Exhibit 99.2.1
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MACRO SECURITIES DEPOSITOR, LLC,
as Depositor,
INVESTORS BANK & TRUST COMPANY,
as Trustee,
CLAYMORE SECURITIES, INC.,
as the Administrative Agent and a Marketing Agent
and
MACRO FINANCIAL, LLC,
as a Marketing Agent
AMENDED AND RESTATED CLAYMORE MACROSHARES
OIL UP HOLDING TRUST AGREEMENT
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
Section 1.1 Definitions............................................. 2
Section 1.2 Other Definitional Provisions........................... 21
ARTICLE 2
FORM OF THE CERTIFICATES;
DELIVERY AND REGISTRATION OF TRANSFER
OF UP-MACRO HOLDING SHARES
Section 2.1 Redemption of Founders' Shares.......................... 22
Section 2.2 Acceptance by Trustee................................... 22
Section 2.3 Limited Purpose of the Up-MACRO Holding Trust........... 22
Section 2.4 Representations and Warranties of the Depositor......... 23
Section 2.5 Form of Shares; Book-Entry System; Transferability of
Up-MACRO Holding Shares............................... 24
ARTICLE 3
APPOINTMENT OF THE TRUSTEE,
ADMINISTRATIVE AGENT AND MARKETING AGENTS;
ESTABLISHMENT OF ACCOUNTS
Section 3.1 Acceptance of Appointment and Matters Relating to the
Trustee............................................... 28
Section 3.2 Representations, Warranties and Covenants of the
Trustee............................................... 29
Section 3.3 Acceptance of Appointment and Matters Relating to the
Administrative Agent and the Marketing Agents......... 31
Section 3.4 Representations, Warranties and Covenants of the
Administrative Agent and the Marketing Agents......... 32
Section 3.5 Establishment of the Securities Account................. 36
Section 3.6 Establishment of the Distribution Account............... 36
Section 3.7 Establishment of the Netting Account.................... 37
Section 3.8 Establishment of the Fee Payment Account................ 38
ARTICLE 4
CALCULATIONS
Section 4.1 Calculations on Price Determination Days................ 39
Section 4.2 Calculation of Intraday Indicative Values............... 40
Section 4.3 Calculation of Income Distribution Payments and
Settlement Payments................................... 40
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ARTICLE 5
DISTRIBUTIONS ON THE UP-MACRO HOLDING SHARES
Section 5.1 Rights of Holders of the Up-MACRO Holding Shares........ 41
Section 5.2 Priority of Payments.................................... 41
Section 5.3 Payment of Expenses..................................... 42
Section 5.4 Payment of Fees......................................... 44
Section 5.5 Payments under the Income Distribution Agreement........ 44
Section 5.6 Payments under the Settlement Contracts................. 45
ARTICLE 6
REDEMPTIONS AND ISSUANCES OF HOLDING SHARES;
THE ADMINISTRATION AND REINVESTMENT OF THE ELIGIBLE TREASURIES
Section 6.1 Paired Optional Redemptions............................. 45
Section 6.2 Paired Issuances........................................ 48
Section 6.3 Settlement of the Settlement Contracts; Adjustments to
the Notional Amount of the Income Distribution
Agreement............................................. 49
Section 6.4 Settlement of Redemptions............................... 50
Section 6.5 Settlement of Issuances................................. 51
Section 6.6 Suspension or Delay of Settlement....................... 52
Section 6.7 The Participants Agreement.............................. 52
Section 6.8 Administration of Eligible Treasuries................... 52
ARTICLE 7
CAPITAL ACCOUNTS OF HOLDERS
AND OPERATION THEREOF; TAX ALLOCATIONS
Section 7.1 Capital Contributions................................... 54
Section 7.2 Capital Accounts; Allocations........................... 54
Section 7.3 Regulatory and Related Allocations...................... 56
Section 7.4 Transfer of or Change in Up-MACRO Holding Shares........ 57
Section 7.5 Tax Allocations......................................... 58
Section 7.6 Determination of Certain Matters........................ 59
Section 7.7 No Deficit Makeup....................................... 60
Section 7.8 U.S. Partnership Tax Treatment.......................... 60
Section 7.9 Definitions............................................. 60
ARTICLE 8
REPORTING
Section 8.1 Calculations for the Up-MACRO Holding Shares............ 61
Section 8.2 Periodic Reports........................................ 64
Section 8.3 Form 8-K Disclosure..................................... 64
Section 8.4 Disclosure Controls and Procedures...................... 65
Section 8.5 Trust Accounting Agent Responsibilities................. 65
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ARTICLE 9
OTHER MATTERS RELATING TO THE DEPOSITOR
Section 9.1 Liability of the Depositor.............................. 65
Section 9.2 Limitations on Liability of the Depositor, Claymore
Securities, Inc. and MACRO Financial, LLC............. 66
Section 9.3 Liabilities; Indemnification............................ 66
ARTICLE 10
MATTERS RELATING TO THE
ADMINISTRATIVE AGENT AND THE MARKETING AGENTS
Section 10.1 Role of the Administrative Agent........................ 67
Section 10.2 Liability of the Administrative Agent................... 67
Section 10.3 Limitation on Liability of the Administrative Agent..... 67
Section 10.4 Administrative Agent Indemnification of the Up-MACRO
Holding Trust and the Trustee......................... 68
Section 10.5 Delegation of Duties by Administrative Agent; Assignment
of Fees............................................... 68
Section 10.6 Resignation or Removal of Administrative Agent.......... 69
Section 10.7 Role of the Marketing Agents............................ 69
Section 10.8 Liability of the Marketing Agents....................... 69
Section 10.9 Limitation on Liability of the Marketing Agents......... 70
Section 10.10 Marketing Agent Indemnification of the Up-MACRO Holding
Trust and the Trustee................................. 70
Section 10.11 Delegation of Duties by Marketing Agents; Assignment of
Fees.................................................. 71
ARTICLE 11
EARLY TERMINATION
Section 11.1 Termination Triggers.................................... 71
ARTICLE 12
TRUSTEE TERMINATION EVENTS
Section 12.1 Trustee Termination Events.............................. 73
Section 12.2 Force Majeure........................................... 74
Section 12.3 Notification to Holders of the Up-MACRO Holding Shares.. 74
ARTICLE 13
THE TRUSTEE
Section 13.1 Duties of Trustee....................................... 75
Section 13.2 Rights of the Trustee................................... 76
Section 13.3 Trustee Not Liable for Recitals in Up-MACRO Holding
Shares................................................ 77
Section 13.4 Holders May Direct Trustee.............................. 77
Section 13.5 Compensation............................................ 77
Section 13.6 Indemnification......................................... 77
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Section 13.7 Eligibility Requirements................................ 78
Section 13.8 Resignation or Removal of Trustee....................... 78
Section 13.9 Successor Trustee....................................... 79
Section 13.10 Merger or Consolidation................................. 80
Section 13.11 Appointment of Co-Trustee or Separate Trustee........... 80
Section 13.12 Books, Records; Taxes; Audit............................ 81
Section 13.13 Trustee May Enforce Claims Without Possession of
Up-MACRO Holding Shares............................... 82
Section 13.14 Suits for Enforcement................................... 82
Section 13.15 Maintenance of Office or Agency......................... 82
ARTICLE 14
TERMINATION
Section 14.1 Termination of Trust.................................... 83
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.1 Amendment; Waiver of Past Defaults and Termination...... 83
Section 15.2 Registration (Initial and Continuing) of Up-MACRO
Holding Shares; Certain Securities Law Filings........ 85
Section 15.3 Prospectus Delivery..................................... 85
Section 15.4 Protection of Right, Title and Interest to Trust
Assets................................................ 86
Section 15.5 Limitation on Rights of Holders of the Up-MACRO Holding
Shares................................................ 86
Section 15.6 Certain Rights of Holders of Up-MACRO Holding Shares;
Voting................................................ 87
Section 15.7 MACRO Licensing Agreement............................... 88
Section 15.8 Governing Law; Jurisdiction............................. 88
Section 15.9 Notices................................................. 88
Section 15.10 Severability of Provisions.............................. 90
Section 15.11 Up-MACRO Holding Shares Nonassessable and Fully Paid.... 90
Section 15.12 Further Assurances...................................... 90
Section 15.13 Non-Petition Covenant; No Proceedings................... 90
Section 15.14 No Waiver; Cumulative Remedies.......................... 91
Section 15.15 Counterparts............................................ 91
Section 15.16 Third-Party Beneficiaries............................... 91
Section 15.17 Actions or Notices by Holders of the Up-MACRO Holding
Shares................................................ 91
Section 15.18 Merger and Integration.................................. 91
Section 15.19 Headings................................................ 91
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EXHIBITS
EXHIBIT A FORM OF UP-MACRO HOLDING SHARE
EXHIBIT B FORM OF INCOME DISTRIBUTION AGREEMENT
EXHIBIT C FORM OF SETTLEMENT CONTRACT
EXHIBIT D FORM OF PARTICIPANTS AGREEMENT
EXHIBIT E FORM OF MACRO LICENSING AGREEMENT
EXHIBIT F FORM OF NYMEX SUBLICENSING AGREEMENT
EXHIBIT G MARKETING AGENT DUTIES
EXHIBIT H AFFILIATED PERSON VERIFICATION GUIDELINES
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This AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 24,
2006 (this "Trust Agreement"), is hereby entered into among MACRO SECURITIES
DEPOSITOR, LLC, a Delaware limited liability company, as depositor (the
"Depositor"), INVESTORS BANK & TRUST COMPANY, not in its individual capacity but
solely as trustee (the "Trustee"), CLAYMORE SECURITIES, INC., not in its
individual capacity but solely as administrative agent (in such capacity, the
"Administrative Agent") and as a marketing agent (in such capacity, a "Marketing
Agent"), and MACRO FINANCIAL, LLC, as an additional marketing agent (in such
capacity, also a "Marketing Agent").
WHEREAS, the Depositor and the Trustee have 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 is known as the "Claymore
MACROshares Oil Up Holding Trust" and which shall hereafter be referred to as
the "Up-MACRO Holding Trust;"
WHEREAS, concurrently with the formation of the Up-MACRO Holding
Trust, the Depositor and the Trustee also 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 is known as the "Claymore MACROshares Oil Down
Holding Trust" and which shall hereafter be referred to as the "Down-MACRO
Holding Trust;" and
WHEREAS, the parties hereto now wish to amend and restate in its
entirety the original trust agreement for the Up-MACRO Holding Trust to provide
for the issuance of shares to be known as the "Claymore MACROshares Oil Up
Holding Shares" (referred to herein as the "Up-MACRO Holding Shares") and to
specify, among other things, the respective powers and duties of the Trustee,
the Administrative Agent, the Marketing Agents and the Depositor; and the
parties to the original trust agreement for the Down-MACRO Holding Trust
concurrently intend to amend and restate such agreement to provide for the
issuance of shares to be known as the "Claymore MACROshares Oil Down Holding
Shares" (referred to herein as the "Down-MACRO Holding Shares" and, together
with the Up-MACRO Holding Shares, the "Paired Holding Shares"), and to make
other related amendments.
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.
"Account" or "Accounts" shall mean any or all of the Securities Account,
the Distribution Account, the Netting Account and/or the Fee Payment Account, as
applicable.
"Acquisition Guidelines" shall have the meaning set forth in Section
6.8(a).
"Administrative Agent" shall mean Claymore Securities, Inc., 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.
"Affiliated Person" shall have the meaning assigned to such term in
Section 2(a)(3) of the Investment Company Act.
"Aggregate Par Amount" shall mean, (i) 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, (ii) 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, (iii) 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, and (iv)
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.
"AMEX" shall mean the American Stock Exchange, LLC.
"Applicable Reference Price of Crude Oil" shall mean, the settlement price
of the Light Sweet Crude Oil Futures Contract, as established and reported by
NYMEX on a per barrel basis in U.S. dollars at the end of each Price
Determination Day based upon the trading that has occurred in that contract by
open outcry and that has been published to the consolidated tape or publicly
disseminated; provided, that if NYMEX abandons its open outcry format for the
Light Sweet Crude Oil Futures Contract, the Applicable Reference Price of Crude
Oil shall be based on trading of the Light Sweet Crude Oil Futures Contract on
the substitute electronic trading platform established by NYMEX, and, in the
event that the NYMEX License has been terminated by NYMEX and MacroMarkets LLC
and the Depositor have successfully negotiated a license
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with a Substitute Oil Price Provider, the settlement price for the Substitute
Reference Oil Price that is established for each Price Determination Day, as
provided in such license.
"Applicable Reference Price Provider" shall mean NYMEX or the applicable
Substitute Oil Price Provider.
"Asset Allocation Percentage" shall have the meaning set forth in Section
6.8 of this Trust Agreement.
"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.
"Available Income" shall mean the Up-MACRO Available Income or the
Down-MACRO Available Income, as applicable.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as amended
from time to time, and at codified as 11 U.S.C. Section 101 et seq.
"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 Section 2.5 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).
"Benefit Plan Investor" shall mean any (i) "employee benefit plan" (as
defined in Section 3(3) of ERISA), that is subject to Title I of ERISA, (ii)
"plan" (as defined in Section 4975(e)(1) of the Code), that is subject to
Section 4975 of the Code, including but not limited to individual retirement
accounts and Xxxxx plans, or (iii) entity whose underlying assets include plan
assets by reason of such an employee benefit plan's or plan's investment in such
entity, including but not limited to insurance company general accounts.
"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 offices of the Administrative Agent,
which shall be located at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, XX 00000.
"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 Tradeable Trustee, the Down-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.
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"Calculation Period" shall mean with respect to any Distribution Date, the
period from but excluding the second Business Day preceding the last
Distribution Date (or, in the case of the first Distribution Date, from and
including the first Issuance Date) to and including the second Business Day
preceding the current Distribution Date (or, in the case of the last
Distribution Date, to and including the Distribution Payment Date that follows
the Final Scheduled Termination Date or Early Termination Date). The Calculation
Period that precedes a particular Distribution Date is referred to herein as
being "related" to such Distribution Date.
"Cash Netting Subaccount" shall have the meaning set forth in Section
3.7(c) of this Trust Agreement.
"CEAct" shall mean the Commodity Exchange Act, as amended.
"CFTC" shall mean the United States Commodity Futures Trading Commission.
"Closing Date" shall mean November 28, 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.
"Custodian" shall mean Investors Bank & Trust Company, in its capacity as
custodian of the Trust Assets hereunder on behalf of the Up-MACRO Holding Trust.
"Daily Fee Accrual Rate" shall mean, with respect to any date of
determination until the second anniversary of the Closing Date, a rate equal to
1.60% per annum, and with respect to any date of determination during any
succeeding year, 1.50% per annum, divided by, in each case, the actual number of
days in the current calendar year (as calculated to the tenth decimal place).
"Daily Yield Rate" shall mean, with respect to any date of determination
and each Eligible Treasury on deposit in the Up-MACRO Holding Trust or the
Down-MACRO Holding Trust, as applicable, the applicable per annum Yield Rate for
that Eligible Treasury divided by the actual number of days in the current
calendar year (as calculated to the tenth decimal place).
"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" shall mean The Depository Trust Company, its nominees, and
its successors and assigns.
"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 Up-MACRO Holding
Trust, to the Depository.
"Designated Maturity" shall mean, with respect to any date of
determination and the NYMEX Division light sweet crude oil futures contract, the
contract that matures during (i) the next succeeding calendar month if such date
of determination occurs during the period from the first day of the current
calendar month through and including the tenth Business Day of the
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current calendar month and (ii) the second calendar month succeeding the current
calendar month if such date of determination occurs during the period from the
eleventh Business Day of the current calendar month through the last day of the
current calendar month.
"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 Aggregate Par Amount" shall mean, with respect to any date of
determination, the product of (i) the aggregate number of Down-MACRO Holding
Shares that are Outstanding on such date and (ii) the Down-MACRO Stated Par
Amount.
"Down-MACRO Asset Amount" shall mean, (i) with respect to any Distribution
Date, the aggregate amount of funds on deposit in the Down-MACRO Holding Trust
on such Distribution Date, including, without limitation, all of the maturity
proceeds of the Eligible Treasuries held by the Down-MACRO Holding Trust during
the preceding Calculation Period, and (ii) with respect to any other date of
determination occurring during a Calculation Period, an amount equal to: (A) the
Down-MACRO Investment Amount plus (B) the sum of the Down-MACRO Available Income
Accruals for each day that has elapsed during such Calculation Period (not
including the date of determination) minus (C) the portion of those Down-MACRO
Available Income Accruals that were distributed in connection with all Paired
Optional Redemptions that have occurred during such Calculation Period prior to
the date of determination plus (D) (x) the sum of the Income Component of each
Down-MACRO Holding Share and the Income Component of each Up-MACRO Holding Share
that was issued during such Calculation Period prior to the date of
determination, divided by (y) 2, which represents the aggregate available income
that would have accrued on the Aggregate Par Amount of the Down-MACRO Holding
Shares that were created in such Paired Issuances if cash equal to that amount
had been invested on the preceding Distribution Date.
"Down-MACRO Available Income" shall mean with respect to any Distribution
Date and the related Calculation Period, the funds remaining on deposit in the
Down-MACRO Distribution Account after payment priorities first through fourth of
Section 5.2(a) of the Down-MACRO Holding Trust Agreement have been satisfied in
full.
"Down-MACRO Available Income Accrual" shall mean, on any date of
determination occurring during any Calculation Period, (i) the sum of, for each
Eligible Treasury on deposit in the Down-MACRO Holding Trust on such date, the
product of (x) the purchase price at which the Down-MACRO Holding Trust acquired
that Eligible Treasury (or the par amount of any Eligible Treasury that was not
acquired at a discount) multiplied by (y) the Daily Yield Rate applicable to
that Eligible Treasury minus (ii) the Down-MACRO Daily Fee Accrual. If the
result of the foregoing calculation is a negative number then the Down-MACRO
Available Income Accrual shall be equal to zero.
"Down-MACRO Daily Fee Accrual" shall mean, for any date of determination
occurring during any Calculation Period, the product of the Daily Fee Accrual
Rate and the Down-MACRO Asset Amount on such day.
"Down-MACRO Distribution Account" shall mean the distribution account for
the Down-MACRO Holding Trust established pursuant to the Down-MACRO Holding
Trust Agreement.
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"Down-MACRO Earned Income Accrual" shall mean, with respect to any date of
determination occurring during any Calculation Period:
o if on such date the Ending Level is below the Starting Level, the
Down-MACRO Available Income Accrual for that date plus the product
of (i) the Up-MACRO Available Income Accrual for that date and (ii)
the Price Level Percentage Change on that date;
o if on such date the Ending Level is above the Starting Level, the
Down-MACRO Available Income Accrual for that date minus the product
of (i) such Down-MACRO Available Income Accrual and (ii) the Price
Level Percentage Change on that date; and
o if on such date the Ending Level is equal to the Starting Level, the
Down-MACRO Available Income Accrual for that date;
plus, if the date of determination is also an Issuance Date on which a Net
Par Amount Increase occurred, the product of the number of Down-MACRO
Holding Shares created on such date that are part of such Net Par Amount
Increase and the Income Component of each such share,
minus, if the date of determination is also a Redemption Date on which a
Net Par Amount Decrease occurred, the product of the number of Down-MACRO
Holding Shares redeemed on such date that are part of such Net Par Amount
Decrease and the Income Component of each such share.
The Down-MACRO Earned Income Accrual for each date of determination that is not
a Price Determination Day shall be determined by reference to the Applicable
Reference Price of Crude Oil on the last preceding Price Determination Day.
The Down-MACRO Earned Income Accrual for each Calculation Period shall be equal
to the sum of the Down-MACRO Earned Income Accruals for each day of that
Calculation Period.
"Down-MACRO Expenses" shall have the meaning specified in Section 5.3 of
the Down-MACRO Holding Trust Agreement.
"Down-MACRO Fee Deduction Amount" shall mean, with respect to any
Calculation Period, an amount equal to the sum of, for each day during that
Calculation Period, the Down-MACRO Asset Amount as of that day multiplied by a
rate equal to 1.60% per annum for the first two years following the Closing Date
and a rate of 1.50% per annum thereafter, divided by, in each case, the actual
number of days in the current calendar year.
"Down-MACRO Fees" shall have the meaning specified in Section 5.4 of the
Down-MACRO Holding Trust Agreement.
"Down-MACRO Holding Shares" shall have the meaning set forth in the
Recitals to this Trust Agreement.
"Down-MACRO Holding Trust" shall have the meaning set forth in the
Recitals to this Trust Agreement.
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"Down-MACRO Holding Trust Agreement" shall mean the Amended and Restated
Down-MACRO Holding Trust Agreement, dated as of the date hereof, among the
Depositor, the Administrative Agent, the Marketing Agents and the Down-MACRO
Holding Trustee.
"Down-MACRO Holding Trustee" shall mean Investors Bank & Trust Company,
not in its individual capacity but solely as trustee of the Down-MACRO Holding
Trust.
"Down-MACRO Income Distribution Payment" shall mean, with respect to any
Distribution Date:
(i) if the Down-MACRO Earned Income Accrual for the preceding Calculation
Period exceeds the Down-MACRO Available Income with respect to such Distribution
Date, a payment equal to zero; and
(ii) if the Down-MACRO Available Income with respect to such Distribution
Date is greater than the Down-MACRO Earned Income Accrual for the preceding
Calculation Period, a payment equal to the difference between such Down-MACRO
Available Income and such Down-MACRO Earned Income Accrual.
"Down-MACRO Investment Amount" shall mean, (i) with respect to any
Distribution Date, an amount equal to the amount reinvested in Eligible
Treasuries pursuant to Section 5.2(a)(iv) of the Down-MACRO Holding Trust
Agreement and (ii) with respect to any other date of determination occurring
during any Calculation Period, an amount equal to the amount in clause (i)
divided by the number of Down-MACRO Holding Shares Outstanding on that
Distribution Date multiplied by the number of Down-MACRO Holding Shares
Outstanding on that date of determination.
"Down-MACRO Redemption Percentage" shall mean (i) with respect to any
Redemption Date, a fraction, expressed as a percentage, the numerator of which
is the aggregate number of Down-MACRO Holding Shares that are being redeemed on
such date and the denominator of which is the aggregate number of Down-MACRO
Holding Shares that are Outstanding on such date prior to giving effect to the
Redemption Order placed on such Redemption Date and prior to giving effect to
any Creation Orders that may also have been placed on such date and (ii) with
respect to an Early Termination Date or the Final Scheduled Termination Date,
100%.
"Down-MACRO Settlement Payment" shall mean, with respect to any Redemption
Date, an Early Termination Date or the Final Scheduled Termination Date, an
amount equal to:
(a) if on the Redemption Order Date that precedes the relevant Redemption
Date, the last Price Determination Day preceding such Early Termination Date, or
the last Price Determination Day preceding the Final Scheduled Termination Date,
the Down-MACRO Underlying Value is greater than or equal to the Down-MACRO Asset
Amount on such date, zero; and
(b) if on such Redemption Order Date, the last Price Determination Day
preceding such Early Termination Date or the last Price Determination Day
preceding the Final Scheduled Termination Date, the Down-MACRO Underlying Value
is less than the Down-MACRO Asset Amount on such date, an amount equal to (i)
the excess of such Down-MACRO Asset Amount over such Down-MACRO Underlying Value
multiplied by (ii) the Down-MACRO Redemption Percentage for the related
Redemption Date, for such Early Termination Date or the Final Scheduled
Termination Date.
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"Down-MACRO Stated Par Amount" shall mean the stated par amount of $60 per
Down-MACRO Holding Share or per Down-MACRO Tradeable Share.
"Down-MACRO Tradeable Shares" shall mean the pass-through securities
issued by the Down-MACRO Tradeable Trust pursuant to the Down-MACRO Tradeable
Trust Agreement.
"Down-MACRO Tradeable Trust" shall mean the Claymore MACROshares Oil Down
Tradeable Trust formed under the Down-MACRO Tradeable Trust Agreement.
"Down-MACRO Tradeable Trust Agreement" shall mean the Amended and Restated
Down-MACRO Tradeable Trust Agreement, dated as of the date hereof, among the
Depositor, the Administrative Agent, the Marketing Agents and the Down-MACRO
Tradeable Trustee.
"Down-MACRO Tradeable Trustee" shall mean Investors Bank & Trust Company,
not in its individual capacity but solely as trustee of the Down-MACRO Tradeable
Trust.
"Down-MACRO Underlying Value" shall mean, with respect to any Price
Determination Day occurring during any Calculation Period:
(a) if the Ending Level is below the Starting Level, an amount equal to
(i) the sum of the Down-MACRO Earned Income Accruals for each day that has
elapsed during such Calculation Period, up to and including the relevant Price
Determination Day plus (ii) the Down-MACRO Investment Amount on such day plus
(iii) (x) the Up-MACRO Investment Amount on such day multiplied by (y) the Price
Level Percentage Change for the Down-MACRO Holding Trust on such day;
(b) if the Ending Level is above the Starting Level, an amount equal to
(i) the sum of the Down-MACRO Earned Income Accruals for each day that has
elapsed during such Calculation Period, up to and including the relevant Price
Determination Day plus (ii) the Down-MACRO Investment Amount on such day minus
(iii) (x) such Down-MACRO Investment Amount multiplied by (y) the Price Level
Percentage Change for the Up-MACRO Holding Trust on such day; and
(c) if the Ending Level is equal to the Starting Level, an amount equal to
the sum of the Down-MACRO Earned Income Accruals for each day that has elapsed
during such Calculation Period, up to and including the relevant Price
Determination Day plus the Down-MACRO Investment Amount on such day.
The Down-MACRO Underlying Value for any Price Determination Day that is
followed by one or more days that are not Price Determination Days will include
the Down-MACRO Earned Income Accruals for each of these days, calculated on the
basis of the Applicable Reference Price of Crude Oil on the current Price
Determination Day. The Down-MACRO Underlying Value for each day that is not a
Price Determination Day will be equal to the Down-MACRO Underlying Value on the
last preceding Price Determination Day.
"DTC" shall mean The Depository Trust Company.
"DTC Participant" shall mean a participant of the Depository.
"Early Termination Date" shall mean with respect to any date of
determination, the next Distribution Date that follows the occurrence of a
Termination Trigger.
8
"Eligible Deposit Account" shall mean either (a) a segregated non-interest
bearing trust account with an Eligible Institution or (b) a segregated
non-interest bearing trust account with the corporate trust department of a
depository institution organized under the laws of the United States or any one
of the states thereof, including the District of Columbia (or any domestic
branch of a foreign bank), and acting as a trustee for funds deposited in such
account, so long as any of the securities of such depository institution shall
have a credit rating from a nationally recognized rating agency in one of its
generic credit rating categories which signifies investment grade.
"Eligible Institution" shall mean a depository institution (which may be
the Trustee or an Affiliate thereof) organized under the laws of the United
States or any one of the states thereof which at all times (i) has either (x) a
long-term unsecured debt rating of "A2" or better by Xxxxx'x Investors Service,
Inc. or (y) a certificate of deposit rating of "P-1" by Xxxxx'x Investors
Service, Inc., (ii) has either (x) a long-term unsecured debt rating of "AAA" by
Standard & Poor's Rating Service or (y) a certificate of deposit rating of
"A-l+" by Standard & Poor's Rating Service and (iii) is a member of the Federal
Deposit Insurance Corporation.
"Eligible Treasury" shall mean (i) any Eligible Treasury Security or (ii)
any Eligible Treasury Repurchase Agreement.
"Eligible Treasury Repurchase Agreement" shall mean any repurchase
agreement (i) referencing Eligible Treasury Securities and under which the
obligation of the seller thereof to repurchase such Eligible Treasury Securities
is "fully collateralized" (as defined in Rule 5b-3 under the Investment Company
Act) by such Eligible Treasury Securities, (ii) terminating within 24 hours
following its execution, (iii) denominated in U.S. dollars, and (iv) entered
into with a counterparty that is (x) a bank with at least 1 billion U.S. dollars
in assets or (y) a registered securities dealer that is deemed creditworthy by
the Administrative Agent.
"Eligible Treasury Security" shall mean any xxxx, note or bond issued and
guaranteed by the United States Department of the Treasury that matures prior to
the next scheduled Distribution Date. "Eligible Treasury Security" shall not
include any treasury inflation-protected securities, I bonds, EE/E bonds, HH/H
bonds or any other financial product of the United States Department of the
Treasury that is issued as a physical certificate.
"Ending Level" shall mean, with respect to any Price Determination Day,
the Applicable Reference Price of Crude Oil on such Price Determination Day.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"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
9
(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
(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.
"Fee Payment Account" shall have the meaning specified in Section 3.8(a)
of this Trust Agreement.
"Final Distribution" shall mean any distribution made in redemption of all
or a portion of the Up-MACRO Holding Shares pursuant to Section 5.2(a) or 5.2(c)
on the Final Scheduled Termination Date, an Early Termination Date or a
Redemption Date.
"Final Scheduled Termination Date" shall mean the Distribution Date
scheduled to occur in December of 2026.
"Form 8-K" shall mean a report on Form 8-K required to be filed pursuant
to Section 13 or Section 15(d) of the Exchange Act.
"Form 10-Q" shall mean the current quarterly report on Form 10-Q required
to be filed pursuant to Section 13 or Section 15(d) of the Exchange Act.
"Form 10-K" shall mean the current annual report on Form 10-K required to
be filed pursuant to Section 13 or Section 15(d) of the Exchange Act.
"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.
"Governmental Authority" shall mean any federal, state, local or foreign
court or arbitrator or governmental department, commission, board, bureau,
agency, authority, instrumentality or regulatory body.
"Holder" shall mean any Beneficial Owner of an Up-MACRO Holding Share or a
Down-MACRO Holding Share, as the context requires.
"Holding Share" shall mean either an Up-MACRO Holding Share or a
Down-MACRO Holding Share.
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"Income Component" shall mean, for any Issuance Order Date or any
Redemption Order Date occurring during any Calculation Period, the portion of
the Per Share Underlying Value of each Up-MACRO or Down-MACRO Holding Share to
be issued on the related Issuance Date or redeemed on the related Redemption
Date that represents the Up-MACRO or Down-MACRO Earned Income Accrual allocable
to such share during the period from the last preceding Distribution Date to
such Issuance Order Date or Redemption Order Date, as applicable.
"Income Distribution Agreement" shall mean the confirmation to the Master
Agreement, substantially in the form attached hereto as Exhibit B, to be dated
as of November 22, 2006, and each amendment thereto to be made in connection
with each Issuance Date or Redemption Date, pursuant to which the Paired Holding
Trusts will be obligated to make payments to each other on each Distribution
Date based on the Up-MACRO Earned Income Accruals and Down-MACRO Earned Income
Accruals, respectively, for the preceding Calculation Period.
"Income Distribution Payment" shall mean, with respect to any Distribution
Date, (i) if a payment is required to be made by the Up-MACRO Holding Trust to
the Down-MACRO Holding Trust under the Income Distribution Agreement, an
Up-MACRO Income Distribution Payment or (ii) if a payment is required to be made
by the Down-MACRO Holding Trust to the Up-MACRO Holding Trust under the Income
Distribution Agreement, a Down-MACRO Income Distribution Payment.
"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.
"Indirect Participant" shall mean a Person who is not a participant of the
Depository but who is a Beneficial Owner through a DTC Participant, either
directly or indirectly.
"Initial Deposit" shall mean the initial deposit by the Depositor and the
Administrative Agent of $1,000 into the Up-MACRO Holding Trust in connection
with the formation thereof.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"Issuance Date" shall have the meaning set forth in Section 6.5(a) hereof.
"Issuance Order Date" shall have the meaning set forth in Section 6.2(b)
hereof.
"Light Sweet Crude Oil Futures Contract" shall mean the NYMEX Division
Light Sweet Crude Oil Futures Contract of the Designated Maturity.
11
"Loss" shall have the meaning set forth in Section 9.3(b).
"MACRO Licensing Agreement" shall mean the licensing agreement, dated as
of the date hereof, substantially in the form attached hereto as Exhibit E,
among MacroMarkets LLC, the Up-MACRO Holding Trust, the Down-MACRO Holding
Trust, the Up-MACRO Tradeable Trust and the Down-MACRO Tradeable Trust, pursuant
to which MacroMarkets LLC shall license its patented MACROs technology to each
of the MACRO Trusts.
"MACRO Shares" shall mean, as the context requires, any or all of the
Up-MACRO Holding Shares, the Down-MACRO Holding Shares, the Up-MACRO Tradeable
Shares or the Down-MACRO Tradeable Shares, as applicable.
"MACRO Trusts" shall mean, as the context requires, any or all of the
Up-MACRO Holding Trust, the Down-MACRO Holding Trust, the Up-MACRO Tradeable
Trust or the Down-MACRO Tradeable Trust, as applicable.
"MACRO Trustees" shall mean, as the context requires, any or all of the
Up-MACRO Holding Trustee, the Down-MACRO Holding Trustee, the Up-MACRO Tradeable
Trustee or the Down-MACRO Tradeable Trustee, as applicable.
"MACRO Unit" shall mean 50,000 Up-MACRO Holding Shares and 50,000
Down-MACRO Holding Shares.
"MACROshares Website" shall mean the website maintained by the
Administrative Agent at xxxx://xxx.xxxxxxxxxxxxxxxxxxx.xxx.
"Marketing Agent Indemnified Party" shall have the meaning set forth in
Section 10.10.
"Marketing Agents" shall mean Claymore Securities, Inc., in its capacity
as marketing agent hereunder, and its successors and assigns, and MACRO
Financial, LLC, in its capacity as marketing agent hereunder, and its successors
and assigns.
"Master Agreement" shall mean the ISDA Master Agreement, dated as of
November 22, 2006, between the Trustee, acting on behalf of the Up-MACRO Holding
Trust and the Down-MACRO Holding Trustee, acting on behalf of the Down-MACRO
Holding Trust, as amended and supplemented by the schedule relating thereto.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Netting Account" shall have the meaning specified in Section 3.7(a) of
this Trust Agreement.
"Net Par Amount Decrease" shall mean, with respect to any Business Day,
the net decrease in the Up-MACRO Aggregate Par Amount, after giving effect to
any Paired Issuances or Paired Optional Redemptions occurring on that Business
Day.
"Net Par Amount Increase" shall mean, with respect to any Business Day,
the net increase in the Up-MACRO Aggregate Par Amount, after giving effect to
any Paired Issuances or Paired Optional Redemptions occurring on that Business
Day.
"New York City Time" shall mean the current local time in New York, New
York.
"Notices" shall have the meaning set forth in Section 15.9(a) hereof.
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"NYMEX" shall mean New York Mercantile Exchange, Inc. and its successors
and assigns.
"NYMEX License" shall mean the licensing agreement, dated as of November
22, 2006, between MacroMarkets LLC and NYMEX, pursuant to which NYMEX will
license to MacroMarkets LLC the right to use and sublicense the settlement price
of the Light Sweet Crude Oil Futures Contract.
"NYMEX Sublicensing Agreement" shall mean the sublicensing agreement,
dated as of November 22, 2006, in substantially the form attached hereto as
Exhibit F, between MacroMarkets LLC and the Depositor, pursuant to which
MacroMarkets LLC will sublicense to the Depositor and the MACRO Trusts the right
to use the settlement price of the Light Sweet Crude Oil Futures Contract in
connection with calculating and making distributions on the MACRO Shares.
"Officer's Certificate" shall mean a certificate signed by an officer of
the Depositor that is authorized to make such certification.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion and which
opinion shall be reasonably acceptable to the Trustee.
"Outstanding" shall mean, with respect to the Up-MACRO Holding Shares or
the Down-MACRO Holding Shares, as applicable, and any date of determination, an
amount equal to the aggregate number of Up-MACRO Holding Shares or Down-MACRO
Holding Shares, as applicable, issued by the Up-MACRO Holding Trust or the
Down-MACRO Holding Trust, as applicable, in Paired Issuances occurring prior to
such date of determination minus any such Paired Holding Shares redeemed prior
to such date of determination in Paired Optional Redemptions.
"Paired Holding Shares" shall have the meaning set forth in the Recitals
to this Trust Agreement.
"Paired Holding Trusts" shall mean the Up-MACRO Holding Trust together
with the Down-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.
"Participant Custodian Account" shall have the meaning set forth in the
Participants Agreement.
"Participants Agreement" shall mean the participants agreement, dated as
of November 24, 2006, substantially in the form attached hereto as Exhibit D,
entered into among the Depositor, the 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.
"Per Share Underlying Value" means, with respect to any date of
determination occurring during any Calculation Period and (i) each Up-MACRO
Holding Share, an amount calculated by
13
dividing the Up-MACRO Underlying Value by the number of Up-MACRO Holding Shares
Outstanding on that date, (ii) 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, (iii) each Up-MACRO
Tradeable Share, an amount equal to the Per Share Underlying Value of one
Up-MACRO Holding Share on that date, and (iv) each Down-MACRO Tradeable Share,
an amount equal to the Per Share Underlying Value of one Down-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.
"Price Determination Day" shall mean each day on which the Applicable
Reference Price of Crude Oil is established.
"Price Level Percentage Change" shall mean, with respect to each Price
Determination Day, the absolute value of (x) the Ending Level on such Price
Determination Day minus the Starting Level divided by (y) the Starting Level.
"Prospectus" shall mean the prospectus, in the form filed by the Depositor
on behalf of the Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust with
the SEC on or before the second Business Day after the date hereof (or such
earlier time as may be required under the Securities Act) or, if no such filing
is required, the form of final prospectus included in the Registration Statement
on and after the date on which such Registration Statement becomes effective.
"Qualified Institutional Buyer" shall have the meaning assigned thereto in
the definition thereof contained in Rule 144A under the Securities Act, and
shall generally include any of the entities listed in such definition, acting
for its own account or the accounts of other qualified institutional buyers,
that in the aggregate owns and invests on a discretionary basis at least $100
million in securities of issuers that are not affiliated with such entity, as
calculated in accordance with Rule 144A.
"Quarterly Distribution" shall mean with respect to each Distribution
Date, the distribution to be made to the Holders of the Up-MACRO Holding Shares
that are Outstanding on the Distribution Date pursuant to priority sixth of
Section 5.2(a), which shall consist of the cash on deposit in the Up-MACRO
Holding Trust after it makes or receives a payment under the Income Distribution
Agreement and makes all other payments or investments in Eligible Treasuries
that it is required to make pursuant to such 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 Cash Component" shall have the meaning set forth in Section
6.1(d)(ii) hereof.
"Redemption Date" shall have the meaning set forth in Section 6.4 of this
Trust Agreement.
"Redemption Order" shall have the meaning set forth in Section 4(b) of the
Participants Agreement.
14
"Redemption Order Date" shall have the meaning set forth in Section 6.1(b)
of this Trust Agreement.
"Registered Owner" shall mean the Depository or a nominee thereof in whose
name the Up-MACRO Holding Shares are registered in the Share Register.
"Registration Statement" means the registration statement, file no.
333-116566, dated and filed with the SEC on November 27, 2006, relating to the
Up-MACRO Holding Shares and Up-MACRO Tradeable Shares, as amended, supplemented
or otherwise modified from time to time.
"Requirements of Law" shall mean with respect to any Person, the
certificate of incorporation, articles of incorporation or articles of
association and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or other Governmental Authority, in each case applicable to or
binding upon such Person or to which such Person is subject, whether federal,
state or local.
"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.
"Settlement Contract" shall mean each confirmation, substantially in the
form attached hereto as Exhibit C, designated as a "Settlement Contract,"
referencing the Master Agreement, relating to one MACRO Unit of Paired Holding
Shares, dated as of the date on which such MACRO Unit was issued by the Paired
Holding Trusts and providing for payments between the Paired Holding Trusts on
the Final Scheduled Termination Date, an Early Termination Date or a Redemption
Date, which payments are calculated by reference to the Up-MACRO Underlying
Value and the Down-MACRO Underlying Value on the last Price Determination Day
preceding the Final Scheduled Termination Date, on the last Price Determination
Day preceding an Early Termination Date or on the relevant Redemption Date, as
applicable.
"Settlement Payment" shall mean an Up-MACRO Settlement Payment or a
Down-MACRO Settlement Payment, as applicable.
"Share Netting Subaccount" shall have the meaning set forth in Section
3.7(d) of this Trust Agreement.
"Share Register" shall have the meaning set forth in Section 2.5(e)
hereof.
"SNIR Service Agreement" shall mean the Street Name Investors Report
Service Agreement, dated as of November 22, among the Trustee, acting on behalf
of the Up-MACRO Holding Trust, the Down-MACRO Holding Trustee, acting on behalf
of the Down-MACRO Holding Trust and Wall Street Concepts, Inc., as amended and
restated from time to time.
"SNIR Service Agent" shall mean Wall Street Concepts, Inc. in its role as
the service agent under the SNIR Service Agreement.
"Starting Level" shall mean $60.
"Substitute Oil Price Provider" means the Dow Xxxxx Energy Service or any
other price provider selected by the Holders pursuant to Section 15.1(c) of this
Trust Agreement and Section 15.1(c) of the Down-MACRO Holding Trust Agreement.
15
"Substitute Reference Oil Price" shall mean, with respect to any Price
Determination Day, the spot price for West Texas Intermediate Oil generated by
the Dow Xxxxx Energy Service or, if the Depositor is unable to obtain a license
for the spot price for West Texas Intermediate Oil, the Light Louisiana Sweet
Crude Oil also generated by the Dow Xxxxx Energy Service. In the event that the
Depositor is unable to obtain a license from the Dow Xxxxx Energy Service, the
crude oil price generated or determined by another Substitute Oil Price
Provider.
"Substitute Reference Price Licensing Agreement" shall mean any licensing
arrangement pursuant to which the Up-MACRO Holding Trust acquires the right to
use a Substitute Reference Oil Price for the purposes of calculating the
Up-MACRO Underlying Value under this 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 Up-MACRO Tradeable Shares and the
Down-MACRO Tradeable Shares.
"Tradeable Trusts" shall mean the Up-MACRO Tradeable Trust and the
Down-MACRO Tradeable Trust.
"Transaction Documents" shall mean this Trust Agreement, the Down-MACRO
Holding Trust Agreement, the Master Agreement, the Income Distribution
Agreement, the Settlement Contracts, the Participants Agreement, the MACRO
Licensing Agreement, the NYMEX Sublicensing Agreement, the SNIR Service
Agreement and the Calculation Agency Agreement.
"Transfer Agent and Registrar" shall have the meaning set forth in Section
2.5(e) hereof.
"Trust Accounting Agent" shall mean Investors Bank & Trust Company, in its
capacity as a calculation and accounting agent pursuant to Sections 4.1 and 8.1
of this Trust Agreement.
"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 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.
"Trustees" shall mean, collectively, the Trustee and the Down-MACRO
Holding Trustee.
"UCC" shall mean the Uniform Commercial Code as amended and in effect from
time to time in the State of New York.
16
"Up-MACRO Administration and Marketing Fee" shall mean, with respect to
any Distribution Date, the sum of, for each day during the related Calculation
Period, an amount equal to a per annum rate of 0.35% multiplied by the Up-MACRO
Asset Amount on such day, which shall be the combined fee payable to Claymore
Securities, Inc., for services rendered to the Up-MACRO Holding Trust and the
Up-MACRO Tradeable Trust.
"Up-MACRO Aggregate Par Amount" shall mean, with respect to any date of
determination, the product of (i) the aggregate number of Up-MACRO Holding
Shares that are Outstanding on such date and (ii) the Up-MACRO Stated Par
Amount.
"Up-MACRO Asset Amount" shall mean, (i) with respect to any Distribution
Date, the aggregate amount of funds on deposit in the Up-MACRO Holding Trust on
such Distribution Date, including, without limitation, all of the maturity
proceeds of the Eligible Treasuries held by the Up-MACRO Holding Trust during
the preceding Calculation Period, and (ii) with respect to any other date of
determination occurring during a Calculation Period, an amount equal to: (A) the
Up-MACRO Investment Amount plus (B) the sum of the Up-MACRO Available Income
Accruals for each day that has elapsed during such Calculation Period (not
including the date of determination) minus (C) the portion of those Up-MACRO
Available Income Accruals that were distributed in connection with all Paired
Optional Redemptions that have occurred during such Calculation Period prior to
the date of determination, plus (D) (x) the sum of the Income Component of each
Up-MACRO Holding Share and the Income Component of each Down-MACRO Holding Share
that was issued during such Calculation Period prior to the date of
determination, divided by (y) 2, which represents the aggregate available income
that would have accrued on the Aggregate Par Amount of the Up-MACRO Holding
Shares that were created in such Paired Issuances if cash equal to that amount
had been invested on the preceding Distribution Date.
"Up-MACRO Available Income" shall mean with respect to any Distribution
Date and the related Calculation Period, the funds remaining on deposit in the
Distribution Account after payment priorities first through fourth of Section
5.2(a) hereof have been satisfied in full.
"Up-MACRO Available Income Accrual" shall mean, on any date of
determination occurring during any Calculation Period, (i) the sum of, for each
Eligible Treasury on deposit in the Up-MACRO Holding Trust on such date, the
product of (x) the purchase price at which the Up-MACRO Holding Trust acquired
that Eligible Treasury (or the par amount of any Eligible Treasury that was not
acquired at a discount) multiplied by (y) the Daily Yield Rate applicable to
that Eligible Treasury minus (ii) the Up-MACRO Daily Fee Accrual. If the result
of the foregoing calculation is a negative number then the Up-MACRO Available
Income Accrual shall be equal to zero.
"Up-MACRO Calculation Agent Fee" shall mean, with respect to any
Distribution Date, the fee specified in the Calculation Agency Agreement, which
shall be payable to the Calculation Agent for services rendered under the
Calculation Agency Agreement to the Up-MACRO Holding Trust and the Up-MACRO
Tradeable Trust.
"Up-MACRO Daily Fee Accrual" shall mean, for any date of determination
occurring during any Calculation Period, the product of the Daily Fee Accrual
Rate and the Up-MACRO Asset Amount on such day.
"Up-MACRO Earned Income Accrual" shall mean, with respect to any date of
determination occurring during any Calculation Period:
o if on such date the Ending Level is above the Starting Level, the
Up-MACRO Available Income Accrual for that date plus the product of
(i) the Down-
17
MACRO Available Income Accrual for that date and (ii) the Price
Level Percentage Change on that date;
o if on such date the Ending Level is below the Starting Level, the
Up-MACRO Available Income Accrual for that date minus the product of
(i) such Up-MACRO Available Income Accrual and (ii) the Price Level
Percentage Change on that date; and
o if on such date the Ending Level is equal to the Starting Level, the
Up-MACRO Available Income Accrual for that date;
plus, if the date of determination is also an Issuance Date on which a Net
Par Amount Increase occurred, the product of the number of Up-MACRO
Holding Shares created on such date that are part of such Net Par Amount
Increase and the Income Component of each such share,
minus, if the date of determination is also a Redemption Date on which a
Net Par Amount Decrease occurred, the product of the number of Up-MACRO
Holding Shares redeemed on such date that are part of such Net Par Amount
Decrease and the Income Component of each such share.
The Up-MACRO Earned Income Accrual for each date of determination that is not a
Price Determination Day shall be determined by reference to the Applicable
Reference Price of Crude Oil on the last preceding Price Determination Day.
The Up-MACRO Earned Income Accrual for each Calculation Period shall be equal to
the sum of the Up-MACRO Earned Income Accruals for each day of that Calculation
Period.
"Up-MACRO Expenses" shall have the meaning specified in Section 5.3 of
this Trust Agreement.
"Up-MACRO Fee Deduction Amount" shall mean, with respect to any
Calculation Period, an amount equal to the sum of, for each day during that
Calculation Period, the Up-MACRO Asset Amount as of that day multiplied by the
Daily Fee Accrual Rate.
"Up-MACRO Fees" shall have the meaning specified in Section 5.4 of this
Trust Agreement.
"Up-MACRO Holding Shares" shall have the meaning specified in the Recitals
to this Trust Agreement.
"Up-MACRO Holding Trust" shall have the meaning specified in the Recitals
to this Trust Agreement.
"Up-MACRO Income Distribution Payment" shall mean, with respect to any
Distribution Date:
(i) if the Up-MACRO Earned Income Accrual for the preceding Calculation
Period exceeds the Up-MACRO Available Income with respect to such Distribution
Date, a payment equal to zero; and
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(ii) if the Up-MACRO Available Income with respect to such Distribution
Date is greater than the Up-MACRO Earned Income Accrual for the preceding
Calculation Period, a payment equal to the difference between such Up-MACRO
Available Income and such Up-MACRO Earned Income Accrual.
"Up-MACRO Investment Amount" shall mean, (i) with respect to any
Distribution Date, an amount equal to the amount reinvested in Eligible
Treasuries pursuant to Section 5.2(a)(iv) and (ii) with respect to any other
date of determination occurring during any Calculation Period, an amount equal
to the amount in clause (i) divided by the number of Up-MACRO Holding Shares
Outstanding on that Distribution Date multiplied by the number of Up-MACRO
Holding Shares Outstanding on that date of determination.
"Up-MACRO Licensing Fee" shall mean, with respect to any Distribution
Date, the sum of, for each day during the related Calculation Period, an amount
equal to a per annum rate of 0.10% multiplied by the Up-MACRO Asset Amount on
such day, which shall be payable to MacroMarkets LLC pursuant to the MACRO
Licensing Agreement.
"Up-MACRO Marketing Fee" shall mean, with respect to any Distribution
Date, the sum of, for each day during the related Calculation Period, an amount
equal to a per annum rate of 0.10% multiplied by the Up-MACRO Asset Amount on
such day, which shall be payable to MACRO Financial, LLC for services rendered
by it to the Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust in its
capacity as Marketing Agent hereunder and under the Up-MACRO Tradeable Trust
Agreement.
"Up-MACRO Redemption Percentage" shall mean (i) with respect to any
Redemption Date, a fraction, expressed as a percentage, the numerator of which
is the aggregate number of Up-MACRO Holding Shares that are being redeemed on
such date and the denominator of which is the aggregate number of Up-MACRO
Holding Shares that are Outstanding on such date prior to giving effect to the
Redemption Order placed on such Redemption Date and prior to giving effect to
any Creation Orders that may also have been placed on such date and (ii) with
respect to an Early Termination Date or the Final Scheduled Termination Date,
100%.
"Up-MACRO Settlement Payment" shall mean, with respect to any Redemption
Date, an Early Termination Date or the Final Scheduled Termination Date, an
amount equal to:
(a) if on the Redemption Order Date that precedes the relevant Redemption
Date, the last Price Determination Day preceding such Early Termination Date, or
the last Price Determination Day preceding the Final Scheduled Termination Date,
the Up-MACRO Underlying Value is greater than or equal to the Up-MACRO Asset
Amount on such date, zero; and
(b) if on such Redemption Date, the last Price Determination Day preceding
such Early Termination Date or the last Price Determination Day preceding the
Final Scheduled Termination Date, the Up-MACRO Underlying Value is less than the
Up-MACRO Asset Amount on such date, an amount equal to (i) the excess of such
Up-MACRO Asset Amount over such Up-MACRO Underlying Value multiplied by (ii) the
Up-MACRO Redemption Percentage for such Redemption Date, such Early Termination
Date or the Final Scheduled Termination Date.
"Up-MACRO SNIR Service Agent Fee" shall mean, with respect to any
Distribution Date, the fee specified in the SNIR Service Agreement, which shall
be payable to the SNIR Service Agent for services rendered under the SNIR
Service Agreement to the Up-MACRO Holding Trust and the Up-MACRO Tradeable
Trust.
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"Up-MACRO Stated Par Amount" shall mean the stated par amount of $60 per
Up-MACRO Holding Share or per Up-MACRO Tradeable Share.
"Up-MACRO Structuring Fee" shall mean, with respect to any Distribution
Date, the sum of, for each day during the related Calculation Period, an amount
equal to the product of a per annum rate of 0.20% and the Up-MACRO Asset Amount
on such day, which shall be payable to MacroMarkets LLC for services rendered by
it to the Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust.
"Up-MACRO Sublicensing Fee" shall mean, with respect to any Distribution
Date, the sum of, for each day during the related Calculation Period, an amount
equal to the product of a per annum rate of 0.065% and the Up-MACRO Asset Amount
on such day, which shall be payable to MacroMarkets LLC pursuant to the NYMEX
Sublicensing Agreement.
"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 Claymore MACROshares Oil Up
Tradeable Trust created under the Up-MACRO Tradeable Trust Agreement.
"Up-MACRO Tradeable Trust Agreement" shall mean the Amended and Restated
Up-MACRO Tradeable Trust Agreement, dated as of the date hereof, among the
Depositor, the Administrative Agent, the Marketing Agents and the Up-MACRO
Tradeable Trustee.
"Up-MACRO Tradeable Trustee" shall mean Investors Bank & Trust Company,
not in its individual capacity but solely as trustee of the Up-MACRO Tradeable
Trust.
"Up-MACRO Trustee Fee" shall mean such fees as have been agreed upon by
the Trustee and the Depositor pursuant to a separate fee letter agreement; which
shall be payable as provided in Section 5.3 and Section 5.4 of this Trust
Agreement.
"Up-MACRO Underlying Value" shall mean, with respect to any Price
Determination Day occurring during any Calculation Period:
(a) if the Ending Level is above the Starting Level, an amount equal to
(i) the sum of the Up-MACRO Earned Income Accruals for each day that has elapsed
during such Calculation Period, up to and including the relevant Price
Determination Day plus (ii) the Up-MACRO Investment Amount for such day plus
(iii) (x) the Down-MACRO Investment Amount for such day multiplied by (y) the
Price Level Percentage Change for the Up-MACRO Holding Trust on such day;
(b) if the Ending Level is below the Starting Level, an amount equal to
(i) the sum of the Up-MACRO Earned Income Accruals for each day that has elapsed
during such Calculation Period, up to and including the relevant Price
Determination Day plus (ii) the Up-MACRO Investment Amount for such day minus
(iii) (x) such Up-MACRO Investment Amount multiplied by (y) the Price Level
Percentage Change for the Down-MACRO Holding Trust on such day; and
(c) if the Ending Level is equal to the Starting Level, an amount equal to
the sum of the Up-MACRO Earned Income Accruals for each day that has elapsed
during such Calculation Period, up to and including the relevant Price
Determination Day plus the Up-MACRO Investment Amount on such day.
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The Up-MACRO Underlying Value for any Price Determination Day that is
followed by one or more days that are not Price Determination Days will include
the Up-MACRO Earned Income Accruals for each of these days, calculated on the
basis of the Applicable Reference Price of Crude Oil on the current Price
Determination Day. The Up-MACRO Underlying Value for each day that is not a
Price Determination Day will be equal to the Up-MACRO Underlying Value on the
last preceding Price Determination Day.
"Value" shall mean, with respect to any Eligible Treasury Security on
deposit at any time in either of the Paired Holding Trusts, the purchase price
at which the applicable Paired Holding Trust acquired that Eligible Treasury
Security plus all interest and/or discount accrued on that Eligible Treasury
Security since its acquisition date.
"Yield Rate" shall mean (i), with respect to any Eligible Treasury
Security on deposit at any time in either of the Paired Holding Trusts, the
stated interest rate of such Eligible Treasury, if any, or any discount rate
applicable to such Eligible Treasury, based on the purchase date and purchase
price at which the applicable Paired Holding Trust acquired that Eligible
Treasury, and (ii) with respect to any Eligible Treasury Repurchasee Agreement,
the difference between the repurchase price paid under such agreement, with such
difference expressed as a percentage of such purchase price.
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."
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ARTICLE 2
FORM OF THE CERTIFICATES;
DELIVERY AND REGISTRATION OF TRANSFER
OF UP-MACRO HOLDING SHARES
Section 2.1 Redemption of Founders' Shares. Concurrently with the
first Paired Issuance of Paired Holding Shares in accordance with the terms of
this Trust Agreement and the terms of the Down-MACRO Holding Trust Agreement,
the portion of the Initial Deposit made into the Up-MACRO Holding Trust by the
Depositor and the Administrative Agent shall be 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 Up-MACRO Asset Amount or any other
calculation performed at any time pursuant to Article 4 or Article 8 of this
Trust Agreement. The Securities Account and the Eligible Treasuries on deposit
therein, from time to time, the Distribution Account, the Fee Payment Account
and the Netting Account and all monies and any other assets on deposit from time
to time therein, the Up-MACRO Holding Trust's rights under the Master Agreement
and related schedule thereto, the Income Distribution Agreement, the Settlement
Contracts, the SNIR Service Agreement, the MACRO Licensing Agreement, and the
NYMEX Sublicensing Agreement (or any Substitute Reference Price Licensing
Agreement), shall collectively constitute the assets of the Up-MACRO Holding
Trust (the "Trust Assets").
Section 2.2 Acceptance by Trustee. The Trustee hereby (i)
acknowledges its acceptance on behalf of the Up-MACRO Holding 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 Up-MACRO Holding Trust herein set forth, for the benefit of
all Holders of the Up-MACRO Holding Shares.
At the direction of the Administrative Agent, the Trustee shall
enter into (i) one Settlement Contract with the Down-MACRO Holding Trust for
each MACRO Unit of Paired Holding Shares created on any Issuance Date that are
part of a Net Par Amount Increase on such Issuance Date, and (ii) any other
agreements, including, without limitation, a Substitute Reference Price
Licensing Agreement, that the Administrative Agent or the Depositor deems
necessary to continue the limited purposes of the Up-MACRO Holding Trust;
provided, that the Administrative Agent and Depositor shall not direct the
Trustee to cause the Up-MACRO Holding Trust to enter into agreements that would
cause the Up-MACRO Holding Trust to violate the provisions of Section 2.3 or
Section 15.1 of this Trust Agreement.
Section 2.3 Limited Purpose of the Up-MACRO Holding Trust. The
Up-MACRO Holding Trust shall not engage in any business or activity other than
those specified in this Section 2.3 or any activity that is incidental and
necessary to carrying out the business or activities enumerated by this Section
2.3 The exclusive purposes and functions of the Up-MACRO Holding Trust consist
of:
(i) redeeming the Founders' Shares on the first Issuance
Date;
(ii) issuing Up-MACRO Holding Shares in Paired Issuances
and redeeming Up-MACRO Holding Shares in Paired Optional Redemptions on a
continuous basis in accordance with the provisions and subject to the
conditions set forth in this Trust Agreement;
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(iii) entering into the Income Distribution Agreement
and the Settlement Contracts with the Down-MACRO Holding Trust;
(iv) entering into the other Transaction Documents with
the other parties thereto; and
(v) investing cash available from time to time in the
Distribution Account in Eligible Treasuries.
Section 2.4 Representations and Warranties of the Depositor. The
Depositor hereby makes the following representations and warranties to the
Up-MACRO Holding Trust and agrees that the Trustee may rely on each such
representation and warranty as of the Closing Date and 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.
(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 Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding 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
23
any Governmental Authority (i) asserting the invalidity of this Trust
Agreement or the Up-MACRO Holding Shares, (ii) seeking to prevent the
issuance of the Up-MACRO Holding Shares or the consummation of any of the
transactions contemplated by this Trust Agreement or the Up-MACRO Holding
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 Up-MACRO Holding Shares or (v) seeking to affect
adversely the income tax attributes of the Up-MACRO Holding 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 Up-MACRO Holding Shares, the
performance by the Depositor of the transactions contemplated by this
Trust Agreement and its obligations hereunder and the Up-MACRO Holding
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
Up-MACRO Holding Shares.
(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 Section 2.4 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 Section 2.4,
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
Up-MACRO Holding Shares.
(a) Form of Shares. The Up-MACRO Holding 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 Up-MACRO Holding 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
Up-MACRO Holding 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
24
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
Up-MACRO Holding 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 Up-MACRO Holding Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which the Up-MACRO Holding Shares are subject.
The Founders' Shares and the beneficial ownership thereof by the
Depositor and the Administrative Agent shall be recorded on the books and
records maintained by the Trustee on behalf of the Up-MACRO Holding Trust and no
physical certificates shall be issued in respect of such Founders' Shares.
Concurrently with the first Paired Issuance of Paired Holding Shares, the
Founders' Shares shall be cancelled and shall not thereafter be reissued.
(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 Up-MACRO Holding Shares are eligible for book-entry
settlement with the Depository, (i) no Beneficial Owner of Up-MACRO Holding
Shares will be entitled to receive a physical certificate evidencing those
shares, (ii) the interest of a Beneficial Owner in the Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding Shares.
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As provided in the Depository Agreement, upon the settlement date
for any creation, transfer or redemption of the Up-MACRO Holding Shares, the
Depository will credit or debit, on its book-entry registration and transfer
system, the amount of Up-MACRO Holding Shares so created, transferred 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 Up-MACRO Holding Shares. The
Beneficial Owners of the Up-MACRO Holding 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 Up-MACRO Holding Shares a written
confirmation relating to their purchase of Up-MACRO Holding Shares.
Upon the settlement date for any creation, transfer, redemption or
exchange of Up-MACRO Holding 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 Up-MACRO Holding 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.
The Depository may discontinue providing its services with respect
to the Up-MACRO Holding 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
Up-MACRO Holding 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 Up-MACRO
Holding 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 Up-MACRO Holding Trust shall reimburse
each such DTC Participant for the expenses attendant to such transmittal,
subject to applicable statutory and regulatory requirements.
(d) Distributions on Book-Entry Certificates. All
distributions on the Up-MACRO Holding Shares shall be made to the
Depository or its nominee, Cede & Co., as the registered owner of all
Up-MACRO Holding Shares. The Trustee and the Depositor
26
expect that the Depository or its nominee, upon receipt of any
distributions made in respect of the Up-MACRO Holding Shares, shall credit
immediately the DTC Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the Up-MACRO
Holding 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 Up-MACRO
Holding 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
Up-MACRO Holding Shares.
(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 Up-MACRO Holding 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 Up-MACRO Holding 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.
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(iii) No sale or transfer of beneficial interests in the
Up-MACRO Holding Shares may be made to any Beneficial Owner other
than (i) the Up-MACRO Tradeable Trust, (ii) a Qualified
Institutional Buyer who is not a Benefit Plan Investor, or (iii) an
Authorized Participant. Each Beneficial Owner of an Up-MACRO Holding
Share shall be deemed to represent and warrant, by virtue of
acquiring an interest in the Up-MACRO Holding Shares, that it is an
entity that is described in one of the foregoing clauses (i), (ii)
or (iii). In the event that any of the Trustee, the Administrative
Agent or the Depositor obtains knowledge that any Beneficial Owner
is not an entity of the type described in clauses (i), (ii) or
(iii), the Trustee, acting at the direction of the Administrative
Agent, shall instruct such Beneficial Owner to transfer its Up-MACRO
Holding Shares to an entity that does satisfy clause (i), (ii) or
(iii).
(f) Mutilated, Destroyed, Lost or Stolen Shares. 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 Section 2.5(f),
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 Up-MACRO Holding Trust, as if
originally issued, whether or not the lost, stolen or destroyed Global
Certificate shall be found at any time.
ARTICLE 3
APPOINTMENT OF THE TRUSTEE,
ADMINISTRATIVE AGENT AND MARKETING AGENTS;
ESTABLISHMENT OF ACCOUNTS
Section 3.1 Acceptance of Appointment and Matters Relating to the
Trustee.
(a) 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
Tradeable Trustee under the Up-MACRO Tradeable Trust Agreement and the
Down-MACRO Tradeable Trustee under the Down-MACRO Tradeable Trust
Agreement. The Holders of the Up-MACRO Holding Shares, by their acceptance
of their shares, consent to Investors Bank & 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 Tradeable Trust under the Up-MACRO Tradeable Trust Agreement
and as trustee for the Down-MACRO Tradeable Trust under the Down-MACRO
Tradeable Trust Agreement.
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(b) Subject to the limited purposes and functions of the
Up-MACRO Holding Trust specified in Section 2.3 hereof, the Trustee is
hereby authorized, instructed and empowered (i) to make withdrawals and
payments or to instruct any paying agent or custodian appointed by the
Trustee to make withdrawals and payments from the Securities Account, the
Distribution Account, the Fee Payment Account and the Netting Account as
set forth in this Trust Agreement, (ii) to enter into the Income
Distribution Agreement, the Settlement Contracts, the Participants
Agreement, the MACRO Licensing Agreement, the NYMEX Sublicensing Agreement
and any other agreement relating to the powers and purposes of the
Up-MACRO Holding Trust, (iii) to purchase Eligible Treasuries (including
entering into Eligible Treasury Repurchase Agreements) on behalf of the
Up-MACRO Holding Trust at the direction of the Administrative Agent, (iv)
to make daily, quarterly and annual calculations on behalf of the Up-MACRO
Holding Trust, and (v) to take any action required or permitted under the
Income Distribution Agreement, the Settlement Contracts, the Participants
Agreement, the MACRO Licensing Agreement and the NYMEX Sublicensing
Agreement, and any action needed for the daily operation of the Up-MACRO
Holding 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 Up-MACRO Holding 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 Up-MACRO Holding Trust to
the extent required to do so hereby.
(c) 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 its legal counsel, the fees and
disbursements of Independent accountants, and the expenses associated with
failed Creation Orders or Redemption Orders under the Participants
Agreement. If so requested by the Depositor or the Administrative Agent,
the Trustee may expend its own funds on behalf of the Up-MACRO Holding
Trust and shall be reimbursed therefor on the next scheduled Distribution
Payment Date.
Section 3.2 Representations, Warranties and Covenants of the
Trustee. Investors Bank & Trust Company, in its capacity as initial Trustee
under this Trust Agreement, hereby makes, and any successor Trustee by its
appointment hereunder shall make, on the Closing Date (or on the applicable date
of appointment), the following representations, warranties and covenants to the
Up-MACRO Holding Trust (and agrees that the Depositor, the Administrative Agent
and the Holders of the Up-MACRO Holding 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.
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(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 Up-MACRO Holding 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 Up-MACRO Holding 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.
(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 Up-MACRO Holding Shares.
(h) Protection of the Rights of Holders of the Up-MACRO
Holding 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 Up-MACRO Holding Shares, nor shall it revise amounts to be
distributed on the Up-MACRO Holding 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
30
representation or warranty regarding state securities or "blue sky" laws
in connection with the distribution of the Up-MACRO Holding Shares.
(j) No Affiliation. The Trustee is not an Affiliated Person
with respect to the Depositor, either of the Paired Holding Trusts, either
of the Tradeable Trusts, the Administrative Agent, either 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 with the exception of extensions of
credit incurred in the normal course of the Trustee's custody services to
the Up-MACRO Holding Trust, including overdrafts.
(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 Section 13.7 hereof.
(l) No Holding of MACRO Shares. The Trustee shall not, for so
long as it acts as Trustee hereunder, acquire any Up-MACRO Holding Shares,
Down-MACRO Holding Shares, Up-MACRO Tradeable Shares or Down-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 Up-MACRO Holding Trust in the event of the destruction
of the originals thereof), and keep and maintain all documents, books,
computer records and other information, reasonably necessary or advisable.
Such documents, books and computer records shall reflect all facts giving
rise to such transactions, all payments and credits with respect thereto,
and, to the extent required, such documents, books and computer records
shall indicate the interests of the Up-MACRO Holding Trust in such
transactions.
Section 3.3 Acceptance of Appointment and Matters Relating to the
Administrative Agent and the Marketing Agents.
(a) Claymore Securities, Inc. agrees to act as Administrative
Agent under this Agreement and the Holders of the Up-MACRO Holding Shares
by their acceptance of their shares consent to Claymore Securities, Inc.
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 Tradeable Trust under the
Up-MACRO Tradeable Trust Agreement, and for the Down-MACRO Tradeable Trust
under the Down-MACRO Tradeable Trust Agreement. Claymore Securities, Inc.
and MACRO Financial, LLC each agree to act as a Marketing Agent under this
Trust Agreement and the Holders of the Up-MACRO Holding Shares by their
acceptance of their shares consent to each of Claymore Securities, Inc.
and 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 Tradeable Trust
under the Up-MACRO Tradeable Trust Agreement and for the Down-MACRO
Tradeable Trust under the Down-MACRO Tradeable Trust Agreement.
(b) The Administrative Agent shall direct the Trustee (i) in
investing all cash on deposit from time to time in the Distribution
Account and cash received from Authorized Participants in connection with
Paired Issuances in Eligible Treasuries, (ii) in
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investing the proceeds from such Eligible Treasuries and (iii) in
selecting Eligible Treasuries for delivery to the Down-MACRO Holding Trust
to make settlement payments under the Settlement Contracts and to Holders
to make a Final Distribution in accordance with the terms set forth in
this Trust Agreement and its customary and established procedures relating
to administering Eligible Treasuries and other comparable investments. The
Administrative Agent shall also direct the Trustee (i) in amending the
Income Distribution Agreement pursuant to Section 6.3(c) and (d), and (ii)
in settling and terminating settlement contracts in connection with Paired
Optional Redemptions and entering into new settlement contracts in
connection with Paired Issuances, in each case, on a net basis, as
determined pursuant to Section 6.3(c). 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
instructing the Trustee in the administration, reinvestment, and delivery
of the Eligible Treasuries which it may deem necessary or desirable. The
Administrative Agent shall not be obligated to use separate offices,
employees or accounts for directing the administration of the Eligible
Treasuries. 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 (i) with respect to the Eligible Treasuries in
accordance with Section 6.1 and Section 6.8 and (ii) set forth in the
Up-MACRO Tradeable Trust Agreement and the Down-MACRO Holding Trust
Agreement in accordance with the terms of each such agreement and the
Holders of the Up-MACRO Holding 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) Each Marketing Agent shall comply with and perform its
obligations with respect to the Up-MACRO Holding Shares in accordance with
the terms of a separate letter agreement entered into between the
Depositor and each such Marketing Agent.
(e) As compensation for acting as the Administrative Agent and
a Marketing Agent, Claymore Securities, Inc. will be entitled to receive
the Up-MACRO Administration and Marketing Fee, which shall be payable to
it in arrears on each Distribution Payment Date. The Administrative Agent
shall not be liable for the transaction costs incurred in connection with
the acquisition of the Eligible Treasuries, but shall be liable for its
overhead expenses related to its selection and administration of the
Eligible Treasuries that are required to be undertaken by it pursuant to
this Trust Agreement.
(f) As compensation for acting as a Marketing Agent, MACRO
Financial, LLC will be entitled to receive the Up-MACRO Marketing Fee,
which shall be payable to it in arrears on each Distribution Payment Date.
Section 3.4 Representations, Warranties and Covenants of the
Administrative Agent and the Marketing Agents.
(a) Claymore Securities, Inc., in its capacity as the
Administrative Agent, hereby makes, and any successor Administrative 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 Up-MACRO Holding Trust (and agrees that
32
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 Kansas corporation (or with respect to any successor
Administrative Agent, such other corporate entity as may be
applicable) duly organized, validly existing and in good standing
under the laws of the State of Kansas (or with respect to any
successor Administrative Agent, the applicable jurisdiction of its
organization), and has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this
Trust Agreement and, in all material respects, to own its properties
and conduct its business as such properties are presently owned and
as such business is presently conducted.
(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 Up-MACRO Holding 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.
33
(vii) Compliance with Requirements of Law. The
Administrative Agent shall duly satisfy all obligations on its part
to be fulfilled under or in connection with the Eligible Treasuries
and the Securities Account, will maintain in effect all
qualifications required under Requirements of Law in order to
properly service the Eligible Treasuries and the Securities Account
and will comply in all material respects with all other Requirements
of Law in connection with servicing the Eligible Treasuries and the
Securities Account, inasmuch as the failure to comply with such
requirements would have a material adverse effect on the interests
of the Holders of the Up-MACRO Holding Shares.
(viii) Protection of the Rights of the Holders of the
Up-MACRO Holding Shares. The Administrative Agent shall take no
action which, nor omit to take any action the omission of which,
would substantially impair the rights of the Holders of the Up-MACRO
Holding Shares in any Eligible Treasury.
(ix) 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 Up-MACRO
Holding Shares.
(x) Additional Registration of Shares. The
Administrative Agent shall make commercially reasonable efforts to
maintain a sufficient number of Paired Holding Shares registered
pursuant to the Securities Act available for the fulfillment of
Creation Orders as they are received.
(xi) Termination Trigger Cure. The Administrative Agent
shall use its commercially reasonable efforts to cause the Up-MACRO
Tradeable Trust to hold at least a Majority of all Outstanding
Up-MACRO Holding Shares at all times and to request authorized
participants to exchange their Up-MACRO Holding Shares for Up-MACRO
Tradeable Shares during any period when the Up-MACRO Tradeable Trust
holds less than a Majority of the Outstanding Up-MACRO Holding
Shares as a result of Paired Optional Redemptions, failed Creation
Orders or for any other reason.
(b) Claymore Securities, Inc. and MACRO Financial, LLC, each
in its capacity as a Marketing Agent hereunder, hereby make, 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 Up-MACRO Holding 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. Claymore Securities,
Inc. is a Kansas corporation and 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 Kansas and Delaware, as applicable (or with respect
to any successor Marketing Agent, the applicable jurisdiction of its
organization), and each of them 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
34
and conduct its business as such properties are presently owned and
as such business is presently conducted.
(ii) Due Qualification. Each 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 Up-MACRO Holding Shares hereunder.
(iii) Due Authorization. The execution, delivery and
performance of this Trust Agreement has been duly authorized by each
Marketing Agent by all necessary corporate or other action.
(iv) Binding Obligation. This Trust Agreement
constitutes a legal, valid and binding obligation of each of the
Marketing Agents, 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 each of the Marketing Agents, the performance of
the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof applicable to each 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 either Marketing Agent or any
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which either 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 either 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 such 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 each Marketing Agent of this Trust
Agreement, the performance by each Marketing Agent of the
transactions contemplated by this Trust Agreement and the
fulfillment by each Marketing Agent of the terms hereof, have been
obtained; provided, however, that neither Marketing Agent makes any
representation or warranty regarding state securities or "blue sky"
laws in connection with the distribution of the Up-MACRO Holding
Shares.
35
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 Up-MACRO Holding Trust and for the benefit
of the Holders of the Up-MACRO Holding Shares, an Eligible Deposit Account
bearing a designation clearly indicating that the Eligible Treasuries
deposited therein are held for the benefit of the Holders of the Up-MACRO
Holding 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 Eligible Treasuries on deposit from time to time in the
Securities Account and in all proceeds thereof for the benefit of the
Holders of the Up-MACRO Holding Shares.
(c) The Securities Account shall be under the sole dominion
and control of the Trustee for the benefit of the Holders of the Up-MACRO
Holding 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 funds or assets held in the Securities Account
for any amount owed to it by the Up-MACRO Holding Trust or any Holder of
Up-MACRO Holding 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 cash or any
investments 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.
(d) The Trustee shall, in accordance with instructions
received from the Administrative Agent, invest the funds of the Up-MACRO
Holding Trust in Eligible Treasuries and deposit such Eligible Treasuries
into the Securities Account, (i) on each Distribution Date, using the
maturity proceeds of the Eligible Treasuries on deposit in the
Distribution Account on such Distribution Date in the amount specified in
Section 5.2(a)(iv), (ii) on each Issuance Date, using the funds delivered
to the Trustee by Authorized Participants in connection with the Paired
Issuance that is being effected on such Issuance Date, but excluding funds
that are required to remain in the Netting Account pursuant to Section 3.7
hereof to be used for effecting Paired Optional Redemptions and (iii) on
any other day during the course of any Calculation Period, using any
proceeds of the Eligible Treasuries received on or prior to that day.
(e) On each Distribution Date, the Trustee shall transfer to
the Distribution Account all of the maturity proceeds of the Eligible
Treasuries that were on deposit in the Securities Account during the
preceding Calculation Period.
(f) On any Redemption Date occurring on a date that is not a
Distribution Date, the Trustee shall, if so instructed by the
Administrative Agent, withdraw the portion of the Eligible Treasuries on
deposit in the Securities Account that is specified by the Administrative
Agent with respect to such Redemption Date, as determined by the
Administrative Agent pursuant to Section 6.4 hereof, and shall deliver
such assets in the amounts and to the parties entitled thereto, as
specified in Section 5.2(c).
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 Up-MACRO Holding Trust and for the benefit
of the Holders of the Up-MACRO Holding Shares, an Eligible Deposit Account
bearing a designation clearly
36
indicating that the funds deposited therein are held for the benefit of
the Holders of the Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding Trust or any Holder of Up-MACRO
Holding 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 cash or any investments 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) The Trustee shall deposit into the Distribution Account on
or prior to each Distribution Date, on each Redemption Date and on each
Issuance Date, (i) all maturity proceeds, interest and other income
received on the Eligible Treasuries held in the Securities Account during
any Calculation Period, (ii) all payments received by the Up-MACRO Holding
Trust under the Income Distribution Agreement, (iii) all payments received
by the Up-MACRO Holding Trust under the Settlement Contracts, and (iv)
funds delivered by Authorized Participants in connection with Paired
Issuances or Redemption Cash Components delivered in connection with
Paired Optional Redemptions, which are not immediately used to acquire
Eligible Treasuries.
(e) Not later than the Distribution Payment Date that follows
each Distribution Date, including any Distribution Date that is also the
Final Scheduled Termination Date or an Early Termination Date, the Trustee
shall withdraw all funds on deposit in the Distribution Account and shall
apply such funds for the purposes and in accordance with the priorities
specified in Section 5.2(a). On each Redemption Date, the Trustee shall
withdraw cash on deposit in the Distribution Account and deliver it to the
Authorized Participant or Authorized Participants who directed the Paired
Optional Redemption to the extent directed to do so by the Administrative
Agent and in the amount that is determined by the Administrative Agent
pursuant to Section 6.4 hereof.
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 Up-MACRO Holding Trust and for the benefit
of the Holders of the Up-MACRO Holding Shares, an Eligible Deposit Account
bearing a designation that the funds deposited therein are held for the
benefit of the Holders of the Up-MACRO Holding Shares (the "Netting
Account"), which shall consist of the Cash Netting Subaccount and the
Share Netting Subaccount.
(b) The Netting 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 Netting Account and
in all proceeds thereof. The Netting Account
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shall be under the sole dominion and control of the Trustee for the
benefit of the Holders of the Up-MACRO Holding Shares.
(c) On any Issuance Date that is also a Redemption Date, the
Trustee shall deposit all cash received from the Authorized Participants
who directed the Paired Issuance into a subaccount of the Netting Account
(the "Cash Netting Subaccount") and shall distribute such funds as
follows:
(i) On any Issuance Date that was also a Redemption
Date, in the event of a Net Par Amount Decrease, all cash deposited
and, in the event of a Net Par Amount Increase, the difference
between the aggregate funds delivered by Authorized Participants in
connection with such Paired Issuances and the Net Par Amount
Increase that will result after giving effect thereto will be
delivered by the Trustee, at the direction of the Administrative
Agent pursuant to Section 6.4 of this Trust Agreement, to the
Authorized Participants who directed Paired Optional Redemptions as
part of the Final Distribution on the Up-MACRO Holding Shares that
is required to be made on such Redemption Date.
(ii) On any Issuance Date that was also a Redemption
Date, the Trustee shall withdraw funds from the Cash Netting
Subaccount in an amount equal to the Net Par Amount Increase that
occurred on such Issuance Date and it shall invest such funds in
Eligible Treasuries, on behalf of the Up-MACRO Holding Trust and at
the direction of the Administrative Agent. Pending such investment,
such funds will be deposited into the Distribution Account.
(d) On any Issuance Date that is also a Redemption Date, the
Trustee shall credit all Up-MACRO Holding Shares to be redeemed to a
subaccount of the Netting Account (the "Share Netting Subaccount") and
shall net such Up-MACRO Holding Shares against the Up-MACRO Holding Shares
to be issued as follows:
(i) if there is a positive difference between the number
of shares to be redeemed and the number of shares to be issued, the
Trustee shall cancel the number of Up-MACRO Holding Shares equal to
such positive difference and deliver all remaining Up-MACRO Holding
Shares credited to the Share Netting Account to the Authorized
Participants who directed the issuance of such shares; or
(ii) if there is a positive difference between the
number of shares to be issued and the number of shares to be
redeemed, the Trustee shall cause the Up-MACRO Holding Trust to
issue new Up-MACRO Holding Shares in the amount of such positive
difference and deliver such newly-issued Up-MACRO Holding Shares and
all Up-MACRO Holding Shares credited to the Share Netting Account to
the Authorized Participants who directed the issuance of such
shares.
(e) No cash and no Up-MACRO Holding Shares shall remain on
deposit in the Netting Account at the end of each Business Day.
Section 3.8 Establishment of the Fee Payment Account.
(a) The Trustee shall establish and maintain in the name of
the Trustee, on behalf of the Up-MACRO Holding Trust, an Eligible Deposit
Account bearing a designation that the funds deposited therein are held
for the benefit of the Depositor (the "Fee Payment Account").
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(b) The Fee Payment 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 Fee Payment
Account and in all proceeds thereof. The Fee Payment Account shall be
under the sole dominion and control of the Trustee for the benefit of the
Depositor.
(c) On each Distribution Date, the Trustee shall deposit an
amount equal to the Up-MACRO Fee Deduction Amount into the Fee Payment
Account and shall use such funds, based on standing instructions from the
Depositor, to pay all Up-MACRO Expenses and all Up-MACRO Fees pursuant to
priorities first and second of Section 5.2(a) on the related Distribution
Payment Date or, at the direction of the Administrative Agent, on any
Business Day occurring during each Calculation Period.
(d) On the Distribution Payment Date that follows the
Distribution Date occurring during December of each calendar year, all
funds remaining on deposit in the Fee Payment Account after the Up-MACRO
Expenses and Up-MACRO Fees have been paid in full as of such Distribution
Payment Date shall be delivered by the Trustee to the Depositor.
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 Per Share Underlying Value of the Up-MACRO
Holding Shares on that Price Determination Day;
(ii) the Income Component of the Per Share Underlying
Value calculated in clause (i);
(iii) the estimated Up-MACRO Available Income Accrual
for the next succeeding Business Day.
(b) On each Price Determination Day, the Trustee shall
calculate and provide to the Administrative Agent for posting on the
MACROshares Website, not later than one hour prior to the commencement of
trading on the AMEX or the applicable stock exchange on which the Up-MACRO
Tradeable Shares are listed, the Per Share Underlying Value of an Up-MACRO
Holding Share and an Up-MACRO Tradeable Share, subject to the availability
of, and based upon (i) the Applicable Reference Price of Crude Oil for
such Price Determination Day, and (ii) the calculations of the Down-MACRO
Holding Trustee pursuant to Section 8.1 of the Down-MACRO Holding Trust
Agreement.
For purposes of calculating the foregoing amounts on any Price
Determination Day, any Paired Optional Redemptions or Paired Issuances scheduled
to settle on such Price Determination Day shall be taken into account.
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(c) The Trustee's calculations, pursuant to clauses (a) and
(b) of this Section 4.1 shall be conclusive and binding upon the Holders
of the Up-MACRO Holding Shares, the Holders of the Down-MACRO Holding
Shares, the holders of the Up-MACRO Tradeable Shares, 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 Up-MACRO Underlying Value of the
Up-MACRO Holding Trust and the Per Share Underlying Value for the Up-MACRO
Holding Shares and the Up-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 hereof and by the Down-MACRO
Holding Trustee pursuant to Section 4.1 of the Down-MACRO Holding Trust
Agreement.
Section 4.3 Calculation of Income Distribution Payments and
Settlement Payments.
(a) On the last Price Determination Day preceding each
Distribution Date, within the time period agreed upon by the Trustee and
the Administrative Agent, the Trustee shall calculate the Up-MACRO Income
Distribution Payment, if any, that the Up-MACRO Holding Trust is required
to make to the Down-MACRO Holding Trust on the related Distribution
Payment Date or the Down-MACRO Income Distribution Payment, if any, that
the Down-MACRO Holding Trust is required to make to the Up-MACRO Holding
Trust on the related Distribution Payment Date pursuant to the Income
Distribution Agreement. The Trustee shall perform the calculations
described in this Section 4.3(a) (including, without limitation, with
respect to an Early Termination Date) by assuming that the Applicable
Reference Price of Crude Oil for any Price Determination Day on which such
price was not available or on which the Up-MACRO Holding Trust was no
longer permitted to use such price was the same as the Applicable
Reference Price of Crude Oil on the last preceding Price Determination Day
on which such price was available or permitted to be used by the Up-MACRO
Holding Trust.
(b) The Trustee shall calculate and provide to the
Administrative Agent, within the time period agreed upon by the Trustee
and the Administrative Agent on the last Price Determination Day preceding
the Final Scheduled Termination Date or any Early Termination Date and on
each Redemption Date, (i) the Up-MACRO Settlement Payment, if any,
required to be made by the Up-MACRO Holding Trust to the Down-MACRO
Holding Trust under the Settlement Contracts that are being settled in
connection with such Final Scheduled Termination Date, Early Termination
Date or Redemption Date or (ii) the Down-MACRO Settlement Payment, if any,
required to be made by the Down-MACRO Holding Trust to the Up-MACRO
Holding Trust under the Settlement Contracts that are being settled in
connection with such Final Scheduled Termination Date, Early Termination
Date or Redemption Date. The Trustee shall perform the calculations
described in this Section 4.3(b) (including, without limitation, with
respect to an Early Termination Date) by assuming that the Applicable
Reference Price of Crude Oil for any Price Determination Day on which such
price was not available or on which the Up-MACRO Holding Trust was no
longer permitted to use such price was the same as the Applicable
Reference Price of Crude Oil on the last preceding Price Determination Day
on which such price was available or permitted to be used by the Up-MACRO
Holding Trust.
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(c) The Trustee shall confirm the Administrative Agent's
determination of the Redemption Cash Component, if any, that must be
delivered by the redeeming Authorized Participants in connection with a
Paired Optional Redemption not later than the Redemption Order Date for
such Paired Optional Redemption.
ARTICLE 5
DISTRIBUTIONS ON THE UP-MACRO HOLDING SHARES
Section 5.1 Rights of Holders of the Up-MACRO Holding Shares. Each
Up-MACRO Holding Share represents an undivided beneficial interest in the
Up-MACRO Holding Trust and the Beneficial Owner thereof is entitled to receive
distributions on such Up-MACRO Holding Share on the dates and in the amounts
specified in Section 5.2 from assets on deposit in the Up-MACRO Holding Trust.
Section 5.2 Priority of Payments.
(a) Allocations on each Distribution Date. On each
Distribution Date, the Trustee, on behalf of the Up-MACRO Holding Trust,
shall allocate the amounts on deposit in the Distribution Account,
including amounts deposited therein pursuant to Section 5.5(b) and Section
5.6(b), in accordance with the following priority of payments:
(i) first, for deposit of an amount equal to the
Up-MACRO Fee Deduction Amount into the Fee Payment Account for
application to the payment of Up-MACRO Expenses incurred during the
preceding Calculation Period in accordance with Section 5.3
hereunder;
(ii) second, the amount remaining in the Fee Payment
Account after the payment of Up-MACRO Expenses, for the payment of
the Up-MACRO Fees incurred during the preceding Calculation Period
in accordance with Section 5.4 hereunder;
(iii) third, if such Distribution Date is an Early
Termination Date or the Final Scheduled Termination Date, to
segregate all funds remaining after satisfying priorities first and
second of this Section 5.2(a) and apply such funds (A) to make the
Up-MACRO Settlement Payment to the Down-MACRO Holding Trust if any
such payment is owed under the Settlement Contracts being settled on
such date and then (B) to make a Final Distribution to the Holders
of the Up-MACRO Holding Shares being redeemed on such date;
(iv) fourth, for reinvestment in Eligible Treasuries of
an amount equal to the lesser of (x) the Up-MACRO Aggregate Par
Amount on such Distribution Date (adjusted for any Paired Issuances
and/or Paired Optional Redemptions that are being concurrently
settled), and (y) all funds remaining after satisfying priorities
first through third of this Section 5.2(a);
(v) fifth, for making the Up-MACRO Income Distribution
Payment to the Down-MACRO Holding Trust, if such a payment is due
under the Income Distribution Agreement; and
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(vi) sixth, for distribution as the Quarterly
Distribution on the Distribution Payment Date that follows such
Distribution Date all funds that are remaining after satisfying
priorities first through fifth of this Section 5.2(a) to those
Holders of the Up-MACRO Holding Shares who are listed on the books
and records of the Depository as Beneficial Owners on the related
Record Date.
(b) 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 Up-MACRO Holding Shares as of the
Record Date that preceded such Distribution Payment Date the Quarterly
Distribution provided for under priority sixth of clause (a) above in
cash, for delivery thereof by the Depository to each Person who was a
Beneficial Owner of Up-MACRO Holding Shares on such Record Date.
(c) Final Distributions.
(i) 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 Up-MACRO Holding Shares as of the Record Date that preceded
such Distribution Payment Date the Final Distribution provided for
under priority third of clause (a) above in cash, for delivery
thereof by the Depository to each Person who was a Beneficial Owner
of Up-MACRO Holding Shares on such Record Date.
(ii) On the Redemption Date for a Paired Optional
Redemption directed on a Distribution Date, the Trustee shall
distribute to each Authorized Participant who directed such Paired
Optional Redemption the Final Distribution provided for under
priority third of clause (a) above in cash.
(iii) On the settlement date for any Paired Optional
Redemption directed on any Redemption Order Date that was not a
Distribution Date the Trustee shall distribute the Final
Distribution for such Redemption Order Date to each Authorized
Participant who directed such Paired Optional Redemption using cash
and/or Eligible Treasuries, as directed by the Administrative Agent.
In the event that insufficient cash is on deposit in the Netting
Account and the Distribution Account to effect any Paired Optional
Redemption, the Trustee, as instructed by the Administrative Agent,
will identify a portion of the Eligible Treasuries on deposit in the
Securities Account such that the Value of the Eligible Treasuries so
identified is equal to the product of the applicable Up-MACRO
Redemption Percentage for such Paired Optional Redemption and the
Up-MACRO Asset Amount on the Redemption Order Date or the portion
thereof that is not available to be delivered in cash. The Trustee,
as instructed by the Administrative Agent, will then deliver
Eligible Treasuries and cash with a Value equal to the Up-MACRO
Settlement Payment that is owed, if any, under each Settlement
Contract that is being settled in connection with such Paired
Optional Redemption to the Down-MACRO Holding Trustee and deliver
the remaining Eligible Treasuries that were segregated, together
with the Down-MACRO Settlement Payment, if any, that was received
from the Down-MACRO Holding Trust, to the Authorized Participants
who delivered the Redemption Order on such Redemption Order Date in
accordance with the procedures specified in Section 6.1(d).
Section 5.3 Payment of Expenses. On each Distribution Payment Date
(or, at the direction of the Administrative Agent, on any Business Day occurring
during any Calculation Period), the Trustee, on behalf of the Up-MACRO Holding
Trust, shall apply funds
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on deposit in the Fee Payment Account to pay the following expenses (such
expenses, the "Up-MACRO Expenses"):
(i) taxes, and any other governmental charges;
(ii) to the Administrative Agent, the expenses of
negotiating the purchase of Eligible Treasuries pursuant to Section
6.8 (exclusive of any expenses required to be borne by the Depositor
or Authorized Participants, as provided herein or in the
Participants Agreement in connection with Paired Optional
Redemptions and Paired Issuances);
(iii) any taxes, fees and charges relating to each
Paired Issuance or Paired Optional Redemption of Paired Holding
Shares and/or Up-MACRO and Down-MACRO Tradeable Shares (exclusive of
fees and expenses required to be borne by Authorized Participants
directing the Paired Optional Redemptions or Paired Issuances);
(iv) legal expenses and auditing expenses of the
Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust;
(v) registration fees incurred in complying with the
public registration requirements for the Up-MACRO Holding Shares and
the Up-MACRO Tradeable Shares;
(vi) expenses incurred in connection with complying with
the reporting obligations of the Up-MACRO Holding Trust and the
Up-MACRO Tradeable Trust under the federal securities laws;
(vii) ongoing reporting obligations;
(viii) expenses relating to the distribution of offering
and marketing materials relating to the initial issuance and to any
Paired Issuances; and
(ix) any other expenses of the Up-MACRO Holding Trust or
the Up-MACRO Tradeable Trust not otherwise described above which are
incurred by either trust, or on behalf of either trust by the
Depositor, the Trustee, the Up-MACRO Tradeable Trustee, and the
Administrative Agent pursuant to actions permitted or required under
this Trust Agreement, the Up-MACRO Tradeable Trust Agreement or the
service provider fee letters, as applicable.
The Trustee shall be responsible for recording all expenses incurred
by it on behalf of, or in the course of, administering the Up-MACRO Holding
Trust.
To the extent that funds on deposit in the Fee Payment Account are
insufficient to pay all of the foregoing expenses, each of Claymore Securities,
Inc., MacroMarkets LLC and MACRO Financial, LLC shall waive their respective
fees, as provided in Section 5.4 hereof. In the event that any expenses remain
unpaid after Claymore Securities, Inc., MacroMarkets LLC and MACRO Financial,
LLC have each waived their respective fees in full, the Depositor shall pay the
unpaid portion of such Up-MACRO Expenses on behalf of the Up-MACRO Holding Trust
and the Up-MACRO Tradeable Trust.
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Section 5.4 Payment of Fees. On each Distribution Payment Date (or,
at the direction of the Administrative Agent, on any Business Day occurring
during any Calculation Period), after all Up-MACRO Expenses have been paid, the
Trustee, on behalf of the Up-MACRO Holding Trust, shall apply the remaining
funds on deposit in the Fee Payment Account to pay the following fees
(collectively, the "Up-MACRO Fees"):
(i) to the Trustee, the Up-MACRO Trustee Fee that has
accrued during the preceding Calculation Period (which will include
the expenses associated with settling the purchase of Eligible
Treasuries);
(ii) to Claymore Securities, Inc., for acting as the
Administrative Agent and a Marketing Agent, the Up-MACRO
Administration and Marketing Fee that has accrued during the
preceding Calculation Period;
(iii) to MacroMarkets LLC, the Up-MACRO Licensing Fee
for the preceding Calculation Period;
(iv) to MacroMarkets LLC, the Up-MACRO Structuring Fee
that has accrued during the preceding Calculation Period;
(v) to MACRO Financial, LLC, the Up-MACRO Marketing Fee
that has accrued during the preceding Calculation Period;
(vi) to the Calculation Agent, the Up-MACRO Calculation
Agent Fee that has accrued during the preceding Calculation Period;
(vii) to the SNIR Service Agent, the Up-MACRO SNIR
Service Agent Fee that has accrued during the preceding Calculation
Period;
(viii) to MacroMarkets LLC, the Up-MACRO Sublicensing
Fee for the preceding Calculation Period; and
(ix) fees payable to any other entities which have
provided services to the Up-MACRO Holding Trust or the Up-MACRO
Tradeable Trust during the preceding Calculation Period.
To the extent that funds on deposit in the Fee Payment Account are
insufficient to pay all of the foregoing fees, each of Claymore Securities,
Inc., MacroMarkets LLC and MACRO Financial, LLC shall waive their respective
fees, ratably based upon the amount of the fees due to each of them (provided,
that MacroMarkets LLC shall not waive the Up-MACRO Sublicensing Fee and amounts
that Claymore Securities, Inc. has paid on behalf of the trusts to third-party
service providers). In the event that any fees remain unpaid after Claymore
Securities, Inc., MacroMarkets LLC and MACRO Financial, LLC have each waived
their respective fees in full, the Depositor shall be required to pay such
unpaid fees on behalf of the Up-MACRO Holding Trust and the Up-MACRO Tradeable
Trust.
Section 5.5 Payments under the Income Distribution Agreement.
(a) On each Distribution Payment Date, in accordance with
priority fifth of Section 5.2(a) and the terms of the Income Distribution
Agreement, the Trustee shall cause the Up-MACRO Holding Trust to pay to
the Down-MACRO Holding Trust the Up-MACRO Income Distribution Payment,
from amounts on deposit in the Distribution Account,
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if any such payment is owed by the Up-MACRO Holding Trust with respect to
the related Distribution Date, as calculated pursuant to Section 4.3(a)
hereof. If the Up-MACRO Holding Trust has no Up-MACRO Available Income on
such Distribution Date, then the Up-MACRO Holding Trust shall not be
required to make any payment under the Income Distribution Agreement on
such Distribution Date or on any subsequent date and no interest shall
accrue on any such unpaid amounts.
(b) On each Distribution Payment Date, Trustee shall deposit
any Down-MACRO Income Distribution Payment received from the Down-MACRO
Holding Trust under the Income Distribution Agreement into the
Distribution Account for application in accordance with Section 5.2(a) on
such Distribution Date.
Section 5.6 Payments under the Settlement Contracts.
(a) On the Final Scheduled Termination Date or an Early
Termination Date, in accordance with priority third of Section 5.2(a) and
the terms of the Settlement Contracts, the Trustee shall, on the related
Distribution Payment Date, cause the Up-MACRO Holding Trust to make the
Up-MACRO Settlement Payment to the Down-MACRO Holding Trust from amounts
on deposit in the Distribution Account if any such payment is owed by the
Up-MACRO Holding Trust with respect to the related Distribution Date, as
calculated pursuant to Section 4.3(b) hereof. On each Redemption Date, the
Trustee, as instructed by the Administrative Agent, shall cause the
Up-MACRO Holding Trust to make an Up-MACRO Settlement Payment, if any such
payment is due under the Settlement Contracts being settled on such
Redemption Date.
(b) In connection with the Final Scheduled Termination Date,
an Early Termination Date or any Redemption Order Date, any Down-MACRO
Settlement Payment received from the Down-MACRO Holding Trust under the
Settlement Contracts on the Distribution Payment Date that follows such
Final Scheduled Termination Date or an Early Termination Date or on the
related Redemption Date shall be deposited into the Distribution Account
(i) for application in accordance with Section 5.2(a) on the applicable
Distribution Payment Date or (ii) to be used to effect the Paired Optional
Redemption on the Redemption Date related to such Redemption Order Date.
ARTICLE 6
REDEMPTIONS AND ISSUANCES OF HOLDING SHARES;
THE ADMINISTRATION AND REINVESTMENT OF THE ELIGIBLE TREASURIES
Section 6.1 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 this
Section 6.1 (such redemption, a "Paired Optional Redemption"). The
Authorized Participant directing the Paired Optional Redemption must be
the Beneficial Owner of the Paired Holding Shares or the Up-MACRO and
Down-MACRO Tradeable Shares which are being tendered for redemption, as
shown on the records of the Depository. Only Authorized Participants may
direct Paired Optional Redemptions. Up-MACRO Holding Shares will be
redeemed at their Per Share Underlying Value, as calculated on the
Redemption Order Date on which the related
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Redemption Order was delivered; provided, that, in the case of any
Redemption Order placed on a Distribution Date or on the Business Day
succeeding a Distribution Date, such Final Distribution will also include
Up-MACRO and Down-MACRO Earned Income Accruals for each intervening day
between the Redemption Order Date and the Redemption Date calculated on
the basis of the Applicable Reference Price of Crude Oil on the Redemption
Order Date.
(b) Subject to the procedures and requirements specified in
the Participants Agreement, the redeeming Authorized Participants may
effect a Paired Optional Redemption by delivering a Redemption Order to
the Administrative Agent on any day that is a Price Determination Day
(such date, a "Redemption Order Date") not later than the earlier of (i)
half an hour prior to the end of trading in the Light Sweet Crude Oil
Futures Contracts or prior to the time as of which any Substitute
Reference Oil Price is determined by the Applicable Reference Price
Provider and (ii) the unanticipated close of trading of the Light Sweet
Crude Oil Futures Contracts or of the Substitute Reference Oil Price. Any
Redemption Order received by the Administrative Agent after the time
specified in the foregoing sentence will automatically be cancelled.
Following the Redemption Order Date, the redeeming Authorized Participant
must transfer to the Trustee, not later than the date and time specified
in the Participants Agreement, (i) the requisite number of Paired Holding
Shares constituting at least one MACRO Unit or integral multiples thereof
or the requisite number of Tradeable Shares which upon their exchange for
their underlying Holding Shares, will constitute at least one MACRO Unit
or integral multiples thereof, (ii) the applicable Redemption Cash
Component, if any, and (iii) the transaction fee described in clause (e)
of this Section 6.1, and provide written or electronic evidence of the
required transfer of shares and the required deposit of immediately
available funds to the Administrative Agent in accordance with the
Participants Agreement.
(c) 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 Up-MACRO and Down-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 Up-MACRO Tradeable Trust or Down-MACRO Tradeable
Trust, the Holders of the Paired Holding Shares or the Holders of the
Up-MACRO Tradeable Shares or Down-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 Up-MACRO Tradeable Trust to hold fifty
percent or less of the Outstanding Up-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 Down-MACRO Holding Trustee has notified the Trustee that it
has rejected the related Redemption Order or the related Exchange Order
delivered under the Down-MACRO Holding Trust Agreement for one of the
reasons described in Section 6.1(c) of the Down-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
this Section 6.1(c).
(d) If the Redemption Order Date on which a Paired Optional
Redemption was directed is not a Distribution Date and there are
insufficient funds on deposit in the Cash Netting Subaccount delivered in
connection with Paired Issuances directed on the same date as such Paired
Optional Redemption and in the Distribution Account from maturing Eligible
Treasury Repurchase Agreements, as determined in accordance with Section
6.4, the Administrative Agent shall deliver instructions to the Trustee
with respect to the Eligible
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Treasuries then on deposit in the Up-MACRO Holding Trust, in which the
Administrative Agent, employing "last in, first out" methodology and
complying in all respects with the requirements and conditions set forth
in Exhibit H hereto, shall:
(i) identify the Eligible Treasuries on deposit in the
Up-MACRO Holding Trust that are the most recently-acquired Eligible
Treasuries with a Value equal to the product of the Up-MACRO
Redemption Percentage and the Up-MACRO Asset Amount (or the portion
thereof that is not available to be delivered in cash);
(ii) (A) select Eligible Treasuries with a Value equal
to the Up-MACRO Settlement Payment, if any such payment is required
to be made by the Up-MACRO Holding Trust, (B) allocate the remaining
Eligible Treasuries to be delivered as a Final Distribution to the
Authorized Participants directing the Paired Optional Redemption and
(C) in the event that the remaining Eligible Treasuries to be
delivered as a Final Distribution exceed the amount due to the
Authorized Participants directing the Paired Optional Redemption,
calculate the amount to be paid by the Authorized Participants to
the Up-MACRO Holding Trust to compensate the trust for the excess
Value of the Eligible Treasuries being delivered to the Authorized
Participants as a Final Distribution (such amount, the "Redemption
Cash Component"); and
(iii) instruct the Trustee as to which Eligible
Treasuries the Trustee is to use to effect the Paired Optional
Redemption and, of those, the Eligible Treasuries to be used to make
the Up-MACRO Settlement Payment, if any, the Eligible Treasuries to
be used to make the Final Distribution to the redeeming Authorized
Participants and the Redemption Cash Component to be collected from
the Authorized Participants, if any.
The Eligible Treasuries selected by the Administrative Agent to be
delivered as the Final Distribution in a Paired Optional Redemption shall be
distributed ratably, by type, to each redeeming Authorized Participant. A "type"
of Eligible Treasury will include all Eligible Treasuries on deposit in the
Up-MACRO Holding Trust with the same acquisition date, the same purchase price,
the same maturity and the same implied discount or stated interest. The Trustee
shall cause the Up-MACRO Holding Trust to deliver Eligible Treasuries pursuant
to this Section 6.1(d) only in accordance with the directions of the
Administrative Agent. If the Administrative Agent violates any of the
requirements or conditions set forth in Exhibit H in the course of directing the
Trustee in the selection and distribution of Eligible Treasuries "in kind"
pursuant to this Section 6.1(d), the Administrative Agent shall undertake to
remedy such violation in the manner specified in such Exhibit H.
(e) A non-refundable transaction fee will be payable to the
Trustee for its own account in connection with each Redemption Order in
the amount specified in Section 7 of the Participants Agreement. In the
event that a Redemption Order fails and the Trustee or the Administrative
Agent has incurred expenses on behalf of the Up-MACRO Holding Trust in
connection with taking steps to effect a Paired Optional Redemption
pursuant thereto, and any reimbursement of such expenses cannot be
obtained from the Authorized Participant who delivered the Redemption
Order, then such expenses shall be reimbursed to the Trustee and the
Administrative Agent on the next Distribution Payment Date out of funds
available in the Fee Payment Account or, if such funds are insufficient,
by the Depositor.
(f) On any Distribution Date that is an Early Termination Date
or on the Final Scheduled Termination Date, the Trustee shall redeem all
of the Up-MACRO
47
Holding 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 that are on deposit in the Distribution
Account after all of the Settlement Contracts have been settled, as
specified in priority third of Section 5.2(a).
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 Up-MACRO Holding Trust shall issue additional
Up-MACRO Holding Shares contemporaneously with the issuance of additional
Down-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. Only Authorized
Participants may direct Paired Issuances. Up-MACRO Holding Shares will be
issued at the Per Share Underlying Value of the existing Up-MACRO Holding
Shares on the Issuance Order Date on which the related Creation Order was
delivered; provided that in the case of any Creation Order placed on a
Distribution Date or on the Business Day succeeding a Distribution Date,
the Authorized Participant submitting the Creation Order will be required
to deliver, in addition to cash in the amount of the aggregate per share
Underlying Value of the Up-MACRO Holding Shares being created, an amount
equal to the Up-MACRO and Down-MACRO Earned Income Accruals for each
intervening day between the Issuance Order Date and the Issuance Date,
calculated on the basis of the Applicable Reference Price of Crude Oil on
the Issuance Order Date.
(b) Subject to the procedures and requirements specified in
the Participants Agreement, a Paired Issuance may be made only upon the
direction of one or more Authorized Participants delivered in the form of
a Creation Order to the Administrative Agent on any day that is a Price
Determination Day (such date, the "Issuance Order Date"), prior to the
earlier of (i) half an hour before the end of trading in the Light Sweet
Crude Oil Futures Contracts on NYMEX or half an hour before the end of
trading in the futures contracts from which any Substitute Reference Oil
Price is derived or at such time as may be specified for any other
applicable Substitute Reference Oil Price and (ii) the unanticipated close
of trading of the Light Sweet Crude Oil Futures Contracts or of the
Substitute Reference Oil Price. Any Creation Order received by the
Administrative Agent after the time specified in the foregoing sentence
will automatically be cancelled. Subject to the requirements and
limitations set forth herein and in the Participants Agreement, the number
of Up-MACRO Holding Shares that the Up-MACRO Holding Trust may issue as
part of a Paired Issuance is unlimited.
(c) 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 Up-MACRO Tradeable Trust or
Down-MACRO Tradeable Trust, the Holders of the Paired Holding Shares or
the Holders of the Up-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 Up-MACRO Tradeable Trust to hold fifty
percent or less of the Outstanding Up-MACRO Holding Shares, (vi) if the
Down-MACRO Holding Trustee notifies the Trustee that the Creation Order
for additional Down-MACRO Holding Shares has been or will be rejected by
it
48
or by the Administrative Agent on behalf of the Down-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
(vii) if there are not sufficient Up-MACRO Paired Holding 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.
(d) A non-refundable transaction fee will be payable to the
Trustee for its own account in connection with each Creation Order in the
amount specified in Section 7 of the Participants Agreement. In the event
that a Creation Order fails and the Trustee or the Administrative Agent
has incurred expenses on behalf of the Up-MACRO Holding Trust in
connection with taking steps to effect a Paired Issuance pursuant thereto,
and any reimbursement of such expenses cannot be obtained from the
Authorized Participant who delivered the Creation Order, then such
expenses shall be reimbursed to the Trustee and the Administrative Agent
on the next Distribution Payment Date out of funds available in the Fee
Payment Account or, if such funds are insufficient, by the Depositor.
Section 6.3 Settlement of the Settlement Contracts; Adjustments to
the Notional Amount of the Income Distribution Agreement.
(a) In connection with a Paired Optional Redemption directed
on a Redemption Date that is not also an Issuance Date, the Trustee,
acting together with the Down-MACRO Holding Trustee, each on behalf of its
respective Paired Holding Trust and at the direction of the Administrative
Agent, will settle one Settlement Contract for each MACRO Unit that is
redeemed and amend the Income Distribution Agreement to reduce the
notional amount thereof to reflect the decrease in the Aggregate Par
Amount of Up-MACRO and Down-MACRO Holding Shares that are Outstanding.
(b) In connection with a Paired Issuance directed on an
Issuance Date that is not also a Redemption Date, the Trustee, acting
together with the Down-MACRO Holding Trustee, each on behalf of its
respective Paired Holding Trust and at the direction of the Administrative
Agent, will enter into one Settlement Contract for each MACRO Unit that is
created and amend the Income Distribution Agreement to increase the
notional amount thereof to reflect the increase in the Aggregate Par
Amount of Up-MACRO and Down-MACRO Holding Shares that are Outstanding.
(c) In connection with any Paired Optional Redemptions and
Paired Issuances for which Redemption Orders and Creation Orders, as
applicable, are received on the same Business Day, the Trustee, acting
together with the Down-MACRO Holding Trustee, each on behalf of its
respective Paired Holding Trust and at the direction of the Administrative
Agent, shall (i) amend the Income Distribution Agreement to increase or
decrease the notional amount thereof based on the Net Par Amount Increase
or Net Par Amount Decrease that was directed on such Business Day, and
(ii) enter into additional Settlement Contracts, based on the Net Par
Amount Increase that was directed on such Business Day or settle existing
Settlement Contracts, based on the Net Par Amount Decrease that was
directed on such Business Day.
(d) Each amendment to the Income Distribution Agreement shall
be in the form of Exhibit B hereto, and each Settlement Contract shall be
in the form of Exhibit C hereto and shall constitute an additional
confirmation to the Master Agreement. The original, executed Income
Distribution Agreement, each amendment thereto and each original,
49
executed Settlement Contract shall be maintained by the Trustee among the
books and records it keeps on behalf of the Up-MACRO Holding Trust.
(e) In connection with each Paired Optional Redemption, each
Paired Issuance and each Exchange Order, Schedule A of one or more of the
Global Certificates will be adjusted (and, if necessary, additional Global
Certificates will be issued) to reflect the Net Par Amount Decrease or the
Net Par Amount Increase, as applicable, in the Aggregate Par Amount of the
Up-MACRO Holding Shares that are Outstanding after giving effect to such
Paired Optional Redemption Paired Issuance and/or Exchange Orders. On the
Final Scheduled Termination Date or an Early Termination Date, after a
Final Distribution has been made on the Up-MACRO Holding Shares, all of
such Up-MACRO Holding Shares shall be cancelled by the Trustee, on behalf
of the Up-MACRO Holding Trust, in accordance with the procedures of the
Depository. On any Redemption Date on which a Net Par Amount Decrease
occurred, Up-MACRO Holding Shares in an amount equal to such Net Par
Amount Decrease shall be cancelled by the Trustee, on behalf of the
Up-MACRO Holding Trust, in accordance with the procedures of the
Depository.
Section 6.4 Settlement of Redemptions. On the Business Day after the
applicable Redemption Order Date or, in the event that the Redemption Order Date
is a Distribution Date or the Business Day following the Distribution Date, on
the third Business Day after the Redemption Order Date (such date, the
"Redemption Date"), not later than 10:00 a.m. New York City Time, the Authorized
Participant directing the Paired Optional Redemption must deliver (i) to the
Trustee's account at the Depository the Paired Holding Shares or the Tradeable
Shares being tendered for redemption which together form at least one MACRO Unit
or integral multiples thereof, (ii) to the Trustee in immediately available
funds, the applicable Redemption Cash Component, if the Authorized Participant
has been notified that a Redemption Cash Component is required, and (iii) to the
Trustee in immediately available funds, the non-refundable transaction fee
described in Section 6.1(e). Following receipt by the Administrative Agent of
electronic confirmation of the requisite tender of shares and receipt by the
Trustee of the applicable Redemption Cash Component, if any, and the transaction
fee, and satisfaction of the procedures and conditions for a Paired Optional
Redemption that are specified in the Participants Agreement, and no later than
the day and time specified in the Participants Agreement, the Trustee, acting
together with the Down-MACRO Holding Trustee, each on behalf of its respective
Paired Holding Trust and as directed by the Administrative Agent, shall cause
each of the Paired Holding Trusts to deliver a Final Distribution in an amount
equal to the Per Share Underlying Value, as of the relevant Redemption Order
Date, of each Up-MACRO Holding Share and each Down-MACRO Holding Share tendered
for redemption, which will include, in the event that the Redemption Order Date
and the Redemption Date occur on non-consecutive days, a sum equal to the
Up-MACRO Earned Income Accruals and the Down-MACRO Earned Income Accruals (each
calculated on the basis of the Applicable Reference Price of Oil on the
Redemption Order Date) for the intervening non-Business Days between the
Redemption Order Date and the Redemption Date; provided, that, in the case of
any Redemption Order placed on a Distribution Date or on the Business Day
succeeding a Distribution Date, such Final Distribution will also include
Up-MACRO and Down-MACRO Earned Income Accruals for each intervening day between
the Redemption Order Date and the Redemption Date calculated on the basis of the
Applicable Reference Price of Crude Oil on the Redemption Order Date. Such Final
Distribution will be delivered:
(i) if the relevant Redemption Order Date was not a
Distribution Date a Final Distribution of cash or a combination of
cash and/or Eligible Treasuries to the Participant Custodian Account
of the redeeming Authorized Participant;
50
provided, that such cash and/or Eligible Treasuries shall be
selected in the following priority:
(1) first, from funds on deposit in the Cash
Netting Subaccount on that day;
(2) second, from cash on deposit in the
Distribution Account from the proceeds of maturing Eligible
Treasury Repurchase Agreements; and
(3) third, Eligible Treasuries on deposit in the
Securities Account selected in accordance with the provisions
of Section 6.1(d); or
(ii) in the case of the Final Scheduled Termination
Date, an Early Termination Date or a Redemption Order Date that is
scheduled to occur on a Distribution Date, a Final Distribution of
cash to the Participant Custodian Account of the redeeming
Authorized Participant not later than the related Distribution
Payment Date (in the case of the Final Scheduled Termination Date or
an Early Termination Date) or on the applicable Redemption Date.
Section 6.5 Settlement of Issuances.
(a) On the next Business Day after the applicable Issuance
Order Date or, in the event that the Issuance Order Date is a Distribution
Date or the Business Day following the Distribution Date, on the third
Business Day after the Issuance Order Date (such date, the "Issuance
Date"), not later than 10:00 a.m. New York City Time, the Authorized
Participant directing the Paired Issuance must deliver immediately
available funds to the Trustee in an amount equal to (i) the Per Share
Underlying Value of Up-MACRO Holding Shares on the Issuance Order Date
multiplied by the number of Up-MACRO Holding Shares being created by that
Authorized Participant, plus (ii) the Per Share Underlying Value of
Down-MACRO Holding Shares on the Issuance Order Date multiplied by the
number of Down-MACRO Holding Shares being created by that Authorized
Participant, plus (iii) the non-refundable transaction fee described in
Section 6.2(d), plus (iv) in the case of any Creation Order placed on a
Distribution Date or on the Business Day succeeding a Distribution Date,
the Up-MACRO and Down-MACRO Earned Income Accruals for each intervening
day between the Issuance Order Date and the Issuance Date, calculated on
the basis of the Applicable Reference Price of Crude Oil on the Issuance
Order Date. Following the delivery of requisite funds and satisfaction of
the procedures and conditions for a Paired Issuance that are specified in
the Participants Agreement and no later than the day and time specified in
the Participants Agreement, the Trustee, acting together with the
Down-MACRO Holding Trustee, each on behalf of its respective Paired
Holding Trust and as directed by the Administrative Agent, shall deliver
from the applicable Shares Netting Subaccount or, in the event of a Net
Par Amount Increase, cause each of the Paired Holding Trusts to issue
Paired Holding Shares in the Aggregate Par Amount of such Net Par Amount
Increase and to credit the Depository account of the Up-MACRO Tradeable
Trust and the Down-MACRO Tradeable Trust or to credit the Depository
account of the Authorized Participant who directed such Paired Issuance,
as applicable, with such Paired Holding Shares in the Aggregate Par Amount
that was specified in the Creation Order.
(b) Upon receipt of the funds delivered by one or more
Authorized Participants in connection with a Paired Issuance, 50% of such
funds shall be deposited into
51
the Up-MACRO Holding Trust and 50% of such funds shall be deposited into
the Down-MACRO Holding Trust.
Section 6.6 Suspension or Delay of Settlement.
(a) The Administrative Agent shall suspend the right of
redemption, or postpone the date of settlement for any Paired Optional
Redemption or any Paired Issuance of Paired Holding Shares,
(i) for any period during which the AMEX or NYMEX is
closed, or trading is suspended or restricted;
(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 Up-MACRO or
Down-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 Up-MACRO Tradeable Shares or the Down-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 6.7 The Participants Agreement.
(a) Each Paired Optional Redemption and each Paired Issuance
shall be effected in accordance with the procedures set forth in
Attachment A-II and Attachment A-I, respectively, to the Participants
Agreement, which may be amended from time to time with the written consent
of the Trustee, the Up-MACRO Tradeable Trustee, the Down-MACRO Holding
Trustee, the Down-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 and Creation Orders from Authorized Participants
who have executed a Participants Agreement that is in full force and
effect at the time when the Redemption Order or Creation 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 and Paired Issuances.
Section 6.8 Administration of Eligible Treasuries.
(a) The Trustee, acting on behalf of the Up-MACRO Holding
Trust and at the direction of the Administrative Agent, shall apply funds
in the amount specified in
52
Section 5.2(a)(iv) on each Distribution Date, all funds received in
connection with each Paired Issuance, to the extent such funds are not
required to remain on deposit in the Netting Account, and any maturity
proceeds of Eligible Treasuries that are received prior to the end of any
Calculation Period, to acquire Eligible Treasuries. The Administrative
Agent shall direct the Trustee to acquire Eligible Treasuries in
accordance with the following "Acquisition Guidelines":
(i) Eligible Treasury Securities shall be selected based
on best execution;
(ii) Eligible Treasury Repurchase Agreements shall be
selected based on best execution;
(iii) no Eligible Treasury Repurchase Agreement may be
entered into with, and no Eligible Treasury Security may be
purchased from, any person who is an Affiliated Person with respect
to any of the Depositor, either of the Paired Holding Trusts, the
Trustee, the Administrative Agent, or the Marketing Agents;
(iv) Eligible Treasury Repurchase Agreements may be
entered into with, and Eligible Treasury Securities may be to be
purchased from, an Authorized Participant or an Affiliated Person of
both the Up-MACRO Holding Trust and an Authorized Participant only
in accordance with the requirements and conditions set forth in
Exhibit H;
(v) Eligible Treasuries shall be allocated as between
the Up-MACRO Holding Trust and the Down-MACRO Holding Trust in such
a manner that each of the Paired Holding Trusts shall hold an
identical portfolio of Eligible Treasuries or as close to an
identical portfolio as is commercially feasible; and
(vi) the allocation of funds among Eligible Treasury
Securities and Eligible Treasury Repurchase Agreements during any
Calculation Period (the "Asset Allocation Percentage") shall be a
minimum of 65% in Eligible Treasury Securities and a maximum of 35%
in Eligible Treasury Repurchase Agreements for the first 12 months
following the first Issuance Date and, thereafter, the
Administrative Agent shall use commercially reasonable efforts to
adjust such Asset Allocation Percentage on behalf of the Up-MACRO
Holding Trust on every other Distribution Date such that the amount
invested in Eligible Treasury Repurchase Agreements is equal to up
to 10% plus the highest percentage of Up-MACRO Holding Shares that
were redeemed on any one Redemption Date (relative to all
Outstanding Up-MACRO Holding Shares on such Redemption Date) during
the preceding twelve-month period.
The Trustee shall cause the Up-MACRO Holding Trust to acquire Eligible
Treasuries pursuant to this Section 6.8 only in accordance with the directions
of the Administrative Agent. If the Administrative Agent violates any of the
requirements or conditions set forth in Exhibit H in the course of directing the
Trustee in the acquisition of Eligible Treasuries, the Administrative Agent
shall undertake to remedy such violation in the manner specified in such Exhibit
H.
(b) On each Distribution Date and on each Issuance Order Date,
the Administrative Agent shall, subject to, and in accordance with, the
Acquisition Guidelines and the Asset Allocation Percentage, solicit offers
for Eligible Treasuries and shall place a purchase order for the selected
Eligible Treasuries with one or more securities dealers and shall direct
the Trustee to settle such acquisition. The Administrative Agent shall
direct the Trustee
53
and the Down-MACRO Holding Trustee in allocating all Eligible Treasury
Securities acquired as described above equally between the Up-MACRO
Holding Trust and the Down-MACRO Holding Trust. Eligible Treasury
Securities allocated to the Up-MACRO Holding Trust on each Distribution
Date, Issuance Date or any other date shall be credited by the Trustee to
the Securities Account.
(c) On each Distribution Date and on each Issuance Order Date,
the Administrative Agent shall, subject to, and in accordance with, the
Acquisition Guidelines and the Asset Allocation Percentage solicit offers
for Eligible Treasury Repurchase Agreements and shall direct the Trustee
to enter into such Eligible Treasury Repurchase Agreements and shall place
a purchase order for such Eligible Treasury Repurchase Agreements with one
or more counterparties. The Trustee shall allocate all Eligible Treasury
Repurchase Agreements as described above equally between the Up-MACRO
Holding Trust and the Down-MACRO Holding Trust, as directed by the
Administrative Agent. Eligible Treasury Repurchase Agreements entered into
on each Distribution Date, Issuance Date or any other date shall be
credited by the Trustee to the Securities Account.
(d) On any Business Day during any Calculation Period (other
than the last Business Day prior to a Distribution Date), if cash is
available in the Distribution Account for reinvestment in Eligible
Treasuries, the Administrative Agent shall provide instructions to the
Trustee to apply such cash to purchase Eligible Treasuries in accordance
with the Acquisition Guidelines and the Asset Allocation Percentage.
(e) Without limiting the generality of Section 13.1 and
Section 13.2, the Trustee shall not under any circumstances be held liable
under this Trust Agreement for any action it takes in accordance with
directions provided to it by the Administrative Agent under this Section
6.8 or for any omission on the part of the Trustee to take any action in
the absence of receiving such instructions from the Administrative Agent.
ARTICLE 7
CAPITAL ACCOUNTS OF HOLDERS
AND OPERATION THEREOF; TAX ALLOCATIONS
Section 7.1 Capital Contributions.
(a) Each Holder has made an initial Capital Contribution (as
defined below) to the Up-MACRO Holding Trust in cash equal to the amount
paid for its Up-MACRO Holding Shares. Except as provided for herein, a
Holder shall not be required to make any further Capital Contributions to
the Up-MACRO Holding Trust.
(b) Except as expressly set forth herein, no Holder shall be
entitled to any return of capital, interest or compensation by reason of
its Capital Contributions.
Section 7.2 Capital Accounts; Allocations. There shall be
established in respect of each Holder a separate capital account in the books
and records of the Up-MACRO Holding Trust in respect of the Holder's Capital
Contributions to the Up-MACRO Holding Trust (each, a "Capital Account"), to
which the following provisions shall apply:
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(a) The Capital Account of each Holder initially shall
be equal to the cash contributed in exchange for its Up-MACRO Holding
Shares (each, a "Capital Contribution") and, at the end of each day shall
be:
(i) increased by (A) an amount equal to any
amounts paid with respect to Up-MACRO Holding Shares issued as part
of a Paired Issuance by such Holder during such day; and (B) such
Holder's interest in the Net Profit (and items thereof) of the
Up-MACRO Holding Trust during such day as allocated under Section
7.2(b); and
(ii) decreased by (A) any distributions made in
cash by the Up-MACRO Holding Trust to such Holder on such day; (B)
the fair market value of any property other than cash distributed by
the Up-MACRO Holding Trust to such Holder on such day; and (C) such
Holder's interest in the Net Loss (and items thereof) of the
Up-MACRO Holding Trust for such day as allocated under Section
7.2(b).
(b) Except pursuant to the Regulatory Allocations set
forth in Section 7.3, or as otherwise provided in this Trust Agreement,
Net Profit and Net Loss (and items of each) of the Up-MACRO Holding Trust
shall be provisionally allocated as of the end of each day among the
Holders in a manner such that the Capital Account of each Holder
immediately after giving effect to such allocation, is, as nearly as
possible, equal (proportionately) to the amount equal to the distributions
that would be made to such Holder during such fiscal year pursuant to
Article 5 if (i) the Up-MACRO Holding Trust were dissolved and terminated;
(ii) its affairs were wound up and each Trust Asset was sold for cash
equal to its book value; (iii) all Up-MACRO Holding Trust liabilities were
satisfied (limited with respect to each nonrecourse liability to the book
value of the assets securing such liability); and (iv) the net assets of
the Up-MACRO Holding Trust were distributed in accordance with Article 5
to the Holders immediately after giving effect to such allocation. The
Depositor may, in its discretion, make such other assumptions (whether or
not consistent with the above assumptions) as it deems necessary or
appropriate in order to effectuate the intended economic arrangement of
the Holders. Except as otherwise provided elsewhere in this Trust
Agreement, if upon the dissolution and termination of the Up-MACRO Holding
Trust pursuant to Section 14.1 and after all other allocations provided
for in this Section 7.2 have been tentatively made as if this Section
7.2(b) were not in this Trust Agreement, a distribution to the Holders
under Section 14.1 would be different from a distribution to the Holders
under Article 5 then Net Profit (and items thereof) and Net Loss (and
items thereof) for the fiscal year in which the Up-MACRO Holding Trust
dissolves and terminates pursuant to Section 14.1 shall be allocated among
the Holders in a manner such that the Capital Account of each Holder,
immediately after giving effect to such allocation, is, as nearly as
possible, equal (proportionately) to the amount of the distribution that
would be made to such Holder during such last fiscal year pursuant to
Article 5. The Depositor may, in its discretion, apply the principles of
this Section 7.2(b) to any fiscal year preceding the fiscal year in which
the Up-MACRO Holding Trust dissolves and terminates (including through
application of Section 761(e) of the Code) if delaying application of the
principles of this Section 7.2(b) would likely result in distributions
under Section 14.1 that are materially different from distributions under
Article 5 in the fiscal year in which the Up-MACRO Holding Trust dissolves
and terminates.
(c) Before any distribution of property (other than
cash) from the Up-MACRO Holding Trust to a Holder (including without
limitation, any non-cash asset which shall be deemed distributed
immediately prior to the dissolution and winding up of the Up-MACRO
Holding Trust), the Capital Accounts of all Holders of the Up-MACRO
Holding
55
Trust shall be adjusted and, upon the occurrence of one or more of the
other events described in Section 1.704-1(b)(2)(iv)(f) of the Regulations,
may be adjusted to reflect the manner in which any unrealized income,
gain, loss or deduction inherent in such property (that has not been
previously reflected in the Holders' Capital Accounts) would be allocated
among the Holders if there were a taxable disposition of such property by
the Up-MACRO Holding Trust on the date of distribution, in accordance with
Sections 1.704-1(b)(2)(iv)(f) and (g) of the Regulations.
(d) In determining the amount of any liability for
purposes of this Section 7.2, there shall be taken into account Section
752 of the Code and any other applicable provisions of the Code and any
Regulations promulgated thereunder.
(e) Notwithstanding any other provision of this Trust
Agreement to the contrary, the provisions of this Section 7.2 regarding
the maintenance of Capital Accounts shall be construed so as to comply
with the provisions of the Code and any Regulations thereunder. The
Depositor in its sole and absolute discretion and whose determination
shall be binding on the Holders is hereby authorized to interpret and to
modify the foregoing provisions to the extent necessary to comply with the
Code and Regulations.
Section 7.3 Regulatory and Related Allocations.
Notwithstanding any other provision in this Article 7 to the contrary, the
following special allocations shall be made to the Capital Accounts of the
Holder in the following order:
(a) Minimum Gain Chargeback. If there is a net decrease
in Partnership Minimum Gain during any taxable year, each Holder shall be
specially allocated items of Up-MACRO Holding Trust income and gain for
such taxable year (and, if necessary, subsequent taxable years) in an
amount equal to the greater of (A) the portion of such Holder's share of
the net decrease in such Partnership Minimum Gain, determined in
accordance with Regulations Section 1.704-2(d)(1), or (B) if such Holder
would otherwise have an Adjusted Capital Account Deficit attributable
solely to such Holder's Capital Account at the end of such taxable year,
an amount sufficient to eliminate such Adjusted Capital Account Deficit.
Allocations pursuant to the previous sentence shall be made in proportion
to the respective amounts required to be allocated to the Holders pursuant
thereto. The items to be so allocated shall be determined in accordance
with Regulations Section 1.704-2. This Section 7.3(a) is intended to
comply with the minimum gain chargeback requirement in Section 1.704-2(f)
of the Regulations and shall be interpreted consistently therewith. To the
extent permitted by such section of the Regulations and for purposes of
this Section 7.3(a) only, each Holder's Adjusted Capital Account Deficit
shall be determined prior to any other allocations with respect to such
taxable year.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2, if there is a net decrease in
Partner Nonrecourse Debt Minimum Gain attributable to Partner Nonrecourse
Debt during any taxable year, each Holder shall be specially allocated
items of Up-MACRO Holding Trust income and gain for such taxable year
(and, if necessary, subsequent taxable years) in an amount equal to such
Holder's share, if any, of the net decrease in Partner Nonrecourse Debt
Minimum Gain attributable to such Holder's Partner Nonrecourse Debt, as
determined in accordance with Regulations Section 1.704-2. Allocations
pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Holder pursuant
thereto. The items to be so allocated shall be determined in accordance
with Regulations Section 1.704-2. This
56
Section 7.3(b) is intended to comply with the minimum gain chargeback
requirements in such Regulations and shall be interpreted consistently
therewith.
(c) Qualified Income Offset. In the event any Holder
unexpectedly receives any adjustments, allocations, or distributions
described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) with
respect to such Holder's Capital Account, items of Up-MACRO Holding Trust
income and gain shall be specially allocated to each such Holder in an
amount and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Holder as
quickly as possible; provided that an allocation pursuant to this Section
7.3(c) shall be made only if and to the extent that such Holder's Capital
Account would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Trust Agreement have been tentatively
made as if this Section 7.3(c) were not in this Trust Agreement. This
Section 7.3(c) is intended to constitute a "qualified income offset"
within the meaning of Regulations Section 1.704-1 and shall be interpreted
consistently therewith.
(d) Nonrecourse Deductions. Any Nonrecourse Deductions
for any taxable year or other period shall be allocated to the Capital
Accounts of the Holders in accordance with their respective Capital
Accounts.
(e) Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any taxable year (or portion thereof) of the
Up-MACRO Holding Trust shall be allocated to the Holder who bears the
economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable, in accordance
with Regulations Section 1.704-2.
(f) Gross Income Allocation. In the event any Holder has
an Adjusted Capital Account Deficit, items of Up-MACRO Holding Trust
income and gain shall be specially allocated to the Capital Account of
such Holder in an amount and manner sufficient to eliminate such Holder's
Adjusted Capital Account Deficit as quickly as possible; provided that an
allocation pursuant to this Section 7.3(f) shall be made only if and to
the extent that such Holder's Capital Account would have an Adjusted
Capital Account Deficit after all other allocations provided for in this
Article 7 (other than this Section 7.3(f)) have been tentatively made as
if this Section 7.3(f) were not in this Trust Agreement.
(g) Loss Allocation Limitation. No allocation of Net
Loss (or items thereof) shall be made to any Holder to the extent that
such allocation would create or increase an Adjusted Capital Account
Deficit with respect to such Holder.
(h) Curative Allocations. The allocations set forth in
this Section 7.3 (the "Regulatory Allocations") are intended to comply
with certain requirements of the Regulations under Section 704 of the
Code. Notwithstanding any other provision of this Trust Agreement (other
than the Regulatory Allocations), the Regulatory Allocations shall be
taken into account in allocating other Up-MACRO Holding Trust items of
income, gain, loss, deduction and expense among the Holders so that, to
the extent possible, the net amount of such allocations of other Up-MACRO
Holding Trust items and the Regulatory Allocations shall be equal to the
net amount that would have been allocated to the Holders pursuant to this
Trust Agreement if the Regulatory Allocations had not been made.
Section 7.4 Transfer of or Change in Up-MACRO Holding Shares.
The Depositor may use any convention or combination of conventions that it
believes is reasonable for U.S. federal income tax purposes regarding the
allocation of items of income, gain, loss,
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deduction and expense with respect to transferred Up-MACRO Holding Shares and
redeemed Up-MACRO Holding Shares. A transferee who takes all or part of a
Holder's Up-MACRO Holding Shares shall succeed to the Capital Account maintained
in respect of the transferor Holder to the extent of such transfer.
Section 7.5 Tax Allocations. As of the end of each day,
income, expense, deduction, gain or loss of the Up-MACRO Holding Trust, all as
determined for U.S. federal income tax purposes, shall be allocated among the
Holders pursuant to the following subsections solely for U.S. federal and other
applicable tax purposes (both U.S. and non-U.S. taxes) as provided below. Such
allocations shall be pro rata from short-term capital gain or loss and long-term
capital gain or loss and operating income or loss recognized by the Up-MACRO
Holding Trust. Such allocations shall be made, to the extent required, in a
manner consistent with the principles of Section 7.2(b).
(a) Except as provided in the second and third sentences
of Section 7.5(b)(ii), items of ordinary income (such as interest income),
deduction and expense (such as advisory fees and brokerage fees) shall be
allocated in a manner consistent with the economic allocations described
in Section 7.2.
(b) Items of recognized capital gain or loss from the
Up-MACRO Holding Trust's trading activities shall be allocated as follows:
(i) There shall be established a tax basis account
with respect to each Holder's shares in the Up-MACRO Holding Trust.
The initial balance of each tax basis account shall be the amount
contributed to the capital of the Up-MACRO Holding Trust for such
shares.
(1) Each tax basis account shall be
increased by the amount of (I) any additional contributions
made with respect to such Holder's shares in the Up-MACRO
Holding Trust and (II) any taxable income or gain allocated to
such Holder pursuant to Section 7.5(a) above and this Section
7.5(b);
(2) Each tax basis account shall be
decreased by the amount of (I) taxable expense, deduction or
loss allocated to such Holder pursuant to Section 7.5(a) above
and this Section 7.5(b) and (II) any distribution received by
such Holder with respect to its Up-MACRO Holding Shares other
than as a consequence of a partial redemption of Up-MACRO
Holding Shares; and
(3) When any Up-MACRO Holding Share is
redeemed, the tax basis account attributable to such redeemed
Up-MACRO Holding Share shall be eliminated.
(ii) Items of recognized capital gain shall be
allocated first to each Holder who has fully or partially redeemed
its Up-MACRO Holding Shares on such day up to any excess of (A) the
amount received upon such redemption over (B) the tax basis account
attributable to the redeemed Up-MACRO Holding Shares in the Up-MACRO
Holding Trust. If the aggregate amount of recognized capital gain to
be so allocated to all Holders who have redeemed Up-MACRO Holding
Shares on such day is less than the excess of all such amounts
received upon redemption over all such tax basis
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accounts, then items of ordinary income shall be allocated first to
all such Holders up to any excess of all such amounts. If the
aggregate amount of recognized capital gain and ordinary income to
be so allocated to all Holders who have redeemed Up-MACRO Holding
Shares on such day is less than the excess of all such amounts
received upon redemption over all such tax basis accounts, the
entire amount of capital gain and ordinary income for such day shall
be allocated among all such Holders in the ratio that each such
Holder's allocable share of such excess bears to the aggregate
excess of all such Holders who redeemed any of their Up-MACRO
Holding Shares on such day.
(iii) Items of recognized capital gain remaining
after the allocations in subsection (ii) above shall be allocated
among all Holders whose Capital Accounts are in excess of their tax
basis accounts (after the adjustments in subsection (ii)) in the
ratio that each such Holder's allocable share of such excess bears
to all such Holders' excesses. If the aggregate amount of recognized
capital gain to be so allocated is greater than the aggregate excess
of all such Holders' Capital Accounts over all such tax basis
accounts, the excess amount of gain shall be allocated among all
Holders in the ratio that each Holder's Capital Account bears to all
Holders' Capital Accounts.
(iv) Items of recognized capital loss shall be
allocated first to each Holder who has redeemed any of its Up-MACRO
Holding Shares on such day up to any excess of (A) the tax basis
account attributable to the redeemed Up-MACRO Holding Share over (B)
the amount received upon such redemption. If the aggregate amount of
recognized capital loss to be so allocated to all Holders who have
redeemed any Up-MACRO Holding Shares on such day is less than the
aggregate excess of all such tax basis accounts over all such
amounts received upon redemption, the entire amount of loss for such
day shall be allocated among all such Holders in the ratio that each
such Holder's excess bears to the aggregate excess of all such
Holders who redeemed any of their Up-MACRO Holding Shares on such
day.
(v) Items of recognized capital loss remaining
after the allocations in subsection (iv) above shall be allocated
among the Holders whose tax basis accounts are in excess of their
Capital Accounts (after the adjustments in subsection (iv)) in the
ratio that each such Holder's allocable share of such excess bears
to all such Holders' excesses. If the aggregate amount of loss to be
so allocated is greater than the aggregate excess of all such tax
basis accounts over all such Holders' Capital Accounts, the excess
amount of recognized capital loss shall be allocated among all
Holders in the ratio that each Holder's Capital Account bears to all
Holders' Capital Accounts.
(vi) The allocations of profit and loss to the tax
basis accounts of Holders in respect of the Up-MACRO Holding Shares
shall not exceed the allocations permitted under Subchapter K of the
Code as determined by the Depositor in its sole and absolute
discretion, whose determination shall be binding on the Holders.
(c) The allocation of income, gain, loss, deduction and
expense for U.S. federal income tax purposes set forth herein is intended
to allocate such items so as to eliminate, to the extent possible, any
disparity between a Holder's Capital Account and its tax basis account,
consistent with principles set forth in Section 704(c) of the Code.
Section 7.6 Determination of Certain Matters. Notwithstanding
anything express or implied to the contrary in this Trust Agreement, all matters
concerning the computation of Capital Accounts and tax basis accounts, the
allocation of Net Profit (and items thereof) and Net Loss (and items thereof),
the allocation of items of income, gain, loss, deduction
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and expense for tax purposes, the adoption or modification of any accounting
procedures, any adjustments to the books and records of the Up-MACRO Holding
Trust and all matters related to liquidation and dissolution of the Up-MACRO
Holding Trust shall be determined by the Depositor, in its sole and absolute
discretion. Such determination shall be final and conclusive as to all Holders
and be in accordance with the Code and Regulations. Notwithstanding anything
expressed or implied in this Trust Agreement, in the event the Depositor, shall
determine, in its sole and absolute discretion, that it is prudent to modify the
manner in which the Capital Accounts and tax basis accounts, or any debits or
credits thereto, are computed in order to effectuate the intended economic
sharing arrangement of the Holders, the Depositor may make such modification.
Allocations of Net Profit and Net Loss to a Holder's Capital Account shall be
made for each day as soon as practicable thereafter.
Section 7.7 No Deficit Makeup. Notwithstanding anything herein
to the contrary, upon the liquidation of the Up-MACRO Holding Trust, no Holder
shall be required to make any contribution to the Up-MACRO Holding Trust in
respect of any deficit in such Holder's Capital Account.
Section 7.8 U.S. Partnership Tax Treatment. It is the intent
of the Holders and the Depositor that the Up-MACRO Holding Trust be governed by
the applicable provisions of Subchapter K, of Chapter 1, of the Code. The
Depositor may file such forms and make such elections as the Depositor deems
appropriate to effect such intent.
Section 7.9 Definitions. For the purposes of this Trust
Agreement, unless the context otherwise requires:
(a) "Adjusted Capital Account Deficit" shall mean, with
respect to any Holder, the deficit balance, if any, in such Holder's
Capital Account as of the end of the relevant taxable year, after giving
effect to the following adjustments:
(i) credit to such Capital Account any amounts
which such Holder is obligated to restore or is deemed to be
obligated to restore pursuant to Regulations Sections
1.704-1(b)(2)(ii)(c), 1.704-2(g) and 1.704-2(i)(5); and
(ii) debit to such Capital Account the items
described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and
(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Regulations Section 1.704-l(b)(2)(ii)(d) and shall
be interpreted consistently therewith.
(b) "Capital Account" shall have the meaning specified
in Section 7.2.
(c) "Capital Contribution" shall have the meaning set
forth in Section 7.2(a).
(d) "Code" shall mean the U.S. Internal Revenue Code of
1986, as amended.
(e) "Net Loss" shall mean the net decrease in the
Up-MACRO Asset Amount on a day, excluding from such calculation the
increase due to any contributions
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with respect to a Paired Issuance made with respect to the Up-MACRO
Holding Trust for such day and any decrease due to any redemptions made on
such day.
(f) "Net Profit" shall mean the net increase in the
Up-MACRO Asset Amount on a day, excluding from such calculation the
increase due to any contributions with respect to a Paired Issuance made
on such day and any decrease due to any distributions or redemptions made
on such day.
(g) "Nonrecourse Deductions" shall have the meaning set
forth in Regulations Section 1.704-2(b)(1).
(h) "Nonrecourse Liability" shall have the meaning set
forth in Regulations Section 1.752-1(a)(2).
(i) "Partner Nonrecourse Debt" shall have the meaning
set forth in Regulations Section 1.704-2(b)(4).
(j) "Partner Nonrecourse Debt Minimum Gain" shall have
the meaning set forth in Regulations Section 1.704-2(i)(3).
(k) "Partner Nonrecourse Deductions" shall have the
meaning set forth in Regulations Section 1.704-2(i)(2).
(l) "Partnership Minimum Gain" shall have the meaning
set forth in Regulations Section 1.704-2(b)(2).
(m) "Regulations" shall mean United States Treasury
Regulations.
(n) "Regulatory Allocations" shall have the meaning set
forth in Section 7.3(h).
ARTICLE 8
REPORTING
Section 8.1 Calculations for the Up-MACRO Holding Shares.
(a) On each Price Determination Day, the Trustee shall
calculate, within the time period agreed upon by the Trustee and the
Administrative Agent, the following data:
(i) the Up-MACRO Aggregate Par Amount and the
Down-MACRO Aggregate Par Amount on that day;
(ii) the Up-MACRO Asset Amount and the Down-MACRO
Asset Amount on that day;
(iii) the Up-MACRO Underlying Value and the
Down-MACRO Underlying Value on that day, and the Per Share
Underlying Value of an Up-MACRO Holding Share, a Down-MACRO Holding
Share, an Up-MACRO Tradeable Share and a Down-MACRO Tradeable Share
on that day;
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(iv) the Up-MACRO Daily Fee Accrual and the
Down-MACRO Daily Fee Accrual for that day and the cumulative amount
of the Up-MACRO Daily Fee Accruals and the Down-MACRO Daily Fee
Accruals for each day since the preceding Distribution Date;
(v) the Up-MACRO Investment Amount and the
Down-MACRO Investment Amount on the preceding Distribution Date and
the Up-MACRO Investment Amount and the Down-MACRO Investment Amount
on that day;
(vi) the Up-MACRO Available Income Accrual and the
Down-MACRO Available Income Accrual for that day and the cumulative
amount of the Up-MACRO Available Income Accruals and the Down-MACRO
Available Income Accruals for each day since the preceding
Distribution Date;
(vii) the amount of the Up-MACRO Available Income
in the Up-MACRO Holding Trust and the amount of the Down-MACRO
Available Income in the Down-MACRO Holding Trust and the amount of
the Up-MACRO Available Income and the amount of the Down-MACRO
Available Income allocable to each Up-MACRO Holding Share and
Down-MACRO Holding Share, respectively;
(viii) the Up-MACRO Earned Income Accrual and the
Down-MACRO Earned Income Accrual for that day and the cumulative
amount of the Up-MACRO Earned Income Accruals and the Down-MACRO
Earned Income Accruals for each day since the preceding Distribution
Date;
(ix) the number of Up-MACRO Holding Shares and
Down-MACRO Holding Shares issued in Paired Issuances during the
current Calculation Period;
(x) the number of Up-MACRO Holding Shares and
Down-MACRO Holding Shares redeemed in a Paired Optional Redemption
during the current Calculation Period, as well as the amount of cash
or Eligible Treasuries delivered in such Paired Optional Redemption;
(xi) the Net Par Amount Increase or Net Par Amount
Decrease, if any, that occurred on that day; and
(xii) the number of Up-MACRO Holding Shares and
Down-MACRO Holding Shares Outstanding on that day.
(b) On each Price Determination Day, the Trustee shall
provide to the Administrative Agent for posting on the MACROshares
Website, not later than one hour prior to the open of trading on the AMEX
or the applicable stock exchange on which the Up-MACRO tradeable shares
are listed, the data contained in clause (iii) of clause (a) of this
Section 8.1. The Administrative Agent shall post all of the information
calculated and provided to it by the Trustee pursuant to this Section
8.1(b) on the MACROshares Website on each Price Determination Day, within
thirty minutes of receipt thereof from the Trustee.
(c) On each Redemption Order Date and the Final
Scheduled Termination Date or an Early Termination Date, within the time
period agreed upon by the Administrative Agent and the Trustee, the
Trustee shall calculate the following data (in the case of each Redemption
Order Date, based upon copies of each Redemption Order and each
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Creation Order received by the Administrative Agent with respect to such
date and forwarded by it to the Trustee), and provide such data to the
Administrative Agent:
(i) the Up-MACRO Underlying Value, the Down-MACRO
Underlying Value and the Per Share Underlying Value of an Up-MACRO
Holding Share, a Down-MACRO Holding Share, an Up-MACRO Tradeable
Share and a Down-MACRO Tradeable Share, on the Redemption Order Date
(or, in the case of the Final Scheduled Termination Date or an Early
Termination Date, the last preceding Price Determination Day), as
calculated in accordance with the method specified in this Trust
Agreement and the Down-MACRO Holding Trust Agreement;
(ii) the Up-MACRO Settlement Payment, if any, to
be paid by the Up-MACRO Holding Trust to the Down-MACRO Holding
Trust and the Down-MACRO Settlement Payment, if any, to be paid by
the Down-MACRO Holding Trust to the Up-MACRO Holding Trust under the
Settlement Contracts on such Redemption Date;
(iii) the Redemption Cash Component, if any; and
(iv) the Final Distribution and the portion
thereof that is allocable to each Up-MACRO Holding Share and each
Down-MACRO Holding Share.
(d) On each Issuance Order Date, within the time period
agreed upon by the Trustee and the Administrative Agent, the Trustee shall
calculate the following data and provide such data to the Administrative
Agent and the Depositor:
(i) the Up-MACRO Underlying Value, the Down-MACRO
Underlying Value, and the Per Share Underlying Value of an Up-MACRO
Holding Share, a Down-MACRO Holding Share, an Up-MACRO Tradeable
Share and a Down-MACRO Tradeable Share on such Issuance Order Date;
and
(ii) the Net Par Amount Increase or Net Par Amount
Decrease, as applicable, which occur on the related Issuance Date.
(e) 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 Up-MACRO Holding Trust the
following information:
(i) the Up-MACRO Fee Deduction Amount and the
Down-MACRO Fee Deduction Amount for each of the three preceding
Calculation Periods;
(ii) the aggregate amount of all Up-MACRO
Expenses, all Up-MACRO Fees, all Down-MACRO Expenses and all
Down-MACRO Fees presented to the Trustee for payment during each of
the three preceding Calculation Periods;
(iii) the Up-MACRO Income Distribution Payment, if
any, paid by the Up-MACRO Holding Trust to the Down-MACRO Holding
Trust and the Down-MACRO Income Distribution Payment, if any, paid
by the Down-MACRO Holding Trust to the Up-MACRO Holding Trust under
the Income Distribution Agreement on each of the three preceding
Distribution Dates;
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(iv) the Up-MACRO Earned Income Accrual and the
Down-MACRO Earned Income Accrual for each of the three preceding
Calculation Periods;
(v) the Up-MACRO Available Income and the
Down-MACRO Available Income for the preceding three Calculation
Periods;
(vi) each Quarterly Distribution and each Final
Distribution made by each of the Paired Holding Trusts and passed
through by the Up-MACRO Tradeable Trust and Down-MACRO Tradeable
Trust; and
(vii) the number of Up-MACRO Holding Shares and
Down-MACRO Holding Shares redeemed during the preceding calendar
quarter and the number of Up-MACRO Holding Shares and the Down-MACRO
Holding Shares issued during the preceding calendar quarter.
Section 8.2 Periodic Reports.
(a) After the end of each fiscal year, the Depositor
shall cause to be prepared an annual report on Form 10-K for the Up-MACRO
Holding 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 fiscal quarterly period, the
Depositor shall cause to be prepared a quarterly report on Form 10-Q for
the Up-MACRO Holding 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 or the
Administrative Agent 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:
(i) the occurrence of a Trustee Termination Event;
(ii) the occurrence of a trading halt on any stock
exchange on which the Up-MACRO Holding Shares are listed and the
reason for such trading halt;
(iii) the appointment of a Successor Trustee;
(iv) the resignation of the Trustee, the Up-MACRO
Tradeable Trustee, the Down-MACRO Holding Trustee, the
Administrative Agent, either Marketing Agent or the Calculation
Agent under the Calculation Agency Agreement;
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(v) the appointment of a successor trustee for the
Down-MACRO Holding Trust and/or the Up-MACRO Tradeable Trust, a
successor Administrative Agent, any successor Marketing Agent or a
successor Calculation Agent under the Calculation Agency Agreement;
(vi) the occurrence of a Termination Trigger;
(vii) an amendment to this Trust Agreement, the
Up-MACRO Tradeable Trust Agreement, the Down-MACRO Holding Trust
Agreement, the Participants Agreement or any other Transaction
Document;
(viii) 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
(ix) any other event that would be material to the
Holders of the Up-MACRO Holding Shares and which would, accordingly,
required to be disclosed by means of the filing of a Form 8-K.
Section 8.4 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
Up-MACRO Holding 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 Up-MACRO
Holding 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 Up-MACRO Holding Trust's auditors.
Section 8.5 Trust Accounting Agent Responsibilities. The
Trustee, in its capacity as the Trust 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 Up-MACRO
Holding 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 Up-MACRO Holding 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.
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Section 9.2 Limitations on Liability of the Depositor,
Claymore Securities, Inc. and MACRO Financial, LLC. None of the Depositor,
Claymore Securities, Inc., MACRO Financial, LLC or any of their respective
directors, officers, employees or agents acting in such capacities shall be
under any liability to the Up-MACRO Holding Trust, the Trustee, the Holders of
the Up-MACRO Holding Shares, the Down-MACRO Holding Trust, the Down-MACRO
Holding Trustee, the Holders of the Down-MACRO Holding 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
Agents, as applicable, pursuant to this Trust Agreement; provided, however, that
this provision shall not protect the Depositor, Claymore Securities, Inc., 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, Claymore Securities, Inc., MACRO Financial, LLC and
each of their respective directors, officers, 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 Claymore Securities, Inc., Claymore Securities, Inc.
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 the performance of the Eligible Treasuries, market
fluctuations or other similar market or investment risks associated with
ownership of the Up-MACRO Holding 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 Up-MACRO Holding 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 Section 9.3(b) 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 Up-MACRO Holding 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
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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 Up-MACRO Holding Trust
and held harmless against any loss, liability or expense arising under the
Income Distribution Agreement, the Settlement Contracts or any
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 Up-MACRO Holding Trust of the
costs and expenses incurred by such Depositor Indemnified Party in
defending itself against any such indemnified claim or liability.
ARTICLE 10
MATTERS RELATING TO THE
ADMINISTRATIVE AGENT AND THE MARKETING AGENTS
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 Up-MACRO Holding Trust, the Trustee, the Holders of the Up-MACRO Holding
Shares, the Down-MACRO Holding Trust, the Down-MACRO Holding Trustee, the
Holders of the Down-MACRO Holding 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 Down-MACRO Holding Trustee, the
Up-MACRO Tradeable Trustee, the Down-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 Up-MACRO Holding 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 Up-MACRO Holding
Shares and the rights and duties of the parties hereto.
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Section 10.4 Administrative Agent Indemnification of the
Up-MACRO Holding Trust and the Trustee. The Administrative Agent shall indemnify
and hold harmless the Up-MACRO Holding 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 Up-MACRO Holding
Trust or the Holders of the Up-MACRO Holding Shares for any liabilities, costs
or expenses of the Up-MACRO Holding Trust with respect to any action taken by
the Trustee at the request of the Holders of the Up-MACRO Holding Shares;
provided, further, that the Administrative Agent shall not indemnify the
Up-MACRO Holding Trust or the Holders of the Up-MACRO Holding 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 Up-MACRO Holding Shares or
losses incurred as a result of a default on any Eligible Treasuries; and
provided, further, that the Administrative Agent shall not indemnify the
Up-MACRO Holding Trust or the Holders of the Up-MACRO Holding Shares for any
liabilities, costs or expenses of the Up-MACRO Holding Trust or the Holders of
the Up-MACRO Holding 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 Up-MACRO Holding
Trust or the Holders of the Up-MACRO Holding 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 Up-MACRO Holding
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 by Administrative Agent;
Assignment of Fees. 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.
Furthermore, any delegation of duties by the Administrative Agent with respect
to the Up-MACRO Holding Trust shall be accompanied by the delegation of such
similar duties to the same entity with respect to the Down-MACRO Holding Trust,
unless the prior written consent of the Depositor is obtained. Notwithstanding
anything herein to the contrary, the
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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 Up-MACRO Administration and Marketing Fee
hereunder to any third party.
Section 10.6 Resignation or Removal of Administrative Agent.
(a) The Administrative Agent shall hold office until its
successor shall have been appointed by the Holders in accordance with this
Trust Agreement following its 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 10.6 until a successor administrative agent possessing
the qualifications to act as Administrative Agent and willing and able to
make the representations contained in Section 3.4 (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 and the Trustee, 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
Up-MACRO Holding Trust, the Depositor and the resigning
Administrative Agent; or
(ii) until the assets of the Up-MACRO Holding
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
Up-MACRO Holding Trust of an instrument of resignation, the resigning
Administrative Agent may petition at the expense of the Up-MACRO Holding 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 Agents. Each Marketing
Agent hereby acknowledges and accepts its role pursuant to its duties set forth
in Exhibit G to this Trust Agreement.
Section 10.8 Liability of the Marketing Agents. The Marketing
Agents shall be liable under this Trust Agreement only to the extent of the
obligations specifically undertaken hereunder by each of them in their capacity
as a Marketing Agent.
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Section 10.9 Limitation on Liability of the Marketing Agents.
None of the Marketing Agents or any of their respective directors, officers,
employees or agents shall be under any liability to the Up-MACRO Holding Trust,
the Trustee, the Administrative Agent, the Holders of the Up-MACRO Holding
Shares, the Down-MACRO Holding Trust, the Down-MACRO Holding Trustee, the
Holders of the Down-MACRO Holding 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 either Marketing Agent or 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. Each Marketing Agent and their
respective 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 Down-MACRO Holding
Trustee, the Up-MACRO Tradeable Trustee, the Down-MACRO Tradeable Trustee or any
Authorized Participant respecting any matters arising hereunder. Neither
Marketing Agent shall be under any 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 such Marketing Agent has obtained
an indemnity from the Holders of the Up-MACRO Holding Shares sufficient to hold
it harmless from such liability.
Section 10.10 Marketing Agent Indemnification of the Up-MACRO
Holding Trust and the Trustee. Each Marketing Agent shall indemnify and hold
harmless the Up-MACRO Holding 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 such
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 neither Marketing Agent shall 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
neither Marketing Agent shall 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
neither Marketing Agent shall indemnify the Up-MACRO Holding Trust or the
Holders of the Up-MACRO Holding Shares for any liabilities, costs or expenses of
the Up-MACRO Holding Trust with respect to any action taken by the Trustee at
the request of the Holders of the Up-MACRO Holding Shares; provided, further,
that neither Marketing Agent shall indemnify the Up-MACRO Holding Trust or the
Holders of the Up-MACRO Holding 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 Up-MACRO Holding Shares or losses incurred as a result of a
default on any Eligible Treasuries; and provided, further, that neither
Marketing Agent shall indemnify the Up-MACRO Holding Trust or the Holders of the
Up-MACRO Holding Shares for any liabilities, costs or expenses of the Up-MACRO
Holding Trust or the Holders of the Up-MACRO Holding 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 Up-MACRO Holding Trust or the Holders of the Up-MACRO
Holding Shares in connection herewith to any taxing authority. Indemnification
pursuant to this Section 10.10 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
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obligations of each Marketing Agent under this Section 10.10 shall survive the
termination of the Up-MACRO Holding Trust and the resignation or removal of such
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 by Marketing Agents;
Assignment of Fees. In the ordinary course of business, each 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 such Marketing Agent of its liability and responsibility with
respect to such duties and shall not constitute a resignation, and such
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
such Marketing Agent had performed such duty; provided, however, that in the
case of any significant delegation to a Person other than an Affiliate of such
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 such Marketing Agent and (2) the prior written consent of
the Depositor must be obtained. Furthermore, any delegation of duties by either
Marketing Agent with respect to the Up-MACRO Holding Trust shall be accompanied
by the delegation of such similar duties to the same entity with respect to the
Down-MACRO Holding Trust, unless the prior written consent of the Depositor is
obtained. Notwithstanding anything herein to the contrary, neither Marketing
Agent shall assign any of its duties and responsibilities as a Marketing Agent;
provided, that, each Marketing Agent shall be entitled to assign or pledge its
right to receive its fee hereunder to any third party.
ARTICLE 11
EARLY TERMINATION
Section 11.1 Termination Triggers.
(a) The Up-MACRO Holding 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 Up-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;
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(ii) the Applicable Reference Price of Crude Oil
rises to or above $111, at which level the Underlying Value of the
Down-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
Up-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 Up-MACRO Holding Trust, the
Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the
Down-MACRO Tradeable Trust becomes required to register as an
"investment company" under the Investment Company Act; provided,
that the Up-MACRO Tradeable Trust and the Down-MACRO Tradeable Trust
shall not be required to register as investment companies, for the
purposes of determining whether a Termination Trigger has occurred
pursuant to this clause, during the 90-day cure period that will
follow any date as of which the Up-MACRO Tradeable Trust holds less
than a Majority of the Outstanding Up-MACRO Holding Shares or the
Down-MACRO Tradeable Trust holds less than a Majority of the
Outstanding Down-MACRO Holding Shares;
(iv) any of the Up-MACRO Holding Trust, the
Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the
Down-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 hereunder or becomes bankrupt or insolvent,
and no suitable replacement is willing and able to assume the duties
of the Administrative Agent hereunder;
(vii) the Depositor elects to terminate the
Up-MACRO Holding Trust and 66 and 2/3% of the Holders of the
Up-MACRO Holding Trust and the Down-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 Up-MACRO Holding
Trust, the Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or
the Down-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 Up-MACRO Holding Trust,
the Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the
Down-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 Up-MACRO
Holding Trust, the Down-MACRO Holding Trust, the Up-MACRO Tradeable
Trust or the Down-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 Up-MACRO
Holding Trust, the Down-MACRO Holding Trust, the Up-MACRO Tradeable
Trust or the Down-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
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commenced against any of the Up-MACRO Holding Trust, the Down-MACRO
Holding Trust, the Up-MACRO Tradeable Trust or the Down-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 Up-MACRO Holding Trust or the Down-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 Up-MACRO Holding Trust or the Down-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 the Depositor elects
to terminate the Paired Holding Trusts.
(b) The Administrative Agent will be responsible for
notifying the Depositor and the Trustee of the occurrence of the
Termination Triggers described in subclauses (i), (ii), (vi) and (vii) of
clause (a) of this Section 11.1. Upon obtaining knowledge of the
occurrence of any of the Termination Triggers described in subclauses
(iii), (iv), (v), (viii), (ix) and (x) of clause (a) of this Section 11.1,
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 Down-MACRO
Holding Trustee, the Up-MACRO Tradeable Trustee, the Down-MACRO Tradeable
Trustee and the Registered Owners of the Up-MACRO Holding Shares.
(c) On the next Distribution Date following the
occurrence of a Termination Trigger (an "Early Termination Date"), the
Trustee and the Down-MACRO Holding Trustee shall terminate the Income
Distribution Agreement and settle all of the Settlement Contracts on
behalf of the Paired Holding Trusts. The Trustee shall then make a Final
Distribution on all Outstanding Up-MACRO Holding Shares, as set forth in
Section 5.2. Upon receipt of this Final Distribution, all Outstanding
Up-MACRO Holding Shares shall be deemed to be redeemed in full.
(d) The Depositor, upon receiving notice or otherwise
obtaining actual knowledge of the occurrence of any Termination Trigger,
shall file a Form 8-K with the SEC disclosing such occurrence.
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 funds are available in the
Up-MACRO Holding Trust to make any Quarterly Distribution, any failure by
the Trustee to make such Quarterly Distribution in the amount determined
in accordance with the calculations required to be made pursuant to
Article 4 hereof, which failure continues unremedied for a period of five
(5) or more Business Days;
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(b) any failure by the Trustee to distribute the
proceeds of all of the Trust Assets on the Final Scheduled Termination
Date, which failure continues unremedied for a period of five (5) or more
Business Days;
(c) to the extent that funds are available in the
Up-MACRO Holding Trust, any failure by the Trustee to make any payment
required to be made under the Income Distribution Agreement or the
Settlement Contracts, which failure continues unremedied for a period of
five (5) or more Business Days;
(d) 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;
(e) the Trustee becomes ineligible or incapable of
acting as Trustee hereunder;
(f) 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;
(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; or
(h) the occurrence of a Trustee Termination Event under
the Down-MACRO Tradeable Trust Agreement, pursuant to the terms of the
Down-MACRO Tradeable Trust Agreement.
Section 12.2 Force Majeure. Notwithstanding the foregoing, any
delay in or failure of performance under Section 12.1 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 Up-MACRO Holding
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.
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ARTICLE 13
THE TRUSTEE
Section 13.1 Duties of Trustee.
(a) The Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Trust Agreement,
including:
(i) causing the Up-MACRO Holding Trust to make its
required payments under the Income Distribution Agreement and the
Settlement Contracts;
(ii) making distributions on the Up-MACRO Holding
Shares in accordance with Section 5.2 and Section 6.1 hereof;
(iii) administering the Up-MACRO Holding Trust;
(iv) at the direction of the Administrative Agent,
acquiring Eligible Treasuries on behalf of the Up-MACRO Holding
Trust;
(v) paying the fees and expenses of the Up-MACRO
Holding Trust, as specified in Section 5.3 and Section 5.4 of this
Trust Agreement;
(vi) effecting Paired Optional Redemptions in
accordance with the provisions of Section 6.1 hereof;
(vii) effecting Paired Issuances in accordance
with the provisions of Section 6.2 hereof;
(viii) performing the calculations required under
Section 4.1 and Section 8.1 and providing such calculations to the
Calculation Agent and the Administrative Agent, as applicable;
(ix) preparing and delivering any notices required
to be delivered to the Registered Owners of the Up-MACRO Holding
Shares hereunder; and
(x) performing all of the other obligations
required of it under this Trust Agreement and the other Transaction
Documents.
(b) 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.
(c) 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
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(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.
(d) The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of
its rights or powers hereunder, if it has reasonable grounds for believing
that repayment of such funds or adequate indemnity against any related
risk or liability is not reasonably assured to it.
(e) The Trustee shall have no power to vary the corpus
of the Up-MACRO Holding Trust, except as expressly directed by the
Administrative Agent in accordance with the provisions of this Trust
Agreement.
(f) 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
Up-MACRO Holding 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(c) 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
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or unless requested in writing to do so by Holders evidencing more than
25% of the Up-MACRO Aggregate Par Amount.
(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, the Administrative Agent or any other Person in
connection with their duties under this Trust Agreement or in connection
with the Up-MACRO Holding Trust generally.
(g) Except as may be required by Section 13.1(b) and
Section 13.12, 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 Agents with their
respective representations and warranties or for any other purpose.
Section 13.3 Trustee Not Liable for Recitals in Up-MACRO
Holding Shares. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Up-MACRO Holding Shares (other than the
certificate of authentication on the Up-MACRO Holding Shares). Except as set
forth in Section 3.2, the Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement or of the Up-MACRO Holding Shares (other
than the certificate of authentication on the Up-MACRO Holding Shares).
Section 13.4 Holders May Direct Trustee. Holders of Up-MACRO
Holding 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
required, permitted or empowered to take under this Trust Agreement, subject to
the limitations set forth in Section 2.3, Section 3.1(b) and Section 15.6
hereof.
Section 13.5 Compensation. The Depositor shall cause to be
paid in the manner provided for in Section 5.4, and the Trustee shall be
entitled to receive, on each Distribution Payment Date, the Up-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 Section 13.5 for past services rendered
shall survive the termination of the Up-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 from the Trust Assets and held harmless
against any loss, liability or expense (a) arising out of or in connection with
the acceptance or administration of the Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO
Holding Shares (which, by way of illustration
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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 Up-MACRO Holding 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 Up-MACRO
Holding Trust, including any loss, liability or expense incurred in acting
pursuant to written directions or instructions given by the Depositor or counsel
to the Up-MACRO Holding 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 Section 2.3 and Section 3.1(b) to protect the Up-MACRO
Holding 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 Section 13.6 may be payable in advance or shall be secured by a lien on the
Trust Assets.
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 Down-MACRO Holding Trust, the Up-MACRO Tradeable
Trust and the Down-MACRO Tradeable 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:
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(i) until a Successor Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Trustee and delivered to the Up-MACRO Holding Trust, the
Depositor, the Administrative Agent and the resigning Trustee; or
(ii) until the assets of the Up-MACRO Holding
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 and the Up-MACRO Holding Trust of an instrument of resignation, the
resigning Trustee may petition at the expense of the Up-MACRO Holding 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 Up-MACRO Holding Trust pursuant
to Section 13.1(c).
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 Up-MACRO Holding Shares, voting by Up-MACRO 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.
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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.
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
Up-MACRO Holding 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 Down-MACRO Holding Trust
Agreement, the Up-MACRO Tradeable Trust Agreement and the Down-MACRO
Tradeable 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 Up-MACRO Holding 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.
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(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.
(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 Up-MACRO
Holding Trust as may be required for the Depositor to prepare such reports
and filings required under the federal securities laws as required under
Section 8.2. 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 Up-MACRO Holding Trust. The Depositor shall also prepare or
cause to be prepared all tax information required by law to be distributed
to Holders of the Up-MACRO Holding Shares. The Trustee, the Calculation
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.
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(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 Up-MACRO Holding
Shares under any present or future law of the United States of America or
imposed by any taxing authority having jurisdiction over the Up-MACRO
Holding 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 out of the
assets of the Up-MACRO Holding Trust and the payment of such amounts shall
be secured by a lien on the Up-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 and the Up-MACRO Holding Trust or
the resignation or removal of the Trustee or the Administrative Agent. If
sufficient funds are not on deposit in the Fee Payment Account to
reimburse the Trustee or the Administrative Agent for any taxes paid by
either of them on behalf of the Up-MACRO Holding Trust, the Depositor
shall reimburse the Trustee and the Administrative Agent therefor.
(e) The accounts of the Up-MACRO Holding 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 Up-MACRO
Holding Trust pursuant to Section 5.3 hereof. 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
Up-MACRO Holding Shares. All rights of action and claims under this Trust
Agreement or the Up-MACRO Holding Shares may be prosecuted and enforced by the
Trustee without the possession of any of the Up-MACRO Holding 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 Up-MACRO Holding
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
Up-MACRO Holding 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 Up-MACRO Holding Shares.
Section 13.15 Maintenance of Office or Agency. The Trustee
will 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 Up-MACRO
Holding 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
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Owners of the Up-MACRO Holding Shares of any change in the location of the
Corporate Trust Office.
ARTICLE 14
TERMINATION
Section 14.1 Termination of Trust. The Up-MACRO Holding Trust
and the respective obligations and responsibilities of the Depositor, the
Administrative Agent, the Marketing Agents and the Trustee created hereby shall
terminate on the earlier of an Early Termination Date and the Final Scheduled
Termination Date. The Up-MACRO Holding Trust shall not terminate in the event
that the Depositor is adjudged to be insolvent or is liquidated or dissolved for
any reason.
Upon the termination of the Up-MACRO Holding Trust, the
Trustee, after making the Final Distribution provided for in Section 5.2 and
distributing ratably to each Holder of any other Trust Assets, shall wind up the
activities and affairs of the Up-MACRO Holding 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 Up-MACRO
Holding 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 "Up-MACRO Underlying Value,"
"Down-MACRO Underlying Value," "Up-MACRO Income Distribution Payment,"
"Down-MACRO Income Distribution Payment," "Up-MACRO Settlement Payment,"
"Down-MACRO Settlement Payment" or any constituent defined terms that are
a part of the foregoing defined terms; or (ii) to modify the number of
Paired Holding Shares that constitute a MACRO Unit. In addition, no
amendments shall be voted upon or declared effective and no consents with
respect to any matter under this Trust Agreement shall be sought during
any period when less than a Majority of the Outstanding Up-MACRO Holding
Shares are held by the Up-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 Up-MACRO Holding 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 Tradeable Trust Agreement
or the Down-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 Up-MACRO Holding 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 Up-MACRO Holding Shares or to modify any provisions of this Trust
Agreement in any manner that does not adversely affect 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
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procedures for effecting Paired Issuances and Paired Optional Redemptions
set forth herein in connection with an amendment of the Participants
Agreement entered into among the Trustee, the Down-MACRO Holding Trustee,
the Up-MACRO Tradeable Trustee, the Down-MACRO Tradeable Trustee, the
Administrative Agent and one or more Authorized Participants, (vi) to
comply with any requirements imposed by the Code, or any federal or state
securities laws, and (vii) to modify the provisions of this Trust
Agreement in accordance with any regulatory no-action or interpretive
relief received from the SEC or the CFTC; provided, that an opinion in
form and substance satisfactory to the Depositor that such amendment will
not cause the Up-MACRO Holding Trust to be treated as an association
taxable as a corporation must be delivered in connection with any
amendment referenced in the foregoing clause (iii) and clause (vi);
provided, further, that no amendment of this Trust Agreement may be made
if it would have the effect of causing the Up-MACRO Holding 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.
(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 Up-MACRO Holding Shares evidencing not
less than a majority of the Up-MACRO 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 Up-MACRO Holding Shares; provided, that
the Down-MACRO Holding Trust Agreement shall be amended in an identical
manner in accordance with the amendment provisions thereof; provided
further still, that, without the written consent of each Holder of the
Up-MACRO Holding Shares and the Down-MACRO Holding 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 Up-MACRO
Holding Shares; or (ii) reduce the percentage of Holders that are required
to consent to any of the foregoing amendments; provided, further still,
that the use of the spot price of West Texas Intermediate Crude Oil
generated by the Dow Xxxxx Energy Service as the Substitute Reference Oil
Price shall not require the consent of any of the Holders, and the
selection of any other Substitute Reference Oil Price after the NYMEX
Sublicensing Agreement has been terminated may be made at the direction,
or with the consent, of a Majority of the Holders; provided, further still
that in the event that the Depositor and Administrative Agent default on
their obligation under this Trust Agreement to pay all fees and expenses
of the Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust that accrue
in excess of the Daily Fee Accrual Rate, the Trustee shall seek the
consent of a Majority of the Holders of the Up-MACRO Holding Shares to use
funds on deposit in the Distribution Account to pay such fees and
expenses; and provided further still, if such amendment is adopted and
approved by each Holder of the Up-MACRO Holding Shares, such amendment
shall not be effective unless and until an identical amendment has been
made to the Down-MACRO Holding Trust Agreement in accordance with the
amendment provisions thereof.
(d) Subject to clause (a) of this Section 15.1, this
Trust Agreement may be amended at any time prior to the initial Paired
Issuance 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.
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(e) The Trustee and the Depositor may amend the Income
Distribution Agreement or the Settlement Contracts in any manner that is
otherwise not prohibited by the terms of clause (a) of this Section 15.1.
(f) Promptly after the execution of any amendment or
consent pursuant to this Section 15.1, the Depositor shall prepare and
file a Form 8-K with the SEC setting forth the provisions of such
amendment.
(g) 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 Up-MACRO Holding Shares shall be
subject to such reasonable requirements as the Trustee may prescribe.
(h) Holders evidencing not less than a majority of the
Up-MACRO 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 Up-MACRO Holding
Shares or to make any Up-MACRO Income Distribution Payment or any Up-MACRO
Settlement Payment. 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 Up-MACRO
Holding 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
Up-MACRO Holding 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 Section 8.2 hereof, and
(v) take such action as is necessary from time to time to register or qualify
the Up-MACRO Holding 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
Up-MACRO Holding Trust shall continue to offer or sell Up-MACRO Holding 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 Up-MACRO Holding Trust in the manner provided for in
Section 5.3.
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 Up-MACRO Holding 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
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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 Up-MACRO Holding 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 Up-MACRO Holding Shares and the Trustee hereunder in and to all
property comprising the Trust Assets. Not later than the Closing Date, the
Depositor shall file a financing statement covering the interest of the
Down-MACRO Holding Trustee, on behalf of the Down-MACRO Holding Trust, in
the Trust Assets which shall secure the obligations of the Up-MACRO
Holding Trust to the Down-MACRO Holding Trust under the Income
Distribution Agreement and the Settlement Contracts. 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 Up-MACRO Holding 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 Up-MACRO Holding 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.
Section 15.5 Limitation on Rights of Holders of the Up-MACRO
Holding Shares.
(a) The death or incapacity of any Holder of the
Up-MACRO Holding Shares shall not operate to terminate this Trust
Agreement or the Up-MACRO Holding 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 Up-MACRO Holding Trust, or
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
86
(b) No Holder of the Up-MACRO Holding 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
Up-MACRO Holding Trust, or the obligations of the parties hereto, nor
shall any Holder of the Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding Shares representing the
beneficial ownership of at least 25% of all Outstanding Up-MACRO Holding
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 Up-MACRO Holding 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 Up-MACRO Holding Shares, to obtain or
seek to obtain priority over or preference to any other Holder of the
Up-MACRO Holding 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 Up-MACRO Holding Shares. For the protection
and enforcement of the provisions of this Section 15.5, 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 Up-MACRO Holding
Shares; Voting. Each Holder of Up-MACRO Holding Shares shall be able to vote on
all matters on which shareholders may or are required to vote under this Trust
Agreement for the Up-MACRO Holding Shares. Holders of Up-MACRO Holding Shares
evidencing not less than 66 and 2/3% of the Up-MACRO 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 Up-MACRO Holding 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 and not inconsistent
with such direction or with the limitations imposed by Section 2.3 and Section
3.1(b) hereof.
In accordance with Section 15.6 of the Up-MACRO Tradeable
Trust Agreement, the holders of the Up-MACRO Tradeable Shares shall be able to
direct the Trustee in the exercise of the voting rights associated with the
Up-MACRO Holding Shares held on deposit in the Up-MACRO Tradeable Trust. Each
holder of Up-MACRO Tradeable Shares shall be entitled to vote on (i) any
amendments to this Trust Agreement that require the prior written consent of the
shareholders as described in Section 15.1, (ii) any amendment to the Income
Distribution Agreement and the Settlement Contracts, (iii) the termination of
the Trustee, (iv) the appointment
87
of a Successor Trustee, (v) the termination of the Calculation Agent, (vi) the
appointment of a successor Calculation Agent, and (vii) any amendments to the
certificate of trust filed with the New York Secretary of State.
Section 15.7 MACRO Licensing Agreement. On the Closing Date,
the Up-MACRO Holding Trust shall enter into the MACRO Licensing Agreement with
MacroMarkets LLC, the Administrative Agent, the Up-MACRO Tradeable Trust, the
Down-MACRO Holding Trust and the Down-MACRO Tradeable Trust. Under such
licensing agreement, MacroMarkets LLC shall be entitled to the receipt of the
Up-MACRO Licensing Fee, which shall be payable to MacroMarkets LLC in arrears on
each Distribution Date in accordance with Section 5.4 hereof.
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
With a copy to: Claymore Securities, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
88
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: Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxxx
Facsimile: (000) 000-0000
With a copy to: Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
If to the Administrative Agent, to: Claymore Securities, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
With a copy to: Claymore Securities, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
If to the Marketing Agents, to: Claymore Securities, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Claymore Securities, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Or, to: MACRO Securities Depositor, LLC
00 Xxxxx Xxxx Xxxxx #0
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, III
Facsimile: (000) 000-0000
89
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 Up-MACRO Holding 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.
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
Up-MACRO Holding Shares or the rights of the Holders of the Up-MACRO Holding
Shares.
Section 15.11 Up-MACRO Holding Shares Nonassessable and Fully
Paid. It is the intention of the parties to this Trust Agreement that the
Holders of the Up-MACRO Holding Shares shall not be personally liable for
obligations of the Up-MACRO Holding Trust, that the interests in the Up-MACRO
Holding Trust represented by the Up-MACRO Holding Shares shall be nonassessable
for any losses or expenses of the Up-MACRO Holding Trust or for any reason
whatsoever and that the Up-MACRO Holding 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 Agents 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 Up-MACRO
Holding Trust, acquiesce in, petition for or otherwise invoke or cause the
Up-MACRO Holding Trust or the Depositor to invoke the process of any
Governmental Authority for the purpose of (x) commencing or sustaining a
case against the Up-MACRO Holding 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 Up-MACRO Holding 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 Up-MACRO Holding Trust or the Depositor.
(b) Each of the Trustee, the Depositor, the
Administrative Agent and each Marketing Agent and each Holder, by
acceptance of its Up-MACRO Holding Shares, hereby agrees that it will not
institute against a Holder, or join any other Person in instituting
90
against a Holder, on account of its ownership of an Up-MACRO Holding 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 Up-MACRO Holding Shares shall have been Outstanding.
Section 15.14 No Waiver; Cumulative Remedies. No failure by
the Trustee or the Holders of the Up-MACRO Holding 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.
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 Up-MACRO Holding Shares, the Holders of the Down-MACRO Holding Shares,
the holders of the Up-MACRO Tradeable Shares, the holders of the Down-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 Up-MACRO
Holding Shares.
(a) Wherever a provision in this Trust Agreement states
that an action may be taken or a Notice given by Holders of the Up-MACRO
Holding Shares, such action or Notice may be taken or given by any Holder,
unless such provision requires a specific percentage of Holders of the
Up-MACRO Holding Shares.
(b) Any Notice, request, authorization, direction,
consent, waiver or other act by the Holder of an Up-MACRO Holding 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.
91
IN WITNESS WHEREOF, the Depositor, the Trustee, the
Administrative Agent and the Marketing Agents 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
INVESTORS BANK & TRUST COMPANY,
not in its individual capacity, but
solely as the Up-MACRO Holding Trustee
By: /S/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CLAYMORE SECURITIES, INC.,
as Administrative Agent
By: /S/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Managing Director
CLAYMORE SECURITIES, INC.,
as a Marketing Agent
By: /S/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Managing Director
MACRO FINANCIAL, LLC,
as a Marketing Agent
By: /S/ Xxxxxx Xxxxxxx, III
------------------------------------
Name: Xxxxxx Xxxxxxx, III
Title: Chief Executive Officer
Acknowledged and Accepted By:
INVESTORS BANK & TRUST COMPANY,
not in its individual capacity, but solely as the Trustee for the Down-MACRO
Holding Trust
By: /S/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
EXHIBIT A
FORM OF UP-MACRO HOLDING SHARE
CERTIFICATE OF BENEFICIAL INTEREST
-Evidencing-
All Undivided Interests
-in-
CLAYMORE MACROSHARES OIL UP HOLDING TRUST
THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT: (A) TO THE CLAYMORE MACROSHARES OIL UP
TRADEABLE TRUST, (B) TO A TRANSFEREE THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), ACTING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE PERSONS WITH
RESPECT TO WHICH THE TRANSFEREE EXERCISES SOLE INVESTMENT DISCRETION, EACH OF
WHICH IS A PURCHASER THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, PROVIDED, THAT SUCH TRANSFEREE MAY NOT BE A BENEFIT PLAN
INVESTOR, OR (C) AN AUTHORIZED PARTICIPANT, WHICH IS AN 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 WITH THE ISSUER.
A "BENEFIT PLAN INVESTOR" IS ANY ENTITY THAT IS, OR IS ACTING ON BEHALF OF, (A)
AN "EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO
TITLE I OF ERISA, (B) A "PLAN" (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") THAT IS SUBJECT TO SECTION 4975 OF
THE CODE, INCLUDING BUT NOT LIMITED TO INDIVIDUAL RETIREMENT ACCOUNTS AND XXXXX
PLANS, OR (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING BUT NOT LIMITED TO INSURANCE
COMPANY GENERAL ACCOUNTS.
THE ISSUER SHALL REQUIRE ANY HOLDER OF THIS CERTIFICATE (OR OF A BENEFICIAL
INTEREST HEREIN) TO TRANSFER THIS CERTIFICATE (OR SUCH INTEREST) TO A TRANSFEREE
THAT IS (A) THE CLAYMORE MACROSHARES OIL UP
A-1
TRADEABLE TRUST, (B) A QUALIFIED INSTITUTIONAL BUYER THAT IS NOT A BENEFIT
PLAN INVESTOR OR (C) AN AUTHORIZED PARTICIPANT.
EACH INITIAL PURCHASER AND TRANSFEREE OF AN INTEREST IN THIS CERTIFICATE WILL BE
DEEMED TO MAKE REPRESENTATIONS, WARRANTIES AND COVENANTS RELATED TO ITS
COMPLIANCE WITH THE TRANSFER RESTRICTIONS DESCRIBED ABOVE.
ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL
BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE
TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE
TRUSTEE, THE ADMINISTRATIVE AGENT, THE MARKETING AGENTS, THE DEPOSITOR OR ANY
INTERMEDIARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE CERTIFICATE REGISTRAR 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 MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED 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.
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 Claymore MACROshares Oil Up Holding Share Certificates (the "Cetificates")
evidencing in the aggregate the ownership of all issued and outstanding Claymore
MACROshares Oil Up Holding Shares ("Shares"), each of which represents a
fractional undivided interest in the Claymore MACROshares Oil Up Holding Trust
("Trust"), created under the laws of the State of New York by the Amended and
Restated Claymore MACROshares Oil Up Holding Trust Agreement, dated as of
November 24, 2006, among Macro Securities Depositor, LLC, as depositor (the
"Depositor"), Investors Bank & Trust Company, as trustee (the "Trustee"),
Claymore Securities, Inc., as administrative agent (in such capacity, the
"Administrative Agent") and as a marketing agent (in such capacity, a "Marketing
Agent"), and Macro Financial, LLC, as an additional marketing agent (in such
capacity, also a "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 one or more units which constitutes 50,000 Shares and
50,000 Claymore MACROshares Oil Down Holding Shares (the "Down MACRO Holding
Shares"), which represent a fractional undivided interest in the Claymore
MACROshares Oil Down Holding Trust (the "Paired Trust") or integral thereof, and
the discretionary option to exchange the Shares, in 50,000 Shares increments,
into Claymore MACROshares Oil Up Tradeable Shares, which represent a fractional
undivided interest in the Claymore MACROshares Oil Up Tradeable Trust (the "Up
MACRO Tradeable Trust").
A-2
The Depositor hereby grant and convey 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 holds on deposit, 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 Down MACRO Holding
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, and, 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 Trust for the Shares tendered and evidenced by this
Certificate.
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.
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 Agents 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
Up-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 Up MACRO Tradeable 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.
No amendment requiring consent of the shareholders may be made at any time
during which the Up MACRO Tradeable Trust holds less than 50% of the Up MACRO
Holding Securities.
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
A-3
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,
as Depositor
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: ___________, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CERTIFICATES REFERRED TO IN THE WITHIN-
MENTIONED TRUST AGREEMENT.
INVESTORS BANK & TRUST COMPANY,
as Trustee
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: ___________, 2006
A-5
EXHIBIT B
FORM OF INCOME DISTRIBUTION AGREEMENT
Filed as Exhibit 4.5 to this Registration Statement
B-1-1
EXHIBIT C
FORM OF SETTLEMENT CONTRACT
Filed as Exhibit 4.6 to this Registration Statement
C-1
EXHIBIT D
FORM OF PARTICIPANTS AGREEMENT
Filed as Exhibit 4.3 to this Registration Statement
D-1
EXHIBIT E
FORM OF MACRO LICENSING AGREEMENT
Filed as Exhibit 4.7 to this Registration Statement
E-1
EXHIBIT F
NYMEX SUBLICENSING AGREEMENT
Filed as Exhibit 4.8 to this Registration Statement
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EXHIBIT G
MARKETING AGENT DUTIES
The duties of the Marketing Agents consist of:
* developing a marketing strategy for promoting MACRO Securities as
financial products;
* coordinating, developing and implementing a communications strategy,
which will include, among other things, the design and implementation of a web
marketing strategy, the preparation of marketing materials, and the coordination
of public relations and marketing events;
* leveraging the Marketing Agent's existing relationships to introduce
MACRO Securities to Claymore's current financial advisors, advisor relationships
and selected institutional relationships across the United States and
internationally;
* introducing and promoting MACRO Securities generally in the financial
advisor community; and
* responding to inquiries and/or providing referrals regarding MACRO
Securities.
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EXHIBIT H
TRANSACTIONS WITH AUTHORIZED PARTICIPANTS AND AFFILIATED PERSONS OF
BOTH THE TRUST AND AN AUTHORIZED PARTICIPANT
1. Acquisitions of Eligible Treasuries
(a) Subject to best execution pursuant to Section 6.8, the
Administrative Agent may direct the Trustee to acquire Eligible
Treasuries from Authorized Participants or from Affiliated Persons
of both the Trust and the Authorized Participants (each, an "AP
Affiliated Person," and such transaction, an "AP Acquisition") only
in the event that the offers of such AP Affiliated Person are within
the Range of the Best Yield, as defined below.
(b) The available market yields for purposes of calculating Best Yield
will be based on prices displayed on the applicable Bloomberg screen
for Eligible Treasury Securities trades of a designated maturity and
for general market offered yield indications obtained from Bloomberg
or another third-party service specific to Eligible Treasury
Repurchase Agreements.
(c) For purposes of this Section 1, the Best Yield is the average of the
five highest yields offered by sellers with whom the Administrative
Agent has a trading agreement (the "Best Yield") and the Range is
the greater of 0.10% or 2% times the Best Yield (the "Range").
2. In-Kind Redemptions
Any "in-kind" Paired Optional Redemption by an AP Affiliated Person will
be executed in accordance with Section 6.1(d) (an "AP In-Kind
Redemption").
3. Record Retention
(a) In each AP Acquisition, the Administrative Agent will retain a
print-out of the Bloomberg screen at the time each Eligible Treasury
Security purchase order is placed and a print-out of the pricing
service yield information at the time each Eligible Treasury
Repurchase Agreement purchase order is placed ("Print Outs") (as
well as, in each case, the corresponding trade ticket information
relating to such purchase order). The Print Outs will include all
available offers at the time the applicable order was placed as well
as the time, date, amount, counterparty and the price of each
transaction.
(b) In each AP In-Kind Redemption, the Administrative Agent will retain
in its books and records, the date of the transaction, the name of
the redeeming person, the Eligible Treasury Securities that were
paid out and the Eligible Treasury Securities portfolio that
remained in the Trust.
(c) The information recorded by the Administrative Agent pursuant to
this Section 3, will be retained by the Administrative Agent for a
period of one year from the date each such transaction took place.
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4. Independent Verification Procedures
(a) At the conclusion of each calendar quarter, the Trustee, acting as
verification agent (the "Verification Agent"), shall select
randomly, and without notifying the Administrative Agent, one
Business Day for each week in the preceding quarter,
(i) If AP Acquisitions occurred on such day, to verify (1) that
the Administrative Agent is properly identifying and recording
all of the AP Acquisitions; and (2) no transactions outside of
the Range were executed with any AP Affiliated Person; and
(ii) If AP In-Kind Redemptions occurred on such day, to verify (1)
that the Administrative Agent is properly identifying and
recording all of the AP In-Kind Redemptions and (2) that the
AP In-Kind Redemptions are executed in accordance to Section
2, herein.
(b) In the event that the Verification Agent has identified an AP
Acquisition outside of the Range or an AP In-Kind Redemption
violating Section 6.1(d) (each such transaction, a "Prohibited
Transaction"), the Verification Agent shall review all the
information retained by the Administrative Agent in accordance with
Sections 3(a) or 3(b), herein, as applicable, during,
(i) The six-month period prior to such Prohibited Transaction and
(ii) The calendar quarter following the Prohibited Transaction,
to further determine whether additional Prohibited Transactions
occurred.
5. Remedy for Prohibited Transactions
(a) In the event that the Verification Agent identifies a Prohibited
Transaction, the Verification Agent will notify the Depositor and
the Administrative Agent, and the Administrative Agent will be
required to pay, to the Trust, for each such Prohibited Transaction
within thirty day of such notification,
(i) if the Prohibited Transaction was an AP Acquisition, an amount
equal to the yield which the Trust would have obtained had
such transaction occurred at a yield equal to (x) the Best
Yield minus the Range (y) minus the yield obtained in the
executed transaction and
(ii) if the Prohibited Transaction was an AP In-Kind Redemption, an
amount equal to the yield to maturity of the Eligible
Treasuries Securities which were delivered minus the yield to
maturity of the Eligible Treasuries Securities which should
have been delivered to the redeeming AP Affiliated Person.
A Person shall be determined to be an Authorized Participant, for the purpose of
this Exhibit H, based on Section 2(a)(29) of the Investment Company Act and SEC
interpretive positions thereunder.
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