities Account..........................................42
SECTION 13.2 Distribution Account........................................42
SECTION 13.3 Founders' Equity Account....................................43
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ARTICLE 14
MISCELLANEOUS
SECTION 14.1 Notices.....................................................43
SECTION 14.2 Trust to be Administered as a Grantor Trust.................45
SECTION 14.3 Non-Petition................................................45
SECTION 14.4 GOVERNING LAW...............................................45
SECTION 14.5 Change in Law...............................................45
SECTION 14.6 Headings....................................................46
SECTION 14.7 Successors and Assigns......................................46
SECTION 14.8 Partial Enforceability......................................46
SECTION 14.9 Counterparts................................................46
EXHIBIT A Form of Down-MACRO Tradeable Share
EXHIBIT B Form of Notice
SCHEDULE I Down-MACRO Tradeable Trust Accounts
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This Trust Agreement (as amended, modified or supplemented from time to
time, the "Trust Agreement") dated as of August [ ], 2006, is hereby entered
into among MACRO SECURITIES DEPOSITOR, LLC, a Delaware limited liability
company, as depositor (the "Depositor"), INVESTORS BANK & TRUST COMPANY, not in
its individual capacity, but solely as trustee of the trust created hereby (in
its capacity as trustee, the "Trustee"), and CLAYMORE SECURITIES, INC., not in
its individual capacity but solely as administrative agent (in such capacity,
the "Administrative Agent") and as marketing agent (in such capacity, the
"Marketing Agent").
WHEREAS, the parties hereto desire to establish a trust for the sole
purpose of issuing and selling Down-MACRO Tradeable Shares (as defined herein)
representing undivided beneficial interests in the Trust Property (as defined
herein) and investing the proceeds received from the sale of its Down-MACRO
Tradeable Shares in Down-MACRO Holding Shares (as defined herein); and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a New York trust and that this Trust Agreement constitute the
governing instrument of such New York trust, the Trustee declares that all
assets contributed to the Trust will be held in trust for the benefit of the
Holders (as defined herein) of the Down-MACRO Tradeable Shares representing
undivided beneficial interests in the Trust Property, subject to the provisions
of this Trust Agreement.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions. Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has the same
meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement"
are to this Trust Agreement as modified, supplemented or amended from time to
time, together with all Exhibits and Schedules, each of which is incorporated
herein by reference;
(d) all references in this Trust Agreement to Articles, Sections,
Exhibits or Schedules are to Articles and Sections of, and Exhibits and
Schedules to, this Trust Agreement, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Agreement unless otherwise defined in this Trust Agreement or
unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the following terms have the following meanings:
"Administrative Agent" means Claymore Securities, Inc., in its capacity
as Administrative Agent hereunder, and its successors and assigns.
"Affiliate" means, with respect to a specified Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with, such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise; and the terms
"controlling," "controlled" and "under common control with" have meanings
correlative to the foregoing.
"Aggregate Par Amount" means, with respect to any Up-MACRO Tradeable
Share, Down-MACRO Tradeable Share, Up-MACRO Holding Share or Down-MACRO Holding
Share, an amount equal to the number of such Up-MACRO Tradeable Shares,
Down-MACRO Tradeable Shares, Up-MACRO Holding Shares or Down-MACRO Holding
Shares multiplied by the Stated Par Amount.
"AMEX" means the American Stock Exchange, LLC and its successors and
assigns.
"Authenticating Agent" has the meaning set forth in Section 9.5 of this
Trust Agreement.
"Authorized Participants" mean the parties listed on Schedule I to the
Participants Agreement, as may be amended from time to time.
"Beneficial Owner" means, with respect to a Book Entry Interest, a
Person who is the beneficial owner of such Book Entry Interest, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, or in each case in accordance with the rules of such
Clearing Agency).
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as set forth in Section 9.3 of this
Trust Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions and stock exchanges in New York, New York are
authorized or required by law, regulation or executive order to close.
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"Calculation Agent" shall have the meaning set forth in the Up-MACRO
Holding Trust Agreement.
"Certificate" means a certificate representing an Up-MACRO Tradeable
Share and in the form attached hereto as EXHIBIT A.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Up-MACRO Tradeable Shares and in whose name or in whose nominee's name
shall be registered a Global Certificate and which shall undertake to effect
book entry transfers and pledges of beneficial interests in the Up-MACRO
Tradeable Shares. The initial Clearing Agent shall be DTC.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of interests in securities
deposited with the Clearing Agency.
"Closing Date" shall have the meaning set forth in the Up-MACRO Holding
Trust Agreement.
"Code" means the U.S. Internal Revenue Code of 1986, as amended, or any
successor legislation, and the rules and regulations promulgated thereunder.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee located at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
"Creation Order" has the meaning set forth in Section 6.2(c) of this
Trust Agreement.
"Creation Order Date" has the meaning set forth in Section 6.2(c) of
this Trust Agreement.
"Default" means the failure of the Up-MACRO Holding Trust to pay
distributions on the Up-MACRO Holding Shares when such distributions are due
pursuant to the Up-MACRO Holding Trust Agreement or to any agreements to which
the Up-MACRO Holding Trust is a party.
"Depositor" has the meaning set forth in the preamble hereto, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
Depositor of the Up-MACRO Tradeable Shares.
"Distribution" means a payment made by the Trust to a Holder.
"Distribution Account" has the meaning set forth in Section 13.2(a) of
this Trust Agreement.
"Distribution Date" means the 25th day of March, June, September and
December of each year or, if any such day is not a Business Day, the following
Business Day, commencing in September of 2006.
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"Distribution Payment Date" means the first Business Day of the month
immediately following the month in which the related Distribution Date occurred.
"Down-MACRO Aggregate Par Amount" has the meaning set forth in the
Down-MACRO Holding Trust Agreement.
"Down-MACRO Holding Shares" means the Claymore MACROshares Oil Down
Holding Shares issued by, and each representing an undivided beneficial interest
in the property of, the Down-MACRO Holding Trust.
"Down-MACRO Holding Trust" means the Claymore MACROshares Oil Down
Holding Trust, a New York trust, formed pursuant to the Down-MACRO Holding Trust
Agreement, or any successor entity in a merger, consolidation or amalgamation.
"Down-MACRO Holding Trust Agreement" means the Trust Agreement, dated
as of the date hereof, among the Down-MACRO Holding Trustee, the Depositor, the
Administrative Agent and the Marketing Agent, as may be amended, restated,
supplemented or otherwise modified from time to time.
"Down-MACRO Holding Trustee" means Investors Bank & Trust Company, not
in its individual capacity but solely as trustee of the Down-MACRO Holding
Trust, or any successor entity in a merger, consolidation or amalgamation.
"Down-MACRO Tradeable Shares" means the Claymore MACROshares Oil Down
Tradeable Shares issued by, and each representing an undivided beneficial
interest in the property of, the Down-MACRO Tradeable Trust.
"Down-MACRO Tradeable Trust" means the Claymore MACROshares Oil Down
Tradeable Trust, a New York trust, formed pursuant to the Down-MACRO Tradeable
Trust Agreement, or any successor entity in a merger, consolidation or
amalgamation.
"Down-MACRO Tradeable Trust Agreement" means the Trust Agreement, dated
as of the date hereof, among the Down-MACRO Tradeable Trustee, the Depositor,
the Administrative Agent and the Marketing Agent, as may be amended, restated,
supplemented or otherwise modified from time to time.
"Down-MACRO Tradeable Trustee" means Investors Bank & Trust Company,
not in its individual capacity but solely as trustee of the Down-MACRO Tradeable
Trust, or any successor entity in a merger, consolidation or amalgamation.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"DTC Letter" means the Letter of Representations delivered by the
Depositor and the Trustee to DTC, dated as of [ ], 2006, as it may be amended,
restated, supplemented or otherwise modified from time to time.
"Early Termination Date" has the meaning set forth in the Up-MACRO
Holding Trust Agreement.
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"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, or any successor legislation, and the rules and regulations promulgated
thereunder.
"Exchange Order" has the meaning set forth in Section 6.6(a) of this
Trust Agreement.
"Exchange Order Date" has the meaning set forth in Section 6.6(b) of
this Trust Agreement.
"Final Distribution" means, with respect to Up-MACRO Holding Shares or
Up-MACRO Tradeable Shares, any distribution made in redemption of all or a
portion of such shares on a Final Scheduled Termination Date, an Early
Termination Date or, in the case of Up-MACRO Holding Shares only, a Redemption
Date.
"Final Scheduled Termination Date" has the meaning set forth in the
Up-MACRO Holding Trust Agreement.
"Fiscal Year" means the fiscal year of the Up-MACRO Tradeable Trust,
which ends on [ ] 31st.
"Founders' Equity Account" has the meaning set forth in Section 13.3(a)
of this Trust Agreement.
"Founders' Shares" shall mean 1,000 shares with a par value of $1 per
share, issued to MacroMarkets LLC and Claymore Securities, Inc., which
constitute the permanent capital of the Up-MACRO Holding Trust.
"Global Certificate" has the meaning set forth in Section 9.3 of this
Trust Agreement.
"Holder" means a Person in whose name an Up-MACRO Tradeable Share is
registered on the books and records of the Trust.
"Holding Share Deposit" means a deposit of Up-MACRO Holding Shares in
integral multiples of 50,000 Up-MACRO Holding Shares.
"Holding Trust Agreements" means the Up-MACRO Holding Trust Agreement
and the Down-MACRO Holding Trust Agreement.
"Initial Deposit" has the meaning set forth in Section 6.1(a) hereof.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, or any successor legislation, and the rules and regulations promulgated
thereunder.
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"Legal Action" has the meaning set forth in Section 3.5(a)(v) of this
Trust Agreement.
"List of Holders" has the meaning set forth in Section 2.2 of this
Trust Agreement.
"MacroMarkets" means MacroMarkets LLC, or any successor entity in a
merger, consolidation or amalgamation.
"Marketing Agent" shall mean Claymore Securities, Inc., in its capacity
as marketing agent hereunder, and its successors and assigns.
"Officer's Certificate" means, with respect to any Person (that is not
an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person and, if such Person is a
trust, any trustee of the trust. Any Officer's Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officer's Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officer's
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is reasonably necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, to the best knowledge of each such
officer, such condition or covenant has been complied with.
"Order Cut-Off Time" has the meaning set forth in Attachment B to the
Participants Agreement.
"Outstanding" has the meaning set forth in the Up-MACRO Holding Trust
Agreement.
"Participants Agreement" means the participants agreement, dated as of
the date hereof, among the Depositor, the Up-MACRO Holding Trustee, the
Down-MACRO Holding Trustee, the Trustee, the Down-MACRO Tradeable Trustee, the
Administrative Agent and the Authorized Participants who may be party thereto
from time to time, which specifies certain procedures for the exchange of
tradeable shares for holding shares and holding shares for tradeable shares and
the creation of tradeable shares upon a deposit of holding shares.
"Paying Agent" has the meaning set forth in Section 3.5(d) of this
Trust Agreement.
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"Person" means a legal person, including any individual, corporation,
association, partnership (general or limited), joint venture, trust, estate,
limited liability company, or other legal entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Pro Rata" means, unless the context otherwise requires, with respect
to Distributions on the Up-MACRO Tradeable Shares, pro rata to each Holder in
accordance with the Aggregate Par Amount of Up-MACRO Tradeable Shares held by
such Holder in relation to the Aggregate Par Amount of all Up-MACRO Tradeable
Shares outstanding at the relevant time.
"Prospectus" shall mean the prospectus, in the form filed by the
Depositor on behalf of the Up-MACRO Holding Trust and the Up-MACRO Tradeable
Trust with the SEC on or before the second Business Day after the date hereof
(or such earlier time as may be required under the Securities Act) or, if no
such filing is required, the form of final prospectus included in the
Registration Statement on and after the date on which such Registration
Statement becomes effective.
"Quarter" means the three month period ending [ ], [ ],
[ ] and [ ], beginning with [ ] [ ], 2006.
"Record Date" has the meaning set forth in Section 6.5(d) of this Trust
Agreement.
"Redemption Date" has the meaning set forth in the Up-MACRO Holding
Trust Agreement.
"Registration Statement" means the registration statement, file no.
333-116566, dated as of [ ], 2006, relating to the Up-MACRO Holding Shares and
Up-MACRO Tradeable Shares, as filed with the SEC and effective as of [ ], 2006,
as may be amended, supplemented or otherwise modified from time to time.
"Requirements of Law" has the meaning set forth in the Up-MACRO Holding
Trust Agreement.
"Responsible Officer" means, with respect to the Trustee, any vice
president (whether or not designated by a number or a word or words added before
or after the title "vice president"), the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, or any other officer of the Trustee,
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Trust Agreement.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Account" has the meaning set forth in Section 13.1(a) of
this Trust Agreement.
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"Securities Act" means the U.S. Securities Act of 1933, as amended, or
any successor legislation, and the rules and regulations promulgated thereunder.
"Stated Par Amount" means, (i) with respect to each Up-MACRO Tradeable
Share and Up-MACRO Holding Share, a par amount equal to the Up-MACRO Stated Par
Amount as set forth in the Up-MACRO Holding Trust Agreement and (ii) with
respect to each Down-MACRO Tradeable Share and Down-MACRO Holding Share, a par
amount equal to the Down-MACRO Stated Par Amount as set forth in the Down-MACRO
Holding Trust Agreement.
"Successor Administrative Agent" has the meaning set forth in Section
5.6(e) of this Trust Agreement.
"Successor Trustee" has the meaning set forth in Section 5.2(a) of this
Trust Agreement.
"Tradeable Share Deposit" means a deposit of Up-MACRO Tradeable Shares
in integral multiples of 50,000 Up-MACRO Tradeable Shares.
"Transaction Fee" has the meaning set forth in Section 6 of the
Participants Agreement.
"Transfer Agent" has the meaning set forth in Section 3.5(a)(vii) of
this Trust Agreement.
"Treasury Stock Account" means the Claymore MACROshares Oil Up
Tradeable Trust Treasury Stock Account, a trust account established by the
Trustee in which previously issued and redeemed authorized shares of the Trust
shall be held.
"Trust" means the Up-MACRO Tradeable Trust, a New York trust, formed
pursuant to this Trust Agreement, or any successor entity in a merger,
consolidation or amalgamation.
"Trust Agreement" has the meaning set forth in the preamble hereto.
"Trust Documents" means, collectively, the Trust Agreement and the
Participants Agreement.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation, and any rules or
regulations promulgated thereunder.
"Trust Officer" means any officer within the corporate trust department
of the Trustee, including any Vice President, Assistant Vice President or
Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any
officer customarily performing functions similar to those performed by the
person who at the time shall be such officers, in each case having
responsibility for the administration of this Trust Agreement.
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"Trust Property" means, as of any particular time, any and all property
which shall have been transferred, conveyed or paid to the Trust or the Trustee
(in its capacity as such) on behalf thereof, and all interest thereon, and which
at such time are owned or held by, or for the account of, the Trust or the
Trustee on behalf thereof.
"Trustee" means, initially, Investors Bank & Trust Company, not in its
individual capacity but solely as trustee of the Trust and also means any
successor thereto that meets the eligibility requirements set forth in Section
5.1 of this Trust Agreement.
"Trustee Termination Event" means the occurrence of one of the
following:
(a) a failure to pass through to Holders any Distribution received by
the Trust, which failure continues unremedied for a period of two (2) or more
Business Days;
(b) a failure by the Trustee to observe or perform in any material
respect any of its covenants or obligations under this Trust Agreement, which
failure continues unremedied for thirty (30) days after giving of written notice
of such failure to the Trustee by the Depositor or by not less than 25% of the
Holders based on the Aggregate Par Amount of all Up-MACRO Tradeable Shares
outstanding at such time;
(c) the bankruptcy of the Trustee or the institution of voluntary or
involuntary insolvency proceedings against the Trustee;
(d) the Trustee becoming ineligible or incapable of acting as Trustee
as set forth in this Trust Agreement;
(e) if the Trustee is the Up-MACRO Holding Trustee, the occurrence of a
"Trustee Termination Event" as defined in the Up-MACRO Holding Trust Agreement;
and
(f) if the Trustee is the Down-MACRO Holding Trustee, the occurrence of
a "Trustee Termination Event" as defined in the Down-MACRO Holding Trust
Agreement.
"Up-MACRO Holding Shares" means the Claymore MACROshares Oil Up Holding
Shares issued by, and each representing an undivided beneficial interest in the
property of, the Up-MACRO Holding Trust.
"Up-MACRO Holding Trust" means the Claymore MACROshares Oil Up Holding
Trust, a New York trust, formed pursuant to the Up-MACRO Holding Trust
Agreement, or any successor entity in a merger, consolidation or amalgamation.
"Up-MACRO Holding Trust Agreement" means the Trust Agreement, dated as
of the date hereof, among the Up-MACRO Holding Trustee, the Depositor, the
Administrative Agent and the Marketing Agent, as may be amended, restated,
supplemented or otherwise modified from time to time.
"Up-MACRO Holding Trustee" means the trustee under the Up-MACRO Holding
Trust Agreement, which initially is Investors Bank & Trust Company, not in its
individual capacity but solely as trustee of the Up-MACRO Holding Trust, or any
successor entity in a merger, consolidation or amalgamation.
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"Up-MACRO Tradeable Shares" means the Claymore MACROshares Oil Up
Tradeable Shares issued by the Trust, each representing an undivided beneficial
interest in the Trust Property. The parties to this Trust Agreement intend that
the Up-MACRO Tradeable Shares be treated as equity securities for all purposes
under New York law.
ARTICLE 2
CERTAIN RIGHTS OF HOLDERS
SECTION 2.1 Trust Indenture Act; Application. This Trust Agreement is
not subject to the provisions of the Trust Indenture Act. References herein to
the Trust Indenture Act are solely for the contractual benefit of the parties
hereto.
SECTION 2.2 Lists of Holders of Down-MACRO Tradeable Shares. DTC
(until such time a Transfer Agent is appointed) shall provide the Trustee (i)
within two Business Days after each Distribution Date a list for the purpose of
making distributions on the Down-MACRO Tradeable Shares in such form as the
Trustee may reasonably require of the names and addresses of the registered
Holders of such Down-MACRO Tradeable Shares ("List of Holders") as of the
relevant Record Date. The Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in any List of Holders given
to it or which it receives in its capacity as Paying Agent (if acting in such
capacity); provided, however, that the Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
SECTION 2.3 Reports and Filings by the Trustee.
(a) After the end of each Fiscal Year, the Trustee shall cause to be
prepared an annual report for the Trust containing financial statements prepared
by the Trustee and audited by independent accountants designated by the
Depositor. The annual report shall be in such form and contain such information
as shall be required by applicable laws, rules and regulations and may contain
such additional information as the Depositor or the Trustee determines shall be
included. The Trustee shall deliver a copy of such annual report to the
Down-MACRO Holding Trust and shall file such annual report with the SEC and such
other regulatory agencies, and distribute such report to such persons and in
such manner, as shall be required by applicable laws, rules and regulations. The
cost of the preparation and distribution of the annual report shall be at the
expense of the Down-MACRO Holding Trust as set forth in the Down-MACRO Holding
Trust Agreement.
(b) After the end of each Quarter, the Trustee shall cause to be
prepared a quarterly report for the Trust containing unaudited financial
statements prepared by the Trustee. The quarterly report shall be in such form
and contain such information as shall be required by applicable laws, rules and
regulations and may contain such information as the Depositor or the Trustee
determines shall be included. The quarterly report shall be filed with the SEC
and such other regulatory agencies, and distributed to such persons and in such
manner, as shall be required by applicable laws, rules and regulations. The cost
of the preparation and distribution
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of the quarterly report shall be at the expense of the Down-MACRO Holding Trust
as set forth in the Down-MACRO Holding Trust Agreement.
(c) On or before the fifth Business Day following each Distribution
Date, the Trustee will forward to DTC, as long as the Down-MACRO Tradeable
Shares are held by DTC, and to the Holders, if not held by DTC (as of such
Distribution Date), a statement prepared by the Trustee reporting the following
information as of such Distribution Date:
(i) the Aggregate Par Amount of the outstanding Down-MACRO
Tradeable Shares;
(ii) the Down-MACRO Underlying Value (as defined in the
Down-MACRO Holding Trust Agreement) allocable to each Down-MACRO Tradeable
Share, based on the number of Down-MACRO Holding Shares on deposit in the
Trust and prior to any Distribution on such Distribution Date; and
(iii) the Pro Rata, net Distribution, to each Holder for each
Down-MACRO Tradeable Share.
Furthermore, the Trustee shall promptly forward to DTC, as
long as the Down-MACRO Tradeable Shares are held by DTC, and to the Holders, if
not held by DTC (as of such Distribution Date), any reports to holders of the
Down-MACRO Holding Shares that it has received pursuant to Article VIII of the
Down-MACRO Holding Trust Agreement.
SECTION 2.4 Registration (Initial and Continuing) of the Down-MACRO
Tradeable Shares; Certain Securities Laws Filings.
The Depositor agrees to (i) prepare and file a registration statement
(or amend the existing Registration Statement) with the SEC under the Securities
Act, and take such action as is necessary from time to time to qualify the
Down-MACRO Tradeable Shares for offering and sale under the federal securities
laws of the United States, including the preparation and filing of amendments
and supplements to such Registration Statement, (ii) promptly notify the Trustee
and the Administrative Agent of any amendments or supplements to the
Registration Statement or Prospectus and of any order preventing or suspending
the use of the Prospectus, (iii) provide the Trustee and the Administrative
Agent from time to time with copies, including copies in electronic form, of the
Prospectus, in such quantities as either the Trustee or the Administrative Agent
may reasonably request, (iv) prepare and file any periodic reports or updates
that may be required under the Exchange Act, and (v) take such action as is
necessary from time to time to register or qualify the Down-MACRO Tradeable
Shares for offering and sale under the securities or blue sky laws of those
states of the United States or other jurisdictions as the Depositor may select
or as may be necessary to continue that registration or qualification in effect
for so long as the Depositor determines that the Down-MACRO Tradeable Trust
shall continue to offer or sell Down-MACRO Tradeable Shares in that
jurisdiction. Registration charges, blue sky fees, printing costs, mailing
costs, attorney's fees, and other miscellaneous out-of-pocket expenses shall be
borne by the Down-MACRO Holding Trust in accordance with the Down-MACRO Holding
Trust Agreement.
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ARTICLE 3
ORGANIZATION
SECTION 3.1 Name. The Trust is named "Claymore MACROshares Oil Down
Tradeable Trust," as such name may be modified from time to time by the Trustee
following written notice to the Holders. The Trust's activities may be conducted
under the name of the Trust, or any other name deemed advisable by the Trustee.
SECTION 3.2 Office. The address of the principal office of the Trust is
Investors Bank & Trust Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000. On ten (10) Business Days' prior written notice to the Holders, the
Trustee may designate another [principal][registered] office.
SECTION 3.3 Nature and Purpose of the Trust.
(a) The Trust shall be a "New York trust." Except as provided herein,
the Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified as a
grantor trust for U.S. federal income tax purposes.
(b) The exclusive purposes and functions of the Trust are to:
(i) issue and sell the Down-MACRO Tradeable Shares;
(ii) use any proceeds received from the issuance and sale of
the Down-MACRO Tradeable Shares to purchase Down-MACRO Holding Shares from
the Down-MACRO Holding Trust;
(iii) distribute to the Holders of the Down-MACRO Tradeable
Shares all amounts received by the Down-MACRO Tradeable Trust from the
Down-MACRO Holding Trust on the Down-MACRO Holding Shares;
(iv) conduct creations in accordance with Section 6.2 of this
Trust Agreement;
(v) conduct exchanges of Down-MACRO Tradeable Shares for
Down-MACRO Holding Shares in accordance with Section 6.6 of this Trust
Agreement;
(vi) except as otherwise set forth herein, engage in only
those other activities necessary or incidental thereto to conduct its
business as described herein; and
(vii) enter into and perform its obligations under the Trust
Documents and any other documents or agreements to which the Trust is a
party.
SECTION 3.4 Authority. Subject to the limitations provided in this
Trust Agreement, the Trustee shall have authority to take all actions reasonably
required to carry out the purposes of the Trust as set forth in Section 3.3. An
action taken by the Trustee in
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accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustee acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustee to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustee as set forth in this Trust Agreement.
SECTION 3.5 Powers and Duties of the Trustee.
(a) In furtherance of and not in limitation of the purposes of the
Trust as provided for in Section 3.3(b), the Trustee shall have the power and
authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Down-MACRO Tradeable Shares in
accordance with this Trust Agreement; provided, however, that the Trust may
issue no more than one class of Down-MACRO Tradeable Shares; and provided
further, that there shall be no interests in the Trust other than the
Down-MACRO Tradeable Shares;
(ii) to use the proceeds received from any issuance and sale
of the Down-MACRO Tradeable Shares to purchase Down-MACRO Holding Shares
from the Down-MACRO Holding Trust;
(iii) to establish a Record Date with respect to all actions
to be taken hereunder that require a Record Date to be established,
including with respect to Distributions, voting rights, exchanges and
distributions in connection with any liquidation of the Trust, and to issue
relevant notices to Holders as to such actions and applicable Record Dates;
(iv) to give prompt written notice to Holders of any Default,
upon a Responsible Officer receiving actual or written notice of such
Default;
(v) at the written instruction of the Depositor or Holders
evidencing not less than a majority of the Aggregate Par Amount, to bring or
defend, pay from the Trust Property, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action");
(vi) to establish and maintain trust accounts in the name of
and under the exclusive control of the Trustee on behalf of the Trust and
the Holders to hold payments and distributions received in respect of the
Trust Property which may not be immediately distributed and to distribute
such amounts to the Holders as soon as practicable thereafter and to invest
any amounts on deposit in any such accounts in accordance with the terms of
this Trust Agreement;
(vii) to act as, or appoint another Person to act as,
registrar and transfer agent (the "Transfer Agent") for the Trust. Any
Transfer Agent may be removed by the Trustee at any time and a successor
Transfer Agent or additional Transfer Agents may be appointed at any time by
the Trustee;
(viii) to execute and deliver the Trust Documents, and to
perform its obligations and exercise and enforce its rights thereunder;
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(ix) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing, as the Depositor may
direct in writing;
(x) to take any action and have any authority that may be
necessary or appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges under the laws of
the State of New York;
(xi) to take any action or refrain from any action so long as
such action or inaction is not in violation of this Trust Agreement or with
applicable law, and as instructed in writing by the Depositor, in carrying
out the activities of the Trust as set out in this Section 3.5; and
(xii) to take any action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed on behalf of the Trust.
(b) Legal title to all Trust Property shall be vested at all times in
the Trust, except where applicable law in any jurisdiction requires title to any
part of the assets to be vested in a trustee, in which case legal title shall be
deemed to be vested in the Trustee appointed hereunder for such purpose. None of
the Holders shall have legal title to any part of the Trust Property, but shall
have an undivided beneficial interest in the Trust Property.
(c) The Trustee shall take all actions and perform such duties as may
be required of the Trustee as it may be directed from time to time in writing by
the Depositor, the Administrative Agent (but only pursuant to Section 13.1(a)),
an Authorized Participant (but only pursuant to Section 13.1(c)), and Holders
evidencing not less than 66 and 2/3% of the Aggregate Par Amount (except for
actions that require a different threshold in accordance with the terms of this
Trust Agreement, in which case such threshold), where appropriate, to protect
the interests of the Trust and the Holders.
(d) The Trustee may authorize one or more Persons (each, a "Paying
Agent" and, initially, the Trustee) to pay Distributions with respect to the
Down-MACRO Tradeable Shares. Any Paying Agent may be removed by the Trustee, the
Depositor or Holders evidencing not less than 66 and 2/3% of the Aggregate Par
Amount at any time, and a successor Paying Agent or additional Paying Agents may
be appointed at any time by the Trustee.
(e) The Trustee shall continue to serve as a trustee until either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders pursuant to the terms hereof;
or
(ii) a Successor Trustee has been appointed and has accepted
that appointment in accordance with Section 5.2.
The Trustee shall exercise the powers set forth in this Section 3.5 in
a manner that is consistent with the purposes and intentions of the Trust set
forth in Section 3.3, and the Trustee shall not take, nor shall the Holders or
the Depositor instruct the Trustee to take, any
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action that is inconsistent with the purposes and intentions of the Trust set
forth in Section 3.3. Any action inconsistent with the purposes and intentions
of the Trust set forth in Section 3.3 shall be of no effect and shall not bind
the Trust.
SECTION 3.6 Certain Responsibilities of the Trustee. (a) No
provision of this Trust Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, its
own bad faith, its own reckless disregard of its duties hereunder or its own
willful misconduct; provided, however, that:
(b) the Trustee shall not be personally liable for an error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted by it in good faith and in accordance with the
direction of Holders relating to the time, place or method of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Trust Agreement; provided that such
direction is delivered by Holders evidencing not less than 66 and 2/3% of the
Aggregate Par Amount.
(d) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers hereunder, if
it has reasonable grounds for believing that repayment of such funds or adequate
indemnity against any related risk or liability is not reasonably assured to it.
SECTION 3.7 Certain Rights of the Trustee. (a) Subject to the
provisions of Section 3.6:
(i) the Trustee may conclusively rely on and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document whether in its original or facsimile
form reasonably believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(ii) any direction or act of the Depositor acting on behalf of
or in connection with the Trust as contemplated by this Trust Agreement
shall be sufficiently evidenced by an Officer's Certificate of the
Depositor;
(iii) whenever in the administration of this Trust Agreement,
the Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting to take any action hereunder, the
Trustee (unless other evidence is herein specifically prescribed) may
request and in the absence of bad faith on its part conclusively rely upon
an Officer's Certificate;
(iv) the Trustee may consult with counsel or other experts of
its own selection, and the advice or opinion of such counsel and experts
with respect to legal
15
matters or advice within the scope of such experts' areas of expertise shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion; such counsel may be, but shall not be limited
to, counsel to the Depositor or any of its Affiliates, and may include any
of its employees. The Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement or at the
request or direction of any Holder or the Depositor, unless (a) such Holder
or the Depositor shall have provided to the Trustee security and indemnity,
reasonably satisfactory to the Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the reasonable
expenses of the Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Trustee and
(b) the Trustee has been provided with the legal opinions, if any, required
by this Trust Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its reasonable discretion, may make such
further inquiry or investigation into such facts or matters as it may deem
necessary at the expense of the Down-MACRO Holding Trust and shall incur no
liability of any kind by reason of such inquiry or investigation;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney selected in good faith and with due care (other than an agent or
attorney that is an Affiliate of the Trustee); furthermore, the Trustee
shall be under no obligation to monitor, and shall assume no personal
liability for, the actions of the Depositor or any other Person in
connection with their duties under this Trust Agreement or in connection
with the Trust generally;
(viii) any action taken by the Trustee or its agents hereunder
shall bind the Trust and the Holders, and the signature of the Trustee or
its agents alone shall be sufficient and effective to perform any such
action, and no third party shall be required to inquire as to the authority
of the Trustee to so act or as to its compliance with any of the terms and
provisions of this Trust Agreement, both of which shall be conclusively
evidenced by the Trustee's or its agent's taking such action;
(ix) whenever in the administration of this Trust Agreement
the Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Trustee may request instructions from the Depositor;
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(x) except as otherwise expressly provided by this Trust
Agreement, the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement;
(xi) the Trustee shall not be required to take any action if
the Trustee shall reasonably determine, or shall be advised by counsel, that
such action is likely to result in personal liability for the Trustee or is
contrary to applicable law or the terms of this Trust Agreement;
(xii) under no circumstances shall the Trustee be personally
liable for indebtedness evidenced by or arising under any of the documents
to which the Trust or the Trustee is a party; and
(xiii) the Trustee shall not be liable for the default or
misconduct of any agent, appointed by the Trustee in good faith and with due
care, under any of the documents to which the Trust or the Trustee is a
party or otherwise (provided that such agent is not an Affiliate of the
Trustee), and the Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Trust Agreement or the other
documents to which the Trust or the Trustee is a party that are required to
be performed by other Persons, including, without limitation, the
Administrative Agent and the Depositor.
(b) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which (i) it shall be illegal, or (ii) the Trustee shall be determined to be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation.
Notwithstanding the above, no permissive power or authority available to the
Trustee under applicable law shall be construed to be a duty under this Trust
Agreement.
SECTION 3.8 Prohibition of Actions by the Trust and the Trustee. The
Trust shall not, and the Trustee shall not cause the Trust to, nor shall the
Depositor direct the Trustee to, engage in any activity other than as required
or authorized by this Trust Agreement. In particular, the Trust shall not and
the Trustee shall not cause the Trust to:
(a) invest any interest or other distributions paid in respect of the
Trust Property, but shall distribute all such proceeds to the Holders pursuant
to the terms of this Trust Agreement and of the Down-MACRO Tradeable Shares;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust Property for a purpose other than those described in
Section 3.3;
(d) sell, pledge, hypothecate or transfer the Down-MACRO Holding Shares
(except in accordance with Section 6.1 and Section 6.6);
17
(e) make any loans or incur any indebtedness or acquire any securities
other than Down-MACRO Holding Shares (except in accordance with Section 6.1 and
Section 6.6);
(f) except as expressly set forth herein, act in such a way as to vary
the terms of the Down-MACRO Tradeable Shares in any way whatsoever;
(g) issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Trust, other than the Down-MACRO Tradeable
Shares;
(h) (i) direct the time, method and place of conducting any proceeding
for any remedy available to the Trust as the holder of Trust Property or
exercising any power conferred upon holders of Trust Property, (ii) waive any
past default or violation that is waivable under the terms of any Trust Property
or (iii) consent to any amendment or modification of the terms of any Trust
Property where such consent shall be required, except in each case if permitted
hereby or after receiving instructions from the Holders pursuant to Article 11
hereof;
(i) file a certificate of cancellation of the Trust or take any other
action to terminate the Trust, except in connection with a liquidation of the
Trust pursuant to Article 8 hereof;
(j) take any action that would cause the Trust to be classified other
than as a grantor trust for U.S. federal income tax purposes; or
(k) take any action that would cause the Trust to be deemed or
classified as an Investment Company.
SECTION 3.9 Execution of Documents. Except as otherwise required by the
laws of the State of New York, the Trustee is authorized to execute on behalf of
the Trust any documents that the Trustee has the power and authority to cause
the Trust to execute pursuant to Section 3.5.
SECTION 3.10 No Representations of the Trustee. The Trustee makes no
representations as to the value or condition of the Trust Property or any part
thereof. Except as expressly set forth in Article 12, the Trustee makes no
representations as to the validity or sufficiency of this Trust Agreement or the
Down-MACRO Tradeable Shares.
SECTION 3.11 Duration of Trust. The Trust, unless terminated pursuant
to the provisions of Article 8 hereof, shall have perpetual existence.
SECTION 3.12 Mergers.
(a) The Trust may not consolidate, amalgamate, merge or convert with or
into, or be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, except as
described in Section 3.12(b), and except that the Trust may distribute its
assets to the Holders or to such persons as the Holders may direct upon
liquidation of the Trust in accordance herewith.
18
(b) The Trust may, with the unanimous consent of the Holders,
consolidate, amalgamate, merge or convert with or into, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to a trust organized as such under the laws of any
state of the United States.
SECTION 3.13 Limitation on Directions to Trustee. The Holders and the
Depositor shall not direct the Trustee to take or refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Trustee under this Trust Agreement or any of the documents to which the
Trust is a party or would be contrary to Section 3.3 hereof, nor shall the
Trustee be obligated to follow any such direction, if given.
ARTICLE 4
THE DEPOSITOR
SECTION 4.1 Responsibilities of the Depositor. In connection with the
issue and sale of the Down-MACRO Tradeable Shares, the Depositor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to determine the jurisdictions in which to take appropriate action
to qualify or register for sale all or part of the Down-MACRO Tradeable Shares
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust, the Trustee and their Affiliates or agents of
actions they must take, and prepare for execution and filing any documents to be
executed and filed by the Trust as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such jurisdictions;
(b) to advise the Trust, the Trustee and their Affiliates or agents, of
actions they must take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Depositor deems necessary or advisable
in order to comply with any applicable rules and regulations of the SEC
promulgated under the Securities Act, the Exchange Act, the Trust Indenture Act
and the Investment Company Act and to obtain or maintain exemptions therefrom or
other forms of relief thereunder or to make any filings or take any actions
required thereby or deemed necessary or advisable with respect to the Down-MACRO
Tradeable Shares or any Trust Property; and
(c) to undertake any other duties or obligations set forth herein.
SECTION 4.2 Certain Matters Regarding a Successor Depositor. The
covenants, provisions and agreements herein contained shall in every case be
binding upon any successor to the business of the Depositor. The Depositor may
transfer all or substantially all of its assets to any entity which carries on
the business of the Depositor, if at the time of such transfer such successor
duly assumes all of obligations of the Depositor under this Trust Agreement, and
in such event, the Depositor shall be relieved of all further liability under
this Trust Agreement.
SECTION 4.3 Compensation of the Depositor. The Depositor shall not
receive any compensation, reimbursements, disbursements and repayment of
expenses for its efforts and services incurred hereunder. The Depositor
acknowledges that it has received good
19
and valuable consideration for its services pursuant to and in connection with
the Down-MACRO Holding Trust Agreement and that its services hereunder are
integral and connected to its services performed under the Down-MACRO Holding
Trust Agreement.
SECTION 4.4 Counsel. The Depositor may from time to time employ counsel
to act on behalf of the Trust and perform any legal services in connection with
the Trust. The fees and expenses of such counsel shall be paid by the Down-MACRO
Holding Trust pursuant to the terms of the Down-MACRO Holding Trust Agreement.
ARTICLE 5
THE TRUSTEE AND THE ADMINISTRATIVE AGENT
SECTION 5.1 Trustee; Eligibility.
(a) The Trustee hereunder shall at all times: (i) be a bank, a trust
company or a corporation organized and doing business under the laws of the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority, (ii) have a combined capital and surplus of at least
$15,000,000, (iii) maintain any credit or deposit rating required by nationally
recognized rating organizations (as of the date hereof "A-1" for Standard &
Poor's Rating Service or "P-1" for Xxxxx'x Investors Service, Inc.) and (iv)
hold the position of both the Trustee and the Down-MACRO Holding Trustee. If
such bank, trust company or corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 5.1, the combined
capital and surplus of such bank, trust company or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Trustee ceases to be eligible to so act under
Section 5.1(a), the Trustee shall immediately resign in the manner and with the
effect set forth in Section 5.2.
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Depositor shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
(d) The initial Trustee shall be Investors Bank & Trust Company. Such
Trustee shall not be entitled to receive a fee for serving as Trustee under this
Trust Agreement and acknowledges that it has received good and valuable
consideration for its services pursuant to and in connection with the Down-MACRO
Holding Trust Agreement and that its services hereunder are integral and
connected to its services performed under the Down-MACRO Holding Trust
Agreement.
(e) In accepting the trust hereby created, the Trustee agrees to act
solely as trustee hereunder and not in its individual capacity, except as
expressly provided herein and in the other documents to which the Trust is a
party.
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(f) All Persons having any claim against the Trustee in its capacity as
such by reason of the transactions contemplated by the documents to which the
Trust is a party shall look only to the Trust Property (or a part thereof, as
the case may be) and not to the Trustee in its individual capacity. Without
limiting the generality of the foregoing, the Trustee in its capacity as such or
individually shall not be responsible or liable for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor, or for the form, character, genuineness, sufficiency, value,
or validity of the Trust Property.
SECTION 5.2 Appointment, Removal and Resignation of Trustee.
(a) Subject to the provisions of this Section 5.2, the Trustee may be
appointed, removed or replaced without cause at any time by the Depositor, upon
written notice, or with cause upon the occurrence of a Trustee Termination
Event; provided, however, that the Trustee shall not be removed in accordance
with this Section 5.2(a) until a successor Trustee possessing the qualifications
to act as Trustee under Section 5.1 (a) "Successor Trustee") has been appointed
by the Depositor and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Depositor.
(b) A Trustee appointed to office shall hold office until its successor
shall have been appointed by the Depositor in accordance with this Trust
Agreement or until its termination, removal or resignation. Any Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the Depositor, the
Trust and all of the Holders, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that no such resignation of a Trustee shall be effective:
(i) until a Successor Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor Trustee
and delivered to the Trust, the Depositor and the resigning Trustee; or
(ii) until the Trust Property has been completely liquidated
and the proceeds thereof distributed to the Holders.
(c) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 5.2 within thirty (30) days after
delivery to the Depositor and the Trust of an instrument of resignation, the
resigning Trustee may petition at the expense of the Trust any court of
competent jurisdiction for appointment of a Successor Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Trustee.
(d) No Trustee shall be liable for the acts or omissions to act of any
Successor Trustee.
SECTION 5.3 Trustee's Delegation of Power. The rights, duties and
powers of the Trustee as set forth in this Trust Agreement may be delegated to
one or more Affiliates of the Trustee; provided, however, that each such
delegatee meets the eligibility requirements set forth in Section 5.1; and,
provided further, that as a condition to any such delegation, the delegatee
shall expressly agree to be jointly and severally liable with the Trustee for
any liability
21
arising out of or in connection with such delegation; provided, however, that
such delegation shall in no manner relieve the Trustee from its duties or
obligations under this Trust Agreement or any other Trust Document nor relieve
the Trustee of its liabilities, if any, for such actions. The Trustee may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 its power for the purpose of executing any documents
contemplated in Section 3.5; provided, however, that such delegation shall in no
manner relieve the Trustee from its duties or obligations arising under this
Trust Agreement or any other Trust Document nor relieve the Trustee of its
liability for such actions.
SECTION 5.4 The Trustee's Merger, Conversion or Consolidation or
Succession to Business of Trustee. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that such corporation
shall be otherwise qualified and eligible under this Article.
SECTION 5.5 Books and Records; Taxes and Audits.
(a) The Trustee shall keep proper books of record and account of all
the transactions under this Trust Agreement at its Corporate Trust Office or
such office as it may subsequently designate upon notice to the other parties
hereto. The books and records of the Trustee maintained by the Trustee shall be
open to inspection by any person establishing to the Trustee's reasonable
satisfaction that such person is a Beneficial Owner upon reasonable advance
notice at all reasonable times during the usual business hours of the Trustee.
The Trustee shall keep proper record of the creation of the Down-MACRO Tradeable
Shares and redemption of Down-MACRO Tradeable Shares at its Corporate Trust
Office. Such records shall be open to inspection upon reasonable advance notice
at all reasonable times during the usual business hours of the Trustee. Such
records shall be preserved for such times as the Depositor may direct.
(b) The Trustee shall provide the Depositor and the Administrative
Agent such financial and other information regarding the operation of the
Down-MACRO Tradeable Trust as may be required for the Depositor to prepare such
reports and filings required under the federal securities laws as provided in
Section 2.4 hereof and Section 15.2 of the Down-MACRO Holding Trust Agreement.
Unless otherwise required by applicable law or regulation, the Depositor shall
be responsible for any certification of any such reports or the contents thereof
and shall receive from the Trustee such representations with respect to
information within the Trustee's control as shall be required for the Depositor
to make such certification.
(c) The accounts of the Down-MACRO Tradeable Trust shall be audited, as
required by law and as may be directed by the Depositor, by independent
certified public accountants designated from time to time by the Depositor and
the cost of such audit shall be borne by the Down-MACRO Holding Trust. The
report of such accountants shall be furnished by the Trustee to the Beneficial
Owners upon request.
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SECTION 5.6 Appointment, Removal and Resignation of the Administrative
Agent.
(a) Claymore Securities, Inc. agrees to act as Administrative Agent
under this Trust Agreement and the Holders of the Down-MACRO Tradeable Shares by
their acceptance of their shares consent to Claymore Securities, Inc., acting as
Administrative Agent under this Trust Agreement.
(b) The Administrative Agent shall administer the Trust Property,
direct the Trustee in the creation and exchange processes described in Section
6.2 and 6.6 of this Trust Agreement and otherwise comply with its duties as set
forth in this Trust Agreement. The Depositor and the Trustee shall furnish to
the Administrative Agent any powers of attorney or other documents necessary or
appropriate to enable the Administrative Agent to carry out its administrative
duties hereunder.
(c) The Administrative Agent shall not be liable for the payment of
expenses incurred in connection with the Down-MACRO Tradeable Trust but shall be
liable for its administrative activities undertaken pursuant to this Trust
Agreement including any expenses relating to its administration of the Trust
Property, disbursements and any other fees and expenses related thereto.
(d) The Administrative Agent shall maintain and implement
administrative and operating procedures (including the ability to recreate
records evidencing its instructions relating to the Trust Property in the event
of the destruction of the originals thereof), and keep and maintain all
documents, books, computer records and other information, reasonably necessary
or advisable which is related to its administration of the Trust Property. Such
documents, books and computer records shall reflect all facts related to the
administration of the Trust Property by the Administrative Agent, and such
documents, books and computer records shall indicate the interests of the Trust
in the Down-MACRO Holding Shares and any other Trust Property.
(e) Subject to the provisions of this Section 5.6, the Administrative
Agent may be appointed, removed or replaced with or without cause at any time by
the Depositor, upon written notice from the Depositor; provided, however, that
the Administrative Agent shall not be removed in accordance with this Section
5.6(e) until a successor administrative agent (a "Successor Administrative
Agent") has been appointed by the Depositor and has accepted such appointment by
written instrument executed by such Successor Administrative Agent and delivered
to the Depositor.
(f) An administrative agent appointed to office shall hold office until
its successor shall have been appointed by the Depositor in accordance with this
Trust Agreement or until its termination, removal or resignation. Any
administrative agent may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the administrative
agent and delivered to the Depositor, the Trustee and all of the Holders, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of an
administrative agent shall be effective:
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(i) until a Successor Administrative Agent has been appointed
and has accepted such appointment by instrument executed by such Successor
Administrative Agent and delivered to the Trust, the Depositor and the
resigning administrative agent; or
(ii) until the Trust Property has been completely liquidated
and the proceeds thereof distributed to the Holders.
(g) If no Successor Administrative Agent shall have been appointed and
accepted appointment as provided in this Section 5.6 within thirty (30) days
after delivery to the Depositor and the Trust of an instrument of resignation,
the resigning administrative agent may petition at the expense of the
Administrative Agent any court of competent jurisdiction for appointment of a
Successor Administrative Agent. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Administrative Agent.
(h) No Administrative Agent shall be liable for the acts or omissions
to act of any Successor Administrative Agent.
SECTION 5.7 Administrative Agent's Delegation of Power. The rights,
duties and powers of the Administrative Agent as set forth in this Trust
Agreement may be delegated to one or more Affiliates of the Administrative
Agent; provided, however, that as a condition to any such delegation, the
delegatee shall expressly agree to be jointly and severally liable with the
Administrative Agent for any liability arising out of or in connection with such
delegation; provided, however, that such delegation shall in no manner relieve
the Administrative Agent from its duties or obligations under this Trust
Agreement or any other Trust Document nor relieve the Administrative Agent of
its liabilities, if any, for such actions. The Administrative Agent may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 its power for the purpose of executing any documents
in accordance with its duties set forth herein; provided, however, that such
delegation shall in no manner relieve the Trustee from its duties or obligations
arising under this Trust Agreement or any other Trust Document nor relieve the
Administrative Agent of its liability for such actions.
SECTION 5.8 The Administrative Agent's Merger, Conversion or
Consolidation or Succession to Business of the Administrative Agent. Any
corporation into which the Administrative Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Administrative Agent shall be a party,
or any corporation succeeding to all or substantially all the corporate trust
business of the Administrative Agent shall be the successor of the
Administrative Agent hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
that such corporation shall be otherwise qualified and eligible under this
Article.
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ARTICLE 6
TERMS OF THE DOWN-MACRO TRADEABLE SHARES
SECTION 6.1 Initial Deposit; Authorization and Designation of
Down-MACRO Tradeable Shares.
(a) By execution of this Trust Agreement, each of the Depositor and the
Administrative Agent hereby transfers, assigns, sets over and otherwise conveys
to the Trust, cash in an amount of $500 for a total initial deposit of $1,000
(the "Initial Deposit") in exchange for 1,000 Founders' Shares, of which 500 are
being issued to the Depositor and 500 are being issued to the Administrative
Agent. The Initial Deposit will be deposited into the Founders' Equity Account
and shall not be included in the calculation of the Down-MACRO Asset Amount (as
defined in the Down-MACRO Holding Trust Agreement) at any time. The Trustee
hereby declares that, subject to the terms and conditions of this Trust
Agreement, the Initial Deposit and all other assets owned by the Trust from time
to time shall be owned by the Trust for the use and benefit of all present and
future Holders in accordance with their respective beneficial interests as the
same may be constituted from time to time.
(b) The Trust is authorized to issue undivided beneficial interests in
the Trust Property, which shall be designated the "Claymore MACROshares Oil Down
Tradeable Shares."
(c) The Trust shall issue only one class of Down-MACRO Tradeable Shares
and is not authorized to issue any other securities.
(d) The Trustee hereby confirms that, in exchange for a Holding Share
Deposit, the Trustee has issued to DTC the ordered number of Down-MACRO
Tradeable Shares and that, upon the Registration Statement for the sale of the
Down-MACRO Tradeable Shares being declared effective, the Trustee will direct
DTC to credit to the account of the Depositor its shares constituting the number
of Down-MACRO Tradeable Shares ordered.
(e) The Depositor hereby instructs the Trustee to execute the
Down-MACRO Tradeable Shares, the Certificates and any certificate of
authentication on such Certificates relating to the Down-MACRO Tradeable Shares
required to be executed pursuant to Section 9.1 and any other certificate
required to be executed pursuant to Section 9.5, to execute each of the Trust
Documents on behalf of the Trust, and to cause the Trust to perform its
obligations thereunder.
(f) Each Down-MACRO Tradeable Share shall represent an undivided
beneficial interest in the Trust Property. The specific rights, terms and
preferences of the Down-MACRO Tradeable Shares are as set forth herein and in
accordance with the terms of this Trust Agreement (including the requirements of
Section 11.2 and Section 11.3 of this Trust Agreement). Any amendment to the
Certificates shall have the status of an amendment to this Trust Agreement.
(g) The authorization of the Down-MACRO Tradeable Shares shall be
effective upon the execution by the Trustee of the Certificates. The Down-MACRO
Tradeable Shares are deemed to be equity securities for all purposes under New
York law.
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(h) Down-MACRO Tradeable Shares issued and sold in accordance with this
Trust Agreement and as contemplated in the Participants Agreement shall be
deemed to be duly issued, fully paid and non-assessable; provided, however, that
Down-MACRO Tradeable Shares will be issued only in integral multiples of 50,000
Down-MACRO Tradeable Shares.
(i) All Down-MACRO Tradeable Shares shall represent equal proportionate
beneficial interests in the Trust Property (subject to the liabilities of the
Trust), and each Down-MACRO Tradeable Share shall rank equal with each other
Down-MACRO Tradeable Share.
SECTION 6.2 Subsequent Issuances and Issuance of Down-MACRO Tradeable
Shares.
(a) After the Initial Deposit, the following procedures, as
supplemented by the more detailed procedures specified in Attachment B to the
Participants Agreement, which may be amended from time to time in accordance
with the provisions of the Participants Agreement (and any such amendment will
not constitute an amendment of this Trust Agreement), will govern the Trustee
and the Administrative Agent in the creation and issuance of additional
Down-MACRO Tradeable Shares. Subject to the requirements for the issuance of
Down-MACRO Tradeable Shares stated herein and in such procedures, the number of
Down-MACRO Tradeable Shares which may be issued by the Trust is unlimited.
(b) On any Business Day, an Authorized Participant may submit a request
to the Administrative Agent to create one or more Down-MACRO Tradeable Shares
(such request, a "Creation Order"), and the Administrative Agent, upon
processing such Creation Order, shall provide the Trustee with the requisite
information needed in order to effectuate such order. The Administrative Agent
shall provide such information at the times set forth in Attachment B to the
Participants Agreement.
(c) Creation Orders must be received by the Order Cut-Off Time on a
Business Day (the "Creation Order Date"). The Administrative Agent will process
Creation Orders only from Authorized Participants with respect to which the
Participants Agreement is in full force and effect. The Trustee and the
Administrative Agent will each maintain and make available at their respective
offices during normal business hours a current list of Authorized Participants
with respect to which the Participants Agreement is in full force and effect.
The Trustee shall deliver a copy of the Prospectus to each of the Authorized
Participants prior to its execution and delivery of the Participants Agreement.
(d) Any Creation Order is subject to rejection by the Trustee pursuant
to Section 6.2(f).
(e) After accepting an Authorized Participant's Creation Order, the
Trustee will issue and deliver Down-MACRO Tradeable Shares to fill an Authorized
Participant's Creation Order upon the satisfaction by the Authorized Participant
of the terms and conditions set forth in the Participants Agreement.
(f) The Trustee shall have the absolute right, but shall have no
obligation, to reject any Creation Order or Holding Share Deposit (i) if the
Administrative Agent determines that the Authorized Participant directing the
Creation Order has not deposited sufficient Down-
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MACRO Holding Shares with the Trustee, (ii) if it determines that such Creation
Order is not in the proper form, (iii) if the Depositor has determined and
advised the Trustee that such deposit would result in adverse tax consequences
to the Trust or to the Holders of Down-MACRO Tradeable Shares, (iv) the
acceptance or receipt of which would, in the opinion of counsel to the Trustee,
the Administrative Agent or the Depositor, be unlawful or (v) if circumstances
outside the control of the Trustee or the Depositor make it for all practical
purposes not feasible to process the creation of Down-MACRO Tradeable Shares.
None of the Trustee, the Administrative Agent and the Depositor shall be liable
to any Person by reason of the rejection of any Creation Order or Holding Share
Deposit.
(g) Certificates for Down-MACRO Tradeable Shares will not be issued,
other than the Global Certificate issued to DTC. So long as the DTC Letter is in
effect, Down-MACRO Tradeable Shares will be issued, exchanged, and transferred
solely through the book-entry systems of DTC and the Clearing Agency
Participants as set forth in Section 9.3. DTC may determine to discontinue
providing its services with respect to Down-MACRO Tradeable Shares by giving
notice to the Trustee, the Administrative Agent and the Depositor pursuant to
and in conformity with the provisions of the DTC Letter and discharge its
responsibilities with respect thereto under the applicable law. Under such
circumstances, the Trustee, the Administrative Agent and the Depositor shall
take action either to find a replacement for DTC to perform its functions at a
comparable cost and on terms acceptable to the Trustee, the Administrative Agent
and the Depositor or, if such a replacement is unavailable, to terminate the
Trust.
(h) Holding Share Deposits may be delivered for deposit to the Trust
only by a transfer from an Authorized Participant to the Securities Account of
the Trust. In accordance with the Participants Agreement, the expense of such
delivery shall be solely borne by the Authorized Participant.
SECTION 6.3 Status of Down-MACRO Tradeable Shares. Every Holder, by
virtue of having become a Holder, shall be deemed to have expressly assented and
agreed to the terms hereof. Down-MACRO Tradeable Shares shall be deemed to be
personal property, giving only the rights provided herein. Ownership of
Down-MACRO Tradeable Shares shall not entitle the Holder to any title in, or to
the whole or any part of, the Trust Property or right to call for a partition or
division of the same or for an accounting. The bankruptcy of a Holder during the
continuance of the Trust shall not operate to terminate the Trust nor entitle
the representative of any bankrupt Holder to an accounting or to take any action
in court or elsewhere against the Trust or the Trustee.
SECTION 6.4 CUSIP Numbers. The Trust, in issuing the Down-MACRO
Tradeable Shares, may use "CUSIP" numbers (if then generally in use), and, if
so, the Trustee shall use "CUSIP" numbers in notices of liquidation as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Down-MACRO Tradeable Shares or as contained in any notice of a
liquidation and that reliance may be placed only on the other identification
numbers printed on the Down-MACRO Tradeable Shares, and any such liquidation
shall not be affected by any defect in or omission of such numbers.
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SECTION 6.5 Distributions.
(a) Distributions received on a quarterly basis shall be paid to the
Holders on each Distribution Payment Date from time to time out of the payments
received from the Down-MACRO Holding Trust on the Down-MACRO Holding Shares held
by the Trust. Distributions on Down-MACRO Tradeable Shares shall be distributed
Pro Rata to the Holders.
(b) Any amounts received by the Trust upon a distribution by the
Down-MACRO Holding Trust on Down-MACRO Holding Shares that does not occur on a
quarterly basis shall be distributed, upon receipt by the Trustee or the Paying
Agent (as the case may be), Pro Rata to the Holders on the same day that the
Trust receives such distribution, to the extent practicable.
(c) The Trustee shall not be entitled to deduct any amounts on deposit
in the Distribution Account prior to any Distribution to any Holder, and any
fees, expenses, actual and/or accrued liabilities shall be paid by the
Down-MACRO Holding Trust in accordance with the Down-MACRO Holding Trust
Agreement.
(d) The Record Date ("Record Date") for the determination of Holders
entitled to receive payment of a Distribution referred to in Section 6.5(a) will
be the open of business on the second Business Day immediately following the
scheduled Distribution Date on the Down-MACRO Holding Shares.
(e) Distributions on Down-MACRO Tradeable Shares in connection with a
liquidation or dissolution of the Trust shall be made as required by Section 8.2
hereof.
(f) All Distributions shall be made in cash.
SECTION 6.6 Exchange of Down-MACRO Tradeable Shares for Down-MACRO
Holding Shares.
(a) On any Business Day, an Authorized Participant may submit a request
to the Trustee to exchange Down-MACRO Tradeable Shares for Down-MACRO Holding
Shares (such request, an "Exchange Order"), and the Administrative Agent, upon
processing such Exchange Order, shall provide the Trustee with the requisite
information needed in order to effectuate such order. The Administrative Agent
shall provide such information at the times set forth in Attachment B to the
Participants Agreement. The Trustee and the Administrative Agent, in
effectuating each Exchange Order, shall follow the procedures set forth herein
and in Attachment B to the Participants Agreement.
(b) Exchange Orders must be received by the Order Cut-Off Time on a
Business Day (the "Exchange Order Date"). The Trustee will process Exchange
Orders only from Authorized Participants with respect to which the Participants
Agreement is in full force and effect.
(c) Any Exchange Order is subject to rejection by the Trustee pursuant
to Section 6.6(e).
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(d) After accepting an Authorized Participant's Exchange Order, the
Trustee will withdraw Down-MACRO Holding Shares (in equal number to the
Down-MACRO Tradeable Shares delivered by the Authorized Participant) from the
Securities Account of the Trust and deliver those Down-MACRO Holding Shares to
fill the Authorized Participant's Exchange Order in accordance with, and subject
to the satisfaction by the Authorized Participant of, the terms and conditions
set forth in the Participants Agreement. Notwithstanding anything to the
contrary, if the Authorized Participant specifies in its Exchange Order that it
desires to deliver Down-MACRO Holding Shares to the Down-MACRO Holding Trust
(and p-MACRO Holding Shares to the Up-MACRO Holding Trust, in an aggregate
number that constitutes a MACRO Unit (as defined in the Holding Trust
Agreements)), then the Trustee shall comply with the procedures set forth in the
Participants Agreement to effectuate such paired optional redemption.
(e) The Trustee shall have the absolute right, but shall have no
obligation, to reject any Exchange Order or Tradeable Share Deposit (i) if the
Administrative Agent determines that the Authorized Participant directing the
Exchange Order has not deposited sufficient funds with the Trustee, (ii) if it
determines that such Exchange Order is not in the proper form, (iii) if the
Depositor has determined and advised the Trustee that such deposit would result
in adverse tax consequences to the Trust or to the Holders of Down-MACRO
Tradeable Shares, (iv) the acceptance or receipt of which would, in the opinion
of counsel to the Depositor, Administrative Agent or Trustee, be unlawful or (v)
if circumstances outside the control of the Trustee or the Depositor make it for
all practical purposes not feasible to process the exchange of Down-MACRO
Tradeable Shares for Down-MACRO Holding Shares. None of the Trustee, the
Administrative Agent and the Depositor shall be liable to any Person by reason
of the rejection of any Exchange Order or Tradeable Share Deposit.
(f) A non-refundable transaction fee (the "Transaction Fee") will be
payable to the Trustee for its own account in connection with each Exchange
Order pursuant to this Section 6.6. The Transaction Fee charged in connection
with each Exchange Order shall be initially $500, but may be changed in
accordance with Section 6.6(g). A single Transaction Fee will be due for each
Exchange Order regardless of the number of Down-MACRO Tradeable Shares
exchanged.
(g) The Transaction Fee may subsequently be waived, modified, reduced,
increased or otherwise changed by the Trustee, with the prior written consent of
the Depositor, but will not in any event exceed the amount limits as set forth
in the Participants Agreement. Promptly after agreeing to and prior to
implementing such change, the Depositor shall cause the current Registration
Statement to be amended to reflect any such changes in the Transaction Fee. The
Trustee shall notify DTC and each Authorized Participant of any agreement to
change the Transaction Fee and shall not implement any increase for exchanges of
outstanding Down-MACRO Tradeable Shares until thirty (30) days after the date of
that notice. The amount of the Transaction Fee in effect at any given time shall
be made available by the Trustee upon request.
(h) Tradeable Share Deposits may be delivered for deposit to the Trust
only by a transfer from an Authorized Participant to the Securities Account of
the Trust. In accordance with the Participants Agreement, the expense of such
deposit shall be solely borne by the Authorized Participant.
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ARTICLE 7
ACCOUNTING AND RECORDS
SECTION 7.1 Annual Tax Information.
(a) The Trustee shall file or cause to be filed, within the time limits
established by law, federal and state income tax returns and information
statements as a grantor trust for each of the Trust's taxable years. The Trust's
taxable year shall be the calendar year unless otherwise required by law.
Notwithstanding any other provision of the Trust Agreement to the contrary, the
Trustee shall comply with all federal withholding requirements respecting
distributions to, or receipts of amounts on behalf of, Holders that the Trustee
reasonably believes are applicable under the Code. The consent of the Holders
shall not be required for such withholding. The Trustee shall in no event cause
the Trust, and each Holder of Down-MACRO Tradeable Shares by its purchase
thereof shall be deemed to have agreed not to make any election to cause the
Trust, to be treated as a corporation for federal income tax purposes. The
Administrative Agent and the Depositor, upon request, shall each furnish the
Trustee with any information known to it that may be reasonably required in
connection with its duties set forth in this Section 7.1.
(b) In no event shall the Trustee be personally liable for any taxes or
other governmental charges imposed upon or in respect of the Down-MACRO
Tradeable Shares, which it may be required to pay under any present or future
law of the United States of America or of any other taxing authority having
jurisdiction in the premises. For all such taxes and charges and for any
expenses, including counsel's fees, which the Trustee may sustain or incur with
respect to such taxes or charges, the Trustee shall be reimbursed and
indemnified out of the assets of the Down-MACRO Holding Trust in accordance with
the Down-MACRO Holding Trust Agreement. Any payments by the Trustee shall be
subject to withholding regulations then in force with respect to the Untied
States taxes. This paragraph shall survive notwithstanding any termination of
this Trust Agreement and the Down-MACRO Holding Trust or the resignation or
removal of the Trustee.
SECTION 7.2 Outside Advisors. With regard to the matters covered by
this Article 7, the Trustee may consult with counsel or other experts of its own
selection, and the advice or opinion of such counsel and experts with respect to
legal matters or advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with
such advice or opinion; such counsel may be, but shall not be limited to,
counsel to the Depositor or any of its Affiliates, and may include any of its
employees. Any expenses or fees incurred as a result of the Trustee consulting
with such experts shall be borne by the Down-MACRO Holding Trust as provided for
in the Down-MACRO Holding Trust Agreement.
SECTION 7.3 Certain Accounting Matters. At all times during the
existence of the Trust, the Trustee shall keep a record of any action it takes
with respect to the Trust.
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ARTICLE 8
DISSOLUTION AND TERMINATION;
LIQUIDATION; REDEMPTION
SECTION 8.1 Dissolution and Termination of the Trust. The Trust shall
dissolve upon, and only upon, the distribution to the Holders of all liquidating
distributions received by the Trust on the Down-MACRO Holding Shares in
connection a termination of the Down-MACRO Holding Trust pursuant to Section
11.2 of the Down-MACRO Holding Trust Agreement.
SECTION 8.2 Liquidation; Redemption.
(a) Following the termination of the Down-MACRO Holding Trust pursuant
to Section 11.2 of the Down-MACRO Holding Trust Agreement, the Trust shall
distribute to the Holders the Final Distribution on all Outstanding Down-MACRO
Holding Shares being redeemed and received by the Trust on the Down-MACRO
Holding Shares, and subsequently liquidate as soon as practicable after the
Down-MACRO Holding Trust has made its Final Distribution.
(b) Distributions made upon a liquidation of the Trust pursuant to
Section 8.2(a) shall be applied directly to the Holders, Pro Rata.
(c) Upon completion of the winding up of the Trust and the distribution
of the Trust's assets following a liquidation, the Trustee shall use its best
efforts to liquidate the Trust within 30 days of the dissolution of the Trust in
accordance with Section 8.1.
(d) The provisions of Section 3.5, Section 3.6, Article 10 and Section
14.3 shall survive the termination of the Trust.
ARTICLE 9
AUTHENTICATION AND TRANSFER OF DOWN-MACRO TRADEABLE SHARES
SECTION 9.1 Authentication and Transfer of Certificates. The Trustee
shall provide for the registration of Certificates and of transfers of
Certificates, which will be effected without charge but only upon payment (with
such indemnity as the Trustee may reasonably require) in respect of any tax or
other government charges that may be imposed in relation to such transfer. Upon
surrender for registration or transfer of any Certificate representing the
Down-MACRO Tradeable Shares, the Trustee shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees, using, first, any treasury stock it has on deposit in the Treasury
Stock Account. Every such Certificate surrendered for registration or transfer
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee duly executed by the Holder or such Holder's attorney duly
authorized in writing representing that such Holder has complied with the
restrictions set forth in this Article 9. Each Certificate surrendered for
registration or transfer shall be held by the Trust as treasury stock in the
Treasury Stock Account. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee
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of a Certificate. By acceptance of a Certificate, each transferee shall be
deemed to have agreed to be bound by this Trust Agreement.
SECTION 9.2 Deemed Security Holders. The Trustee may treat the Person
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole Holder of such Certificate and of the Down-MACRO Tradeable
Shares represented by such Certificate for purposes of receiving Distributions
and for all other purposes whatsoever (other than Section 9.3(b) hereof) and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Down-MACRO Tradeable Shares represented
by such Certificate on the part of any Person, whether or not the Trust shall
have actual or other notice thereof.
SECTION 9.3 Book Entry Interests.
(a) Certificates for Down-MACRO Tradeable Shares will be issued only in
the form of one or more fully registered, global Certificates (each, a "Global
Certificate"), to be held by the Trustee, as custodian for DTC (the initial
Clearing Agency) and shall be authenticated and executed by the Trustee. Such
Global Certificates shall initially be registered on the books and records of
the Trust in the name of Cede & Co., the nominee of DTC, and no Beneficial Owner
will receive a definitive certificate representing such Beneficial Owner's
interests in such Global Certificates. Such Certificate shall bear the following
legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(b) So long as the Certificates are in global form, the Trust and the
Trustee shall be entitled to deal with the Clearing Agency for all purposes of
this Trust Agreement (including the payment of Distributions on the Global
Certificates and receiving approvals, votes, instructions or consents hereunder)
as the Holder of the Down-MACRO Tradeable Shares and the sole Holder of the
Global Certificates and shall have no obligation to the Beneficial Owners.
(c) To the extent that the provisions of this Section 9.3 conflict with
any other provisions of this Trust Agreement, the provisions of this Section 9.3
shall control.
(d) The rights of the Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants, and the Clearing Agency shall receive and transmit
payments of Distributions on the Global Certificates to such Clearing Agency
Participants. The Clearing Agency will make book entry transfers
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among the Clearing Agency Participants; provided, however, that solely for the
purposes of determining whether the Beneficial Owners of the requisite amount of
Down-MACRO Tradeable Shares have voted on any matter provided for in this Trust
Agreement, the Trustee may conclusively rely on, and shall be fully protected in
relying on, any written instrument (including a proxy) delivered to the Trustee
by the Clearing Agency setting forth the Beneficial Owners' votes or
instructions or assigning the right to vote or instruct on any matter to any
other Persons either in whole or in part.
(e) A Global Certificate will be exchangeable for Down-MACRO Tradeable
Shares registered in the names of persons other than DTC or its nominee or a
successor Clearing Agency or its nominee only if (i) DTC or such successor
Clearing Agency, as applicable, notifies the Trust that it is unwilling or
unable to continue as a Clearing Agency for such Global Certificate and no
successor Clearing Agency will have been appointed by the Trust within 90 days
of such notice, (ii) DTC or such successor Clearing Agency, as applicable, at
any time, ceases to be a clearing agency registered under the Exchange Act at
which time DTC or such successor Clearing Agency, as applicable, is required to
be so registered to act as such clearing agency and no successor Clearing Agency
shall have been appointed, (iii) subject to obtaining an opinion of a nationally
recognized tax counsel with experience in such matters that there will be no
adverse income or franchise tax consequences under the laws of New York or
general corporation or unincorporated business tax consequences under the laws
of the City of New York upon the issuance of the Down-MACRO Tradeable Shares in
certificated form, the Trust determines that such Global Certificate will be so
exchangeable by the Trust within 90 days, or (iv) the Depositor voluntarily
elects to discontinue the use of the book-entry transfer system. Any Global
Certificate that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Down-MACRO Tradeable Shares registered in such names as DTC or
any successor Clearing Agency or the Trust, as applicable, shall direct.
(f) If the Global Certificates are exchanged pursuant to Section
9.3(e), Distributions may, at the Trust's option, be paid by check mailed to the
persons entitled thereto as shown on the register maintained by the Transfer
Agent; provided, however, a Holder of $5,000,000 or more in Aggregate Par Amount
of Down-MACRO Tradeable Shares shall be entitled to received Distributions, if
any, on any Distribution Payment Date by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing by
the Trust not less than 15 days prior to such Distribution Payment Date. Any
such wire transfer instructions received by the Trust will remain in effect
until revoked by such Holder.
SECTION 9.4 Notices to Clearing Agency. Whenever a notice or other
communication to the Holders is required under this Trust Agreement, the Trustee
shall give all such notices and communications specified herein to be given to
the Holders to the Clearing Agency and shall have no notice obligations to the
Beneficial Owners.
SECTION 9.5 Appointment of Authenticating Agent. At any time when any
Certificates remain outstanding, the Trustee may appoint an authenticating agent
or agents (each, an "Authenticating Agent") with respect to the Certificates
which shall be authorized to act on behalf of the Trustee to authenticate
Certificates issued upon original issuance, exchange or
33
registration of transfer. The Trustee may revoke such power and remove any
Authenticating Agent at any time.
If any Authenticating Agent is appointed hereunder, the Certificates
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
[ ],
not in its individual capacity but solely as
Trustee
By:
----------------------------------------
as Authenticating Agent
By:
----------------------------------------
Authorized Signatory
SECTION 9.6 Appointment of Successor Clearing Agency. If any Clearing
Agency elects to discontinue its services as securities depository with respect
to the Down-MACRO Tradeable Shares, the Trustee may appoint a successor Clearing
Agency with respect to such Down-MACRO Tradeable Shares.
SECTION 9.7 Mutilated, Destroyed, Lost or Stolen Certificate. If (a)
any mutilated Certificate is surrendered to the Trustee, or if the Trustee shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Certificate; and (b) there shall be delivered to the Trustee such security or
indemnity as may be required by it to keep it harmless, then, in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Trustee on behalf of the Trust shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.7, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
9.7 shall constitute conclusive evidence of an ownership interest in the
relevant Down-MACRO Tradeable Shares, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS,
THE DEPOSITOR, THE ADMINISTRATIVE AGENT, THE TRUSTEE OR OTHERS
SECTION 10.1 Liability.
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(a) Except as expressly set forth in this Trust Agreement and the terms
of the Down-MACRO Tradeable Shares, the Depositor, the Administrative Agent and
the Trustee shall not be:
(i) personally liable for the return of any portion of the
investment of Holders of Down-MACRO Tradeable Shares (or any return thereon)
which shall be made solely from the Trust Property;
(ii) required to pay to the Trust, or to any Holder any
deficit upon dissolution of the Trust or otherwise; and
(iii) required to pay any fees or expenses relating to the
operation of the Trust.
(b) The Depositor, the Administrative Agent and the Trustee each
undertakes to perform such duties and only such duties as are specifically set
forth in this Trust Agreement, and no implied covenants or obligations, shall be
read into this Trust Agreement.
(c) In the absence of gross negligence or willful misconduct on the
part of the Depositor, the Administrative Agent, MacroMarkets or the Trustee,
the Depositor, the Administrative Agent, MacroMarkets and the Trustee shall not
be liable for any action taken, suffered or omitted by it in the performance of
its duties under this Trust Agreement. The Depositor, the Administrative Agent,
MacroMarkets and the Trustee shall not be liable for any error in judgment made
in good faith unless such party has been grossly negligent in ascertaining or
failing to ascertain the pertinent facts. In no event shall the Depositor, the
Administrative Agent, MacroMarkets or the Trustee be liable for special,
consequential or punitive damages or for any failure or delay in the performance
of its obligations under this Trust Agreement due to forces reasonably beyond
the control of the Depositor, the Administrative Agent, MacroMarkets or the
Trustee including, without limitation, strikes, work stoppages, acts of war or
terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of
God and interruptions, loss or malfunctions of utilities, communications or
computer (software or hardware) services including, without limitation, Internet
services; it being understood that the Depositor, the Administrative Agent,
MacroMarkets and the Trustee shall each use commercially reasonable efforts
which are consistent with accepted practices in its industry to resume
performance as soon as practicable under the circumstances.
SECTION 10.2 Outside Businesses. Any of the Depositor, the
Administrative Agent, MacroMarkets, the Trustee, their respective officers,
directors, managers, shareholders, partners, members, representatives, employees
or Affiliates, and the Holders may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. None of the foregoing Persons shall be
obligated to present any particular investment or other opportunity to the
Trust, even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any such Person shall have the right to
take for its own account (individually or as a partner or
35
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any of the foregoing Persons may engage or be interested in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
ARTICLE 11
VOTING AND AMENDMENTS
SECTION 11.1 Voting. Holders shall be entitled to vote as a single
class on all matters submitted to the vote of the Holders. Each Down-MACRO
Tradeable Share will have one vote on all matters submitted to the vote of the
Holders. In accordance with Section 15.6 of the Down-MACRO Holding Trust
Agreement, the Holders of the Down-MACRO Tradeable Shares shall be able to
direct the Trustee in the exercise of the voting rights associated with the
Down-MACRO Holding Shares held on deposit in the Down-MACRO Tradeable Trust.
Each Holder of Down-MACRO Tradeable Shares shall be entitled to vote on (i) any
amendments to the Down-MACRO Holding Trust Agreement that require the prior
written consent of the shareholders as described in Section 15.1 of the
Down-MACRO Holding Trust Agreement, (ii) any amendment to the Income
Distribution Agreement and the Settlement Contracts (each as defined in the
Down-MACRO Holding Trust Agreement), (iii) the termination of the Trustee, (iv)
the appointment of a Successor Trustee, (v) the termination of the Calculation
Agent, (vi) the appointment of a successor Calculation Agent, (vii) any
amendments to the certificate of trust filed with the New York Secretary of
State and (viii) any other matters specified in this Trust Agreement or the
Down-MACRO Holding Trust Agreement. The Down-MACRO Holding Shares held by the
Trust shall be voted by the Trustee in the same proportion as such Holders of
the Down-MACRO Tradeable Trust Shares voted.
SECTION 11.2 Amendments.
(a) Except as provided in this Section 11.2, so long as any Down-MACRO
Tradeable Shares are outstanding, any amendment, restatement or revision of or
to this Trust Agreement that would materially and adversely alter the rights,
terms or preferences of the Down-MACRO Tradeable Shares may be effected only
with the approval of a majority of the Holders of Down-MACRO Tradeable Shares as
measured by the Aggregate Par Amount of Down-MACRO Tradeable Shares outstanding
voting on such matter.
(b) No amendment to this Trust Agreement shall be made, and any such
purported amendment shall be void and ineffective:
(i) unless, in the case of any purported amendment, the
Trustee shall have first received an Officer's Certificate of the Depositor
stating that such purported amendment could not reasonably be expected to
materially and adversely affect the rights, terms or preferences of the
Down-MACRO Tradeable Shares or impair the Trust's ability to fully perform
its obligations under each of its contractual arrangements, unless each
party affected thereby consents thereto;
36
(ii) unless, in the case of any purported amendment which
affects the rights or powers of the Trustee, the Trustee shall have
consented to such amendment; and
(iii) if the result of such amendment would be to:
(A) cause the Trust to be classified other than as a
grantor trust for U.S. federal income tax purposes; or
(B) cause the Trust to be deemed to be an investment
company required to be registered under the Investment Company
Act.
(c) The unanimous consent of the Holders shall be required in order to
amend Section 6.5, 10.1, 11.2 or 11.3 of this Trust Agreement and with respect
to:
(i) any modification to the amount or timing of any
distribution that is required to be made on the Down-MACRO Holding Shares;
and
(ii) any reductions to the percentage of shareholders that are
required to consent to any amendment herein.
(d) Notwithstanding the other provisions of this Section 11.2, this
Trust Agreement may not be amended without the direction of Holders evidencing
not less than 66 and 2/3% of the Aggregate Par Amount with respect to:
(i) the liability, and limitations thereon, of the Trustee and
any of its Affiliates;
(ii) the right of the Holders of the Down-MACRO Tradeable
Shares to vote on matters submitted to the vote of Holders of the Down-MACRO
Tradeable Shares;
(iii) the provisions of this Trust Agreement relating to
amendments to this Trust Agreement; and
(iv) the rights of the Holders of the Down-MACRO Tradeable
Shares to receive Distributions on the Down-MACRO Tradeable Shares in
accordance with their terms, including Distributions in connection with a
liquidation of the Trust.
(e) This Trust Agreement may be amended without the consent of the
Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust
Agreement that may be defective or inconsistent with any other provision of
this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of any
entity under this Trust Agreement for the benefit of the Holders or modify
any provisions of this Trust
37
Agreement so long as such modification does not adversely affect the
interest of the Holders in any material respect;
(iv) evidence and provide for the acceptance of appointment
under this Trust Agreement of a Successor Trustee;
(v) conform the provisions of this Trust Agreement to the
Prospectus (notwithstanding anything in this Trust Agreement to the
contrary);
(vi) comply with any requirements imposed by the Code or any
securities laws; and
(vii) conform to any change in the Investment Company Act or
written change in interpretation or application of the rules and regulations
promulgated thereunder by any legislative body, court, government agency or
regulatory authority;
provided, however, that any such amendment made pursuant to this Section 11.2(e)
shall be void if such amendment materially and adversely affects the Holders,
unless first approved by Holders evidencing not less than 66 and 2/3% of the
Aggregate Par Amount voting on such matter.
SECTION 11.3 Other Matters.
(a) If the consent of the holders of the Down-MACRO Holding Shares is
required with respect to any amendment, modification or waiver of the terms of
or rights or preferences under, or other matter in respect of the Down-MACRO
Holding Shares, the Down-MACRO Holding Trust or any agreement to which the
Down-MACRO Holding Trust is a party, the Trustee shall request the direction of
the Holders with respect to such matter and shall vote the Trust's interest in
the Down-MACRO Holding Shares with respect thereto in the same proportion as
such Holders of the Down-MACRO Tradeable Shares voted. Holders evidencing not
less than 66 and 2/3% of the Aggregate Par Amount entitled to provide such
direction shall be represented in any such direction of Holders given pursuant
to this Section 11.3(a).
(b) Prior to taking any Legal Action with respect to any Trust Property
that would materially and adversely affect the rights, terms or preferences of
the Down-MACRO Holding Shares, the Trustee, as the holder of the Trust Property
shall request the direction of the Holders with respect to such Legal Action and
shall act with respect to such Legal Action as directed by a majority of the
Aggregate Par Amount of outstanding Down-MACRO Tradeable Shares actually voting
on such matter.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE ADMINISTRATIVE AGENT
SECTION 12.1 Representations and Warranties of the Trustee. Investors
Bank & Trust Company in its capacity as initial Trustee under this Trust
Agreement, hereby makes, and any successor Trustee by its appointment hereunder
shall make, on the Closing Date (and on the date of any such appointment), the
following representations, warranties and covenants to the
38
Down-MACRO Tradeable Trust in executing this Trust Agreement (and agrees that
the Depositor, the Administrative Agent and the Holders, as applicable, may rely
on each such representation, warranty and covenant):
(a) Organization and Good Standing. The Trustee is a Massachusetts
trust company and a wholly-owned subsidiary of a bank holding company (or with
respect to any successor Trustee, such other corporate entity as may be
applicable), duly organized, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts (or with respect to any successor
Trustee, under the laws of the applicable jurisdiction of organization), and has
full corporate power, authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and, in all material respects, to own
its properties and conduct its business as such properties are presently owned
and as such business is presently conducted.
(b) Due Qualification. The Trustee is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on the interests of the Holders
of the Down-MACRO Tradeable Shares hereunder.
(c) Due Authorization. The execution, delivery, and performance of this
Trust Agreement has been duly authorized by the Trustee by all necessary
corporate action on the part of the Trustee.
(d) Binding Obligation. This Trust Agreement constitutes a legal, valid
and binding obligation of the Trustee, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect,
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(e) No Violation. The execution and delivery of this Trust Agreement by
the Trustee, the performance of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof applicable to the Trustee,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any Requirement of Law applicable to the
Trustee or any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Trustee is a party or by which it or any of its
properties are bound.
(f) No Proceedings. There are no proceedings or investigations pending
or threatened against the Trustee before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality seeking
to prevent the issuance of the Down-MACRO Tradeable Shares or the consummation
of any of the transactions contemplated by this Trust Agreement, seeking any
determination or ruling that, in the reasonable judgment of the Trustee, would
materially and adversely affect the performance by the Trustee of its
obligations under this Trust Agreement, or seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
this Trust Agreement.
39
(g) Compliance with Requirements of Law. The Trustee shall duly satisfy
all of its obligations and duties under this Trust Agreement and shall maintain
in effect all qualifications and will comply in all material respects with all
of the Requirements of Law in connection with its duties hereunder, inasmuch as
a failure to comply with such requirements would have a material adverse effect
on the interests of the Holders of the Down-MACRO Tradeable Shares.
(h) Protection of the Rights of Holders of the Down-MACRO Tradeable
Shares. The Trustee shall take no action which, nor omit to take any action the
omission of which, would substantially impair the rights of Holders of the
Down-MACRO Tradeable Shares nor shall it revise amounts to be distributed on the
Down-MACRO Tradeable Shares.
(i) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery by the Trustee of this
Trust Agreement, the performance by the Trustee of the transactions contemplated
by this Trust Agreement and the fulfillment by the Trustee of the terms hereof,
have been obtained; provided, however, that the Trustee makes no representation
or warranty regarding state securities or "blue sky" laws in connection with the
distribution of the Down-MACRO Tradeable Shares.
(j) Maintenance of Records and Books of Account. The Trustee shall
maintain and implement administrative and operating procedures (including the
ability to recreate records evidencing any transaction entered into by the Trust
in the event of the destruction of the originals thereof), and keep and maintain
all documents, books, computer records and other information, reasonably
necessary or advisable. Such documents, books and computer records shall reflect
all facts giving rise to such transactions, all payments and credits with
respect thereto, and, to the extent required, such documents, books and computer
records shall indicate the interests of the Trust in such transactions.
SECTION 12.2 Representations and Warranties of the Administrative
Agent. Claymore Securities, Inc., in its capacity as initial Administrative
Agent, hereby makes, and any successor Administrative Agent by its appointment
hereunder shall make, on the Closing Date (and on the date of any such
appointment), the following representations, warranties and covenants to the
Trust (and agrees that the Trustee, the Depositor and the Holders, as
applicable, may rely on each such representation, warranty and covenant):
(a) Organization and Good Standing. The Administrative Agent is a
Kansas corporation (or with respect to any successor Administrative Agent, such
other corporate entity as may be applicable) duly organized, validly existing
and in good standing under the laws of the State of Kansas (or with respect to
any successor Administrative Agent, the applicable jurisdiction of its
organization), and has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and, in
all material respects, to own its properties and conduct its business as such
properties are presently owned and as such business is presently conducted.
(b) Due Qualification. The Administrative Agent is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements),
40
and has obtained all necessary licenses and approvals in each jurisdiction in
which failure to so qualify or to obtain such licenses and approvals would have
a material adverse effect on the interests of the Holders of the Down-MACRO
Tradeable Shares hereunder.
(c) Due Authorization. The execution, delivery and performance of this
Trust Agreement has been duly authorized by the Administrative Agent by all
necessary corporate action on the part of the Administrative Agent.
(d) Binding Obligation. This Trust Agreement constitutes a legal, valid
and binding obligation of the Administrative Agent, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect, affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(e) No Violation. The execution and delivery of this Trust Agreement by
the Administrative Agent, the performance of the transactions contemplated by
this Trust Agreement and the fulfillment of the terms hereof applicable to the
Administrative Agent, will not conflict with, violate, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any Requirement of
Law applicable to the Administrative Agent or any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the
Administrative Agent is a party or by which it or any of its properties are
bound.
(f) No Proceedings. There are no proceedings or investigations pending
or threatened against the Administrative Agent before any court, regulatory
body, administrative agency or other tribunal or governmental instrumentality
seeking to prevent the consummation of any of the transactions contemplated by
this Trust Agreement, seeking any determination or ruling that, in the
reasonable judgment of the Administrative Agent, would materially and adversely
affect the performance by the Administrative Agent of its obligations under this
Trust Agreement, or seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Trust Agreement.
(g) Compliance with Requirements of Law. The Administrative Agent shall
duly satisfy all of its obligations set forth herein, will maintain in effect
all qualifications required under Requirements of Law and will comply in all
material respects with all other Requirements of Law in connection with its
obligations set forth herein, inasmuch as the failure to comply with such
requirements would have a material adverse effect on the interests of the
Holders of the Down-MACRO Tradeable Shares.
(h) Protection of Holders of the Down-MACRO Tradeable Shares. The
Administrative Agent shall take no action which, nor omit to take any action the
omission of which, would substantially impair the rights of Holders of the
Down-MACRO Tradeable Shares in the Securities Account.
(i) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or official
required in
41
connection with the execution and delivery by the Administrative Agent of this
Trust Agreement, the performance by the Administrative Agent of the transactions
contemplated by this Trust Agreement and the fulfillment by the Administrative
Agent of the terms hereof, have been obtained; provided, however, that the
Administrative Agent makes no representation or warranty regarding state
securities or "blue sky" laws in connection with the distribution of the
Down-MACRO Tradeable Shares.
ARTICLE 13
ESTABLISHMENT OF ACCOUNTS
SECTION 13.1 Securities Account.
(a) On or prior to the Closing Date, the Trustee will establish, in the
name of the Trustee for the benefit of the Down-MACRO Tradeable Trust at the
offices of the Trustee, a segregated interest bearing trust account, titled the
"Claymore MACROshares Oil Down Tradeable Trust Securities Account," with the
account number listed on Schedule I attached hereto (such account, the
"Securities Account") into which the Trustee, at the instructions of the
Administrative Agent, will from time to time deposit and withdraw Down-MACRO
Holding Shares pursuant to Sections 6.2 and 6.6 of this Trust Agreement.
(b) The Securities Account will be subject to the exclusive dominion
and control of the Trustee and will be maintained as a segregated
special-purpose trust account with the Trustee. Each of the Depositor, the
Administrative Agent and the Trustee agree that it shall have no right of
set-off or banker's lien against, and no right to otherwise deduct from, any
funds or assets held in the Securities Account for any amount owed to it by the
Down-MACRO Tradeable Trust or any Holder of Down-MACRO Tradeable Shares.
(c) The Depositor shall have no right to withdraw securities or any
amounts on deposit in the Securities Account. The Trustee is irrevocably
authorized to make withdrawals from the Securities Account pursuant to Sections
6.2 and 6.6 of this Trust Agreement; provided, that it has received the proper
instructions from an Authorized Participant in accordance with the Participants
Agreement. The Depositor shall have no obligation to replenish any securities or
amounts withdrawn from the Securities Account.
SECTION 13.2 Distribution Account.
(a) On or prior to the Closing Date, the Trustee will establish, in the
name of the Trustee for the benefit of the Down-MACRO Tradeable Trust at the
offices of the Trustee, a segregated interest bearing trust account, titled the
"Claymore MACROshares Oil Down Tradeable Trust Distribution Account," with the
account number listed on Schedule I attached hereto (such account, the
"Distribution Account") into which the Trustee will from time to time deposit
distributions on the Down-MACRO Holding Shares.
(b) The Distribution Account will be subject to the exclusive dominion
and control of the Trustee and will be maintained as a segregated
special-purpose trust account with the Trustee. Each of the Depositor, the
Administrative Agent and the Trustee agree that it shall have no right of
set-off or banker's lien against, and no right to otherwise deduct from, any
funds
42
or assets held in the Distribution Account for any amount owed to it by the
Down-MACRO Tradeable Trust or any Holder of Down-MACRO Tradeable Shares.
(c) On any Business Day, the Trustee shall deposit any amount received
on the Down-MACRO Holding Shares held in the Trust into the Distribution
Account.
(d) On each Distribution Payment Date, any amounts on deposit in the
Distribution Account shall be distributed in accordance with Section 6.5 of this
Trust Agreement.
SECTION 13.3 Founders' Equity Account.
(a) On or prior to the Closing Date, the Trustee will establish, in the
name of the Trustee for the benefit of the Down-MACRO Tradeable Trust at the
offices of the Trustee, a segregated interest bearing trust account, titled the
"Claymore MACROshares Oil Down Tradeable Trust Founders' Equity Account," with
the account number listed on Schedule I attached hereto (such account, the
"Founders' Equity Account") into which the Trustee will deposit the Initial
Deposit.
(b) The Founders' Equity Account will be subject to the exclusive
dominion and control of the Trustee and will be maintained as a segregated
special-purpose trust account with the Trustee. Each of the Depositor, the
Administrative Agent and the Trustee agree that it shall have no right of
set-off or banker's lien against, and no right to otherwise deduct from, any
funds or assets held in the Founders' Equity Account for any amount owed to it
by the Down-MACRO Tradeable Trust or any Holder of Down-MACRO Tradeable Shares.
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 Notices. All notices provided for in this Trust Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, by facsimile or mailed by first-class mail, unless otherwise
indicated below, as follows:
(a) if given to the Trust, in care of the Trustee at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders):
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile number: [ ]
Attention: [ ]
43
(b) if given to the Depositor, at its address set forth below (or such
other address as the Depositor may give notice of to the Holders):
MACRO Securities Depositor, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (973) 453- 8212
Attn: Xxxxxx Xxxxxxx, III
(c) if given to the Administrative Agent, at its address set forth
below (or such other address as the Administrative Agent may give notice of to
the Holders):
[ ]
[ ]
[ ]
Facsimile number: ([ ]) [ ]- [ ]
Attn: [ ]
(d) as copy of any notice given pursuant to Section 14.1(a), (b) or (c)
shall be delivered to the following:
MacroMarkets LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, III
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
and
[ ]
[ ]
[ ]
Facsimile number: ([ ]) [ ]- [ ]
Attn: [ ]
(e) if given to any Holder by first-class mail (or by facsimile if
requested by such Holder), at the address set forth on the books and records of
the Trust.
All such notices shall be deemed to have been given when received in
person, by facsimile, email or similar form of electronic communication or
mailed by first-class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be
44
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 14.2 Trust to be Administered as a Grantor Trust. Nothing in
this Trust Agreement or any other agreement entered into by the Trust shall be
construed to give the Trustee the power to vary the investments of the
Beneficial Owners within the meaning of the Treasury Regulations Section
301.7701-4(c) or similar or successor provisions of the United States Treasury
Regulations under the Code, nor shall the Depositor give the Trustee any
direction that would vary the investment of the Beneficial Owners. The Trustee
shall not be liable to any Person for the failure of the Trust to qualify as a
grantor trust under the Code or any comparable provisions of the laws of any
state or any other jurisdiction where such treatment is sought, provided that
this sentence shall not limit the Trustee's responsibility for the
administration of the Trust in accordance with this Trust Agreement.
SECTION 14.3 Non-Petition. To the fullest extent permitted by
applicable law, notwithstanding any prior termination of this Trust Agreement,
none of the Depositor, the Administrative Agent, the Trustee, or any Paying
Agent or any Holder of Down-MACRO Tradeable Shares will acquiesce, petition or
otherwise invoke or cause the Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust until payment in full of the Down-MACRO Tradeable Shares and the
expiration of a period equal to the longest applicable "preference period"
prescribed by the federal Bankruptcy Court or other applicable law, plus ten
(10) days, following such payment.
SECTION 14.4 GOVERNING LAW. THIS TRUST AGREEMENT, THE DOWN-MACRO
TRADEABLE SHARES AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
SECTION 14.5 Change in Law. If, after the date of this Trust Agreement,
there is (i) a change in any law, rule or regulation, (ii) a judicial decision
or (iii) a pronouncement of any administrative or professional standards setting
body, in each case that would adversely affect any of the terms of this Trust
Agreement or the obligations of the parties hereto, the parties shall use their
reasonable efforts to determine by negotiation and discussion the manner in
which to address the impact of such change, decision or pronouncement, as the
case may be; provided, however, that no amendment may be made to this Trust
Agreement without first complying with Article 11 of this Trust Agreement.
45
SECTION 14.6 Headings. Headings contained in this Trust Agreement are
inserted for convenience of reference only and do not affect the interpretation
of this Trust Agreement or any provision hereof.
SECTION 14.7 Successors and Assigns. Whenever in this Trust Agreement
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Depositor and the Trustee shall bind and inure to
the benefit of their respective successors and assigns, whether so expressed.
SECTION 14.8 Partial Enforceability. If any provision of this Trust
Agreement, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Trust Agreement, or the application
of such provision to Persons or circumstances other than those to which it is
held invalid, shall not be affected thereby.
SECTION 14.9 Counterparts. This Trust Agreement may contain more than
one counterpart of the signature page and this Trust Agreement may be executed
by the affixing of the signatures of the Trustee and a duly authorized officer
of the Depositor to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
46
IN WITNESS WHEREOF, each of the undersigned has caused these presents
to be executed as of the day and year first above written.
INVESTORS BANK & TRUST COMPANY,
as Trustee
By:
-----------------------------------------
Name:
Title:
CLAYMORE SECURITIES, INC.,
as Administrative Agent
By:
-----------------------------------------
Name:
Title:
CLAYMORE SECURITIES, INC.,
as Marketing Agent
By:
-----------------------------------------
Name:
Title:
MACRO SECURITIES DEPOSITOR, LLC,
as Depositor
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
FORM OF
CLAYMORE MACROSHARES OIL DOWN TRADEABLE SHARE
Evidencing All Undivided Beneficial Interests in the
Claymore MACROshares Oil Down Tradeable Trust
CERTIFICATE NO. R-1
[Date]
CUSIP No. [ ]
CLAYMORE MACROSHARES OIL DOWN TRADEABLE TRUST
Claymore MACROshares Oil Down Tradeable Shares
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This certifies that CEDE & CO. is the owner and registered holder of
this Certificate evidencing all issued and outstanding Claymore MACROshares Oil
Down Tradeable Shares (the "Shares"), with a Stated Par Amount as set forth in
the Down-MACRO Tradeable Trust Agreement, dated as of September [ ], 2006 (as
may be amended, supplemented or modified from time to time, the "Trust
Agreement"), among MACRO Securities Depositor, LLC, as Depositor (the
"Depositor"), Investors Bank & Trust Company, not in its individual capacity,
but solely as Trustee (the "Trustee") and Claymore Securities, Inc., not in its
individual capacity but solely as Administrative Agent (the "Administrative
Agent") and Marketing Agent (the "Marketing Agent"). Distributions on the Shares
shall be made in accordance with the terms and conditions of the Trust
Agreement. The Trust Agreement provides for the deposit of additional Down-MACRO
Holding Shares (as defined in the Trust Agreement) with the Trustee from time to
time and the issuance by the Trustee of additional shares in the form of
Down-MACRO Tradeable Shares representing the Down-MACRO Holding Shares so
deposited. At any given time this Certificate shall represent all undivided
beneficial interests in the Trust, which shall be the total number of Shares
that are outstanding at such time.
A-1
The holder of this Certificate, by virtue of the purchase and
acceptance hereof, assents to and shall be bound by the terms of the Trust
Agreement, copies of which are on file and available for inspection at
reasonable times during business hours at the Corporate Trust Office (as defined
in the Trust Agreement) to which reference is made for all the terms, conditions
and covenants thereof. The Trustee may deem and treat the person in whose name
this Certificate is registered upon the books of the Trustee as the owner hereof
for all purposes and the Trustee shall not be affected by any notice to the
contrary.
A-2
IN WITNESS WHEREOF, the Trust has caused this Certificate to be signed
as of the date first set forth above.
Certificate of Authentication:
This is one of the Certificates referred to in the
within aforementioned Trust Agreement.
INVESTORS BANK & TRUST COMPANY, CLAYMORE MACROSHARES OIL DOWN
not in its individual capacity TRADEABLE TRUST
but solely as Trustee
By: INVESTORS BANK & TRUST
COMPANY, not in its individual
capacity but solely as Trustee
By: By:
------------------------------- -------------------------------
Authorized Signatory Name:
Title:
A-3
FOR VALUE RECEIVED, ____________________________________ hereby sells,
assigns and transfers unto ____________________________________________________
_______________________________________________________________________________
Down-MACRO Tradeable Shares represented by this Certificate, and do hereby
irrevocably constitute and appoint ________________________________ attorney to
transfer the said shares on the books kept for registration thereof, with full
power of substitution in the premises.
Dated _______________________, __________
In presence of
____________________________________ ____________________________________
EXHIBIT B
Form of Notice
B-1
SCHEDULE I
Account Name Bank Account Number
--------------------------------------------------------------------------------
Claymore MACROshares Oil Down [Redacted] [Redacted]
Tradeable Trust Securities Account
Claymore MACROshares Oil Down [Redacted] [Redacted]
Tradeable Trust Distribution Account
Claymore MACROshares Oil Down [Redacted] [Redacted]
Tradeable Trust Founders' Equity Account
Claymore MACROshares Oil Down [Redacted] [Redacted]
Tradeable Trust Treasury Stock Account
