MACRO SECURITIES DEPOSITOR, LLC, as Depositor, STATE STREET BANK AND TRUST COMPANY, (as successor to Investors Bank & Trust Company), as Trustee, MACROMARKETS LLC, as the Administrative Agent and MACRO FINANCIAL, LLC, as the Marketing Agent THIRD...
EXHIBIT
4.2.2
MACRO
SECURITIES DEPOSITOR, LLC,
as
Depositor,
STATE
STREET BANK AND TRUST COMPANY,
(as
successor to Investors Bank & Trust Company),
as
Trustee,
MACROMARKETS
LLC,
as
the
Administrative Agent
and
MACRO
FINANCIAL, LLC,
as
the
Marketing Agent
THIRD
AMENDED AND RESTATED MACROSHARES
OIL
DOWN
TRADEABLE TRUST AGREEMENT
TABLE
OF
CONTENTS
Page
|
ARTICLE
1
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|
DEFINITIONS
|
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Section
1.1
|
Definitions
|
2
|
|
|
Section
1.2
|
Other
Definitional Provisions.
|
9
|
|
|
ARTICLE
2
|
|||
|
FORM
OF THE CERTIFICATES;
|
|||
|
DELIVERY
AND REGISTRATION OF TRANSFER
|
|||
|
OF
DOWN-MACRO TRADEABLE SHARES
|
|||
|
Section
2.1
|
Redemption
of Founders' Shares
|
9
|
|
|
Section
2.2
|
Acceptance
by Trustee
|
10
|
|
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Section
2.3
|
Limited
Purpose of the Down-MACRO Tradeable Trust
|
10
|
|
|
Section
2.4
|
Representations
and Warranties of the Depositor
|
10
|
|
|
Section
2.5
|
Form
of Shares; Book-Entry System; Transferability of Down-MACRO Tradeable
Shares
|
12
|
|
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ARTICLE
3
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|
APPOINTMENT
OF THE TRUSTEE,
|
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|
ADMINISTRATIVE
AGENT AND MARKETING AGENT;
|
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ESTABLISHMENT
OF ACCOUNTS
|
|||
|
Section
3.1
|
Acceptance
of Appointment and Matters Relating to the Trustee
|
16
|
|
|
Section
3.2
|
Representations,
Warranties and Covenants of the Trustee
|
18
|
|
|
Section
3.3
|
Acceptance
of Appointment and Matters Relating to the Administrative Agent and
the
Marketing Agent
|
20
|
|
|
Section
3.4
|
Representations,
Warranties and Covenants of the Administrative Agent and the Marketing
Agent
|
21
|
|
|
Section
3.5
|
Establishment
of the Securities Account
|
23
|
|
|
Section
3.6
|
Establishment
of the Distribution Account
|
24
|
|
|
Section
3.7
|
Establishment
of the Netting Account
|
25
|
|
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ARTICLE
4
|
|||
|
CALCULATIONS
|
|||
|
Section
4.1
|
Calculations
on Price Determination Days
|
25
|
|
|
Section
4.2
|
Calculation
of Intraday Indicative Values
|
26
|
|
i
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ARTICLE
5
|
|||
|
DISTRIBUTIONS
ON THE DOWN-MACRO TRADEABLE SHARES
|
|||
|
Section
5.1
|
Rights
of Holders of the Down-MACRO Tradeable Shares
|
26
|
|
|
Section
5.2
|
Distributions
|
26
|
|
|
Section
5.3
|
Payment
of Fees and Expenses
|
27
|
|
|
ARTICLE
6
|
|||
|
EXCHANGES
OF DOWN-MACRO TRADEABLE SHARES
|
|||
|
Section
6.1
|
Exchanges
in Connection with Paired Optional Redemptions
|
27
|
|
|
Section
6.2
|
Paired
Issuances
|
28
|
|
|
Section
6.3
|
Exchanges
of Down-MACRO Tradeable Shares Other than in Paired Optional Redemptions
or Paired Issuances
|
29
|
|
|
Section
6.4
|
Suspension
or Delay of Settlement
|
29
|
|
|
Section
6.5
|
The
Participants Agreement
|
30
|
|
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ARTICLE
7
|
|||
|
[RESERVED].
|
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|
ARTICLE
8
|
|||
|
REPORTING
TO HOLDERS OF THE DOWN-MACRO TRADEABLE SHARES
|
|||
|
Section
8.1
|
Calculations
for the Down-MACRO Tradeable Shares
|
30
|
|
|
Section
8.2
|
Periodic
Reports
|
31
|
|
|
Section
8.3
|
Form
8-K Disclosure
|
31
|
|
|
Section
8.4
|
Listing
of the Down-MACRO Tradeable Shares
|
32
|
|
|
Section
8.5
|
Disclosure
Controls and Procedures
|
32
|
|
|
Section
8.6
|
Trust
Accounting Agent Responsibilities
|
32
|
|
|
ARTICLE
9
|
|||
|
OTHER
MATTERS RELATING TO THE DEPOSITOR
|
|||
|
Section
9.1
|
Liability
of the Depositor
|
33
|
|
|
Section
9.2
|
Limitations
on Liability of the Depositor, MacroMarkets LLC and MACRO Financial
LLC
|
33
|
|
|
Section
9.3
|
Liabilities;
Indemnification
|
33
|
|
|
ARTICLE
10
|
|||
|
MATTERS
RELATING TO THE
|
|||
|
ADMINISTRATIVE
AGENT AND THE MARKETING AGENT
|
|||
|
Section
10.1
|
Role
of the Administrative Agent
|
34
|
|
|
Section
10.2
|
Liability
of the Administrative Agent
|
34
|
|
|
Section
10.3
|
Limitation
on Liability of the Administrative Agent
|
34
|
|
ii
|
Section
10.4
|
Administrative
Agent Indemnification of the Down-MACRO Tradeable Trust and the
Trustee
|
35
|
|
|
Section
10.5
|
Delegation
of Duties
|
35
|
|
|
Section
10.6
|
Resignation
or Removal of Administrative Agent
|
36
|
|
|
Section
10.7
|
Role
of the Marketing Agent
|
36
|
|
|
Section
10.8
|
Liability
of the Marketing Agent
|
37
|
|
|
Section
10.9
|
Limitation
on Liability of the Marketing Agent
|
37
|
|
|
Section
10.10
|
Marketing
Agent Indemnification of the Down-MACRO Tradeable Trust and the
Trustee
|
37
|
|
|
Section
10.11
|
Delegation
of Duties
|
38
|
|
|
ARTICLE
11
|
||
|
|
||
|
EARLY
TERMINATION
|
||
|
|
||
|
Section
11.1
|
Termination
Triggers
|
38
|
|
ARTICLE
12
|
|||
|
TRUSTEE
TERMINATION EVENTS
|
|||
|
Section
12.1
|
Trustee
Termination Events
|
40
|
|
|
Section
12.2
|
Force
Majeure
|
41
|
|
|
Section
12.3
|
Notification
to Holders of the Down-MACRO Tradeable Shares
|
41
|
|
|
ARTICLE
13
|
|||
|
THE
TRUSTEE
|
|||
|
Section
13.1
|
Liability
of Trustee
|
41
|
|
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Section
13.2
|
Rights
of the Trustee
|
42
|
|
|
Section
13.3
|
Trustee
Not Liable for Recitals in Down-MACRO Tradeable Shares
|
43
|
|
|
Section
13.4
|
Holders
May Direct Trustee
|
43
|
|
|
Section
13.5
|
Compensation
|
43
|
|
|
Section
13.6
|
Indemnification
|
44
|
|
|
Section
13.7
|
Eligibility
Requirements
|
44
|
|
|
Section
13.8
|
Resignation
or Removal of Trustee
|
44
|
|
|
Section
13.9
|
Successor
Trustee
|
45
|
|
|
Section
13.10
|
Merger
or Consolidation
|
46
|
|
|
Section
13.11
|
Appointment
of Co-Trustee or Separate Trustee
|
46
|
|
|
Section
13.12
|
Books,
Records; Taxes; Audit
|
47
|
|
|
Section
13.13
|
Trustee
May Enforce Claims Without Possession of Down-MACRO Tradeable
Shares
|
48
|
|
|
Section
13.14
|
Suits
for Enforcement
|
48
|
|
|
Section
13.15
|
Maintenance
of Office or Agency
|
49
|
|
|
ARTICLE
14
|
||
|
|
||
|
TERMINATION
|
||
|
|
||
|
Section
14.1
|
Termination
of Trust
|
49
|
iii
|
ARTICLE
15
|
|||
|
|
|||
|
MISCELLANEOUS
PROVISIONS
|
|||
|
Section
15.1
|
Amendment;
Waiver of Past Defaults and Termination
|
49
|
|
|
Section
15.2
|
Registration
(Initial and Continuing) of Down-MACRO Tradeable Shares; Certain
Securities Law Filings
|
51
|
|
|
Section
15.3
|
Prospectus
Delivery
|
51
|
|
|
Section
15.4
|
Protection
of Right, Title and Interest to Trust Assets
|
51
|
|
|
Section
15.5
|
Limitation
on Rights of Holders of the Down-MACRO Tradeable Shares
|
52
|
|
|
Section
15.6
|
Certain
Rights of Holders of Down-MACRO Tradeable Shares; Voting
|
53
|
|
|
Section
15.7
|
MACRO
Licensing Agreement
|
53
|
|
|
Section
15.8
|
Governing
Law; Jurisdiction
|
53
|
|
|
Section
15.9
|
Notices
|
54
|
|
|
Section
15.10
|
Severability
of Provisions
|
55
|
|
|
Section
15.11
|
Down-MACRO
Tradeable Shares Nonassessable and Fully Paid
|
55
|
|
|
Section
15.12
|
Further
Assurances
|
55
|
|
|
Section
15.13
|
Non-Petition
Covenant; No Proceedings
|
55
|
|
|
Section
15.14
|
No
Waiver; Cumulative Remedies
|
56
|
|
|
Section
15.15
|
Counterparts
|
56
|
|
|
Section
15.16
|
Third-Party
Beneficiaries
|
56
|
|
|
Section
15.17
|
Actions
or Notices by Holders of the Down-MACRO Tradeable Shares
|
56
|
|
|
Section
15.18
|
Merger
and Integration
|
56
|
|
|
Section
15.19
|
Headings
|
57
|
|
iv
EXHIBITS
|
EXHIBIT
A
|
FORM
OF DOWN-MACRO TRADEABLE SHARE
|
|
EXHIBIT
B
|
FORM
OF PARTICIPANTS AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF MACRO LICENSING AGREEMENT
|
|
EXHIBIT
D
|
FORM
OF NYMEX SUBLICENSING AGREEMENT
|
v
This
THIRD AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1, 2007 (this
"Trust
Agreement"),
is
hereby entered into among MACRO SECURITIES DEPOSITOR, LLC, a Delaware limited
liability company, as depositor (the "Depositor"),
STATE
STREET BANK AND TRUST COMPANY, (as successor to Investors Bank & Trust
Company), not in its individual capacity but solely as trustee (the
"Trustee"),
MACROMARKETS LLC, not in its individual capacity but solely as administrative
agent (in such capacity, the "Administrative
Agent"),
and
MACRO FINANCIAL, LLC, not in its individual capacity but solely as marketing
agent (in such capacity, the "Marketing
Agent").
WHEREAS,
the Depositor and the Trustee entered into a trust agreement, dated as of
November 15, 2006, pursuant to which a trust was formed under the laws of the
State of New York which was originally called the "Claymore MACROshares Oil
Down
Tradeable
Trust"
(and
was subsequently renamed the "MACROshares Oil Down Tradeable Trust" and is
referred to herein as the "Down-MACRO
Tradeable Trust);"
and
WHEREAS,
the parties amended and restated in its entirety the original trust agreement
for the Down-MACRO Tradeable Trust to provide for the issuance of shares which
were originally called the "Claymore MACROshares Oil Down Tradeable Shares"
(and
which were subsequently renamed the "MACROshares Oil Down Tradeable Shares"
and
are referred to herein as the "Down-MACRO Tradeable Shares") and to
specify, among other things, the respective powers and duties of the Trustee,
the Administrative Agent, the Marketing Agent and the Depositor;
WHEREAS,
the parties amended and restated in its entirety the amended and restated trust
agreement to document the name change of the Down-MACRO Tradeable Trust and
the
Down-MACRO Tradeable Shares and the resignation of Claymore Securities, Inc.
as
a marketing agent hereunder; and
WHEREAS,
the parties hereto now wish to amend and restate in its entiredty the second
amended and restated trust agreement to document a 3-for-1 stock split of the
Down-MACRO Tradeable Shares, as well as the resignation of Claymore Securities,
Inc. as the administrative agent hereunder, the appointment of MacroMarkets
LLC
to act as the successor administrative agent hereunder and the acceptance by
MacroMarkets LLC of such appointment.
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations
and warranties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
intending to be legally bound hereby agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.1 Definitions.
Whenever
used in this Trust Agreement, the following words and phrases shall have the
following meanings, and the definitions of such terms are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well
as to the feminine and neuter genders of such terms. Defined terms used herein
and not otherwise defined shall have the respective meanings ascribed to such
terms in the Down-MACRO Holding Trust Agreement.
"Account"
or
"Accounts"
shall
mean any or all of the Securities Account, the Distribution Account and the
Netting Account.
"Administrative
Agent"
shall
mean MacroMarkets LLC in its capacity as administrative agent hereunder, and
its
successors and assigns.
"Administrative
Agent Indemnified Party"
shall
have the meaning set forth in Section 10.4.
"Affiliate"
shall
mean with respect to any specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by
or
is under common control with the Person specified. For purposes of this
definition, "control"
means
the power to direct the management and policies of a Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and "controlled"
and
"controlling"
have
meanings correlative to the foregoing. A company is assumed to be an Affiliate
if the parent corporation owns 20 percent or more of the outstanding
shares.
"Aggregate
Par Amount"
shall
mean, (i) with respect to any Down-MACRO Holding Shares, an amount equal to
the
number of such Down-MACRO Holding Shares multiplied
by
the
Down-MACRO Stated Par Amount, (ii) with respect to any Up-MACRO Holding Shares,
an amount equal to the number of such Up-MACRO Holding Shares multiplied
by
the
Up-MACRO Stated Par Amount, (iii) with respect to any Down-MACRO Tradeable
Shares, an amount equal to the number of such Down-MACRO Tradeable Shares
multiplied
by
the
Down-MACRO Stated Par Amount, and (iv) with respect to any Up-MACRO Tradeable
Shares, an amount equal to the number of such Up-MACRO Tradeable Shares
multiplied
by
the
Up-MACRO Stated Par Amount.
"AMEX"
shall
mean the American Stock Exchange, LLC.
"Authorized
Participant"
shall
mean any entity that (i) is a registered broker-dealer and a member in good
standing with the NASD, or a participant in the securities markets such as
a
bank or other financial institution that is not required to register as a
broker-dealer or be a member of the NASD in order to engage in securities
transactions, (ii) is a participant in DTC or has indirect access to the
clearing facilities of DTC by virtue of a custodial relationship with a DTC
Participant, (iii) is not a Benefit Plan Investor and (iv) has entered into
a
Participants Agreement.
"Beneficial
Owner"
shall
mean, with respect to a beneficial interest in a Global Certificate, ownership
and transfers of which shall be maintained and made through book entries by
the
Depository as set forth in 0
of this
Trust Agreement, a Person who is the beneficial owner of such interest in a
Global Certificate, as reflected on the books of the Depository, or on the
books
of a Person maintaining an account with the Depository (directly as a DTC
Participant or as an Indirect Participant, or in each case in accordance with
the rules of the Depository).
2
"Business
Day"
shall
mean 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.
"Business
Office"
shall
mean the primary business office of the Administrative Agent, as communicated
to
the Trustee from time to time.
"Calculation
Agency Agreement"
shall
mean the Calculation Agency Agreement, dated as of the date hereof, by and
among
the Trustee, the Down-MACRO Holding Trustee, the Up-MACRO Holding Trustee,
the
Up-MACRO Tradeable Trustee, the NYMEX and the AMEX, pursuant to which the AMEX
shall render the calculations set forth therein and post such calculations
on
its website.
"Calculation
Agent"
shall
mean the AMEX in its role as calculation agent under the Calculation Agency
Agreement.
"Closing
Date"
shall
mean November 29, 2006.
"Code"
shall
mean U.S. Internal Revenue Code of 1986, as amended.
"Corporate
Trust Office"
shall
have the meaning set forth under Section 13.15.
"Creation
Order"
shall
have the meaning set forth in Section
3(b)
of the
Participants Agreement.
"Depositor"
shall
mean MACRO Securities Depositor, LLC and its successors and
assigns.
"Depositor
Indemnified Party"
shall
have the meaning set forth in Section 9.3(c).
"Depository
Agreement"
shall
mean the Blanket Letter of Representations, together with the Issuer Letter
of
Representations, both dated on or about the date hereof and delivered by the
Trustee, on behalf of the Down-MACRO Tradeable Trust, to the
Depository.
"Distribution
Account"
shall
have the meaning set forth in Section 3.6(a).
"Distribution
Date"
shall
mean the second Business Day preceding each Record Date.
"Distribution
Payment Date"
means
the third Business Day of the month immediately following the month in which
the
related Distribution Date occurred.
"Down-MACRO
Fees"
shall
have the meaning specified in Section
5.4
of the
Down-MACRO Holding Trust Agreement.
"Down-MACRO
Holding Shares"
shall
mean the pass-through securities issued by the Down-MACRO Holding Trust pursuant
to the Up-MACRO Holding Trust Agreement.
3
"Down-MACRO
Holding Trust"
shall
mean the MACROshares Oil Down Holding Trust formed under the Down-MACRO Holding
Trust Agreement.
"Down-MACRO
Holding Trust Agreement"
shall
mean the Third Amended and Restated Down-MACRO Holding Trust Agreement, dated
as
of the date hereof, among the Depositor, the Administrative Agent, the Marketing
Agent and the Down-MACRO Holding Trustee.
"Down-MACRO
Holding Trustee"
shall
mean State Street Bank and Trust Company (as successor to Investors Bank
& Trust Company), not in its individual capacity but solely as trustee of
the Down-MACRO Holding Trust.
"Down-MACRO
Stated Par Amount"
shall
mean the stated par amount of $60 per Down-MACRO Holding Share or Down-MACRO
Tradeable Share.
"Down-MACRO
Tradeable Shares"
shall
have the meaning specified in the Recitals to this Trust Agreement.
“Down-MACRO
Tradeable Trust” shall have the meaning specified in the Recitals to
this Trust Agreement.
"DTC"
shall
mean The Depository Trust Company.
"Early
Termination Date"
shall
mean with respect to any date of determination, the next Distribution Date
that
follows the occurrence of a Termination Trigger.
"Event
of Bankruptcy"
shall
occur with respect to any specified Person, if:
(a) a
case or
other proceeding shall be commenced, without the application or consent of
such
Person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such Person,
the appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or all or any substantial part of
its
assets, or any similar action with respect to such Person under any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue undismissed,
or
unstayed and in effect, for a period of sixty (60) consecutive days; or an
order
for relief in respect of such Person shall be entered in an involuntary case
under the federal bankruptcy laws or other similar laws now or hereafter in
effect; or
(b) such
Person shall commence a voluntary case or other proceeding under any applicable
bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other
similar law now or hereafter in effect, or shall consent to the appointment
of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for such Person or for any substantial
part of its property, or shall make any general assignment for the benefit
of
creditors; or
4
(c) the
board
of directors (or similar body) of such Person or the trustee for such Person
(in
the case of a business or statutory trust) shall vote to implement any of the
actions set forth in clause
(b)
above.
"Exchange
Act"
shall
mean the Securities Exchange Act of 1934, as amended.
"Exchange
Order"
shall
have the meaning set forth in Section
5(b)
of the
Participants Agreement.
"Final
Distribution"
shall
mean any distribution made in redemption of all or a portion of the Down-MACRO
Tradeable Shares pursuant to 0
on the
earlier of the Final Scheduled Termination Date or an Early Termination
Date.
"Final
Scheduled Termination Date"
shall
mean the Distribution Date scheduled to occur in December of 2026.
"Founders'
Shares"
shall
mean 1,000 shares with a par value of $1 per share, 500 of which were issued
to
MACRO Securities Depositor, LLC and 500 of which were issued to Claymore
Securities, Inc., in exchange for the Initial Deposit.
"Global
Certificate"
shall
have the meaning set forth in Section 2.5(a) of
this Trust Agreement.
"Holder"
shall
mean any Beneficial Owner of an Down-MACRO Tradeable Share, an Down-MACRO
Holding Share, a Up-MACRO Holding Share or a Up-MACRO Tradeable Share, as the
context requires.
"Holding
Share"
shall
mean either an Down-MACRO Holding Share or a Up-MACRO Holding
Share.
"Independent"
shall
mean, as to any Person, any other Person (including a firm of accountants or
lawyers and any member thereof) who (i) does not have and is not committed
to
acquire any material direct or any material indirect financial interest in
such
Person or in any Affiliate of such Person, (ii) is not connected with such
Person as an officer, employee, promoter, underwriter, voting trustee, partner,
director or Person performing similar functions and (iii) is not Affiliated
with
a Person who fails to satisfy the criteria set forth in clauses
(i)
and
(ii).
"Independent" when used with respect to any accountant may include an accountant
who audits the books of any Person if in addition to satisfying the criteria
set
forth above the accountant is independent with respect to such Person within
the
meaning of Rule 101 of the Code of Ethics of the American Institute of Certified
Public Accountants.
Whenever
any Independent Person's opinion, certificate or report is to be furnished
hereunder, such document shall state that the signer has read this definition
and that the signer is Independent within the meaning hereof.
"Initial
Deposit"
shall
mean the initial deposit by the Depositor and the Administrative Agent of $1,000
into the Down-MACRO Tradeable Trust in connection with the formation
thereof.
5
"Investment
Company Act"
shall
mean the Investment Company Act of 1940, as amended.
"Loss"
shall
have the meaning set forth in Section 9.3(b).
"MACROshares
Website"
shall
mean the website maintained by the Administrative Agent at xxxx://xxx.xxxxxxxxxxxx.xxx.
"MACRO
Unit"
shall
mean 50,000 Down-MACRO Holding Shares and 50,000 Up-MACRO Holding
Shares.
"Marketing
Agent Indemnified Party"
shall
have the meaning set forth in Section 10.10.
"Marketing
Agent"
shall
mean MACRO Financial, LLC, in its capacity as marketing agent hereunder, and
its
successors and assigns.
"NASD"
shall
mean the National Association of Securities Dealers, Inc., which is currently
named the Financial Industry Regulatory Authority (FINRA).
"Netting
Account"
shall
have the meaning set forth in 0
of this
Trust Agreement.
"Notices"
shall
have the meaning set forth in 0
hereof.
"NYMEX"
shall
mean New York Mercantile Exchange, Inc. and its successors and
assigns.
"Officer's
Certificate"
shall
mean a certificate signed by an officer of the Depositor or the Administrative
Agent that is authorized to make such certification.
"Outstanding"
shall
mean, with respect to the Down-MACRO Holding Shares or the Down-MACRO Tradeable
Shares, as applicable, and any date of determination, an amount equal to the
aggregate number of Down-MACRO Holding Shares or Down-MACRO Tradeable Shares,
issued by the Down-MACRO Holding Trust or the Down-MACRO Tradeable Trust, as
applicable, in Paired Issuances occurring prior to such date of determination
minus
any such
Down-MACRO Holding Shares redeemed prior to such date of determination in a
Paired Optional Redemption or any such Down-MACRO Tradeable Shares exchanged
prior to such date of determination for the underlying Down-MACRO Holding
Shares.
"Paired
Holding Shares"
shall
mean the Down-MACRO Holding Shares together with the Up-MACRO Holding
Shares.
"Paired
Holding Trusts"
shall
mean the Down-MACRO Holding Trust together with the Up-MACRO Holding
Trust.
"Paired
Optional Redemption"
shall
have the meaning set forth in Section 6.1(a) hereof.
"Paired
Issuance"
shall
have the meaning set forth in Section 6.2(a) hereof.
"Participants
Agreement"
shall
mean the participants agreement, dated as of November 24, 2006, substantially
in
the form attached hereto as Exhibit
B,
entered
into among the Depositor, the Trustee, the Up-MACRO Trusts, the Administrative
Agent and the Authorized Participants who may be party thereto from time to
time, which specifies certain procedures for the Paired Issuance and Paired
Optional Redemption of Paired Holding Shares and procedures for the creation
and
exchange of Tradeable Shares for Holding Shares and Holding Shares for Tradeable
Shares.
6
"Per
Share Underlying Value"
means,
with respect to any date of determination occurring during any Calculation
Period and (i) each Down-MACRO Holding Share, an amount calculated by
dividing
the
Down-MACRO Underlying Value
by
the
number of Down-MACRO Holding Shares Outstanding on that date, (ii) each Up-MACRO
Holding Share, an amount calculated by dividing
the
Up-MACRO Underlying Value by
the
number of Up-MACRO Holding Shares Outstanding on that date, (iii) each
Down-MACRO Tradeable Share, an amount equal to the Per Share Underlying Value
of
one Down-MACRO Holding Share on that date, and (iv) each Up-MACRO Tradeable
Share, an amount equal to the Per Share Underlying Value of one Up-MACRO Holding
Share on that date.
"Person"
shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company, limited liability
partnership, joint stock company, trust, unincorporated organization or
Governmental Authority or other entity.
"Prospectus"
shall
mean the prospectus, in the form filed by the Depositor on behalf of the
Down-MACRO Holding Trust and the Down-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.
"Quarterly
Distribution"
shall
mean with respect to each Distribution Date, the distribution to be made to
the
Holders of the Down-MACRO Tradeable Shares that are Outstanding on the
Distribution Date pursuant to Section 5.2(a).
"Record
Date"
shall
mean the last Business Day of each March, June, September and December of each
year, commencing in December of 2006.
"Redemption
Order"
shall
have the meaning set forth in Section
4(b)
of the
Participants Agreement.
"Registration
Statement"
means
the registration statement, file no. 333-116566, dated and filed with the SEC
on
August 27, 2007, relating to the Down-MACRO Holding Shares and Down-MACRO
Tradeable Shares, as amended, supplemented or otherwise modified from time
to
time.
"Registered
Owner"
shall
mean the Depository or a nominee thereof in whose name the Down-MACRO Tradeable
Shares are registered in the Share Register.
"SEC"
shall
mean the United States Securities and Exchange Commission.
"Securities
Account"
shall
have the meaning set forth in Section 3.5(a) hereof.
"Securities
Act"
shall
mean the Securities Act of 1933, as amended.
"Share
Register"
shall
have the meaning set forth in Section 2.5(e) hereof.
7
"Substitute
Reference Price Licensing Agreement"
shall
mean any licensing arrangement pursuant to which the Paired Holding Trusts
and
the Down-MACRO Tradeable Trust acquire the right to use a Substitute Reference
Oil Price for the purposes of calculating the Down-MACRO Underlying Value under
the Down-MACRO Holding Trust Agreement.
"Successor
Administrative Agent"
shall
have the meaning set forth in Section 10.6(b) hereof.
"Successor
Trustee"
shall
have the meaning set forth in Section 13.8(b) hereof.
"Termination
Trigger"
shall
have the meaning set forth in Section 11.1(a) hereof.
"Tradeable
Shares"
shall
mean the Down-MACRO Tradeable Shares and the Up-MACRO Tradeable
Shares.
"Tradeable
Trusts"
shall
mean the Down-MACRO Tradeable Trust and the Up-MACRO Tradeable
Trust.
"Transaction
Documents"
shall
mean this Trust Agreement, the MACRO Licensing Agreement, the NYMEX Sublicensing
Agreement, the Calculation Agency Agreement and the Participants
Agreement.
"Transfer
Agent and Registrar"
shall
have the meaning set forth in Section 2.5(e) hereof.
"Trust
Assets"
shall
have the meaning set forth in Section 2.1
hereof.
"Trust
Officer"
shall
mean any officer or employee of the Trustee, in each case having responsibility
for the administration of this Trust Agreement or authority to execute any
documents on behalf of the Trustee, in its capacity as Trustee
hereunder.
"Trustee"
shall
mean State Street Bank and Trust Company (as successor to Investors Bank
& Trust Company), not in its individual capacity but solely as Trustee under
this Trust Agreement, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Trustee
Indemnified Party"
shall
have the meaning set forth in Section 13.6 hereof.
"Trustee
Termination Event"
shall
have the meaning set forth in Section 12.1 hereof.
"Up-MACRO
Fees"
shall
have the meaning specified in Section
5.4
of the
Up-MACRO Holding Trust Agreement.
"Up-MACRO
Holding Shares"
shall
mean the pass-through securities issued by the Up-MACRO Holding Trust pursuant
to the Up-MACRO Holding Trust Agreement.
"Up-MACRO
Holding Trust"
shall
mean the MACROshares Oil Up Holding Trust created under the Up-MACRO Holding
Trust Agreement.
"Up-MACRO
Holding Trust Agreement"
shall
mean the Third Amended and Restated Up-MACRO Holding Trust Agreement, dated
as
of the date hereof, among the Depositor, the Administrative Agent, the Marketing
Agent and the Up-MACRO Holding Trustee.
8
"Up-MACRO
Holding Trustee"
shall
mean State Street Bank and Trust Company (as successor to Investors Bank
& Trust Company), not in its individual capacity but solely as trustee of
the Up-MACRO Holding Trust.
"Up-MACRO
Stated Par Amount"
shall
mean the stated par amount of $60 per Up-MACRO Holding Share or Up-MACRO
Tradeable Share.
"Up-MACRO
Tradeable Shares"
shall
mean
the
pass-through securities issued by the Up-MACRO Tradeable Trust pursuant to
the
Up-MACRO Tradeable Trust Agreement.
"Up-MACRO
Tradeable Trust"
shall
mean the MACROshares Oil Up Tradeable Trust formed under the Up-MACRO Tradeable
Trust Agreement.
"Up-MACRO
Tradeable Trust Agreement"
shall
mean the Third Amended and Restated Up-MACRO Tradeable Trust Agreement, dated
as
of the date hereof, among the Depositor, the Administrative Agent, the Marketing
Agent and the Up-MACRO Tradeable Trustee.
Section
1.2 Other Definitional Provisions.
(a) All
terms defined in this Trust Agreement shall have the defined meanings when
used
in any share, certificate or other document made or delivered pursuant hereto
or
thereto unless otherwise defined therein.
(b) As
used in this Trust Agreement and in any share, certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in
this Trust Agreement or in any such share, certificate or other document, and
accounting terms partly defined in this Trust Agreement or in any such share,
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust
Agreement or in any such share, certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting principles,
the definitions contained in this Trust Agreement or in any such share,
certificate or other document shall control.
(c) The
agreements, representations and warranties of MACRO Securities Depositor, LLC
in
this Trust Agreement in its capacity as Depositor shall be deemed to be the
agreements, representations and warranties of MACRO Securities Depositor, LLC
solely in such capacity for so long as MACRO Securities Depositor, LLC acts
in
such capacity under this Trust Agreement.
(d) Unless
otherwise specified, references to any amount as on deposit or outstanding
on
any particular date shall mean such amount at the close of business on such
day.
(e) The
words "hereof," "herein" and "hereunder" and words of similar import when used
in this Trust Agreement shall refer to this Trust Agreement as a whole and
not
to any particular provision of this Trust Agreement; references to any Article,
Section, Schedule or Exhibit are references to Articles, Sections, Schedules
and
Exhibits in or to this Trust Agreement unless otherwise specified; and the
term
"including" shall mean "including without limitation."
ARTICLE
2
FORM
OF
THE CERTIFICATES;
DELIVERY
AND REGISTRATION OF TRANSFER
OF
DOWN-MACRO TRADEABLE SHARES
Section
2.1 Redemption of Founders' Shares.
Concurrently with the first issuance of Down-MACRO Tradeable Shares in
accordance with the terms of this Trust Agreement, the portion of the Initial
Deposit made into the Down-MACRO Tradeable Trust by the Depositor and Claymore
Securities, Inc. was transferred to each of them in redemption of their
respective Founder's Shares and such Founders' Shares shall thereafter be
cancelled and shall not be reissued. At no time shall the Initial Deposit be
included in the calculation of the Per Share Underlying Value of the Down-MACRO
Tradeable Shares or any other calculation performed at any time pursuant to
0
or
0
of this
Trust Agreement. The Down-MACRO Holding Shares on deposit from time to time
in
the Securities Account, all monies on deposit from time to time in the
Distribution Account and the Netting Account and the Down-MACRO Holding Trust's
rights under the MACRO Licensing Agreement and the NYMEX Sublicensing Agreement
(or any Substitute Reference Price Licensing Agreement), shall collectively
constitute the assets of the Down-MACRO Tradeable Trust (the "Trust
Assets").
9
Section
2.2 Acceptance by Trustee.
The
Trustee hereby (i) acknowledges its acceptance on behalf of the Down-MACRO
Tradeable Trust of all right and title to and interest in the Trust Assets,
both
now existing and hereafter created, and (ii) declares that it shall maintain
such right, title and interest, upon the Down-MACRO Tradeable Trust herein
set
forth, for the benefit of all Holders of the Down-MACRO Tradeable
Shares.
Section
2.3 Limited Purpose of the Down-MACRO Tradeable Trust.
The
Down-MACRO Tradeable Trust shall not engage in any business or activity other
than those specified in this 0
or any
activity that is incidental and necessary to carrying out the business or
activities enumerated by this 0.
The
exclusive purposes and functions of the Down-MACRO Tradeable Trust shall consist
of:
(a) redeeming
the Founders' Shares concurrently with the first issuance of Down-MACRO
Tradeable Shares;
(b) issuing
Down-MACRO Tradeable Shares in connection with each deposit of Down-MACRO
Holding Shares into the Down-MACRO Tradeable Trust on a continuous basis and
exchanging Outstanding Down-MACRO Tradeable Shares for the underlying Down-MACRO
Holding Shares that have been deposited in the Down-MACRO Tradeable Trust,
in
each case on a continuous basis and in accordance with the provisions and
subject to the conditions set forth in this Trust Agreement;
(c) entering
into the other Transaction Documents with the other parties thereto;
and
(d) maintaining
a listing for the Down-MACRO Tradeable Shares on the AMEX or another national
stock exchange.
Section
2.4 Representations and Warranties of the Depositor.
The
Depositor hereby makes the following representations and warranties to the
Down-MACRO Tradeable Trust and agrees that the Trustee may rely on each such
representation and warranty as of the Closing Date and on each Issuance
Date:
(a) Organization
and Good Standing.
The
Depositor is a limited liability company validly existing and in good standing
under the laws of the State of Delaware and has full power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Trust Agreement.
10
(b) Due
Qualification.
The
Depositor is duly qualified to do business and is in good standing as a foreign
company (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 result in the performance by the
Depositor of its obligations under this Trust Agreement to violate any
applicable law and 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 by the Depositor,
the execution and delivery to the Trustee of the Down-MACRO Tradeable Shares
by
the Depositor and the consummation by the Depositor of the transactions provided
for in this Trust Agreement and the performance of its obligations hereunder
have been duly authorized by the Depositor by all necessary action on the part
of the Depositor and this Trust Agreement will remain, from the time of its
execution, an official record of the Depositor.
(d) No
Conflict.
The
execution and delivery by the Depositor of this Trust Agreement and the
Down-MACRO Tradeable Shares, the performance by the Depositor of the
transactions contemplated by this Trust Agreement and the fulfillment by the
Depositor of the terms hereof will not conflict with, 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 indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which
the
Depositor is a party or by which it or any of its properties are
bound.
(e) No
Violation.
The
execution and delivery by the Depositor of this Trust Agreement and the
Down-MACRO Tradeable Shares, the performance by the Depositor of the
transactions contemplated by this Trust Agreement and its obligations hereunder
and the fulfillment by the Depositor of the terms hereof will not conflict
with
or violate any Requirements of Law applicable to the Depositor.
(f) No
Proceedings.
There
are no proceedings or investigations pending or, to the best knowledge of the
Depositor, threatened against the Depositor before any Governmental Authority
(i) asserting the invalidity of this Trust Agreement or the Down-MACRO Tradeable
Shares, (ii) seeking to prevent the issuance of the Down-MACRO Tradeable Shares
or the consummation of any of the transactions contemplated by this Trust
Agreement or the Down-MACRO Tradeable Shares, (iii) seeking any determination
or
ruling that, in the reasonable judgment of the Depositor, would materially
and
adversely affect the performance by the Depositor of its obligations under
this
Trust Agreement, (iv) seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this Trust Agreement
or
the Down-MACRO Tradeable Shares or (v) seeking to affect adversely the income
tax attributes of the Down-MACRO Tradeable Trust under the federal or applicable
state income or franchise tax systems.
(g) All
Consents Required.
All
approvals, authorizations, consents, orders or other actions of any Person
or of
any Governmental Authority required in connection with the execution and
delivery by the Depositor of this Trust Agreement and the Down-MACRO Tradeable
Shares, the performance by the Depositor of the transactions contemplated by
this Trust Agreement and its obligations hereunder and the Down-MACRO Tradeable
Shares and the fulfillment by the Depositor of the terms hereof and thereof
have
been obtained.
(h) Bankruptcy;
Insolvency.
No
Event of Bankruptcy with respect to the Depositor has occurred which would
materially and adversely affect the validity or enforceability of this Trust
Agreement or the Down-MACRO Tradeable Shares.
11
(i) Binding
Obligation.
This
Trust Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in
effect which affect 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).
(j) No
Conflicting Claim.
Neither
the Depositor nor any Person claiming through or under the Depositor has any
claim to or interest in the Securities Account, the Distribution Account or
the
Netting Account.
The
representations and warranties of the Depositor set forth in this 0
shall
survive following the execution of this Trust Agreement and shall be deemed
to
be made on each Issuance Date. Upon discovery by the Depositor, the Trustee
or
the Administrative Agent of a breach of any of the representations and
warranties by the Depositor set forth in this 0,
the
party discovering such breach shall give prompt written notice to the other
parties hereto. The Depositor agrees to cooperate with the Trustee and the
Administrative Agent in attempting to cure any such breach.
Section
2.5 Form of Shares; Book-Entry System; Transferability of Down-MACRO
Tradeable Shares.
(a) Form
of Shares.
The
Down-MACRO Tradeable Shares shall be evidenced by one or more global
certificates substantially in the form set forth in Exhibit
A
attached
hereto, with appropriate insertions, modifications and omissions as hereinafter
provided (each such certificate, a "Global
Certificate").
No
Down-MACRO Tradeable Shares shall be entitled to any benefits under this Trust
Agreement or be valid or obligatory for any purpose unless a Global Certificate
evidencing those Down-MACRO Tradeable Shares has been executed by the Trustee
by
the manual or facsimile signature of a duly authorized signatory of the Trustee
and countersigned by the manual or facsimile signature of a duly authorized
officer of the Depositor. The Trustee shall maintain books on which the
registered ownership of each Global Certificate and transfers, if any, of such
registered ownership shall be recorded. Global Certificates evidencing the
Down-MACRO Tradeable Shares bearing the manual or facsimile signature of a
duly
authorized signatory of the Trustee and the manual or facsimile signature of
a
duly authorized officer of the Depositor, if applicable, who was, at the time
such Global Certificates were executed, a proper signatory of the Trustee or
the
Depositor, as applicable, shall bind the Trustee, notwithstanding that such
signatory has ceased to hold such office prior to the delivery of such Global
Certificates.
The
Global Certificates may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Trust Agreement as may be required by the Trustee or required
to comply with any applicable law or regulations promulgated thereunder or
with
the rules and regulations of any securities exchange upon which the Down-MACRO
Tradeable Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which the
Down-MACRO Tradeable Shares are subject.
The
Founders' Shares and the beneficial ownership thereof by the Depositor and
Claymore Securities, Inc. shall be recorded on the books and records maintained
by the Trustee on behalf of the Down-MACRO Tradeable Trust and no physical
certificates shall be issued in respect of such Founders' Shares. Concurrently
with the first issuance of Down-MACRO Tradeable Shares, the Founders' Shares
shall be cancelled and shall not thereafter be reissued.
12
(b) Book-Entry
Settlement.
The
Depositor and the Trustee shall apply to the Depository for acceptance of the
Global Certificates in its book-entry settlement system. The Global Certificates
shall be deposited with the Trustee, as the custodian for the Depository, shall
be registered in the name of Cede & Co., as nominee for the Depository, and
shall bear the following legend:
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"),
TO THE
AGENT AUTHORIZED BY THE DEPOSITOR 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 THE
DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), 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.
So
long
as the Down-MACRO Tradeable Shares are eligible for book-entry settlement with
the Depository, (i) no Beneficial Owner of Down-MACRO Tradeable Shares will
be
entitled to receive a physical certificate evidencing those shares, (ii) the
interest of a Beneficial Owner in the Down-MACRO Tradeable Shares will be shown
only on, and transfer of that interest will be effected only through, records
maintained by the Depository or a DTC Participant or Indirect Participant
through which the Beneficial Owner holds that interest and (iii) the rights
of a
Beneficial Owner of Down-MACRO Tradeable Shares will be exercised only to the
extent allowed by, and in compliance with, the arrangements in effect between
such Beneficial Owner and the Depository or the DTC Participant or Indirect
Participant through which that Beneficial Owner holds an interest in the
Down-MACRO Tradeable Shares.
As
provided in the Depository Agreement, upon the settlement date for any transfer
or any creation, exchange or redemption of the Down-MACRO Tradeable Shares,
the
Depository will credit or debit, on its book-entry registration and transfer
system, the amount of Down-MACRO Tradeable Shares so transferred or so created,
exchanged or redeemed to the accounts of the appropriate DTC Participants.
The
accounts to be credited and charged shall be designated by the Trustee, as
instructed by the Administrative Agent and the applicable Holder of Down-MACRO
Tradeable Shares. The Beneficial Owners of the Down-MACRO Tradeable Shares
will
be shown on, and the transfer of beneficial ownership by Beneficial Owners
will
be effected only through, in the case of DTC Participants, records maintained
by
the Depository and, in the case of Indirect Participants and Beneficial Owners
holding through a DTC Participant or an Indirect Participant, through those
records or the records of the relevant DTC Participants. Beneficial Owners
are
expected to receive from or through the broker or bank that maintains the
account through which the Beneficial Owner has purchased Down-MACRO Tradeable
Shares a written confirmation relating to their purchase of Down-MACRO Tradeable
Shares.
Upon
the
settlement date for any creation, transfer, exchange or redemption of Down-MACRO
Tradeable Shares, the Trustee shall make a notation on Schedule
A
attached
to the Global Certificate indicating the resulting Net Par Amount Increase
or
Net Par Amount Decrease in the Aggregate Par Amount of Outstanding Down-MACRO
Tradeable Shares represented by such Global Certificate. Upon the settlement
date for a transfer of a Global Certificate to a new Registered Owner as
described in clause (e)(ii)
of this
Section
2.5,
the
Trustee shall cancel such Global Certificate and issue a new Global Certificate
in the name of such transferee Registered Owner.
13
The
Depository may discontinue providing its services with respect to the 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
Depository Agreement and discharging its responsibilities with respect thereto
under applicable law. In such event, the Trustee, the Administrative Agent
and
the Depositor shall seek to find a replacement for the Depository to perform
the
functions thereof on terms acceptable to the Administrative Agent and the
Depositor. If no such replacement can be found or is willing to assume the
duties of the Depository, then a Termination Trigger will occur pursuant
to Section 11.1 of
this Trust Agreement.
(c) Notices
to Beneficial Owners.
As
described above, the Trustee will recognize the Depository or its nominee as
the
owner of all Down-MACRO Tradeable Shares for all purposes except as expressly
set forth in this Trust Agreement. Conveyance of all notices, statements and
other communications required to be delivered to Beneficial Owners will be
effected as follows: The Administrative Agent shall inquire of each such DTC
Participant as to the number of Beneficial Owners holding Down-MACRO Tradeable
Shares, directly or indirectly, through such DTC Participant. The Administrative
Agent shall provide each such DTC Participant with sufficient copies of such
notice, statement or other communication, in such form, number and at such
place
as such DTC Participant may reasonably request, in order that such notice,
statement or communication may be transmitted by such DTC Participant, directly
or indirectly, to such Beneficial Owners. In addition, the Down-MACRO Tradeable
Trust shall reimburse each such DTC Participant for the expenses attendant
to
such transmittal, subject to applicable statutory and regulatory requirements.
The Administrative Agent or Depositor will instruct the Trust to pay said
expenses.
(d) Distributions
on Book-Entry Certificates.
All
distributions on the Down-MACRO Tradeable Shares shall be made to the Depository
or its nominee, Cede & Co., as the registered owner of all Down-MACRO
Tradeable Shares. The Trustee and the Depositor expect that the Depository
or
its nominee, upon receipt of any distributions made in respect of the Down-MACRO
Tradeable Shares, shall credit immediately the DTC Participants' accounts with
payments in amounts proportionate to their respective beneficial interests
in
the Down-MACRO Tradeable Shares as shown on the records of the Depository or
its
nominee. The Trustee and the Depositor also expect that payments by DTC
Participants to Indirect Participants and Beneficial Owners held through such
DTC Participants and Indirect Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in a "street name,"
and shall be the responsibility of such DTC Participants and Indirect
Participants. None of the Trustee, the Depositor or the Administrative Agent
shall have any responsibility or liability for any aspects of the records
relating to or notices to Beneficial Owners, or payments made on account of
beneficial ownership interests in the Down-MACRO Tradeable Shares, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between the
Depository and the DTC Participants or the relationship between such DTC
Participants and the Indirect Participants and Beneficial Owners owning through
such DTC Participants or Indirect Participants or between or among the
Depository, any Beneficial Owner and any Person by or through which such
Beneficial Owner is considered to own Down-MACRO Tradeable Shares.
14
(e) Registration
of Transfer; Restrictions on Transfer.
(i) The
Trustee shall cause to be kept at its Corporate Trust Office a register (the
"Share
Register")
in
which, subject to such reasonable regulations as it may prescribe, a transfer
agent and registrar (the "Transfer
Agent and Registrar")
shall
provide for the registration of the Down-MACRO Tradeable Shares and of transfers
and exchanges of such shares as herein provided. The Transfer Agent and
Registrar shall initially be the Trustee.
The
Depositor may revoke such appointment and remove any Transfer Agent and
Registrar if the Depositor determines in its sole discretion that such Transfer
Agent and Registrar failed to perform the responsibilities of the Transfer
Agent
and Registrar set forth in this Trust Agreement in any material respect. Any
Transfer Agent and Registrar shall be permitted to resign as Transfer Agent
and
Registrar upon thirty (30) days' notice to the Depositor and the Trustee;
provided,
however,
that
such resignation shall not be effective and such Transfer Agent and Registrar
shall continue to perform its duties as Transfer Agent and Registrar until
the
Trustee has appointed a successor Transfer Agent and Registrar reasonably
acceptable to the Depositor.
(ii) Transfers
of the Global Certificates shall be limited to transfers of such Global
Certificates in whole, but not in part, to nominees of the Depository or to
a
successor of the Depository or such successor's nominee. When a Global
Certificate is presented for registration of transfer, the Depositor shall
execute, the Trustee shall authenticate and the Transfer Agent and Registrar
shall register one or more new Global Certificates in the name of the designated
transferee or transferees. Each Global Certificate presented for registration
of
transfer shall be accompanied by a written instrument of transfer in a form
satisfactory to the Trustee or the Transfer Agent and Registrar duly executed
by
the Registered Owner or the attorney-in-fact thereof duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of
Down-MACRO Tradeable Shares, but the Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any such transfer or exchange.
(f) Mutilated,
Destroyed, Lost or Stolen Global Certificate.
If (a)
any mutilated Global Certificate is surrendered to the Transfer Agent and
Registrar, or the Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Global Certificate and
(b)
there is delivered to the Transfer Agent and Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice to the Trustee that such Global Certificate has
been acquired by a bona fide purchaser, the Depositor shall execute, the Trustee
shall authenticate and the Transfer Agent and Registrar shall deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Global
Certificate, a new Global Certificate of like tenor and aggregate beneficial
interest. In connection with the issuance of any new Global Certificate under
this 0,
the
Trustee or the Transfer Agent and Registrar may require the payment by the
Registered Owner of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Transfer Agent and Registrar)
connected therewith. Any duplicate Global Certificate issued pursuant to
this Section 2.5(f) shall
constitute complete and indefeasible evidence of ownership in the Down-MACRO
Tradeable Trust, as if originally issued, whether or not the lost, stolen or
destroyed Global Certificate shall be found at any time.
(g)
Share Split. Pursuant to resolutions adopted by the Board of Managers of
the Depositor on September 28, 2007, the Depositor has declared a three-for-one
split of the Down-MACRO Tradeable Shares. The record date and pay date for
the
split shall be designated and notified by the Depositor to the AMEX and the
general public. The total amount of Outstanding Down-MACRO Tradeable Shares
shall be tripled and the Depositor shall instruct DTC to credit on the
applicable pay date three shares for each one share that is credited to any
DTC
account as the applicable record date. A three-for-one split has also been
declared for the Up-MACRO Tradeable Shares, the Down-MACRO Holding Shares and
the Up-MACRO Holding Shares.
15
ARTICLE
3
APPOINTMENT
OF THE TRUSTEE,
ADMINISTRATIVE
AGENT AND MARKETING AGENT;
ESTABLISHMENT
OF ACCOUNTS
Section
3.1 Acceptance of Appointment and Matters Relating to the
Trustee.
(a) State
Street Bank and Trust Company (as successor to Investors Bank & Trust
Company) agrees to act as Trustee, Trust Accounting Agent, Custodian, Transfer
Agent and Registrar under this Trust Agreement and has concurrently agreed
to
act as the Down-MACRO Holding Trustee under the Down-MACRO Holding Trust
Agreement, the Up-MACRO Holding Trustee under the Up-MACRO Holding Trust
Agreement and the Up-MACRO Tradeable Trustee under the Up-MACRO Tradeable Trust
Agreement. The Holders of the Down-MACRO Tradeable Shares, by their acceptance
of their shares, consent to State Street Bank and Trust Company acting as
Trustee under this Trust Agreement and as trustee for the Down-MACRO Holding
Trust under the Down-MACRO Holding Trust Agreement, as trustee for the Up-MACRO
Holding Trust under the Up-MACRO Holding Trust Agreement and as trustee for
the
Up-MACRO Tradeable Trust under the Up-MACRO Tradeable Trust
Agreement.
(b) Subject
to the limited purposes and functions of the Down-MACRO Tradeable Trust
specified in 0
hereof,
the Trustee is hereby authorized, instructed and empowered (i) to make deposits
and withdrawals from the Securities Account, the Distribution Account and the
Netting Account, as set forth in this Trust Agreement; (ii) to make
distributions on the Down-MACRO Tradeable Shares in accordance with 0
hereof;
(iii)
to
administer the Down-MACRO Tradeable Trust;
(iv) to
furnish to the Down-MACRO Holding Trustee and the Administrative Agent
notification of and all documentation relating to the fees and expenses incurred
by the Down-MACRO Tradeable Trust, pursuant to 0
of this
Trust Agreement; (v) to effect the exchange of Down-MACRO Tradeable Shares
in
connection with Paired Optional Redemptions and Paired Issuances in accordance
with the provisions of 0
and
0 hereof,
and to effect exchanges of Down-MACRO Tradeable Shares pursuant to 0
hereof;
(vi) to enter into the Participants Agreement, the MACRO Licensing Agreement,
the NYMEX Sublicensing Agreement and the Calculation Agency Agreement; (vii)
to
make certain calculations on behalf of the Down-MACRO Tradeable Trust; and
(viii) to take any action required or permitted under this Trust Agreement
and
any action needed for the daily operation of the Down-MACRO Tradeable Trust.
Without limiting the generality of the foregoing and with the prior written
consent of the Depositor, the Trustee is hereby authorized and empowered to
make
any filings, reports, notices, applications and registrations with, and to
seek
any consents or authorizations from, the SEC and any state securities authority
on behalf of the Down-MACRO Tradeable Trust as may be necessary or advisable
to
comply with any federal or state securities laws or reporting requirements;
provided,
however,
that
the Depositor shall make all filings with the SEC and under state securities
laws on behalf of the Down-MACRO Tradeable Trust to the extent required to
do so
hereby.
(c) Pursuant
to Section
3.1(c)
of the
Down-MACRO Holding Trust Agreement the Trustee shall be entitled to be
reimbursed for any expenses incurred by it, with the prior approval of the
Depositor or the Administrative Agent, in connection with the performance of
its
duties under this Trust Agreement, including, without limitation, the fees
and
disbursements of any custodian, Transfer Agent and Registrar, the reasonable
fees and expenses of legal counsel, the fees and disbursements of Independent
accountants, and the expenses associated with failed Creation and Exchange
Orders under the Participants Agreement. If so instructed by the Depositor
or
the Administrative Agent, the Trustee may expend its own funds on behalf of
the
Down-MACRO Tradeable Trust and shall be reimbursed therefor on the next
scheduled Distribution Payment Date.
16
(d) The
Down-MACRO Tradeable Trust shall not, and the Trustee shall not cause the
Down-MACRO Tradeable 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 Down-MACRO Tradeable Trust shall not and the
Trustee shall not cause the Down-MACRO Tradeable Trust to:
(i) invest
any interest or other distributions paid in respect of the Trust Assets, but
shall distribute all such proceeds to the Holders on the date of receipt thereof
pursuant to the terms of this Trust Agreement and of the Down-MACRO Tradeable
Shares;
(ii) acquire
any assets other than as expressly provided herein;
(iii) possess
Trust Assets for a purpose other than those described in Section
2.3;
(iv) sell,
pledge, hypothecate or transfer the Down-MACRO Holding Shares (except in
accordance with Section 6.2 or
Section
6.3);
(v) make
any
loans or incur any indebtedness or acquire any securities other than Down-MACRO
Holding Shares;
(vi) except
as
expressly permitted pursuant to 0,
act in
such a way as to vary the terms of the Down-MACRO Tradeable Shares in any way
whatsoever;
(vii) issue
any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Down-MACRO Tradeable Trust, other than the Down-MACRO Tradeable Shares
and the Founders' Shares, which shall be redeemed and cancelled by the Trustee
upon the first issuance of Down-MACRO Tradeable Shares and shall not thereafter
be reissued;
(viii) (A)
direct the time, method and place of conducting any proceeding for any remedy
available to the Down-MACRO Tradeable Trust as the holder of the Down-MACRO
Holding Shares or exercising any power conferred upon Holders of Down-MACRO
Holding Shares, (B) waive any past default or violation that is waivable under
the terms of the Down-MACRO Holding Shares or (C) consent to any amendment
or
modification of the terms of any Down-MACRO Holding Shares where such consent
shall be required, except, in each case, if permitted hereby or after receiving
instructions from the Holders of the Down-MACRO Tradeable Shares pursuant to
Section
15.6(b) hereof;
(ix) file
a
certificate of cancellation of the Down-MACRO Tradeable Trust or take any other
action to terminate the Down-MACRO Tradeable Trust, except in connection with
a
liquidation thereof pursuant to ARTICLE
14 hereof;
(x) take
any
action that would cause the Down-MACRO Tradeable Trust to be classified other
than as a grantor trust for U.S. federal income tax purposes; or
17
(xi) take
any
action that would cause the Down-MACRO Tradeable Trust to be required to
register as an investment company under the Investment Company Act or as a
commodity pool under the CEAct.
Section
3.2 Representations, Warranties and Covenants of the
Trustee.
State
Street Bank and Trust Company (as successor to 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 (or on the applicable date of appointment), the following
representations, warranties and covenants to the Down-MACRO Tradeable Trust
(and
agrees that the Depositor, the Administrative Agent and the Holders of the
Down-MACRO Tradeable Shares 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 trust 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
trust company (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 trust 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 Governmental Authority 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.
18
(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 materially 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 Authority 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) No
Affiliation.
The
Trustee is not an Affiliated Person with respect to the Depositor, the
Down-MACRO Tradeable Trust, either of the Paired Holding Trusts, the Up-MACRO
Tradeable Trust, the Administrative Agent, the Marketing Agent or any Authorized
Participant, and it is not an Affiliated Person with respect to any Person
who
is an Affiliated Person with respect to any of the foregoing entities; further,
the Trustee does not, and will not for so long as it acts as Trustee hereunder,
offer or provide credit or credit enhancement to any of the MACRO Trusts, except
to the extent that the Trustee provides overdraft liquidity in the normal course
of its custody services hereunder.
(k) Eligibility
Requirements.
The
Trustee meets, and shall at all times during which it acts as Trustee hereunder
meet, the eligibility requirements set forth in 0
hereof.
(l) No
Holding of MACRO Shares.
The
Trustee shall not, for so long as it acts as Trustee hereunder, acquire or
hold
any Down-MACRO Holding Shares, Up-MACRO Holding Shares, Down-MACRO Tradeable
Shares or Up-MACRO Tradeable Shares for its own account.
(m) 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 Down-MACRO Tradeable 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 for no less than five
years after the termination of the Trust. 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 Down-MACRO
Tradeable Trust in such transactions.
19
Section
3.3 Acceptance of Appointment and Matters Relating to the
Administrative Agent and the Marketing Agent.
(a)
MacroMarkets LLC
agrees to act as Administrative Agent under this Agreement and the Holders
of
the Down-MACRO Tradeable Shares by their acceptance of their shares consent
to MacroMarkets LLC acting as Administrative Agent under this Trust
Agreement and as administrative agent for the Down-MACRO Holding Trust under
the
Down-MACRO Holding Trust Agreement, for the Up-MACRO Holding Trust under the
Up-MACRO Holding Trust Agreement and for the Up-MACRO Tradeable Trust under
the
Up-MACRO Tradeable Trust Agreement. MACRO
Financial, LLC agrees to act as a Marketing Agent under this Trust Agreement
and
the Holders of the Down-MACRO Tradeable Shares by their acceptance of their
shares consent to MACRO Financial, LLC acting as a Marketing Agent under this
Trust Agreement and as a marketing agent for the Down-MACRO Holding Trust under
the Down-MACRO Holding Trust Agreement, for the Up-MACRO Holding Trust under
the
Up-MACRO Holding Trust Agreement and for the Up-MACRO Tradeable Trust under
the
Up-MACRO Tradeable Trust Agreement.
(b) The
Administrative Agent shall direct the Trustee in effecting exchanges of
Down-MACRO Tradeable Shares for the underlying Down-MACRO Holding Shares in
connection with Paired Issuances and Paired Optional Redemptions. The
Administrative Agent shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all things
in connection with the foregoing duties which it may deem necessary or
desirable. The Administrative Agent shall not be obligated to use separate
offices, employees or accounts in carrying out its duties hereunder. 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 comply with and perform its administrative
obligations set forth in the Down-MACRO Holding Trust Agreement and the Up-MACRO
Holding Trust Agreement in accordance with the terms of each such agreement
and
the Holders of the Down-MACRO Tradeable Shares shall be third party
beneficiaries of the Administrative Agent's covenants to perform its obligations
under such agreements. The Administrative Agent shall also at all times maintain
the MACROshares Website.
(d) The
Marketing Agent shall comply with and perform its obligations with respect
to
the Down-MACRO Tradeable Shares in accordance with the terms of a separate
letter agreement entered into between the Depositor and the Marketing
Agent.
(e) As
compensation for acting as the Administrative Agent under the terms of this
Trust Agreement, MacroMarkets LLC will be entitled to receive the Down-MACRO
Administration Fee, which shall be payable to it in arrears on each Distribution
Payment Date in accordance with the provisions of Section
5.4
of the
Down-MACRO Holding Trust Agreement. The Administrative Agent shall not be liable
for any expenses incurred by it on behalf of the Down-MACRO Tradeable Trust,
but
shall be responsible for its overhead expenses related to the performance of
its
obligations under this Trust Agreement.
(f) As
compensation for acting as a Marketing Agent, MACRO Financial, LLC will be
entitled to receive the Down-MACRO Marketing Fee, which shall be payable to
it
in arrears on each Distribution Payment Date in accordance with the provisions
of Section
5.4
of the
Down-MACRO Holding Trust Agreement.
20
Section
3.4 Representations, Warranties and Covenants of the Administrative
Agent and the Marketing Agent.
(a)
MacroMarkets LLC, in
its capacity as the Administrative Agent, hereby makes, and any successor
Administrative Agent by its appointment hereunder shall make, on the date hereof
(or on the date of any such appointment), the following representations,
warranties and covenants to the Down-MACRO Tradeable Trust (and agrees that
the
Depositor and the Trustee may rely on each such representation, warranty and
covenant in fulfilling their respective duties hereunder):
(i) Organization
and Good Standing.
The
Administrative Agent is a Delaware limited liability company (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 Delaware (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.
(ii) 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), 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.
(iii) 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.
(iv) 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).
(v) 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.
(vi) No
Proceedings.
There
are no proceedings or investigations pending or threatened against the
Administrative Agent before any Governmental Authority 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.
21
(vii) All
Consents Required.
All
approvals, authorizations, consents, orders or other actions of any Person
or of
any Governmental Authority required in 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.
(viii) Additional
Registration of Shares.
The
Administrative Agent will make commercially reasonable efforts to maintain
a
sufficient number of Down-MACRO Tradeable Shares registered pursuant to the
Securities Act available for the fulfillment of Creation Orders as they are
received.
(b) MACRO
Financial, LLC, in its capacity as Marketing Agent hereunder, hereby makes,
and
any successor Marketing Agent by its appointment hereunder shall make, on the
Closing Date (or on the date of any such appointment), the following
representations, warranties and covenants to the Down-MACRO Tradeable Trust
(and
agrees that the Depositor and the Trustee may rely on each such representation,
warranty and covenant in fulfilling their respective duties
hereunder):
(i) Organization
and Good Standing.
MACRO
Financial, LLC is a Delaware limited liability company (or with respect to
any
successor Marketing Agent, such other corporate entity as may be applicable)
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (or with respect to any successor Marketing Agent, the
applicable jurisdiction of its organization), and has full corporate or other
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.
(ii) Due
Qualification.
The
Marketing Agent 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.
(iii) Due
Authorization.
The
execution, delivery and performance of this Trust Agreement has been duly
authorized by the Marketing Agent by all necessary corporate or other
action.
(iv) Binding
Obligation.
This
Trust Agreement constitutes a legal, valid and binding obligation of the
Marketing 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).
22
(v) No
Violation.
The
execution and delivery of this Trust Agreement by the Marketing Agent, the
performance of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof applicable to the Marketing 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 Marketing
Agent
or any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Marketing Agent is a party or by which it or any of
its
properties are bound.
(vi) No
Proceedings.
There
are no proceedings or investigations pending or threatened against the Marketing
Agent before any Governmental Authority 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 Marketing Agent,
would materially and adversely affect the performance by it 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.
(vii) All
Consents Required.
All
approvals, authorizations, consents, orders or other actions of any Person
or of
any Governmental Authority required in connection with the execution and
delivery by the Marketing Agent of this Trust Agreement, the performance by
the
Marketing Agent of the transactions contemplated by this Trust Agreement and
the
fulfillment by the Marketing Agent of the terms hereof, have been obtained;
provided,
however,
that
the Marketing Agent makes no representation or warranty regarding state
securities or "blue sky" laws in connection with the distribution of the
Down-MACRO Tradeable Shares.
Section
3.5 Establishment of the Securities Account.
(a) The
Trustee shall establish and maintain in the name of the Trustee, on behalf
of
the Down-MACRO Tradeable Trust and for the benefit of the Holders of the
Down-MACRO Tradeable Shares, an Eligible Deposit Account bearing a designation
clearly indicating that the Down-MACRO Holding Shares deposited therein are
held
for the benefit of the Holders of the Down-MACRO Tradeable Shares (the
"Securities
Account").
(b) The
Securities Account shall initially be established with the Trustee. The Trustee
shall possess all right, title and interest in and to all of the Down-MACRO
Holding Shares on deposit from time to time in the Securities Account and in
all
proceeds thereof for the benefit of the Holders of the Down-MACRO Tradeable
Shares.
(c) The
Securities Account shall be under the sole dominion and control of the Trustee
for the benefit of the Holders of the Down-MACRO Tradeable Shares. Except as
expressly provided in this Trust Agreement, 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
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. If
at
any time the Securities Account ceases to be an Eligible Deposit Account, the
Trustee shall within twenty (20) Business Days establish a new account, transfer
any assets to such new account, and from the date such new account is
established
it shall
be the "Securities Account" for purposes of this Trust Agreement.
23
(d) In
connection with each deposit of Down-MACRO Holding Shares into the Down-MACRO
Tradeable Trust, whether done as part of a Paired Issuance or otherwise, the
Trustee shall credit all Down-MACRO Holding Shares delivered to it by the
Down-MACRO Holding Trustee to the Securities Account on the date on which the
Down-MACRO Tradeable Trust becomes the beneficial owner of such shares on the
records of the Depository.
(e) In
connection with each exchange of Down-MACRO Tradeable Shares for the underlying
Down-MACRO Holding Shares, whether done as part of a Paired Optional Redemption
or otherwise, the Trustee shall remove such Down-MACRO Holding Shares from
the
Securities Account and debit the Securities Account such Down-MACRO Holding
Shares in the amount and on the date specified to the Trustee by the
Administrative Agent.
(f) In
connection with the Final Scheduled Termination Date or an Early Termination
Date, the Trustee shall remove all remaining Down-MACRO Holding Shares from
the
Securities Account and deliver such Down-MACRO Holding Shares to the Down-MACRO
Holding Trustee for cancellation and debit the Securities Account from all
such
Down-MACRO Holding Shares.
Section
3.6 Establishment of the Distribution Account.
(a) The
Trustee shall establish and maintain in the name of the Trustee, on behalf
of
the Down-MACRO Tradeable Trust and for the benefit of the Holders of the
Down-MACRO Tradeable Shares, an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held for the benefit
of
the Holders of the Down-MACRO Tradeable Shares (the "Distribution
Account").
(b) The
Distribution Account shall initially be established with the Trustee. The
Trustee shall possess all right, title and interest in and to all funds on
deposit from time to time in the Distribution Account and in all proceeds
thereof. The Distribution Account shall be under the sole dominion and control
of the Trustee for the benefit of the Holders of the Down-MACRO Tradeable
Shares.
(c) Except
as
expressly provided in this Trust Agreement, 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 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. If,
at
any time, the Distribution Account ceases to be an Eligible Deposit Account,
the
Trustee shall within twenty (20) Business Days establish a new account, transfer
any funds on deposit therein to such new account, and from the date such new
account is established, it shall be the "Distribution Account" for purposes
of
this Trust Agreement.
(d) Immediately
upon receipt thereof, the Trustee shall deposit into the Distribution Account
any distribution amount received on the Down-MACRO Holding Shares held by the
Down-MACRO Tradeable Trust and shall distribute such amount, on the same
Business Day on which such amount is received, to the Holders of the Down-MACRO
Tradeable Shares, ratably based on the Aggregate Par Amount of Down-MACRO
Tradeable Shares held by each such Holder.
24
Section
3.7 Establishment of the Netting Account.
(a) The
Trustee shall establish and maintain in the name of the Trustee, on behalf
of
the Down-MACRO Tradeable Trust and for the benefit of the Holders of the
Down-MACRO Tradeable Shares, an Eligible Deposit Account bearing a designation
that the securities deposited therein are held for the benefit of the Holders
of
the Down-MACRO Tradeable Shares (the "Netting
Account").
(b) The
Netting Account shall initially be established with the Trustee. The Trustee
shall possess all right, title and interest in and to all the securities on
deposit from time to time in the Netting Account. The Netting Account shall
be
under the sole dominion and control of the Trustee for the benefit of the
Holders of the Down-MACRO Tradeable Shares.
(c) On
the
Redemption Date, the Issuance Date or the Business Day following the Business
Day in which an Exchange Order was submitted, on which (i) both a Redemption
Order in which Tradeable Shares are submitted and an Issuance Order in which
Tradeable Shares are requested, are to be executed, (ii) both a Redemption
Order
in which Tradeable Shares are submitted and an Exchange Order pursuant to
Section
6.3 in
which Down-MACRO Tradeable Shares are requested, are to be executed or (iii)
both an Issuance Order in which Tradeable Shares are requested and an Exchange
Order pursuant to Section
6.3 in
which Down-MACRO Tradeable Shares are submitted, are to be executed, the Trustee
shall net such Down-MACRO Tradeable Shares to be redeemed and/or exchanged
against the Down-MACRO Tradeable Shares to be issued and/or exchanged as
follows:
(i) if
there is a positive difference between the number of shares to be redeemed
and/or exchanged and the number of shares to be issued and/or exchanged, the
Trustee shall cancel the number of Down-MACRO Tradeable Shares equal to such
positive difference and deliver all remaining Down-MACRO Tradeable Shares
credited to the Netting Account to the Authorized Participants who directed
the
issuance or exchange, as applicable, of such shares; or
(ii) if
there is a positive difference between the number of shares to be issued and/or
exchanged and the number of shares to be redeemed and/or exchanged, the Trustee
shall cause the Down-MACRO Tradeable Trust to issue new Down-MACRO Tradeable
Shares in the amount of such positive difference and deliver such newly-issued
Down-MACRO Tradeable Shares and all Down-MACRO Tradeable Shares credited to
the
Netting Account to the Authorized Participants who directed the issuance of
such
shares.
(iii) No
Down-MACRO Tradeable Shares shall remain on deposit in the Netting Account
at
the end of each Business Day.
ARTICLE
4
CALCULATIONS
Section
4.1 Calculations on Price Determination Days.
(a) With
respect to each Price Determination Day, the Trustee shall calculate
and
provide to the Administrative Agent and the Calculation Agent, within the time
period agreed upon by the Trustee, the Administrative Agent and the Calculation
Agent, the following data: (i) the number of Down-MACRO Holding Shares on
deposit in the Down-MACRO Tradeable Trust on such preceding Business Day; (ii)
the aggregate amount of Down-MACRO Tradeable Shares Outstanding on such Business
Day; and (iii) the Per Share Underlying Value of an Down-MACRO Tradeable Share
on such Business Day.
25
For
purposes of calculating the foregoing amounts on any Business Day, any issuances
or exchanges of Down-MACRO Tradeable Shares scheduled to settle on such Business
Day shall be taken into account in making such calculations.
(b) The
Trustee's calculations pursuant to clause
(a)
of this
Section
4.1 shall
be conclusive and binding upon the Holders of the Down-MACRO Tradeable Shares
and all other Persons.
Section
4.2 Calculation of Intraday Indicative Values.
Intraday
indicative values for the Per Share Underlying Value of the Down-MACRO Tradeable
Shares based on the intraday trading prices of the Applicable Reference Price
of
Crude Oil will be calculated by the Calculation Agent under the Calculation
Agency Agreement based upon the Applicable Reference Price of Crude Oil and
the
data provided to the Calculation Agent by the Trustee pursuant to Section
4.1 of
this Trust Agreement, by the Down-MACRO Holding Trustee pursuant to Section
4.1
of the
Down-MACRO Holding Trust Agreement and by the Up-MACRO Holding Trustee pursuant
to Section
4.1
of the
Up-MACRO Holding Trust Agreement.
ARTICLE
5
DISTRIBUTIONS
ON THE DOWN-MACRO TRADEABLE SHARES
Section
5.1 Rights of Holders of the Down-MACRO Tradeable
Shares.
Each
Down-MACRO Tradeable Share represents an undivided beneficial interest in the
Down-MACRO Tradeable Trust and the Beneficial Owner thereof is entitled to
receive distributions on such Down-MACRO Tradeable Share on the dates and in
the
amounts specified in Section
5.2 from
assets on deposit in the Down-MACRO Tradeable Trust.
Section
5.2 Distributions.
The
Trustee, on behalf of the Down-MACRO Tradeable Trust, shall make the following
distributions from amounts on deposit in the Distribution Account:
(a) Quarterly
Distributions.
On the
Distribution Payment Date that follows each Distribution Date, the Trustee
shall
distribute to each Person who was a Registered Owner of the Down-MACRO Tradeable
Shares as of the Record Date that preceded such Distribution Payment Date an
amount equal to the portion of the Quarterly Distribution received by the
Down-MACRO Tradeable Trust on the Down-MACRO Holding Shares it holds on deposit,
in cash, for delivery thereof by the Depository to each Person who was a
Beneficial Owner of Down-MACRO Tradeable Shares on such Record Date.
(b) Final
Distributions.
On the
Distribution Payment Date that follows the Final Scheduled Termination Date
or
an Early Termination Date, the Trustee shall distribute to each Person who
was a
Registered Owner of the Down-MACRO Tradeable Shares as of the Record Date that
preceded such Distribution Payment Date an amount equal to the portion of the
Final Distribution received by the Down-MACRO Tradeable Trust on the Down-MACRO
Holding Shares it holds on deposit, in cash, for delivery thereof by the
Depository to each Person who was a Beneficial Owner of Down-MACRO Tradeable
Shares on such Record Date.
26
Section
5.3 Payment of Fees and Expenses.
All
fees and expenses of the Down-MACRO Tradeable Trust shall be paid by the
Down-MACRO Holding Trust pursuant to the provisions of Section
5.3
and
Section
5.4
of the
Down-MACRO Holding Trust Agreement. The Trustee shall promptly deliver to the
Down-MACRO Holding Trustee and the Administrative Agent, notice of and any
documentation relating to any expense incurred by and on behalf of the
Down-MACRO Tradeable Trust and any fee payable by the Down-MACRO Tradeable
Trust.
ARTICLE
6
EXCHANGES
OF DOWN-MACRO TRADEABLE SHARES
Section
6.1 Exchanges in Connection with Paired Optional
Redemptions.
(a) On
any Price Determination Day occurring after the Closing Date but prior to the
Final Scheduled Termination Date or an Early Termination Date, any Authorized
Participant may direct the redemption of Paired Holding Shares by delivering
a
Redemption Order to the Administrative Agent and satisfying the conditions
set
forth in Section
6.1
of the
Down-MACRO Holding Trust Agreement (such redemption, a "Paired
Optional Redemption").
Any
Authorized Participant who wishes to direct a Paired Optional Redemption
pursuant to Section
6.1
of the
Down-MACRO Holding Trust Agreement and who holds Down-MACRO Tradeable Shares,
may direct an exchange and concurrent redemption of its Down-MACRO Tradeable
Shares for their underlying Down-MACRO Holding Shares pursuant to and in
accordance with the procedures specified in the Participants Agreement. The
Authorized Participant directing the Paired Optional Redemption must be the
Beneficial Owner of the Paired Holding Shares or the Down-MACRO and Up-MACRO
Tradeable Shares which are being tendered for redemption, as shown on the
records of the Depository.
(b) Following
the Redemption Date, the redeeming Authorized Participant must
transfer
to the Trustee, not later than the date and time specified in the Participants
Agreement, the requisite number of Paired Holding Shares or Down-MACRO Tradeable
Shares and Up-MACRO Tradeable Shares constituting at least one MACRO Unit or
integral multiples thereof, plus
the
applicable Redemption Cash Component, if any, and the transaction fee as
specified in Section
6.1(d),
and
provide written or electronic evidence of such deposit to the Administrative
Agent in accordance with the Participants Agreement.
(c) Pursuant
to Section
6.1(c)
of the
Down-MACRO Holding Trust Agreement, the Administrative Agent may, in its
discretion, reject any Redemption Order (i) if the Administrative Agent
determines that the Redemption Order is not in the required form, (ii) if Paired
Holding Shares or Down-MACRO and Up-MACRO Tradeable Shares constituting at
least
one or more whole MACRO Units are not tendered to the Trustee for redemption,
(iii) if the Depositor has determined, based upon an opinion of counsel, and
advised the Trustee, that such Redemption Order would have adverse tax or
securities laws consequences for either of the Paired Holding Trusts, the
Down-MACRO Tradeable Trust or Up-MACRO Tradeable Trust, the Holders of the
Paired Holding Shares or the Holders of the Down-MACRO Tradeable Shares or
Up-MACRO Tradeable Shares, (iv) if the acceptance or receipt of the Redemption
Order would, in the opinion of counsel to the Depositor acceptable to the
Trustee, be unlawful, (v) if any such redemption would cause the Down-MACRO
Tradeable Trust to hold fifty percent or less of the Outstanding Down-MACRO
Holding Shares, (vi) if circumstances outside the control of the Trustee, the
Depositor or the Administrative Agent make it impractical or not feasible to
process the Redemption Order on the Redemption Order Date or the Redemption
Date, or (vii) if the Up-MACRO Holding Trustee has notified the Trustee that
it
has rejected the related Redemption Order or the related Exchange Order
delivered under the Up-MACRO Holding Trust Agreement for one of the reasons
described in Section
6.1(c)
of the
Up-MACRO Holding Trust Agreement. None of the Trustee, the Depositor or the
Administrative Agent shall be liable to any Person for rejecting a Redemption
Order pursuant to Section
6.1(c)
of the
Down-MACRO and/or Up-MACRO Holding Trust Agreement.
27
(d) A
non-refundable transaction fee will be payable to the Down-MACRO Holding Trustee
for its own account in the amount specified in Section
7
of the
Participants Agreement in connection with each Redemption Order.
(e) On
any
Distribution Date that is an Early Termination Date, or the Final Scheduled
Termination Date, the Trustee shall redeem all of the Down-MACRO Tradeable
Shares that are Outstanding on such Distribution Date at their Per Share
Underlying Value, as calculated on the immediately preceding Price Determination
Day, using the funds received on such date from the Down-MACRO Holding Trustee
pursuant to the terms of the Down-MACRO Holding Trust Agreement.
Section
6.2 Paired Issuances.
(a) On
any Price Determination Day that occurs after the Closing Date but prior to
the
Final Scheduled Termination Date or an Early Termination Date, the Down-MACRO
Holding Trust shall issue additional Down-MACRO Holding Shares
contemporaneously
with
the issuance of additional Up-MACRO Holding Shares in the form of MACRO Units
(such an issuance, a "Paired
Issuance")
and,
if applicable, concurrently exchange such MACRO Units to their related Tradeable
Shares following the receipt of, and in accordance with, a Creation Order
delivered by an Authorized Participant and forwarded to the Trustee by the
Administrative Agent. Any Authorized Participant who directs a Paired Issuance
pursuant to Section
6.2
of the
Down-MACRO Holding Trust Agreement shall be deemed (unless it has specifically
directed that Paired Holding Shares be delivered to it) to direct the deposit
of
the Paired Holding Shares created in such Paired Issuance into the Down-MACRO
Tradeable Trust and the issuance in exchange therefor of Down-MACRO Tradeable
Shares which shall be delivered to the Authorized Participant pursuant to and
in
accordance with the procedures specified in the Participants
Agreement.
(b) Subject
to the requirements and limitations set forth herein, in the Participants
Agreement and in the Down-MACRO Holding Trust Agreement, the number of
Down-MACRO Tradeable Shares that the Down-MACRO Tradeable Trust may issue is
unlimited.
(c) Pursuant
to Section
6.2(c)
of the
Down-MACRO Holding Trust Agreement, the Administrative Agent may, in its
discretion, reject any Creation Order (i) if the Administrative Agent determines
that the Creation Order is not in the required form, (ii) if the Trustee
notifies the Administrative Agent that the Authorized Participant directing
the
Paired Issuance has not deposited sufficient funds with the Trustee, (iii)
if
the Depositor determines, based upon an opinion of counsel, that such Creation
Order would have adverse tax or securities law consequences for either of the
Paired Holding Trusts, the Down-MACRO Tradeable Trust or Up-MACRO Tradeable
Trust, the Holders of the Paired Holding Shares or the Holders of the Down-MACRO
Tradeable Shares or Down MACRO Tradeable Shares, (iv) the acceptance or
fulfillment of which would, in the opinion of counsel to the Depositor
acceptable to the Trustee, be unlawful, (v) if any such creation would cause
the
Down-MACRO Tradeable Trust to hold fifty percent or less of the Outstanding
Down-MACRO Holding Shares (vi) if the Up-MACRO Holding Trustee notifies the
Trustee that the Creation Order for additional Up-MACRO Holding Shares has
been
or will be rejected by it, by the Administrative Agent on behalf of the Up-MACRO
Holding Trust, (vii) if circumstances outside the control of the Trustee, the
Depositor or the Administrative Agent make it impractical or not feasible to
process the Creation Order on the Issuance Order Date or on the Issuance Date,
or (viii) if there are not sufficient Up-MACRO Tradeable Shares registered
pursuant to the Securities Act to fulfill such Creation Order. None of the
Trustee, the Depositor or the Administrative Agent shall be liable to any Person
by reason of the rejection of any Creation Order.
28
(d) A
non-refundable transaction fee will be payable to the Down-MACRO Holding Trustee
for its own account in the amount specified in Section
7
of the
Participants Agreement in connection with each Creation Order.
Section
6.3 Exchanges of Down-MACRO Tradeable Shares Other than in Paired
Optional Redemptions or Paired Issuances.
(a) On
any Business Day, an Authorized Participant may submit an Exchange Order to
the
Administrative Agent requesting an exchange of its Down-MACRO Tradeable Shares
for the underlying Down-MACRO Holding Shares, 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
A-III
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
A-III
to the
Participants Agreement.
(b) The
Administrative Agent will accept Exchange Orders only from Authorized
Participants with respect to which the Participants Agreement is in full force
and effect.
(c) After
receiving an Authorized Participant's Exchange Order from the Administrative
Agent, the Trustee will, as directed in such Exchange Order, either (i) withdraw
Down-MACRO Holding Shares in an equal number to the Down-MACRO Tradeable Shares
delivered by such Authorized Participant from the Securities Account and deliver
those Down-MACRO Holding Shares to the Authorized Participant or (ii) deposit
the Down-MACRO Holding Shares delivered by such Authorized Participant into
the
Down-MACRO Tradeable Trust and cause the Down-MACRO Tradeable Trust to deliver
to such Authorized Participant Down-MACRO Tradeable Shares on deposit in the
Netting Account on the applicable day of settlement, if any, and, if the
Down-MACRO Tradeable Shares on deposit in the Netting Account are insufficient
to satisfy such Exchange Order, to issue one Down-MACRO Tradeable Share for
each
Down-MACRO Holding Share delivered by it, in each case, in accordance with,
and
subject to the satisfaction of, the terms and conditions set forth in the
Participants Agreement.
(d) Any
Exchange Order is subject to suspension or delay by the Administrative Agent
pursuant to Section
6.1(c),
Section
6.2(c) or
Section
6.4,
as
applicable.
Section
6.4 Suspension or Delay of Settlement.
(a) The
Administrative Agent may, in its discretion,
and will when so directed by the Depositor, suspend the right of exchange for
the Down-MACRO Tradeable Shares, or postpone the
date
of settlement for any such exchange,
(i) for
any period during which the AMEX or NYMEX is closed, or trading is suspended
or
restricted;
29
(ii) for
any
period during which an emergency exists as a result of which delivery or
acquisition of Eligible Treasuries by the Paired Holding Trusts is not
reasonably practicable;
(iii) if
any
such redemption would cause the Down-MACRO or Up-MACRO Investment Amount to
equal less than 10 million dollars; and
(iv) for
such
other period as the Depositor, the Trustee or the Administrative Agent
determines to be necessary for the protection of the Beneficial Owners of any
of
the Paired Holding Shares, the Down-MACRO Tradeable Shares or the Up-MACRO
Tradeable Shares.
None
of
the Depositor, the Trustee or the Administrative Agent will be liable to any
Person for any loss or damages that may result from any such suspension or
postponement.
Section
6.5 The Participants Agreement.
(a) Each
Paired Optional Redemption, each Paired Issuance and each Exchange Order shall
be effected in accordance with the procedures set forth in Attachment
A
to the
Participants Agreement, which may be amended from time to time with the written
consent of the Trustee, the Down-MACRO Holding Trustee, the Up-MACRO Holding
Trustee, the Up-MACRO Tradeable Trustee and the Administrative Agent in
accordance with the provisions thereof.
(b) The
Trustee and the Administrative Agent shall only process Redemption Orders,
Creation Orders and Exchange Orders from Authorized Participants who have
executed a Participants Agreement that is in full force and effect at the time
when the Redemption Order, the Creation Order or the Exchange Order is placed.
The Administrative Agent will maintain and make available at its Business Office
during normal business hours a current list of the Authorized Participants
eligible to participate in a Paired Issuance.
(c) In
the
event that the provisions of this Trust Agreement and the Participants Agreement
conflict in any way, the provisions of the Participants Agreement will prevail
insofar as they relate to the requirements and procedures for directing and
effecting Paired Optional Redemptions, Paired Issuances and Exchange
Orders.
ARTICLE
7
[RESERVED].
ARTICLE
8
REPORTING
TO HOLDERS OF THE DOWN-MACRO TRADEABLE SHARES
Section
8.1 Calculations for the Down-MACRO Tradeable Shares.
(a) On
each Price Determination Day, the Trustee shall calculate and provide to the
Administrative Agent for posting on the MACROshares Website, within
the time period agreed upon between the Administrative Agent and the Trustee,
the Per Share Underlying Value of an Down-MACRO Tradeable Share and the number
of Down-MACRO Holding Shares on deposit in the Down-MACRO Tradeable
Trust.
30
(b) Not
later
than the 10 Business Days following each calendar quarter, the Trustee shall
calculate and provide to the Depositor for inclusion in the quarterly report
on
Form 10-Q that the Depositor will prepare and file with the SEC on behalf of
the
Down-MACRO Holding Trust the following information:
(i) a
record of the aggregate exchanges of Down-MACRO Tradeable Shares for the
underlying Down-MACRO Holding Shares in connection with Paired Optional
Redemptions or otherwise and the aggregate number of Down-MACRO Holding Shares
deposited into the Down-MACRO Tradeable Trust in connection with Paired
Issuances or otherwise; and
(ii) the
aggregate number of Down-MACRO Tradeable Shares Outstanding as of the date
of
the applicable report.
(c) The
Administrative
Agent shall post all of the information calculated and provided to them by
the
Trustee pursuant to clause
0
of this
0
on the
MACROshares Website on each Price Determination Day.
Section
8.2 Periodic Reports.
(a) After
the
end of each fiscal year, the Depositor shall prepare an annual report on Form
10-K for the Down-MACRO Tradeable Trust containing financial statements prepared
by the Depositor and audited by Independent accountants engaged by the
Depositor. The annual report shall contain such information as shall be required
by applicable laws, rules and regulations and may contain such additional
information as the Depositor or the Administrative Agent determines shall be
included. The Depositor shall file such annual report with the SEC in such
manner as shall be required by applicable laws, rules and
regulations.
(b) After
the
end of each calendar quarter, the Depositor shall prepare a quarterly report
on
Form 10-Q for the Down-MACRO Tradeable Trust containing unaudited financial
statements prepared by the Depositor. 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 determines shall
be included. The Depositor shall file such quarterly report with the SEC in
such
manner as shall be required by applicable laws, rules and
regulations.
(c) Reports
on Form 10-Q and Form 10-K pursuant to this Section
8.2
shall be
made in accordance with the instructions set forth in such Form 10-Q or Form
10‑K,
as
applicable.
Section
8.3 Form 8-K Disclosure.
Within
four Business Days (or such shorter period as required under the general
instructions to Form 8-K), the Depositor shall file a Form 8-K with the SEC
disclosing:
(a) the
occurrence of a Trustee Termination Event;
(b) the
appointment of a Successor Trustee;
(c) the
resignation of the Trustee, the Down-MACRO Holding Trustee, the Up-MACRO Holding
Trustee, the Administrative Agent, the
Marketing Agent or the Calculation Agent under the Calculation Agency
Agreement;
31
(d) the
appointment of a successor trustee for the Down-MACRO Holding Trust and/or
the
Up-MACRO Holding Trust, a successor Administrative Agent, any successor
Marketing Agent or a successor Calculation Agent under the Calculation Agency
Agreement;
(e) the
occurrence of a Termination Trigger;
(f) an
amendment to this Trust Agreement, the Down-MACRO Holding Trust Agreement,
the
Up-MACRO Holding Trust Agreement, the Participants Agreement or any other
Transaction Document;
(g) at
the
sole discretion of the Depositor, a change to the list of Authorized
Participants set forth on Schedule
I
to the
Participants Agreement; and
(h) any
other
event that would be material to the Holders of the Down-MACRO Tradeable Shares
and which is, accordingly, required to be disclosed by means of the filing
of a
Form 8-K.
Section
8.4 Listing of the Down-MACRO Tradeable Shares.
The
Depositor shall use its best efforts to obtain and maintain the listing of
the
Down-MACRO Tradeable Shares on a national stock exchange. Within three (3)
Business Days following receipt of notice of any actual, proposed or
contemplated de-listing of the Down-MACRO Tradeable Shares by any such stock
exchange, the Depositor shall terminate the listing on such stock
exchange.
Section
8.5 Disclosure Controls and Procedures.
The
Depositor shall establish and maintain disclosure controls and procedures (as
defined in Rule 13a-14 and 15d-14 under the Exchange Act, giving effect to
the
rules and regulations and SEC interpretations (whether or not public)
thereunder) that shall be designed to ensure that (i) material information
relating to the Down-MACRO Tradeable Trust is made known to the Depositor,
(ii)
such disclosure controls and procedures are effective to perform the functions
for which they were established; (iii) the Depositor will be advised, on behalf
of the Down-MACRO Tradeable Trust, of: (A) any significant deficiencies in
the
design or operation of such controls which could adversely affect the Trust
Accounting Agent's or the Depositor's ability to record, process, summarize,
and
report financial data; and (B) any fraud, whether or not material, that involves
management or other employees who have a role in the Trust Accounting Agent's
or
the Depositor's internal controls; and (iv) any material weaknesses in such
controls are able to be identified for the Down-MACRO Tradeable Trust's
auditors.
Section
8.6 Trust Accounting Agent Responsibilities.
The
Trustee, in its capacity as the Fund Accounting Agent, shall maintain a system
of internal accounting controls sufficient to provide reasonable assurance
that
(i) transactions are executed in accordance with this Trust Agreement and the
Trustee's duties hereunder; (ii) transactions with respect to the Down-MACRO
Tradeable Trust and notified to the Trustee are recorded as necessary to permit
preparation of financial statements and to maintain accountability for the
Trust
Assets; and (iii) the Trust Assets are held for the Down-MACRO Tradeable Trust
by the Trustee in accordance with this Trust Agreement.
ARTICLE
9
OTHER
MATTERS RELATING TO THE DEPOSITOR
Section
9.1 Liability of the Depositor.
The
Depositor shall be liable in all respects for the obligations, covenants,
representations and warranties of the Depositor arising under or related to
this
Trust Agreement. The Depositor shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as
Depositor.
32
Section
9.2 Limitation on Liability of the Depositor, MacroMarkets LLC and MACRO
Financial LLC. None of the Depositor, MacroMarkets LLC, MACRO Financial,
LLC or any of their respective directors, officers, employees of agents acting
in such capacities shall be under any liability to the Down-MACRO Tradeable
Trust, the Trustee, the Holders of the Down-MACRO Tradeable Shares or any
other
Person for taking any action or for refraining from taking any action in
good
faith in their capacities as Depositor, Administrative Agent or Marketing
Agent,
as applicable, pursuant to this Trust Agreement; provided,
however, that this provision shall not protect the Depositor,
MacroMarkets LLC, MACRO Financial, LLC or any of their respective directors,
officers, employees or agents against any liability which would otherwise
be
imposed by reason of willful misfeasance, bad faith or gross negligence in
the
performance of its duties or by reason of reckless disregard of its obligations
and duties hereunder. The Depositor, MacroMarkets LLC, MACRO Financial, LLC
and
each of their respective directors, officer, employees and agents may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (other than, in the case of the Depositor, the
Depositor, in the case of MacroMarkets LLC, MacroMarkets LLC and, in the
case of
MACRO Financial, LLC, MACRO Financial, LLC) respecting any matters arising
hereunder.
Section
9.3 Liabilities; Indemnification.
(a) Notwithstanding
the other provisions of this Trust Agreement, the Depositor,
by entering into this Trust Agreement, agrees to be liable, directly to the
injured party, for the entire amount of any losses, claims, damages or
liabilities (other than those incurred by a Holder as a result of market
fluctuations or other similar market or investment risks associated with
ownership of the Down-MACRO Tradeable Shares) arising out of or based on the
arrangement created by this Trust Agreement or the actions of the Depositor
taken pursuant hereto or arising from any allegation of infringement of the
intellectual property rights of third parties (to the extent that, if the Trust
Assets at the time the claim is made were not used to pay in full all
Outstanding Down-MACRO Tradeable Shares, the Trust Assets would be used to
pay
any such losses, claims, damages or liabilities).
(b) The
Depositor shall indemnify and hold harmless the Trustee and its officers,
directors, employees and agents from and against any loss, liability, expense,
damage or injury (collectively, a "Loss")
suffered or sustained by reason of the acts performed or omitted by the Trustee
pursuant to this Trust Agreement, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any action, proceeding or claim including, without
limitation, any action, proceeding or claim relating to or arising from any
alleged infringement of intellectual property rights of third parties;
provided,
however,
that
the Depositor's duty to indemnify under this 0
shall
not extend to any Losses (i) for which the Trustee has a right to
indemnification under any other provision of this Trust Agreement, or (ii)
that
are caused by or result from the breach of contract by, or the fraud, negligence
or willful misconduct of, the Trustee or its officers, directors, employees
or
agents.
(c) The
Depositor and its members, managers, officers, employees, affiliates (as such
term is defined in Regulation S-X of the Securities Act) and subsidiaries (each,
a "Depositor
Indemnified Party")
shall
be indemnified by the Down-MACRO Tradeable Trust and held harmless against
any
loss, liability or expense incurred hereunder without (1) gross negligence,
bad
faith, willful misconduct or willful malfeasance on the part of such Depositor
Indemnified Party arising out of or in connection with the performance of its
obligations hereunder or any actions taken in accordance with the provisions
of
this Trust Agreement or (2) reckless disregard on the part of such Depositor
Indemnified Party of its obligations and duties under this Trust Agreement.
Each
Depositor Indemnified Party shall also be indemnified by the Down-MACRO
Tradeable Trust and held harmless against any loss, liability or expense arising
under the Participants Agreement insofar as such loss, liability or expense
arises from any untrue statement or alleged untrue statement of a material
fact
contained in any written statement provided to the Depositor by any of the
Calculation Agent, the Administrative Agent and the Trustee. Such indemnity
shall include payment from the Down-MACRO Tradeable Trust of the costs and
expenses incurred by such Depositor Indemnified Party in defending itself
against any such indemnified claim or liability.
33
(d) Any
obligation owed by the Down-MACRO Tradeable Trust pursuant to this 0
shall be
paid by the Down-MACRO Holding Trust in accordance with the provisions of
Section
5.3
of the
Down-MACRO Holding Trust Agreement.
ARTICLE
10
MATTERS
RELATING TO THE
ADMINISTRATIVE
AGENT AND THE MARKETING AGENT
Section
10.1 Role of the Administrative Agent.
The
Administrative Agent hereby acknowledges and accepts its role pursuant to its
duties set forth in this Trust Agreement.
Section
10.2 Liability of the Administrative Agent.
The
Administrative Agent shall be liable under this Trust Agreement only to the
extent of the obligations specifically undertaken hereunder by the
Administrative Agent in its capacity as Administrative Agent.
Section
10.3 Limitation on Liability of the Administrative
Agent.
Neither
the Administrative Agent nor any of the directors, officers, employees or agents
of the Administrative Agent shall be under any liability to the Down-MACRO
Tradeable Trust, the Trustee, the Holders of the Down-MACRO Tradeable Shares
or
any other Person for any action taken or for refraining from taking any action
in good faith in its capacity as Administrative Agent pursuant to this Trust
Agreement; provided,
however,
that
this provision shall not protect the Administrative Agent or any director,
officer, employee or agent of the Administrative Agent against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith
or
gross negligence in the performance of its duties or by reason of reckless
disregard of its obligations and duties hereunder. The Administrative Agent
and
any director, officer, employee or agent of the Administrative Agent may rely
in
good faith on any document properly executed and delivered under this Trust
Agreement by the Depositor, the Trustee, the Up-MACRO Holding Trustee, the
Down-MACRO Holding Trustee, the Up-MACRO Tradeable Trustee or any Authorized
Participant respecting any matters arising hereunder. The Administrative Agent
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties as Administrative Agent in
accordance with this Trust Agreement and which in its reasonable judgment may
involve it in any expense or liability unless the Administrative Agent has
obtained an indemnity from the Holders of the Down-MACRO Tradeable Shares
sufficient to hold it harmless from such liability. The Administrative Agent
may, in its sole discretion, undertake any such legal action which it may deem
necessary or desirable for the benefit and interests of the Holders of the
Down-MACRO Tradeable Shares and the rights and duties of the parties
hereto.
34
Section
10.4 Administrative Agent Indemnification of the Down-MACRO Tradeable
Trust and the Trustee.
The
Administrative Agent shall indemnify and hold harmless the Down-MACRO Tradeable
Trust, the Depositor and the Trustee and their respective officers, directors,
employees and agents (each, an "Administrative
Agent Indemnified Party")
from
and against any loss, liability, expense, damage or injury suffered or sustained
by reason of any acts or omissions of the Administrative Agent under this Trust
Agreement, including any judgment, award, settlement, reasonable attorneys'
fees
and other costs or expenses incurred in connection with the defense of any
action, proceeding or claim; provided,
however,
that
the Administrative Agent shall not indemnify the Trustee if such acts or
omissions, or alleged acts or omissions, constitute or are caused by fraud,
negligence, or willful misconduct of the Trustee; provided,
further
that the
Administrative Agent shall not indemnify the Depositor if such acts or
omissions, or alleged acts or omissions, constitute or are caused by fraud,
gross negligence, or willful misconduct of the Depositor; provided,
further,
that
the Administrative Agent shall not indemnify the Down-MACRO Tradeable Trust
or
the Holders of the Down-MACRO Tradeable Shares for any liabilities, costs or
expenses of the Down-MACRO Tradeable Trust with respect to any action taken
by
the Trustee at the request of the Holders of the Down-MACRO Tradeable Shares;
provided,
further,
that
the Administrative Agent shall not indemnify the Down-MACRO Tradeable Trust
or
the Holders of the Down-MACRO Tradeable Shares as to any losses, claims or
damages incurred by any of them in their capacities as investors, including,
without limitation, losses with respect to market or investment risks associated
with ownership of the Down-MACRO Tradeable Shares; and provided,
further,
that
the Administrative Agent shall not indemnify the Down-MACRO Tradeable Trust
or
the Holders of the Down-MACRO Tradeable Shares for any liabilities, costs or
expenses of the Down-MACRO Tradeable Trust or the Holders of the Down-MACRO
Tradeable Shares arising under any tax law, including any federal, state, local
or foreign income or franchise taxes or any other tax imposed on or measured
by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Down-MACRO Tradeable
Trust or the Holders of the Down-MACRO Tradeable Shares in connection herewith
to any taxing authority. Indemnification pursuant to this Section
10.4 shall
not be payable from the Trust Assets. The provisions of this indemnity shall
run
directly to and be enforceable by an Administrative Agent Indemnified Party,
subject to the limitations hereof. The obligations of the Administrative Agent
under this Section
10.4 shall
survive the termination of the Down-MACRO Tradeable Trust and the resignation
or
removal of the Administrative Agent or the resignation or removal of any of
the
entities which constitute Administrative Agent Indemnified Parties at the time
of the execution of this Trust Agreement and the appointment of successors
thereto.
Section
10.5 Delegation of Duties.
In the
ordinary course of business, the Administrative Agent may at any time delegate
any duties hereunder to any Person who agrees to conduct such duties in
accordance with this Trust Agreement. Any such delegations shall not relieve
the
Administrative Agent of its liability and responsibility with respect to such
duties and shall not constitute a resignation, and the Administrative Agent
will
remain jointly and severally liable with such Person for any amounts which
would
otherwise be payable pursuant to this ARTICLE 10 as
if the Administrative Agent had performed such duty; provided,
however,
that in
the case of any significant delegation to a Person other than an Affiliate
of
the Administrative Agent, (1) at least thirty (30) days' prior written notice
shall be given to the Trustee and the Depositor of such delegation to any entity
that is not an Affiliate of the Administrative Agent and (2) the prior written
consent of the Depositor must be obtained. Notwithstanding anything herein
to
the contrary, the Administrative Agent shall not assign any of its duties and
responsibilities hereunder, provided,
that
the Administrative Agent shall be entitled to assign or pledge its right to
receive the Down-MACRO Administration and Marketing Fee hereunder to any third
party.
35
Section
10.6 Resignation or Removal of Administrative Agent.
(a) An
Administrative Agent appointed to office shall hold office until its successor
shall have been appointed by the Holders in accordance with this Trust Agreement
or until its termination, removal or resignation.
(b) Subject
to the provisions of this Section
10.6,
the
Administrative Agent may be appointed, removed or replaced with or without
cause
at any time by the Depositor, upon written notice; provided,
however,
that
the Administrative Agent shall not be removed in accordance with this
Section 3.4 until
a successor administrative agent possessing the qualifications to act as
Administrative Agent and willing and able to make the representations contained
in 0
(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.
(c) Any
Administrative Agent may resign hereunder by an instrument in writing signed
by
the Administrative Agent and delivered to the Depositor, the Trustee and each
Registered Owner, which shall become effective on the date specified in such
instrument; provided,
however,
that no
such resignation of a Administrative Agent shall become effective:
(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 Down-MACRO Tradeable Trust, the Depositor and the resigning
Administrative Agent; or
(ii) until
the assets of the Down-MACRO Tradeable Trust have been completely liquidated
and
the proceeds thereof distributed to the Holders.
If
no
Successor Administrative Agent shall have been appointed and accepted such
appointment within thirty (30) days after delivery to the Depositor and the
Down-MACRO Tradeable Trust of an instrument of resignation, the resigning
Administrative Agent may petition at the expense of the Down-MACRO Tradeable
Trust 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.
(d) No
Administrative Agent shall be liable for anything that occurs after it has
ceased to act in such capacity, including, without limitation, the acts or
omissions to act of any Successor Administrative Agent
Section
10.7 Role of the Marketing Agent.
The
Marketing Agent hereby acknowledges and accepts its role pursuant to its duties
set forth in Exhibit
G
to the
Down-MACRO Holding Trust Agreement.
Section
10.8 Liability of the Marketing Agent.
The
Marketing Agent shall be liable under this Trust Agreement only to the extent
of
the obligations specifically undertaken hereunder by it in its capacity as
Marketing Agent.
Section
10.9 Limitation on Liability of the Marketing Agent.
Neither
the Marketing Agent nor any of its directors, officers, employees or agents
shall be under any liability to the Down-MACRO Tradeable Trust, the Trustee,
the
Administrative Agent, the Holders of the Down-MACRO Tradeable Shares or any
other Person for any action taken or for refraining from taking any action
in
good faith in its capacity as Marketing Agent pursuant to this Trust Agreement;
provided,
however,
that
this provision shall not protect the Marketing Agent or its directors, officers,
employees or agents against any liability which would otherwise be imposed
by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of reckless disregard of its obligations and duties
hereunder. The Marketing Agent and its directors, officers, employees or agents
may rely in good faith on any document properly executed and delivered under
this Trust Agreement by the Depositor, the Trustee, the Administrative Agent,
the Up-MACRO Holding Trustee, the Down-MACRO Holding Trustee, the Up-MACRO
Tradeable Trustee or any Authorized Participant respecting any matters arising
hereunder. The Marketing Agent shall be under no obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties
as
Marketing Agent in accordance with this Trust Agreement and which in its
reasonable judgment may involve it in any expense or liability unless the
Marketing Agent has obtained an indemnity from the Holders of the Down-MACRO
Tradeable Shares sufficient to hold it harmless from such liability.
36
Section
10.10 Marketing Agent Indemnification of the Down-MACRO Tradeable Trust
and the Trustee.
The
Marketing Agent shall indemnify and hold harmless the Down-MACRO Tradeable
Trust, the Depositor and the Trustee and their respective officers, directors,
employees and agents (each, a "Marketing
Agent Indemnified Party")
from
and against any loss, liability, expense, damage or injury suffered or sustained
by reason of any acts or omissions of the Marketing Agent under this Trust
Agreement, including any judgment, award, settlement, reasonable attorneys'
fees
and other costs or expenses incurred in connection with the defense of any
action, proceeding or claim; provided,
however,
that
the Marketing Agent shall not indemnify the Trustee if such acts or omissions,
or alleged acts or omissions, constitute or are caused by fraud, negligence,
or
willful misconduct of the Trustee; provided,
further,
that
the Marketing Agent shall not indemnify the Depositor if such acts or omissions,
or alleged acts or omissions, constitute or are caused by fraud, gross
negligence, or willful misconduct of the Depositor; provided,
further,
that
the Marketing Agent shall not indemnify the Down-MACRO Tradeable Trust or the
Holders of the Down-MACRO Tradeable Shares for any liabilities, costs or
expenses of the Down-MACRO Tradeable Trust with respect to any action taken
by
the Trustee at the request of the Holders of the Down-MACRO Tradeable Shares;
provided,
further,
that
the Marketing Agent shall not indemnify the Down-MACRO Tradeable Trust or the
Holders of the Down-MACRO Tradeable Shares as to any losses, claims or damages
incurred by any of them in their capacities as investors, including, without
limitation, losses with respect to market or investment risks associated with
ownership of the Down-MACRO Tradeable Shares; and provided,
further,
that
the Marketing Agent shall not indemnify the Down-MACRO Tradeable Trust or the
Holders of the Down-MACRO Tradeable Shares for any liabilities, costs or
expenses of the Down-MACRO Tradeable Trust or the Holders of the Down-MACRO
Tradeable Shares arising under any tax law, including any federal, state, local
or foreign income or franchise taxes or any other tax imposed on or measured
by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Down-MACRO Tradeable
Trust or the Holders of the Down-MACRO Tradeable Shares in connection herewith
to any taxing authority. Indemnification pursuant to this 0
shall
not be payable from the Trust Assets. The provisions of this indemnity shall
run
directly to and be enforceable by a Marketing Agent Indemnified Party, subject
to the limitations hereof. The obligations of the Marketing Agent under this
0
shall
survive the termination of the Down-MACRO Tradeable Trust and the resignation
or
removal of the Marketing Agent or the resignation or removal of any of the
entities which constitute Marketing Agent Indemnified Parties at the time of
the
execution of this Trust Agreement and the appointment of successors
thereto.
Section
10.11 Delegation of Duties.
In the
ordinary course of business, Marketing Agent may at any time delegate any duties
hereunder to any Person who agrees to conduct such duties in accordance with
this Trust Agreement. Any such delegations shall not relieve the Marketing
Agent
of its liability and responsibility with respect to such duties and shall not
constitute a resignation, and the Marketing Agent will remain jointly and
severally liable with such Person for any amounts which would otherwise be
payable pursuant to this ARTICLE
10 as
if the Marketing Agent had performed such duty; provided,
however,
that in
the case of any significant delegation to a Person other than an Affiliate
of
the Marketing Agent, (1) at least thirty (30) days' prior written notice shall
be given to the Trustee and the Depositor of such delegation to any entity
that
is not an Affiliate of the Marketing Agent and (2) the prior written consent
of
the Depositor must be obtained.
37
ARTICLE
11
EARLY
TERMINATION
Section
11.1 Termination Triggers.
(a) The
Down-MACRO Tradeable Trust shall terminate if any one of the following
events (each, a "Termination
Trigger")
occurs:
(i) any
of the following circumstances persists for five (5) consecutive Business Days:
(i) the Applicable Reference Price of Crude Oil is not established by NYMEX
or
the Substitute Oil Price Provider; (ii) NYMEX or such Substitute Oil Price
Provider refuses to make that price available to the Administrative Agent for
the purpose of calculating the Down-MACRO Underlying Value; or (iii)(a) NYMEX
terminates the NYMEX License or does not agree to a renewal thereof after the
expiration of its initial 5-year term and the Depositor and MacroMarkets LLC
are
unable to enter into a Substitute Reference Price Licensing Agreement with
the
Dow Xxxxx Energy Service or (b) in the event that the Depositor and MacroMarkets
LLC have already entered into a Substitute Reference Price Licensing Agreement,
the Substitute Oil Price Provider which is party to such agreement terminates
that license and, in the case of either (a) or (b), the Holders do not select
a
Substitute Oil Price Provider or the Depositor and MacroMarkets LLC are unable
to enter into a Substitute Reference Price Licensing Agreement with the
Substitute Oil Price Provider that was selected by the Holders;
(ii) the
Applicable Reference Price of
Crude
Oil rises to or above $111, at which level the Underlying Value of the Up-MACRO
Holding Trust will be equal to 15% or less of assets it holds on deposit, or
the
Applicable Reference Price of Crude Oil falls to or below $9, at which level
the
Underlying Value of the Down-MACRO Holding Trust will be equal to 15% or less
of
the assets it holds on deposit and, in either case, the Applicable Reference
Price of Crude Oil remains at that level for three (3) consecutive Price
Determination Days;
(iii) any
of
the Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust becomes required to register
as
an "investment company" under the Investment Company Act; provided,
that
the failure of the Down-MACRO Tradeable Trust to hold at least a majority of
the
Down-MACRO Holding Shares or the failure of the Up-MACRO Tradeable Trust to
hold
at least a majority of the Up-MACRO Holding Shares shall not constitute a
Termination Trigger until the expiration of 90 days following the date as of
which such failure first occurred, during which period the Administrative Agent
shall be permitted to seek to remedy such failure;
38
(iv) any
of
the Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust becomes a commodities pool
that
is regulated under the CEAct;
(v) DTC
becomes unwilling or unable to act as Depository under this Trust Agreement
and no suitable replacement is willing and able to assume the duties of the
Depository hereunder;
(vi) the
Administrative Agent resigns or is unable to perform its duties under the
Down-MACRO Holding Trust Agreement and the Up-MACRO Holding Trust Agreement
or
becomes bankrupt or insolvent, and no suitable replacement is willing and able
to assume the duties of the Administrative Agent under such
agreements;
(vii) the
Depositor elects to terminate the Down-MACRO Holding Trust and 66 and 2/3%
of
the Holders of the Down-MACRO Holding Trust and the Up-MACRO Holding Trust,
each
voting as a separate class (with each Holder of Tradeable Shares being entitled
to vote the underlying Holding Shares on deposit in its Tradeable Trust),
consent to such termination;
(viii) a
decree
or order is entered by a court having competent jurisdiction adjudging any
of
the Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust to be bankrupt or insolvent
or
granting an order for relief or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
any
of the Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust under the Bankruptcy Code or
any
other applicable law, or appointing a receiver, liquidator, assignee or
sequestrator (or other similar official) of any of the Down-MACRO Holding Trust,
the Up-MACRO Holding Trust, the Down-MACRO Tradeable Trust or the Up-MACRO
Tradeable Trust or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, or, in a court having jurisdiction,
any of the Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust commences a voluntary case
or
proceeding under the Bankruptcy Code or any other applicable law, or an
involuntary case or proceeding is commenced against any of the Down-MACRO
Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO Tradeable Trust or
the
Up-MACRO Tradeable Trust, seeking any of the foregoing and such case or
proceeding continues undismissed or unstayed and in effect for a period of
90
consecutive days;
(ix) the
amount of cash and Eligible Treasuries on deposit in the Down-MACRO Holding
Trust or the Up-MACRO Holding Trust is reduced to less than ten (10) million
dollars; and
(x) the
amount of cash and Eligible Treasuries on deposit in the Down-MACRO Holding
Trust or the Up-MACRO Holding Trust is reduced to fifty (50) million dollars
or
less after previously reaching an amount equal to two hundred (200) million
dollars or more, or the failure on the part of the Paired Holding Trusts to
each
hold cash and Eligible Treasuries in an amount equal to at least two hundred
(200) million dollars after six (6) months or more have elapsed since the
Closing Date and, in either case, the Depositor elects to terminate the Paired
Holding Trusts.
39
(b) On
the
next Distribution Date following the occurrence of a Termination Trigger (an
"Early
Termination Date"),
the
Trustee shall make a Final Distribution on all Outstanding Down-MACRO Tradeable
Shares, as set forth in Section
5.2.
Upon
receipt of this Final Distribution on the related Distribution Payment Date,
all
Outstanding Down-MACRO Tradeable Shares shall be deemed to be redeemed in
full.
(c) The
Administrative Agent will be responsible for notifying the Depositor and the
Trustee of the occurrence of the Termination Trigger set forth in any of the
following subparagraphs of ARTIVLE
11(a) hereof:
Section
11.1(a)(i)(i),
Section 12.1(a)(i)(ii),
Section
11.1(a)(i)(vi)
or
Section 11.1(a)(i)(vii).
Upon
obtaining knowledge of the occurrence of any of the other Termination Triggers
described above, the Trustee will be responsible for notifying the Depositor
and
the Administrative Agent of such occurrence. In addition, the Trustee will
give
prompt notice of that event to the Calculation Agent, the Up-MACRO Holding
Trustee, the Down-MACRO Tradeable Trustee, the Up-MACRO Tradeable Trustee and
the Registered Owners of the Down-MACRO Holding Shares.
(d) The
Depositor, upon receiving or otherwise obtaining actual knowledge of the
occurrence of any Termination Trigger, shall file a Form 8-K with the SEC
disclosing such occurrence.
(e) In
the
event that the Down-MACRO Tradeable Trust at any time holds less than a Majority
of the Outstanding Down-MACRO Holding Shares or the Up-MACRO Tradeable Trust
holds less than a Majority of the Outstanding Up-MACRO Holding Shares, the
Administrative Agent shall be permitted to seek to restore such Majority
ownership by the Down-MACRO Tradeable Trust and/or the Up-MACRO Tradeable Trust
for a period of 90 days following the first day on which the applicable
tradeable trust ceased to be the Majority owner of the Down-MACRO or Up-MACRO
Holding Shares that it holds on deposit. In the event that such Majority
ownership has not been restored on or prior to the expiration of such 90-day
period, a Termination Trigger will occur pursuant to subclause (iii) of clause
(a) of this Section
11.1.
ARTICLE
12
TRUSTEE
TERMINATION EVENTS
Section
12.1 Trustee Termination Events.
Any one
of the following events shall constitute a Trustee Termination Event (a
"Trustee
Termination Event"):
(a) to
the extent that any Quarterly Distribution is received by the Down-MACRO
Tradeable Trust on its Down-MACRO Holding Shares, a failure by the Trustee
to
pass through such Quarterly Distribution, which failure continues unremedied
for
a period of five (5) or more Business Days;
(b) to
the extent that any Final Distribution is received by the Down-MACRO Tradeable
Trust on its Down-MACRO Holding Shares, a failure by the Trustee to pass through
such Final Distribution, which failure continues unremedied for a period of
five
(5) or more Business Days;
(c) any
failure by the Trustee to observe or perform in any material respect any of
its
other covenants or obligations hereunder, which failure continues unremedied
for
thirty (30) days after the giving of written notice of such failure to the
Trustee by the Depositor or by not less than 25% of the Holders, voting by
par
amount;
40
(d) the
Trustee becomes ineligible or incapable of acting as Trustee
hereunder;
(e) the
occurrence of a Trustee Termination Event under the Down-MACRO Holding Trust
Agreement, pursuant to the terms of the Down-MACRO Holding Trust Agreement;
(f) the
occurrence of a Trustee Termination Event under the Up-MACRO Holding Trust
Agreement, pursuant to the terms of the Up-MACRO Holding Trust Agreement;
or
(g) the
occurrence of a Trustee Termination Event under the Up-MACRO Tradeable Trust
Agreement, pursuant to the terms of the Up-MACRO Tradeable Trust
Agreement.
Section
12.2 Force Majeure
.
Notwithstanding the foregoing, any delay in or failure of performance under
0
shall
not constitute a Trustee Termination Event if such delay or failure could not
be
prevented by the exercise of reasonable diligence by the Trustee and such delay
or failure was caused by an act of God or the public enemy, terrorism, acts
of
declared or undeclared war, public disorder, rebellion or sabotage, epidemics,
landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes.
The preceding sentence shall not relieve the Trustee from the obligation to
use
its best efforts to perform its obligations in a timely manner in accordance
with the terms of this Trust Agreement and the Trustee shall provide the
Depositor with immediate notice of such failure or delay by it, together with
a
description of its efforts to so perform its obligations.
Section
12.3 Notification to Holders of the Down-MACRO Tradeable
Shares.
Within
two (2) Business Days after the Administrative Agent or the Trustee is notified
or obtains actual knowledge of any Trustee Termination Event, the Administrative
Agent or the Trustee, as applicable, shall give notice thereof to the Depositor
and the Administrative Agent or the Trustee, as applicable, and notification
of
such Trustee Termination Event shall be filed by the Depositor on Form 8-K
with
the SEC.
ARTICLE
13
THE
TRUSTEE
Section
13.1 Liability of Trustee.
(a) The
Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments that
are
specifically required to be furnished to the Trustee pursuant to any provision
hereof, shall examine them to determine whether they conform on their face
to
the requirements of this Trust Agreement. The Trustee shall give prompt written
notice to the Depositor and the Administrative Agent of any material lack of
conformity of any such instrument to the applicable provisions of this Trust
Agreement.
(b) 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:
(i) 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 grossly
negligent in ascertaining the pertinent facts; and
41
(ii) 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
the Administrative Agent, the Depositor, the Calculation Agent or any Holder
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.
(c) 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.
(d) The
Trustee shall have no power to vary the corpus of the Down-MACRO Tradeable
Trust.
(e) In
the
event that the Transfer Agent and Registrar (if not also the Trustee) fails
to
perform any obligation, duty or agreement in the manner or on the day required
under this Trust Agreement, the Trustee shall be obligated, as soon as possible
upon knowledge of a Trust Officer of such failure and receipt of appropriate
records, if any, to perform such obligation, duty or agreement in the manner
required hereunder.
Section
13.2 Rights of the Trustee.
(a) The
Trustee may rely on and shall be protected in acting, or in refraining
from acting, in accord with any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have been signed or
presented to it pursuant to this Trust Agreement by the proper party or
parties.
(b) The
Trustee may consult with counsel, and any advice of such counsel or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted hereunder by the Trustee in good faith
and
in accordance with such advice or Opinion of Counsel.
(c) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Trust Agreement or to institute, conduct or defend any
litigation in relation to this Trust Agreement at the request, order or
direction of any of the Holders of the Down-MACRO Tradeable Shares pursuant
to
the provisions of this Trust Agreement unless such Holders have offered to
the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(d) Subject
to Section
13.1(b)
hereof,
the Trustee shall not be personally liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or
within the discretion, rights or powers conferred upon it by this Trust
Agreement.
(e) The
Trustee shall not be bound to make any investigation into the accuracy of any
assertions of facts made in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond
or
other paper or document, unless the Trustee has actual knowledge that any such
assertion is incorrect or unless requested in writing to do so by Holders
evidencing more than 25% of the Aggregate Par Amount of the Down-MACRO Tradeable
Shares.
42
(f) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder that are customarily executed or performed by agents, custodians,
nominees or attorneys under like circumstances, 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 by it 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 Down-MACRO
Tradeable Trust generally.
(g) Except
as
may be required by 0
and
0,
the
Trustee shall not be required to make any initial or periodic examination of
any
documents or records for the purpose of establishing the presence or absence
of
defects, the compliance by the Depositor, the Administrative Agent or the
Marketing Agent with their respective representations and warranties or for
any
other purpose.
Section
13.3 Trustee Not Liable for Recitals in Down-MACRO Tradeable
Shares.
The
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Down-MACRO Tradeable Shares (other than the certificate of
authentication on the Down-MACRO Tradeable Shares). Except as set forth in
0,
the
Trustee makes no representations as to the validity or sufficiency of this
Trust
Agreement or of the Down-MACRO Tradeable Shares (other than the certificate
of
authentication on the Down-MACRO Tradeable Shares).
Section
13.4 Holders May Direct Trustee.
Holders
of Down-MACRO Tradeable Shares who are the Beneficial Owners of an Aggregate
Par
Amount representing at least 66 and 2/3% of all such shares that are Outstanding
at any time may direct the Trustee with respect to actions that the Trustee
is
permitted to take under this Trust Agreement, subject to the limitations set
forth in 0,
0
and
0
hereof.
Section
13.5 Compensation.
The
Depositor shall cause to be paid in the manner provided for in Section
5.4
of the
Down-MACRO Holding Trust Agreement, and the Trustee shall be entitled to
receive, on each Distribution Payment Date, the Down-MACRO Trustee Fee for
all
services rendered by it under this Trust Agreement and in the exercise and
performance of any of the powers and duties hereunder of the Trustee. The
entitlement of the Trustee under this 0
for past
services rendered shall survive the termination of the Down-MACRO Tradeable
Trust and the Down-MACRO Holding Trust.
Section
13.6 Indemnification.
The
Trustee and its directors, shareholders, officers, employees, agents, affiliates
(as such term is defined in Regulation S-X of the Securities Act) and
subsidiaries (each, a "Trustee
Indemnified Party")
shall
be indemnified by the Down-MACRO Holding Trust and held harmless against any
loss, liability or expense (a) arising out of or in connection with the
acceptance or administration of the Down-MACRO Tradeable Trust and any actions
taken in accordance with the provisions of this Trust Agreement or that arises
out of or is related to any offer or sale of Down-MACRO Tradeable Shares
incurred without (i) negligence, bad faith, and willful misconduct on the part
of such Trustee Indemnified Party and (ii) reckless disregard on the part of
such Trustee Indemnified Party of its obligations and duties under this Trust
Agreement, or (b) that arises out of or is related to any filings with or
submissions to the SEC in connection with or with respect to the Down-MACRO
Tradeable Shares (which, by way of illustration and not by way of limitation,
include the Registration Statement and any amendments thereof or supplements
thereto filed with the SEC or any periodic reports or updates that may be filed
under the Exchange Act), but not including any information provided in writing
by the Trustee to the Depositor for use in the Registration Statement or any
other filing with the SEC. Such indemnity shall include payment from the
Down-MACRO Tradeable Trust of the costs and expenses incurred by such Trustee
Indemnified Party in investigating or defending itself against any claim or
liability relating to this Trust Agreement or the Down-MACRO Tradeable Trust,
including any loss, liability or expense incurred in acting pursuant to written
directions or instructions given by the Depositor or counsel to the Down-MACRO
Tradeable Trust to the Trustee from time to time in accordance with the
provisions of this Trust Agreement or in undertaking actions from time to time
which the Trustee deems necessary in its discretion, subject to the limitations
imposed by 0
and
0
hereof,
to protect the Down-MACRO Tradeable Trust and the rights of all Beneficial
Owners pursuant to the terms of this Trust Agreement. Any amounts payable to
a
Trustee Indemnified Party under this 0
may be
payable in advance in accordance with the provisions of Section
5.3
of the
Down-MACRO Holding Trust Agreement or shall be secured by a lien on the
Down-MACRO Holding Trust.
43
Section
13.7 Eligibility Requirements.
The
Trustee hereunder shall at all times: (i) be a bank or trust company 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 $100,000,000, (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) accept and act in the capacity of
both
the Trustee hereunder and as trustee of the Up-MACRO Tradeable Trust, the
Down-MACRO Holding Trust and the Up-MACRO Holding Trust. If such bank 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
13.7,
the
combined capital and surplus of such bank or trust company shall be deemed
to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee ceases to be eligible in
accordance with the provisions of this Section
13.7,
the
Trustee shall resign immediately in the manner and with the effect specified
in
Section
13.8.
Section
13.8 Resignation or Removal of Trustee.
(a) A
Trustee appointed to office shall hold office until its successor shall have
been appointed by the Holders in accordance with this Trust Agreement or until
its termination, removal or resignation.
(b) Subject
to the provisions of this Section
13.8,
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
13.8 until
a successor Trustee possessing the qualifications to act as Trustee and willing
and able to make the representations contained in Section
3.2 (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.
(c) Any
Trustee may resign hereunder by an instrument in writing signed by the Trustee
and delivered to the Depositor, the Administrative Agent and each Registered
Owner, which shall become effective on the date specified in such instrument;
provided,
however,
that no
such resignation of a Trustee shall become effective:
44
(i) until
a
Successor Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Trustee and delivered to the Down-MACRO
Tradeable Trust, the Depositor, the Administrative Agent and the resigning
Trustee; or
(ii) until
the
assets of the Down-MACRO Tradeable Trust have been completely liquidated and
the
proceeds thereof distributed to the Holders.
If
no
Successor Trustee shall have been appointed and accepted such appointment within
thirty (30) days after delivery to the Depositor, the Administrative Agent,
the
Marketing Agent and the Down-MACRO Tradeable Trust of an instrument of
resignation, the resigning Trustee may petition at the expense of the Down-MACRO
Tradeable 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 anything that occurs after it has ceased to act
in
such capacity, including, without limitation, the acts or omissions to act
of
any Successor Trustee; provided, that such resigning or terminated Trustee
shall
remain liable for any actions taken by it prior to its termination or
resignation as a result of which it would be liable to the Down-MACRO Tradeable
Trust pursuant to Section
13.1(b).
Section
13.9 Successor Trustee.
(a) Any
Successor Trustee appointed as provided in Section
13.8 shall
execute, acknowledge and deliver to the Depositor and to its predecessor Trustee
an instrument in a form acceptable to the Depositor accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such Successor Trustee, without any further act,
deed
or conveyance, shall become fully vested with all the rights, powers, duties
and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the Successor
Trustee all documents and statements held by it hereunder, and the Depositor
and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and
confirming in the Successor Trustee all such rights, powers, duties and
obligations within thirty days of execution of such instrument.
(b) No
Successor Trustee shall accept appointment as provided in this Section
13.9 unless
at the time of such acceptance such Successor Trustee is eligible under the
provisions of Section
13.7 and
makes in the instrument of acceptance delivered pursuant to clause (a)
of this
Section
13.9 the
representations and warranties contained in Section 3.2 hereof.
(c) Upon
acceptance of appointment by a Successor Trustee as provided in this
Section
13.9,
such
Successor Trustee shall provide prompt notice of its succession hereunder to
the
Depositor, and the Depositor shall file a Form 8-K with the SEC disclosing
such
succession.
(d) Without
the consent of a majority of the Holders of the Down-MACRO Tradeable Shares,
voting by Aggregate Par Amount, the compensation to be paid to the Successor
Trustee may not be greater than the compensation paid to the terminated Trustee
hereunder.
Section
13.10 Merger or Consolidation.
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
13,
including without limitation Section
13.7 hereof.
The Trustee shall promptly furnish to the Depositor and the Administrative
Agent
a notice of any merger or consolidation to which the Trustee is a
party.
45
Section
13.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding
any other provisions of this Trust Agreement,
the Trustee shall have the power and may execute and deliver all instruments
to
appoint, at any time, one or more Persons to act as a co-trustee or co-trustees,
or a separate trustee or separate trustees, of all or any part of the Trust
Assets, and to vest in such Person or Persons, in such capacity and for the
benefit of the Holders of the Down-MACRO Tradeable Shares, such title to the
Trust Assets or any part thereof and, subject to the other provisions of this
Section
13.11,
such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable, for the purpose of meeting any legal requirements of
any
jurisdiction in which any part of the Trust Assets may at the time be located;
provided,
that
such co-trustee or co-trustees, or separate trustee or separate trustees, shall
also assume the rights, duties and obligations of the Trustee under each of
the
Up-MACRO Tradeable Trust Agreement, the Down-MACRO Holding Trust Agreement
and
the Up-MACRO Holding Trust Agreement; provided,
further,
that
the Trustee shall exercise due care in the appointment of any co-trustee or
separate trustee. Each co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility for a successor trustee under
Section
13.8 and
Section
13.9.
No
notice to Holders of the Down-MACRO Tradeable Shares of the appointment of
any
co-trustee or separate trustee shall be required under this Section
13.11;
provided,
that
the Trustee shall provide notice of each such appointment to the Depositor
and
the Administrative Agent.
(b) Every
co-trustee and separate trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised
or
performed by the Trustee and such co-trustee or separate trustee jointly (it
being understood that such co-trustee or separate trustee shall not be
authorized to act unless the Trustee joins in such act) except to the extent
that under any laws of any jurisdiction in which any particular act or acts
are
to be performed the Trustee is incompetent or unqualified to perform such act
or
acts, in which event such rights, powers, duties and obligations (including
the
holding of title to the Trust Assets or any portion thereof in any such
jurisdiction) shall be exercised or performed singly by such co-trustee or
separate trustee, but solely at the direction of the Trustee;
(ii) no
co-trustee or separate trustee hereunder shall be personally liable by reason
of
any act or omission of any other trustee hereunder; and
(iii) the
Trustee may at any time accept the resignation of or remove any co-trustee
or
separate trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then co-trustees and separate trustees as effectively
as if given to each of them. Every instrument appointing any co-trustee or
separate trustee shall refer to this Trust Agreement and the conditions of
this
Article
13.
Upon
its acceptance of the trusts conferred by its instrument of appointment, each
co-trustee and separate trustee shall be vested with the estates or property
specified in such instrument, either jointly with the Trustee or separately,
as
may be provided therein, subject to all of the provisions of this Trust
Agreement, specifically including every provision of this Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection
to the Trustee. Every such instrument shall be filed with the
Trustee.
46
(d) Any
co-trustee or separate trustee may at any time appoint the Trustee its agent
or
attorney-in-fact with full power and authority, to the extent not prohibited
by
law, to do any lawful act under or in respect to this Trust Agreement on its
behalf and in its name. If any co-trustee or separate trustee shall become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts under or in respect to this Trust Agreement shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section
13.12 Books, Records; Taxes; Audit.
(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 shall be open to inspection by any Person who
establishes to the Trustee's reasonable satisfaction that it is a Beneficial
Owner upon reasonable advance notice at all reasonable times during the usual
business hours of the Trustee. The Administrative Agent shall keep proper
records of all Paired Optional Redemptions and Paired Issuances effected at
any
time at its Business Office. Such records shall be open to inspection by any
Person who establishes to the Administrative Agent's reasonable satisfaction
that it is a Beneficial Owner upon reasonable advance notice at all reasonable
times during the usual business hours of the Administrative Agent. Such records
shall be preserved by the Trustee or the Administrative Agent, as applicable,
for so long as the Depositor may direct.
(b) The
Trustee shall provide the Depositor 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 required under 0.
Unless
otherwise required by applicable law or regulation, the Depositor shall be
responsible for any certification of any such reports or the contents thereof;
provided,
that
the Trustee shall make such representations to the Depositor with respect to
information within the Trustee's control as shall be required for the Depositor
to make such certification.
(c) The
Depositor shall prepare or cause to be prepared, and the Trustee shall sign
(if
it is determined that the Trustee's signature is required thereon) and file
any
tax returns required to be filed by the Down-MACRO Tradeable Trust. The
Depositor shall also prepare or cause to be prepared all tax information
required by law to be distributed to Holders of the Down-MACRO Tradeable Shares.
The Trustee, the Calculation Agent, the Marketing Agent and the Administrative
Agent, upon request, shall each furnish the Depositor with any information
known
to it that may be reasonably required in connection with the preparation of
such
duties set forth in the preceding two sentences.
(d) In
no
event shall the Trustee, the Depositor or the Administrative Agent be personally
liable for any taxes or other governmental charges imposed upon or in respect
of
the Down-MACRO Tradeable Shares under any present or future law of the United
States of America or imposed by any taxing authority having jurisdiction over
the Down-MACRO Tradeable Trust. For all such taxes and charges and for any
expenses, including counsel's fees, which the Trustee or the Administrative
Agent may sustain or incur with respect to such taxes or charges, the Trustee
or
the Administrative Agent shall be reimbursed and indemnified by or on behalf
of
the Down-MACRO Holding Trust in accordance with the provisions of Section
5.3
of the
Down-MACRO Holding Trust Agreement and the payment of such amounts shall be
secured by a lien on the Down-MACRO Holding Trust. Any payments by the Trustee
or the Administrative Agent shall be subject to withholding regulations then
in
force. This paragraph shall survive notwithstanding any termination of this
Trust Agreement, the Down-MACRO Tradeable Trust, the Down-MACRO Holding Trust
Agreement or the Down-MACRO Holding Trust, or the resignation or removal of
the
Trustee or the Administrative Agent.
47
(e) 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 in accordance with the
provisions of Section
5.3
of the
Down-MACRO Holding Trust Agreement. The report of such accountants shall be
furnished by the Administrative Agent to any Beneficial Owner upon
request.
Section
13.13 Trustee May Enforce Claims Without Possession of Down-MACRO
Tradeable Shares.
All
rights of action and claims under this Trust Agreement or the Down-MACRO
Tradeable Shares may be prosecuted and enforced by the Trustee without the
possession of any of the Down-MACRO Tradeable Shares or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee. Any recovery of judgment
shall, after provision for payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Down-MACRO Tradeable Shares in respect
of
which such judgment has been obtained.
Section
13.14 Suits for Enforcement.
If a
Termination Trigger or a Trustee Termination Event occurs and is continuing,
the
Trustee (or the Depositor, in the case of a Trustee Termination Event) in its
discretion may proceed to protect and enforce its rights and the rights of
the
Holders of the Down-MACRO Tradeable Shares under this Trust Agreement by a
suit,
action or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Trust Agreement,
in
aid of the execution of any power granted in this Trust Agreement or for the
enforcement of any other legal, equitable or other remedy as the Trustee (or
the
Depositor, in the case of a Trustee Termination Event), being advised by
counsel, shall deem most effectual to protect and enforce any of the rights
of
the Holders of the Down-MACRO Tradeable Shares.
Section
13.15 Maintenance of Office or Agency.
The
Trustee shall maintain at its expense an office or agency (the "Corporate
Trust Office")
where
notices and demands to or upon the Trustee in respect of the Down-MACRO
Tradeable Shares and this Trust Agreement may be served. The Corporate Trust
Office shall initially be located at 000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx
00000. The Trustee will give prompt notice to the Depositor and to Registered
Owners of the Down-MACRO Tradeable Shares of any change in the location of
the
Corporate Trust Office.
ARTICLE
14
TERMINATION
Section
14.1 Termination of Trust.
The
Down-MACRO Tradeable Trust and the respective obligations and responsibilities
of the Depositor, the Administrative Agent, the Marketing Agent and the Trustee
created hereby shall terminate on the earlier of an Early Termination Date
and
the Final Scheduled Termination Date. The Down-MACRO Tradeable Trust shall
not
terminate in the event that the Depositor is adjudged to be insolvent or is
liquidated or dissolved for any reason.
48
Upon
the
termination of the Down-MACRO Tradeable Trust, the Trustee shall wind up the
activities and affairs of the Down-MACRO Tradeable Trust and shall cause its
certificate of designation to be cancelled by filing a certificate of
cancellation with the New York Secretary of State, terminating the Down-MACRO
Tradeable Trust.
ARTICLE
15
MISCELLANEOUS
PROVISIONS
Section
15.1 Amendment; Waiver of Past Defaults and
Termination.
(a) This
Trust Agreement shall not in any circumstances be amended (i) to modify the
definition of "Per
Share Underlying Value"
of the
Down-MACRO Tradeable Shares or any constituent defined terms that are a part
of
the foregoing defined term; or (ii) to modify the rule that one Down-MACRO
Tradeable Share shall be issued for each Down-MACRO Holding Share that is
deposited into the Down-MACRO Tradeable Trust.
(b) Subject
to clause (a)
of this
Section
15.1,
this
Trust Agreement may be amended from time to time with the written consent of
the
Depositor, the Administrative Agent and the Trustee, but without the consent
of
any Holder of Down-MACRO Tradeable Shares (i) to cure any ambiguity or to
correct or supplement any provision which may be defective or inconsistent
with
any other provision of this Trust Agreement, the Down-MACRO Holding Trust
Agreement, the Up-MACRO Holding Trust Agreement or the Up-MACRO Tradeable Trust
Agreement, (ii) to modify any provision of or add a provision to this Trust
Agreement to conform it to the description of the terms of the Down-MACRO
Tradeable Shares contained in the Prospectus, (iii) to add to the covenants,
restrictions or obligations of any entity under this Trust Agreement for the
benefit of the Holders of the Down-MACRO Tradeable Shares or to modify any
provisions of this Trust Agreement in any manner that does not adversely affect
any Holder of Down-MACRO Tradeable Shares or any Holder of Paired Holding Shares
in any material respect, (iv) to evidence and provide for the acceptance of
appointment hereunder of a Successor Trustee, a successor Administrative Agent
or any successor Marketing Agent, (v) to modify the procedures for directing
and
settling Creation Orders, Redemption Orders and Exchange Orders set forth herein
in connection with an amendment of the Participants Agreement entered into
among
the Trustee, the Up-MACRO Tradeable Trustee, the Down-MACRO Holding Trustee,
the
Up-MACRO Holding Trustee, the Administrative Agent and one or more Authorized
Participants, and (vi) to comply with any requirements imposed by the Code,
or
any federal or state securities laws; provided,
that no
amendment to this Trust Agreement may be made if it would have the effect of
causing the Down-MACRO Tradeable Trust to be classified other than as a grantor
trust for U.S. federal income tax purposes; provided,
further,
that no
amendment of this Trust Agreement may be made if it would have the effect of
causing the Down-MACRO Tradeable Trust to be required to register as an
investment company under the Investment Company Act or to be regulated as a
commodity pool under the CEAct. The Trustee may, but shall not be obligated
to,
enter into any amendment which affects the Trustee's rights, duties or
immunities under this Trust Agreement or otherwise.
49
(c) Subject
to clause (a)
of this
Section
15.1,
this
Trust Agreement may also be amended from time to time with the written consent
of the Depositor, the Administrative Agent and the Trustee and the written
consent of the Holders of Down-MACRO Tradeable Shares evidencing not less than
a
majority of the Aggregate Par Amount, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Trust
Agreement or of modifying in any manner the rights of the Holders of the
Down-MACRO Tradeable Shares; provided,
that no
amendment to this Trust Agreement may be made if it would have the effect of
causing the Down-MACRO Tradeable Trust to be classified other than as a grantor
trust for U.S. federal income tax purposes; provided further,
that,
without the written consent of each Holder of the Down-MACRO Tradeable Shares
that would be adversely affected thereby, no amendment may (i) modify the amount
or timing of any distributions that are required to be made on the Down-MACRO
Tradeable Shares; or (ii) reduce the percentage of Holders that are required
to
consent to any of the foregoing amendments.
(d) Subject
to clause
(a)
of this
Section
15.1,
this
Trust Agreement may be amended at any time prior to the first issuance of
Up-MACRO Tradeable Shares with the written consent of the Depositor, the
Administrative Agent and the Trustee and the written consent of each holder
of
Founders' Shares for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of hereof.
(e) Promptly
after the execution of any amendment or consent pursuant to this Section
15.1,
the
Trustee shall furnish notification of the substance of such amendment or consent
to each Registered Owner and the Depositor shall prepare and file a Form 8-K
with the SEC setting forth the provisions of such amendment.
(f) Where
the
consent of Holders is required under this Section
15.1 in
order to amend this Trust Agreement, it shall be sufficient if such consent
approves the substance of the proposed amendment; the particular form of such
amendment need not be approved. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Holders of the
Down-MACRO Tradeable Shares shall be subject to such reasonable requirements
as
the Trustee may prescribe.
(g) Holders
evidencing not less than a majority of the Aggregate Par Amount may waive any
default by the Depositor, the Trustee, or the Administrative Agent in the
performance of their obligations hereunder and its consequences, except the
failure to make any distributions required to be made to Holders of the
Down-MACRO Tradeable Shares. Upon any such waiver of a past default, such
default shall cease to exist, and any default arising therefrom shall be deemed
to have been remedied for every purpose of this Trust Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
Section
15.2 Registration (Initial and Continuing) of Down-MACRO Tradeable
Shares; Certain Securities Law Filings.
The
Depositor agrees to (i) prepare and file the 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 of and supplements to such Registration Statement, (ii)
promptly notify the Trustee and the Administrative Agent of any such amendment
of or supplement to the Registration Statement and of any order preventing
or
suspending the use of the Prospectus included therein, (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 the Trustee and the
Administrative Agent may reasonably request, (iv) prepare and file any periodic
reports or updates that may be required under the Exchange Act, as specified
in
0
hereof,
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 provisions of Section
5.3
of the
Down-MACRO Holding Trust Agreement.
50
Section
15.3 Prospectus Delivery.
The
Administrative Agent shall, if required to do so under the federal securities
laws of the United States, deliver at the time of issuance of any Down-MACRO
Tradeable Shares in any manner permitted by such laws, a copy of the Prospectus,
as most recently furnished to the Administrative Agent by the Depositor, to
each
person submitting a Creation Order. The Administrative Agent shall also, if
required to do so under the federal securities laws of the United States,
deliver in conjunction with any marketing or computational materials, in any
manner permitted by such laws, a copy of the Prospectus, as most recently
furnished to the Administrative Agent by the Depositor.
Section
15.4 Protection of Right, Title and Interest to Trust
Assets.
(a) The
Depositor shall cause this Trust Agreement, all amendments hereof and
supplements hereto and all financing statements, continuation statements and
any
other necessary documents covering the right, title and interest of the Holders
of the Down-MACRO Tradeable Shares and of the Trustee in and to the Trust Assets
to be promptly recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may
be
required by law fully to preserve and protect the right, title and interest
of
the Holders of the Down-MACRO Tradeable Shares and the Trustee hereunder in
and
to all property comprising the Trust Assets. The Depositor shall deliver to
the
Trustee file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing.
(b) Within
30 days after the Depositor makes any change in its name, identity or corporate
structure which would make any financing statement or continuation statement
filed in accordance with paragraph
(a)
above
seriously misleading within the meaning of Section 9-402(7) (or any comparable
provision) of the UCC, the Depositor shall give the Trustee notice of such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Down-MACRO Tradeable Trust's
security interest in the Trust Assets and the proceeds thereof.
(c) The
Depositor shall give the Trustee prompt notice of any relocation of its
principal executive offices or of any office from which it performs its duties
hereunder or keeps records concerning this transaction. If, as a result of
any
such relocation, the applicable provisions of the UCC require the filing of
any
new financing statement or of any amendment to any previously filed financing
or
continuation statement, the Depositor shall file such financing statements
or
amendments as may be necessary to perfect or to continue the perfection of
the
Down-MACRO Tradeable Trust's security interest in the Trust Assets and the
proceeds thereof. The Depositor shall at all times maintain its principal
executive offices and each office from which it performs its duties hereunder
within the United States.
51
Section
15.5 Limitation on Rights of Holders of the Down-MACRO Tradeable
Shares.
(a) The
death or incapacity of any Holder of the Down-MACRO Tradeable Shares shall
not
operate to terminate this Trust Agreement or the Down-MACRO Tradeable Trust,
nor
shall such death or incapacity entitle the legal representatives
or heirs of such Holder to claim an accounting or to take any action or commence
any proceeding in any court for a partition or winding-up of the Down-MACRO
Tradeable Trust, or otherwise affect the rights, obligations and liabilities
of
the parties hereto or any of them.
(b) No
Holder
of the Down-MACRO Tradeable Shares shall have any right to vote (except as
expressly provided in this Trust Agreement) or in any manner otherwise control
the operation and management of the Down-MACRO Tradeable Trust, or the
obligations of the parties hereto, nor shall any Holder of the Down-MACRO
Tradeable Shares be under any liability to any third person by reason of any
action by the parties to this Trust Agreement pursuant to any provision
hereof.
(c) No
Holder
of the Down-MACRO Tradeable Shares shall have any right by virtue of any
provisions of this Trust Agreement to institute any suit, action or proceeding
in equity or at law upon, under or with respect to this Trust Agreement unless
such Holder previously has made, and unless the Holders of Down-MACRO Tradeable
Shares representing the beneficial ownership of at least 66 and 2/3% of all
Outstanding Down-MACRO Tradeable Shares have made, written request to the
Trustee to institute such suit, action or proceeding in its own name as Trustee
hereunder and have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein
or
thereby and the Trustee, for sixty (60) days after its receipt of such request
and offer of indemnity, has neglected or refused to institute any such action,
suit or proceeding; it being understood and intended, and expressly agreed
to by
each Holder with every other Holder and the Trustee, that no one or more Holders
of the Down-MACRO Tradeable Shares shall have any right in any manner whatsoever
by virtue of or by availing itself or themselves of any provisions of this
Trust
Agreement to affect, disturb or prejudice the rights of any other Holder of
the
Down-MACRO Tradeable Shares, to obtain or seek to obtain priority over or
preference to any other Holder of the Down-MACRO Tradeable Shares or to enforce
any right under this Trust Agreement except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of the Down-MACRO
Tradeable Shares. For the protection and enforcement of the provisions of this
0,
each
and every Holder and the Trustee shall be entitled to such relief as can be
obtained either at law or in equity.
Section
15.6 Certain Rights of Holders of Down-MACRO Tradeable Shares;
Voting.
(a) Each
Holder of Down-MACRO Tradeable Shares shall be able to vote on all matters
on
which shareholders may or are required to vote under this Trust Agreement for
the Down-MACRO Tradeable Shares. Holders of Down-MACRO Tradeable Shares
evidencing not less than 66 and 2/3% of the Aggregate Par Amount shall have
the
right to direct the time, place and method of conducting any proceeding for
any
remedy available to the Trustee, or exercising any trust or power conferred
on
the Trustee relating to such proceeding; provided,
however,
that,
subject to Section
15.1,
the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may
not lawfully be taken, or if a Trust Officer in good faith determines that
the
proceedings so directed would be illegal or involve the Trustee in personal
liability or be unduly prejudicial to the rights of Holders of the Down-MACRO
Tradeable Shares not party to such direction; provided further
that
nothing in this Trust Agreement shall impair the right of the Trustee to take
any action deemed proper by the Trustee that is not inconsistent with such
direction or with the limitations imposed by Section
2.3 and
Section
3.1(b) hereof.
52
(b) The
Holders of the Down-MACRO Tradeable Shares shall be entitled 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 an equal number of
Down-MACRO Holding Shares as the number of Down-MACRO Tradeable Shares owned
by
such Holder.
Section
15.7 MACRO Licensing Agreement.
On the
Closing Date, the Down-MACRO Tradeable Trust shall enter into the MACRO
Licensing Agreement with MacroMarkets LLC, the Administrative Agent, the
Down-MACRO Holding Trust, the Up-MACRO Holding Trust and the Up-MACRO Tradeable
Trust. Under such licensing agreement, MacroMarkets LLC shall be entitled to
the
receipt of the Down-MACRO Licensing Fee, which shall be payable to MacroMarkets
LLC in arrears on each Distribution Date in accordance with the provisions
of
Section
5.4
of the
Down-MACRO Holding Trust Agreement.
Section
15.8 Governing Law; Jurisdiction.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the federal courts
sitting in the State of New York for any litigation arising out of or relating
to this Trust Agreement and the transactions contemplated hereby (and agrees
not
to commence any litigation relating thereto except in such courts) and further
agrees that service of any process, summons, notice or document by prepaid
certified mail with proof of mailing receipt validated by the United States
Postal Service to the address of such party as set forth in Section
15.9 (or
to the agent of such party appointed and maintained in the State of New York
as
such party's agent for acceptance of legal process) shall be effective service
of process for any litigation brought against it in any such court. Each of
the
parties hereto hereby irrevocably and unconditionally waives any objection
to
the laying of venue of any litigation arising out of this Trust Agreement or
the
transactions contemplated hereby in the courts of the State of New York or
of
the federal courts sitting in the State of New York and hereby further
irrevocably and unconditionally waives its right to, and agrees not to, plead
or
claim in any such court that any such litigation brought in any such court
has
been brought in an inconvenient forum.
Section
15.9 Notices.
(a) All
demands, notices, instructions, directions and communications (collectively,
"Notices")
under
this Trust Agreement shall be in writing and shall be deemed to have been duly
given if personally delivered, mailed by registered mail, return receipt
requested, or sent by facsimile transmission to the following
addresses:
|
If
to the Depositor, to:
|
MACRO
Securities Depositor, LLC
00
Xxxxx Xxxx Xxxxx #0
Xxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx, III
Facsimile:
(000) 000-0000
|
53
|
With
a copy to:
|
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
If
to the Trustee, to:
|
State
Bank & Trust Company
000
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxx XxXxxxx
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
State
Street Bank and Trust Company
000
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxx
Facsimile:
(000) 000-0000
|
|
If
to the Administrative Agent, to:
|
MacroMarkets
LLC
00
Xxxxx Xxxx Xxxxx #0
Xxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx, III
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
54
|
If
to the Marketing Agent, to:
|
MACRO
Securities Depositor, LLC
00
Xxxxx Xxxx Xxxxx #0
Xxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx, III
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
(b) Any
Notice required or permitted to be given to a Registered Owner of the Down-MACRO
Tradeable Shares shall be given by first-class mail, postage prepaid, at the
address of such Registered Owner as shown in the Share Register. Any Notice
so
mailed within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Registered Owner receives
such Notice. Any notice to be given to a Beneficial Owner shall be duly given
if
mailed or delivered
to Authorized Participants designated by the Depository for delivery to
Beneficial Owners.
55
Section
15.10 Severability of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Trust
Agreement is held invalid for any reason whatsoever, then such provision shall
be deemed severable from the remaining provisions of this Trust Agreement and
shall in no way affect the validity or enforceability of the remaining
provisions or of the Down-MACRO Tradeable Shares or the rights of the Holders
of
the Down-MACRO Tradeable Shares.
Section
15.11 Down-MACRO Tradeable Shares Nonassessable and Fully
Paid.
It is
the intention of the parties to this Trust Agreement that the Holders of the
Down-MACRO Tradeable Shares shall not be personally liable for obligations
of
the Down-MACRO Tradeable Trust, that the interests in the Down-MACRO Tradeable
Trust represented by the Down-MACRO Tradeable Shares shall be nonassessable
for
any losses or expenses of the Down-MACRO Tradeable Trust or for any reason
whatsoever and that the Down-MACRO Tradeable Shares upon authentication thereof
by the Trustee pursuant to Section
2.5 are
and shall be deemed fully paid.
Section
15.12 Further Assurances.
The
Depositor agrees to do and perform, from time to time, any and all acts and
to
execute any and all further instruments required or reasonably requested by
the
Trustee more fully to effect the purposes of this Trust Agreement, including
the
execution of any financing statements or continuation statements relating to
the
Trust Assets for filing under the provisions of the UCC of any applicable
jurisdiction.
Section
15.13 Non-Petition Covenant; No Proceedings.
(a) Notwithstanding
any prior termination of this Trust Agreement,
the Trustee, the Administrative Agent, the Marketing Agent and the Depositor
shall not, prior to the date which is one year and one day after the termination
of this Trust Agreement with respect to the Down-MACRO Tradeable Trust,
acquiesce in, petition for or otherwise invoke or cause the Down-MACRO Tradeable
Trust or the Depositor to invoke the process of any Governmental Authority
for
the purpose of (x) commencing or sustaining a case against the Down-MACRO
Tradeable Trust or the Depositor under any federal or state bankruptcy,
insolvency or similar law, (y) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Down-MACRO
Tradeable Trust or the Depositor or any substantial part of their respective
property or (z) ordering the winding-up or liquidation of the affairs of the
Down-MACRO Tradeable Trust or the Depositor.
(b) Each
of
the Trustee, the Depositor, the Administrative Agent, the Marketing Agent and
each Holder, by acceptance of its Down-MACRO Tradeable Shares, hereby agrees
that it will not institute against a Holder, or join any other Person in
instituting against a Holder, on account of its ownership of an Down-MACRO
Tradeable Share or its obligations hereunder, any bankruptcy, insolvency,
liquidation, readjustment of debt, marshalling of assets or any similar
proceeding so long as there has not elapsed one year plus one day since the
last
day on which any Down-MACRO Tradeable Shares shall have been
Outstanding.
Section
15.14 No Waiver; Cumulative Remedies.
No
failure by the Trustee or the Holders of the Down-MACRO Tradeable Shares to
exercise any right, remedy, power or privilege under this Trust Agreement,
and
no delay in such exercise, shall operate as a waiver of such right, remedy,
power or privilege; nor shall any single or partial exercise of any right,
remedy, power or privilege under this Trust Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power
or
privilege. The rights, remedies, powers and privileges provided under this
Trust
Agreement are cumulative and not exhaustive of any rights, remedies, powers
and
privileges provided by law.
56
Section
15.15 Counterparts.
This
Trust Agreement may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but
all
of which together shall constitute one and the same instrument.
Section
15.16 Third-Party Beneficiaries.
This
Trust Agreement will inure to the benefit of and be binding upon the parties
hereto, the Holders of the Down-MACRO Holding Shares, the Holders of the
Up-MACRO Holding Shares, the Holders of the Down-MACRO Tradeable Shares, the
Holders of the Up-MACRO Tradeable Shares and their respective successors and
permitted assigns. Except as otherwise expressly provided in this Trust
Agreement, no other Person will have any right or obligation
hereunder.
Section
15.17 Actions or Notices by Holders of the Down-MACRO Tradeable
Shares.
(a) Wherever
a provision in this Trust Agreement states that an action may be taken or a
Notice given by Holders of the Down-MACRO Tradeable Shares, such action or
Notice may be taken or given by any Holder, unless such provision requires
a
specific percentage of Holders of the Down-MACRO Tradeable Shares.
(b) Any
Notice, request, authorization, direction, consent, waiver or other act by
the
Holder of an Down-MACRO Tradeable Share shall bind such Holder and every
subsequent Holder of such share and of any share issued upon the registration
of
transfer thereof, in exchange therefor or in lieu thereof in respect of anything
done or omitted to be done by the Trustee in reliance thereon, whether or not
notation of such action is made upon such share.
Section
15.18 Merger and Integration.
Except
as specifically stated otherwise herein, this Trust Agreement sets forth the
entire understanding of the parties relating to the subject matter hereof,
and
all prior understandings, written or oral, are superseded by this Trust
Agreement. This Trust Agreement may not be modified, amended, waived or
supplemented except as provided herein.
Section
15.19 Headings.
The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
57
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Administrative Agent and the
Marketing Agent have caused this Trust Agreement to be duly executed by their
respective officers as of the day and year first above written.
|
MACRO
SECURITIES DEPOSITOR, LLC,
as
Depositor
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx, III | |
|
Name:
Xxxxxx Xxxxxxx, III
Title:
President
|
||
|
STATE
STREET BANK AND TRUST COMPANY,
not
in its individual capacity, but solely as the Down-MACRO Tradeable
Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name:
Xxxxxxx X. Xxxxxx
Title:
Executive Vice President
|
||
|
MACROMARKETS
LLC, as
Administrative Agent |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx, III | |
|
Name:
Xxxxxx Xxxxxxx, III
Title:
President
|
||
|
MACRO
FINANCIAL, LLC,
as
Marketing Agent
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx, III | |
|
Name:
Xxxxxx Xxxxxxx, III
Title:
Chief Executive Officer
|
||
EXHIBIT
A
FORM
OF
GLOBAL CERTIFICATE
CERTIFICATE
OF BENEFICIAL INTEREST
-Evidencing-
All
Undivided Interests
-in-
MACROSHARES
OIL DOWN TRADEABLE TRUST
A-1
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.
TRANSFERS
OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE
IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE AGREEMENT.
A-2
This
is
to certify that CEDE & CO. is the owner and registered holder of this
Certificate, which is one of a duly authorized issue of Certificates designated
as MACROshares Oil Down Tradeable Share Certificates (the "Certificates")
evidencing in the aggregate the ownership of all issued and outstanding
MACROshares Oil Down Tradeable Shares ("Shares"),
each
of which represents a fractional undivided interest in the MACROshares Oil
Down
Tradeable Trust ("Trust"),
created under the laws of the State of New York by the Second Amended and
Restated MACROshares Oil Down Tradeable Trust Agreement, dated as of August
27,
2007, among Macro Securities Depositor, LLC, as depositor (the "Depositor"),
State
Street Bank and Trust Company, as successor to Investors Bank & Trust
Company), as trustee (the "Trustee"),
MacroMarkets LLC, as administrative agent (in such capacity, the "Administrative
Agent"),
and
Macro Financial, LLC, as marketing agent (in such capacity, the "Marketing
Agent")
(hereinafter, the "Agreement"),
copies of which are available at the offices of the Trustee.
At
any
given time the Certificates shall represent all undivided interests in the
Trust, which shall be the total number of Shares that are outstanding at such
time. The Agreement provides for the issuance of additional Shares from time
to
time as part of an issuance of one or more units which constitutes 50,000
MACROshares Oil Down shares (the "Down
MACRO Holding Shares")
and
50,000 MACROshares Oil Up Holding Shares (the "Up
MACRO Holding Shares"),
which
represent a fractional undivided interest in the MACROshares Oil Down Holding
Trust and the MACROshares Oil Up Holding Trust (the "Paired
Holding Trusts"),
respectively, or integral thereof, and the concurrent exchange of the Down-MACRO
Holding Shares to the Shares and the Up MACRO Holding Shares to MACROshares
Oil
Up Tradeable Shares (the "Up
MACRO Tradeable Shares"),
which
represent a fractional undivided interest in the MACROshares Oil Up Tradeable
Trust. In addition, the Agreement provides for the discretionary one-to-one
exchange of existing Down MACRO Holding Shares into the Shares, in 50,000
increments of the Down-MACRO Holding Shares.
The
Depositor hereby grants and conveys all of its rights, title and interest in
and
to the Trust to the extent of the undivided interest represented hereby to
the
registered holder of this Certificate subject to and in pursuance of the
Agreement, all the terms, conditions and covenants of which are incorporated
herein as if fully set forth at length.
The
Register holder of the Shares on each Record Date is entitled to receive
quarterly distributions out of the funds the Trust receives from the Down-MACRO
Holding Trust, to the extent and subject to the limitations set forth in the
Agreement, on the third Business Day of each April, July, October and January
of
each year, commencing in January of 2006. In addition, such holder is entitled
at any Business Day, upon tender of the Shares represented by this Certificate
in increments of 50,000 Shares, together with the tender of Up MACRO Tradeable
Shares in the same number, endorsed in blank or accompanied by all necessary
instruments of assignment and transfer in proper form, to the Administrative
Agent, to exchange such shares into Down-MACRO Holding Shares and Up MACRO
Holding Shares, respectively, and concurrently redeem the exchanged shares,
upon
payment of any tax or other governmental charges, to receive, at the time and
in
the manner provided in the Agreement, such holder's ratable portion of the
assets of the Down-MACRO Holding Trust for the shares tendered. The Register
holder of the Shares can also exchange its Shares into Down-MACRO Holding Shares
in increments of 50,000 Shares.
The
holder of the Shares represented by this Certificate, by virtue of the purchase
and acceptance hereof, assents to and shall be bound by the terms of the
Agreement, copies of which are on file and available for inspection at
reasonable times during business hours at the Corporate Trust Office, to which
reference is made for all the terms, conditions and covenants
thereof.
A-3
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.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Trustee, the Administrative Agent and the Marketing Agent and the rights of
the
shareholders under the Agreement at any time by the Depositor and the Trustee
with the consent of the shareholders of a majority of the Down-MACRO Aggregate
Par Amount. Any such consent by the shareholders shall be conclusive and binding
on such shareholders and upon all future shareholders represented by this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the
shareholders.
The
trustee will not enter into any amendment or modification which would alter
the
status of the Trust as a grantor trust for federal income tax purposes or cause
any of the MACRO Trusts to be required to register as an investment company
under the Investment Company Act of 1940, as amended, or to be regulated as
a
commodity pool under the Commodity Exchange Act, as amended or which would
change the calculation of underlying value.
The
Register holder of the Shares shall be entitled, in addition to its voting
rights as to the Trust, to direct the Trustee in the exercise of the voting
rights associated with the Down-MACRO Holding Shares held on deposit in the
Trust, in accordance with and subject to the provisions of the Agreement.
This
Certificate, is executed and delivered by MACRO Securities Depositor, LLC as
the
Depositor in the exercise of the powers and authority conferred and vested
in it
by the Agreement. The representations, undertakings and agreements made on
the
part of the Trust in this Certificate are made and intended not as personal
representations, undertakings and agreements by MACRO Securities Depositor,
LLC
but are made and intended for the purpose of binding only the Trust. Nothing
in
this Certificate shall be construed as creating any liability on MACRO
Securities Depositor, LLC individually or personally, to fulfill any
representation, undertaking or agreement other than as provided in the Agreement
or this Certificate.
This
Certificate shall not become valid or binding for any purpose until properly
executed by the Trustee and the Depositor under the Agreement.
THIS
CERTIFICATE AND THE TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Terms
not
defined herein will have the same meaning as in the Agreement.
A-4
IN
WITNESS WHEREOF, MACRO Securities Depositor, LLC, as Depositor, has caused
this
Certificate to be duly executed.
|
MACRO
SECURITIES DEPOSITOR, LLC,
as
Depositor
|
||
| |
|
|
| By: | ||
|
AUTHORIZED OFFICER |
||
Dated:
___________, 2007
CERTIFICATE
OF AUTHENTICATION
THIS
IS
ONE OF THE CERTIFICATES REFERRED TO IN THE WITHIN- MENTIONED TRUST
AGREEMENT.
|
STATE
STREET BANK AND TRUST COMPANY,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED SIGNATORY |
||
Dated:
___________, 2007
A-5
EXHIBIT
B
FORM
OF
PARTICIPANTS AGREEMENT
Filed
as
Exhibit 4.3 to this Registration Statement
B-1
EXHIBIT
C
FORM
OF
MACRO LICENSING AGREEMENT
Filed
as
Exhibit 4.7 to this Registration Statement
C-1
EXHIBIT
D
NYMEX
SUBLICENSING AGREEMENT
Filed
as
Exhibit 4.8 to this Registration Statement
D-1
