Exhibit 99.2
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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 DOWN 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 DOWN-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 Down-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
Down-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....................33
Section 3.5 Establishment of the Securities Account..........................36
Section 3.6 Establishment of the Distribution Account........................37
Section 3.7 Establishment of the Netting Account.............................37
Section 3.8 Establishment of the Fee Payment Account.........................39
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 DOWN-MACRO HOLDING SHARES
Section 5.1 Rights of Holders of the Down-MACRO Holding Shares...............41
Section 5.2 Priority of Payments.............................................41
Section 5.3 Payment of Expenses..............................................43
Section 5.4 Payment of Fees..................................................44
Section 5.5 Payments under the Income Distribution Agreement.................45
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......................................46
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............................53
ARTICLE 7
CAPITAL ACCOUNTS OF HOLDERS
AND OPERATION THEREOF; TAX ALLOCATIONS
Section 7.1 Capital Contributions............................................55
Section 7.2 Capital Accounts; Allocations....................................55
Section 7.3 Regulatory and Related Allocations...............................56
Section 7.4 Transfer of or Change in Down-MACRO Holding Shares...............58
Section 7.5 Tax Allocations..................................................58
Section 7.6 Determination of Certain Matters.................................60
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 Down-MACRO Holding Shares...................62
Section 8.2 Periodic Reports.................................................64
Section 8.3 Form 8-K Disclosure..............................................65
Section 8.4 Disclosure Controls and Procedures...............................65
Section 8.5 Trust Accounting Agent Responsibilities..........................66
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ARTICLE 9
OTHER MATTERS RELATING TO THE DEPOSITOR
Section 9.1 Liability of the Depositor.......................................66
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 Down-MACRO Holding
Trust and the Trustee..........................................68
Section 10.5 Delegation of Duties by Administrative Agent; Assignment
of Fees........................................................69
Section 10.6 Resignation or Removal of Administrative Agent.................69
Section 10.7 Role of the Marketing Agents...................................70
Section 10.8 Liability of the Marketing Agents..............................70
Section 10.9 Limitation on Liability of the Marketing Agents ...............70
Section 10.10 Marketing Agent Indemnification of the Down-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...........................................72
ARTICLE 12
TRUSTEE TERMINATION EVENTS
Section 12.1 Trustee Termination Events.....................................74
Section 12.2 Force Majeure..................................................75
Section 12.3 Notification to Holders of the Down-MACRO Holding Shares.......75
ARTICLE 13
THE TRUSTEE
Section 13.1 Duties of Trustee..............................................75
Section 13.2 Rights of the Trustee..........................................77
Section 13.3 Trustee Not Liable for Recitals in Down-MACRO Holding Shares...78
Section 13.4 Holders May Direct Trustee.....................................78
Section 13.5 Compensation...................................................78
Section 13.6 Indemnification................................................78
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Section 13.7 Eligibility Requirements.......................................79
Section 13.8 Resignation or Removal of Trustee..............................79
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...................................82
Section 13.13 Trustee May Enforce Claims Without Possession of Down-MACRO
Holding Shares.................................................83
Section 13.14 Suits for Enforcement..........................................83
Section 13.15 Maintenance of Office or Agency................................83
ARTICLE 14
TERMINATION
Section 14.1 Termination of Trust...........................................83
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.1 Amendment; Waiver of Past Defaults and Termination.............84
Section 15.2 Registration (Initial and Continuing) of Down-MACRO Holding
Shares; Certain Securities Law Filings.........................86
Section 15.3 Prospectus Delivery............................................86
Section 15.4 Protection of Right, Title and Interest to Trust Assets........86
Section 15.5 Limitation on Rights of Holders of the Down-MACRO Holding
Shares.........................................................87
Section 15.6 Certain Rights of Holders of Down-MACRO Holding Shares;
Voting.........................................................88
Section 15.7 MACRO Licensing Agreement......................................88
Section 15.8 Governing Law; Jurisdiction....................................89
Section 15.9 Notices........................................................89
Section 15.10 Severability of Provisions.....................................91
Section 15.11 Down-MACRO Holding Shares Nonassessable and Fully Paid.........91
Section 15.12 Further Assurances.............................................91
Section 15.13 Non-Petition Covenant; No Proceedings..........................91
Section 15.14 No Waiver; Cumulative Remedies.................................91
Section 15.15 Counterparts...................................................92
Section 15.16 Third-Party Beneficiaries......................................92
Section 15.17 Actions or Notices by Holders of the Down-MACRO Holding
Shares.........................................................92
Section 15.18 Merger and Integration.........................................92
Section 15.19 Headings.......................................................92
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EXHIBITS
EXHIBIT A FORM OF DOWN-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 Down Holding Trust" and which shall hereafter be referred to as
the "Down-MACRO Holding Trust;"
WHEREAS, concurrently with the formation of the Down-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 Up Holding
Trust" and which shall hereafter be referred to as the "Up-MACRO Holding Trust;"
and
WHEREAS, the parties hereto now wish to amend and restate in its
entirety the original trust agreement for the Down-MACRO Holding Trust 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
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 Up-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 Up Holding
Shares" (referred to herein as the "Up-MACRO Holding Shares" and, together with
the Down-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 Down-MACRO
Holding Shares, an amount equal to the number of such Down-MACRO Holding Shares
multiplied by the Down-MACRO Stated Par Amount, (ii) with respect to any
Up-MACRO Holding Shares, an amount equal to the number of such Up-MACRO Holding
Shares multiplied by the Up-MACRO Stated Par Amount, (iii) with respect to any
Down-MACRO Tradeable Shares, an amount equal to the number of such Down-MACRO
Tradeable Shares multiplied by the Down-MACRO Stated Par Amount, and (iv) with
respect to any Up-MACRO Tradeable Shares, an amount equal to the number of such
Up-MACRO Tradeable Shares multiplied by the Up-MACRO Stated Par Amount.
"AMEX" shall mean the American Stock Exchange, LLC.
"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 Down-MACRO Available Income or the
Up-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 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 Up-MACRO
Holding Trustee, the Down-MACRO Tradeable Trustee, the Up-MACRO Tradeable
Trustee, the NYMEX and the AMEX, pursuant to which the AMEX shall render the
calculations set forth therein and post such calculations on its website.
"Calculation Agent" shall mean the AMEX in its role as calculation agent
under the Calculation Agency Agreement.
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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 29, 2006.
"Code" shall mean U.S. Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall have the meaning set forth under Section
13.15.
"Creation Order" shall have the meaning set forth in Section 3(b) of the
Participants Agreement.
"Custodian" shall mean Investors Bank & Trust Company, in its capacity as
custodian of the Trust Assets hereunder on behalf of the Down-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 Down-MACRO Holding Trust or the
Up-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 Down-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
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the 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 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
Down-MACRO Asset Amount on such day, which shall be the combined fee payable to
Claymore Securities, Inc., for services rendered to the Down-MACRO Holding Trust
and the Down-MACRO Tradeable Trust.
"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 that was issued during
such Calculation Period prior to the date of determination, and the Income
Component of each Up MACRO Holding Share 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
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.
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"Down-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 Down-MACRO Holding Trust and the
Down-MACRO Tradeable Trust.
"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 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
the Daily Fee Accrual Rate.
"Down-MACRO Fees" shall have the meaning specified in Section 5.4 of the
Down-MACRO Holding Trust Agreement.
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"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.
"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 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 Down-MACRO Asset Amount on
such day, which shall be payable to MacroMarkets LLC pursuant to the MACRO
Licensing Agreement.
"Down-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 Down-MACRO Asset Amount on
such day, which shall be payable to MACRO Financial, LLC for services rendered
by it to the Down-MACRO Holding Trust and the Down-MACRO Tradeable Trust in its
capacity as Marketing Agent hereunder and under the Down-MACRO Tradeable Trust
Agreement.
"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%.
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"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.
"Down-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 Down-MACRO Holding Trust and the Down-MACRO Tradeable
Trust.
"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 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 Down-MACRO Asset
Amount on such day, which shall be payable to MacroMarkets LLC for services
rendered by it to the Down-MACRO Holding Trust and the Down-MACRO Tradeable
Trust.
"Down-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 Down-MACRO Asset
Amount on such day, which shall be payable to MacroMarkets LLC pursuant to the
NYMEX Sublicensing Agreement.
"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 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.
8
"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) such Up-MACRO Investment Amount for such day multiplied by (y) the
Price Level Percentage Change for the Down-MACRO Holding Trust for 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 for such day multiplied by (y) the
Price Level Percentage Change for the Up-MACRO Holding Trust for 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 for 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.
"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.
9
"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
(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.
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"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 Down-MACRO Holding Shares pursuant to Section 5.2(a) or
Section 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 a Down-MACRO Holding Share or
an Up-MACRO Holding Share, as the context requires.
"Holding Share" shall mean either a Down-MACRO Holding Share or an
Up-MACRO Holding Share.
"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 Down-MACRO or Up-MACRO Holding Share to
be issued on the related Issuance Date or redeemed on the related Redemption
Date that represents the Down-MACRO or Up-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 24, 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 Down-MACRO Earned Income Accruals and Up-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 Down-MACRO
11
Holding Trust to the Up-MACRO Holding Trust under the Income Distribution
Agreement, a Down-MACRO Income Distribution Payment or (ii) 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.
"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 Down-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.
"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 Down-MACRO Holding Trust, the Up-MACRO Holding
Trust, the Down-MACRO Tradeable Trust and the Up-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
Down-MACRO Holding Shares, the Up-MACRO Holding Shares, the Down-MACRO Tradeable
Shares or the Up-MACRO Tradeable Shares, as applicable.
"MACRO Trusts" shall mean, as the context requires, any or all of the
Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO Tradeable
Trust or the Up-MACRO Tradeable Trust, as applicable.
12
"MACRO Trustees" shall mean, as the context requires, any or all of the
Down-MACRO Holding Trustee, the Up-MACRO Holding Trustee, the Down-MACRO
Tradeable Trustee or the Up-MACRO Tradeable Trustee, as applicable.
"MACRO Unit" shall mean 50,000 Down-MACRO Holding Shares and 50,000
Up-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 24, 2006, between the Trustee, acting on behalf of the Down-MACRO
Holding Trust and the Up-MACRO Holding Trustee, acting on behalf of the Up-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 Down-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 Down-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.
"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.
13
"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 Down-MACRO Holding Shares or
the Up-MACRO Holding Shares, as applicable, and any date of determination, an
amount equal to the aggregate number of Down-MACRO Holding Shares or Up-MACRO
Holding Shares, as applicable, issued by the Down-MACRO Holding Trust or the
Up-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 Down-MACRO Holding Trust together
with the Up-MACRO Holding Trust.
"Paired Optional Redemption" shall have the meaning set forth in Section
6.1(a) hereof.
"Paired Issuance" shall have the meaning set forth in Section 6.2(a)
hereof.
"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 Down-MACRO
Holding Share, an amount calculated by dividing the Down-MACRO Underlying Value
by the number of Down-MACRO Holding Shares Outstanding on that date, (ii) each
Up-MACRO Holding Share, an amount calculated by dividing the Up-MACRO Underlying
Value by the number of Up-MACRO Holding Shares Outstanding on that date, (iii)
each Down-MACRO Tradeable Share, an amount equal to the Per Share Underlying
Value of one Down-MACRO Holding Share on that date, and (iv) each Up-MACRO
Tradeable Share, an amount equal to the Per Share Underlying Value of one
Up-MACRO Holding Share on that date.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability company, limited
liability partnership, joint stock company, trust, unincorporated organization
or Governmental Authority or other entity.
"Price Determination Day" shall mean each day on which the Applicable
Reference Price of Crude Oil is established.
14
"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 Down-MACRO Holding Trust and the Down-MACRO Tradeable Trust
with the SEC on or before the second Business Day after the date hereof (or such
earlier time as may be required under the Securities Act) or, if no such filing
is required, the form of final prospectus included in the Registration Statement
on and after the date on which such Registration Statement becomes effective.
"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 Down-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 Down-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.
"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 Down-MACRO Holding Shares are registered in the Share Register.
"Registration Statement" means the registration statement, file no.
333-135120, dated and filed with the SEC on November 27, 2006, relating to the
Down-MACRO Holding Shares and Down-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
15
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 Down-MACRO Underlying
Value and the Up-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 a Down-MACRO Settlement Payment or an
Up-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 Down-MACRO Holding Trust, the Up-MACRO Holding Trustee, acting on behalf
of the Up-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 Up-MACRO Holding Trust Agreement.
"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 Down-MACRO Holding Trust acquires the right to
use a Substitute Reference Oil Price for the purposes of calculating the
Down-MACRO Underlying Value under this Trust Agreement.
16
"Successor Administrative Agent" shall have the meaning set forth in
Section 10.6(b) hereof.
"Successor Trustee" shall have the meaning set forth in Section 13.8(b)
hereof.
"Termination Trigger" shall have the meaning set forth in Section 11.1(a)
hereof.
"Tradeable Shares" shall mean the Down-MACRO Tradeable Shares and the
Up-MACRO Tradeable Shares.
"Tradeable Trusts" shall mean the Down-MACRO Tradeable Trust and the
Up-MACRO Tradeable Trust.
"Transaction Documents" shall mean this Trust Agreement, the Up-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 Section 4.1 and
Section 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 Up-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.
"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
17
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 amount of any Eligible Tresuray 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 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-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.
18
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
(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 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%.
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"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 Stated Par Amount" shall mean the stated par amount of $60 per
Up-MACRO Holding Share or per Up-MACRO Tradeable Share.
"Up-MACRO Tradeable Shares" shall mean the pass-through securities issued
by the Up-MACRO Tradeable Trust pursuant to the Up-MACRO Tradeable Trust
Agreement.
"Up-MACRO Tradeable Trust" shall mean the 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 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
20
Period, up to and including the relevant Price Determination Date plus the
Up-MACRO Investment Amount on such day.
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 Repurchase Agreement,
the difference between the repurchase price and the purchase 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
21
to this Trust Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
ARTICLE 2
FORM OF THE CERTIFICATES;
DELIVERY AND REGISTRATION OF TRANSFER
OF DOWN-MACRO 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 UP-MACRO Holding Trust Agreement, the
portion of the Initial Deposit made into the Down-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 Down-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 Down-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 Down-MACRO Holding Trust (the "Trust Assets").
Section 2.2 Acceptance by Trustee. The Trustee hereby (i) acknowledges its
acceptance on behalf of the Down-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
Down-MACRO Holding Trust herein set forth, for the benefit of all Holders of the
Down-MACRO Holding Shares.
At the direction of the Administrative Agent, the Trustee shall enter into
(i) one Settlement Contract with the Up-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 Down-MACRO Holding Trust; provided, that the Administrative
Agent and Depositor shall not direct the Trustee to cause the Down-MACRO Holding
Trust to enter into agreements that would cause the Down-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 Down-MACRO Holding Trust. The
Down-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 Down-MACRO Holding Trust
consist of:
(i) redeeming the Founders' Shares on the first Issuance Date;
22
(ii) issuing Down-MACRO Holding Shares in Paired Issuances and
redeeming Down-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; (iii) entering into the
Income Distribution Agreement and the Settlement Contracts with the
Up-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 Down-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 Down-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 Down-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 Down-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 Down-MACRO Holding Shares, the performance by the
Depositor of the transactions contemplated by this Trust Agreement and its
obligations
23
hereunder and the fulfillment by the Depositor of the terms hereof will not
conflict with or violate any Requirements of Law applicable to the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Depositor, threatened against the
Depositor before any Governmental Authority (i) asserting the invalidity of this
Trust Agreement or the Down-MACRO Holding Shares, (ii) seeking to prevent the
issuance of the Down-MACRO Holding Shares or the consummation of any of the
transactions contemplated by this Trust Agreement or the Down-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 Down-MACRO Holding Shares or
(v) seeking to affect adversely the income tax attributes of the Down-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 Down-MACRO Holding Shares, the performance by the Depositor of
the transactions contemplated by this Trust Agreement and its obligations
hereunder and the Down-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 Down-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
Down-MACRO Holding Shares.
(a) Form of Shares. The Down-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
24
provided (each such certificate, a "Global Certificate"). No Down-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
Down-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 the Depositor. The Trustee shall maintain books on which the registered
ownership of each Global Certificate and transfers, if any, of such registered
ownership shall be recorded. Global Certificates evidencing the Down-MACRO
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
Down-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 Down-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 Down-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 Down-MACRO Holding Shares are eligible for book-entry
settlement with the Depository, (i) no Beneficial Owner of Down-MACRO Holding
Shares will be entitled to receive a physical certificate evidencing those
shares, (ii) the interest of a Beneficial Owner in the Down-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 Down-MACRO Holding Shares will be exercised only
to the extent allowed
25
by, and in compliance with, the arrangements in effect between such Beneficial
Owner and the Depository or the DTC Participant or Indirect Participant through
which that Beneficial Owner holds an interest in the Down-MACRO Holding Shares.
As provided in the Depository Agreement, upon the settlement date for any
creation, transfer or redemption of the Down-MACRO Holding Shares, the
Depository will credit or debit, on its book-entry registration and transfer
system, the amount of Down-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 Down-MACRO Holding Shares. The
Beneficial Owners of the Down-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 Down-MACRO Holding Shares a written
confirmation relating to their purchase of Down-MACRO Holding Shares.
Upon the settlement date for any creation, transfer, redemption or
exchange of Down-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 Down-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
Down-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 Down-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 Down-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 Down-MACRO Holding Trust shall reimburse
each such DTC Participant for the expenses attendant to such transmittal,
subject to applicable statutory and regulatory requirements.
26
(d) Distributions on Book-Entry Certificates. All distributions on
the Down-MACRO Holding Shares shall be made to the Depository or its nominee,
Cede & Co., as the registered owner of all Down-MACRO Holding Shares. The
Trustee and the Depositor expect that the Depository or its nominee, upon
receipt of any distributions made in respect of the Down-MACRO Holding Shares,
shall credit immediately the DTC Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the Down-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 Down-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 Down-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
Down-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 Down-MACRO Holding Shares, but the
Transfer Agent and Registrar may
27
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.
(iii) No sale or transfer of beneficial interests in the Down-MACRO
Holding Shares may be made to any Beneficial Owner other than (i) the
Down-MACRO Tradeable Trust, (ii) a Qualified Institutional Buyer who is
not a Benefit Plan Investor, or (iii) or an Authorized Participant. Each
Beneficial Owner of a Down-MACRO Holding Share shall be deemed to
represent and warrant, by virtue of acquiring an interest in the
Down-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
Down-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 Down-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 Up-MACRO Holding Trustee
under the Up-MACRO Holding Trust Agreement, the Down-MACRO Tradeable Trustee
under the Down-MACRO Tradeable Trust Agreement and the Up-MACRO Tradeable
Trustee under the Up-MACRO Tradeable Trust Agreement. The Holders of the
Down-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 Up-MACRO Holding Trust under the Up-MACRO Holding Trust
Agreement, as trustee for the Down-MACRO Tradeable Trust under
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the Down-MACRO Tradeable Trust Agreement and as trustee for the Up-MACRO
Tradeable Trust under the Up-MACRO Tradeable Trust Agreement.
(b) Subject to the limited purposes and functions of the Down-MACRO
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
Down-MACRO Holding Trust, (iii) to purchase Eligible Treasuries (including
entering into Eligible Treasury Repurchase Agreements) on behalf of the
Down-MACRO Holding Trust at the direction of the Administrative Agent, (iv) to
make daily, quarterly and annual calculations on behalf of the Down-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 Down-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 Down-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 Down-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 Down-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
Down-MACRO Holding Trust (and agrees that the Depositor, the Administrative
Agent and the Holders of the Down-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,
29
deliver and perform its obligations under this Trust Agreement and, in all
material respects, to own its properties and conduct its business as such
properties are presently owned and as such business is presently conducted.
(b) Due Qualification. The Trustee is duly qualified to do business
and is in good standing as a foreign trust company (or is exempt from such
requirements), and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on the interests of the Holders
of the Down-MACRO 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 Down-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 Down-MACRO Holding Shares.
(h) Protection of the Rights of Holders of the Down-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
Down-MACRO Holding Shares, nor shall it revise amounts to be distributed on the
Down-MACRO Holding Shares.
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(i) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Trustee of this Trust
Agreement, the performance by the Trustee of the transactions contemplated by
this Trust Agreement and the fulfillment by the Trustee of the terms hereof,
have been obtained; provided, however, that the Trustee makes no representation
or warranty regarding state securities or "blue sky" laws in connection with the
distribution of the Down-MACRO 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 except to the extent that the Trustee provides overdraft
liquidity in the normal course of its custody services hereunder.
(k) Eligibility Requirements. The Trustee meets, and shall at all
times during which it acts as Trustee hereunder meet, the eligibility
requirements set forth in 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 Down-MACRO Holding Shares, Up-MACRO
Holding Shares, Down-MACRO Tradeable Shares or Up-MACRO Tradeable Shares for its
own account.
(m) Maintenance of Records and Books of Account. The Trustee shall
maintain and implement administrative and operating procedures (including the
ability to recreate records evidencing any transaction entered into by the
Down-MACRO 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
Down-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 Down-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 Up-MACRO Holding Trust under the Up-MACRO Holding Trust Agreement, for the
Down-MACRO Tradeable Trust under the Down-MACRO Tradeable Trust Agreement, and
for the Up-MACRO Tradeable Trust under the Up-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 Down-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 Up-MACRO Holding Trust under
the Up-MACRO Holding Trust Agreement, for the Down-MACRO
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Tradeable Trust under the Down-MACRO Tradeable Trust Agreement and for the
Up-MACRO Tradeable Trust under the Up-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 investing the proceeds from such Eligible
Treasuries and (iii) in selecting Eligible Treasuries for delivery to the
Up-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 Down-MACRO
Tradeable Trust Agreement and the Up-MACRO Holding Trust Agreement in accordance
with the terms of each such agreement and the Holders of the Down-MACRO 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 Down-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
Down-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 Down-MACRO Marketing Fee, which
shall be payable to it in arrears on each Distribution Payment Date.
32
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
Down-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. 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 Down-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
33
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.
(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 Down-MACRO Holding Shares.
(viii) Protection of the Rights of the Holders of the Down-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 Down-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 Down-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 Down-MACRO Tradeable
Trust to hold at least a Majority of all Outstanding Down-MACRO Holding
Shares at all times and to request authorized participants to exchange
their Down-MACRO Holding Shares for Down-MACRO Tradeable Shares during any
period when the Down-MACRO Tradeable Trust holds less than a Majority of
the Outstanding Down-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 Down-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):
34
(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 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 Down-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
35
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 Down-MACRO Holding Shares.
Section 3.5 Establishment of the Securities Account.
(a) The Trustee shall establish and maintain in the name of the
Trustee, on behalf of the Down-MACRO Holding Trust and for the benefit of the
Holders of the Down-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 Down-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
Down-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 Down-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 Down-MACRO Holding Trust or any Holder of Down-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 Down-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).
36
Section 3.6 Establishment of the Distribution Account.
(a) The Trustee shall establish and maintain in the name of the
Trustee, on behalf of the Down-MACRO Holding Trust and for the benefit of the
Holders of the Down-MACRO Holding Shares, an Eligible Deposit Account bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Holders of the Down-MACRO 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 Down-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 Down-MACRO Holding Trust or any Holder of Down-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 Down-MACRO Holding Trust under the
Income Distribution Agreement, (iii) all payments received by the Down-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 Down-MACRO Holding Trust and for the benefit of the
Holders of the Down-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 Down-MACRO Holding Shares (the "Netting Account"), which shall
consist of the Cash Netting Subaccount and the Share Netting Subaccount.
37
(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 shall be under the sole dominion and control of the
Trustee for the benefit of the Holders of the Down-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 Down-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
Down-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 Down-MACRO Holding Shares to be redeemed to a subaccount of the
Netting Account (the "Share Netting Subaccount") and shall net such Down-MACRO
Holding Shares against the Down-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 Down-MACRO Holding Shares equal to such positive difference and
deliver all remaining Down-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 Down-MACRO Holding Trust to issue new Down-MACRO Holding Shares in the
amount of such positive difference and deliver such newly-issued Down-MACRO
Holding Shares and all Down-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 Down-MACRO Holding Shares shall remain on deposit
in the Netting Account at the end of each Business Day.
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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 Down-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").
(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 Down-MACRO Fee Deduction Amount into the Fee Payment Account and
shall use such funds, based on standing instructions from the Depositor, to pay
all Down-MACRO Expenses and all Down-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 Down-MACRO Expenses and Down-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 Down-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 Down-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 Down-MACRO Tradeable Shares are listed,
the Per Share Underlying Value of a Down-MACRO Holding Share and a Down-MACRO
Tradeable Share, subject to
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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 Up-MACRO
Holding Trustee pursuant to Section 8.1 of the Up-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.
(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
Down-MACRO Holding Shares, the Holders of the Up-MACRO Holding Shares, the
holders of the Down-MACRO Tradeable Shares, the holders of the Up-MACRO
Tradeable Shares and all other Persons.
Section 4.2 Calculation of Intraday Indicative Values.
Intraday indicative values for the Down-MACRO Underlying Value of the
Down-MACRO Holding Trust and the Per Share Underlying Value for the Down-MACRO
Holding Shares and the Down-MACRO Tradeable Shares based on the intraday trading
prices of the Applicable Reference Price of Crude Oil will be calculated by the
Calculation Agent under the Calculation Agency Agreement based upon the
Applicable Reference Price of Crude Oil and the data provided to the Calculation
Agent by the Trustee pursuant to Section 4.1 hereof and by the Up-MACRO Holding
Trustee pursuant to Section 4.1 of the Up-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 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 or 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
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 Down-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 Down-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 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 or (ii) 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
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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 Down-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 Down-MACRO Holding Trust.
(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 DOWN-MACRO HOLDING SHARES
Section 5.1 Rights of Holders of the Down-MACRO Holding Shares. Each
Down-MACRO Holding Share represents an undivided beneficial interest in the
Down-MACRO Holding Trust and the Beneficial Owner thereof is entitled to receive
distributions on such Down-MACRO Holding Share on the dates and in the amounts
specified in Section 5.2 from assets on deposit in the Down-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 Down-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 Down-MACRO Fee
Deduction Amount into the Fee Payment Account for application to the
payment of Down-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 Down-MACRO Expenses, for the payment of the Down-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 Down-MACRO Settlement Payment to the
Up-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 Down-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 Down-MACRO Aggregate Par Amount on such
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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 Down-MACRO Income Distribution Payment to
the Up-MACRO Holding Trust, if such a payment is due under the Income
Distribution Agreement; and
(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 Down-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 Down-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 Down-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 Down-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 Down-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 Down-MACRO Redemption
Percentage for such Paired Optional Redemption and the Down-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 Down-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 Up-MACRO Holding Trustee and
deliver the remaining Eligible
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Treasuries that were segregated, together with the Up-MACRO Settlement
Payment, if any, that was received from the Up-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 Down-MACRO Holding Trust,
shall apply funds on deposit in the Fee Payment Account to pay the following
expenses (such expenses, the "Down-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 Down-MACRO
and Up-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 Down-MACRO Holding
Trust and the Down-MACRO Tradeable Trust;
(v) registration fees incurred in complying with the public
registration requirements for the Down-MACRO Holding Shares and the
Down-MACRO Tradeable Shares;
(vi) expenses incurred in connection with complying with the
reporting obligations of the Down-MACRO Holding Trust and the Down-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 Down-MACRO Holding Trust or the
Down-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 Down-MACRO Tradeable Trustee, and the Administrative
Agent pursuant to actions permitted or required under this Trust
Agreement, the Down-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 Down-MACRO Holding Trust.
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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 Down-MACRO Expenses on behalf of the Down-MACRO Holding
Trust and the Down-MACRO Tradeable Trust.
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 Down-MACRO Expenses have been paid, the Trustee,
on behalf of the Down-MACRO Holding Trust, shall apply the remaining funds on
deposit in the Fee Payment Account to pay the following fees (collectively, the
"Down-MACRO Fees"):
(i) to the Trustee, the Down-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 Down-MACRO Administration and Marketing
Fee that has accrued during the preceding Calculation Period;
(iii) to MacroMarkets LLC, the Down-MACRO Licensing Fee for the
preceding Calculation Period;
(iv) to MacroMarkets LLC, the Down-MACRO Structuring Fee that has
accrued during the preceding Calculation Period;
(v) to MACRO Financial, LLC, the Down-MACRO Marketing Fee that has
accrued during the preceding Calculation Period;
(vi) to the Calculation Agent, the Down-MACRO Calculation Agent Fee
that has accrued during the preceding Calculation Period;
(vii) to the SNIR Service Agent, the Down-MACRO SNIR Service Agent
Fee that has accrued during the preceding Calculation Period;
(viii) to MacroMarkets LLC, the Down-MACRO Sublicensing Fee for the
preceding Calculation Period; and
(ix) fees payable to any other entities which have provided services
to the Down-MACRO Holding Trust or the Down-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 Down-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
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full, the Depositor shall be required to pay such unpaid fees on behalf of the
Down-MACRO Holding Trust and the Down-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 Down-MACRO Holding Trust to pay to the Up-MACRO Holding
Trust the Down-MACRO Income Distribution Payment, from amounts on deposit in the
Distribution Account, if any such payment is owed by the Down-MACRO Holding
Trust with respect to the related Distribution Date, as calculated pursuant to
Section 4.3(a) hereof. If the Down-MACRO Holding Trust has no Down-MACRO
Available Income on such Distribution Date, then the Down-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 Up-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 Down-MACRO Holding Trust to make the Down-MACRO Settlement
Payment to the Up-MACRO Holding Trust from amounts on deposit in the
Distribution Account if any such payment is owed by the Down-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 Down-MACRO Holding Trust to make a
Down-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 Up-MACRO Settlement
Payment received from the Up-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.
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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
Down-MACRO and Up-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. Down-MACRO Holding Shares
will be redeemed at their Per Share Underlying Value, as calculated on the
Redemption Order Date on which the related 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 Down-MACRO and Up-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 earliesr 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 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 Down-MACRO
and Up-MACRO Tradeable Shares constituting at least one or more whole MACRO
Units are not tendered to the Trustee for redemption, (iii) if the Depositor has
determined, based upon an opinion of counsel, and advised the Trustee, that such
Redemption Order would have adverse tax or securities laws consequences for
either of the Paired Holding Trusts, the Down-MACRO Tradeable Trust or Up-MACRO
Tradeable Trust, the Holders of the Paired Holding Shares or the Holders of the
Down-MACRO Tradeable Shares or Up-MACRO Tradeable Shares, (iv) if
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the acceptance or receipt of the Redemption Order would, in the opinion of
counsel to the Depositor acceptable to the Trustee, be unlawful, (v) if any such
redemption would cause the Down-MACRO Tradeable Trust to hold fifty percent or
less of the Outstanding Down-MACRO Holding Shares, (vi) if circumstances outside
the control of the Trustee, the Depositor or the Administrative Agent make it
impractical or not feasible to process the Redemption Order on the Redemption
Order Date or the Redemption Date, or (vii) if the Up-MACRO Holding Trustee has
notified the Trustee that it has rejected the related Redemption Order or the
related Exchange Order delivered under the Up-MACRO Holding Trust Agreement for
one of the reasons described in Section 6.1(c) of the Up-MACRO Holding Trust
Agreement. None of the Trustee, the Depositor or the Administrative Agent shall
be liable to any Person for rejecting a Redemption Order pursuant to 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
Treasuries then on deposit in the Down-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 Down-MACRO
Holding Trust that are the most recently-acquired Eligible Treasuries with
a Value equal to the product of the Down-MACRO Redemption Percentage and
the Down-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
Down-MACRO Settlement Payment, if any such payment is required to be made
by the Down-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 Down-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 Down-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 Down-MACRO
Holding Trust with the same acquisition date, the same purchase price, the same
maturity and the same implied discount or stated interest. The
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Trustee shall cause the Down-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 Down-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
Down-MACRO 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 Down-MACRO Holding Trust shall issue additional Down-MACRO Holding
Shares contemporaneously with the issuance of additional Up-MACRO Holding Shares
in the form of MACRO Units (such an issuance, a "Paired Issuance") and, if
applicable, concurrently exchange such MACRO Units to their related Tradeable
Shares following the receipt of, and in accordance with, a Creation Order
delivered by an Authorized Participant and forwarded to the Trustee by the
Administrative Agent. Only Authorized Participants may direct Paired Issuances.
Down-MACRO Holding Shares will be issued at the Per Share Underlying Value of
the existing Down-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 Down-MACRO Holding Shares being created, an amount
equal to the Down-MACRO and Up-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 earliesr of (i) half an
hour before the end of
48
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 Down-MACRO
Holding Shares that the Down-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 Down-MACRO Tradeable Trust or Up-MACRO Tradeable Trust, the
Holders of the Paired Holding Shares or the Holders of the Down-MACRO Tradeable
Shares or Down MACRO Tradeable Shares, (iv) the acceptance or fulfillment of
which would, in the opinion of counsel to the Depositor acceptable to the
Trustee, be unlawful, (v) if any such creation would cause the Down-MACRO
Tradeable Trust to hold fifty percent or less of the Outstanding Down-MACRO
Holding Shares, (vi) if the Up-MACRO Holding Trustee notifies the Trustee that
the Creation Order for additional Up-MACRO Holding Shares has been or will be
rejected by it or by the Administrative Agent on behalf of the Up-MACRO Holding
Trust, (vii) if circumstances outside the control of the Trustee, the Depositor
or the Administrative Agent make it impractical or not feasible to process the
Creation Order on the Issuance Order Date or on the Issuance Date, or (viii) if
there are not sufficient Down-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 Down-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 Up-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 Down-MACRO and Up-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
Up-MACRO
49
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 Down-MACRO and Up-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
Up-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, executed Settlement Contract shall be
maintained by the Trustee among the books and records it keeps on behalf of the
Down-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 Down-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 Down-MACRO Holding Shares, all of such Down-MACRO Holding
Shares shall be cancelled by the Trustee, on behalf of the Down-MACRO Holding
Trust, in accordance with the procedures of the Depository. On any Redemption
Date on which a Net Par Amount Decrease occurred, Down-MACRO Holding Shares in
an amount equal to such Net Par Amount Decrease shall be cancelled by the
Trustee, on behalf of the Down-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
50
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 Up-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 Down-MACRO Holding
Share and each Up-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 Down-MACRO Earned Income
Accruals and the Up-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 Down-MACRO and Up-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; 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 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 (ii) the Per Share Underlying Value
51
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
(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 Down-MACRO and Up-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 Up-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 Down-MACRO Tradeable
Trust and the Up-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 the Down-MACRO Holding Trust and 50% of such funds shall be
deposited into the Up-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 Down-MACRO or Up-MACRO
Investment Amount to equal less than 10 million dollars; and
(iv) for such other period as the Depositor, the Trustee or the
Administrative Agent determines to be necessary for the
protection of the Beneficial Owners of any of the Paired
Holding Shares, the Down-MACRO Tradeable Shares or the
Up-MACRO Tradeable Shares.
None of the Depositor, the Trustee or the Administrative Agent will be
liable to any Person for any loss or damages that may result from any such
suspension or postponement.
Section 6.7 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
52
Attachment A-I, respectively, to the Participants Agreement, which may be
amended from time to time with the written consent of the Trustee, the
Down-MACRO Tradeable Trustee, the Up-MACRO Holding Trustee, the Up-MACRO
Tradeable Trustee and the Administrative Agent in accordance with the provisions
thereof.
(b) The Trustee and the Administrative Agent shall only process
Redemption Orders 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 Down-MACRO Holding Trust
and at the direction of the Administrative Agent, shall apply funds in the
amount specified in 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 Down-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 Down-MACRO
Holding Trust and the Up-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
53
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 Down-MACRO Holding Trust on every other Distribution Date such
that the amount invested in Eligible Treasury Repurchase Agreements is
equal to 10% plus the highest percentage of Down-MACRO Holding Shares
that were redeemed on anyone Redemption Date (relative to all
Outstanding Down-MACRO Holding Shares on such Redemption Date) during
the preceding twelve-month period.
The Trustee shall cause the Down-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 and the Up-MACRO
Holding Trustee in allocating all Eligible Treasury Securities acquired as
described above equally between the Down-MACRO Holding Trust and the Up-MACRO
Holding Trust. Eligible Treasury Securities allocated to the Down-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 Down-MACRO Holding Trust and the Up-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.
54
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 Down-MACRO Holding Trust in cash equal to the amount paid for its
Down-MACRO Holding Shares. Except as provided for herein, a Holder shall not be
required to make any further Capital Contributions to the Down-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 Down-MACRO Holding Trust in respect of the Holder's Capital Contributions to
the Down-MACRO Holding Trust (each, a "Capital Account"), to which the following
provisions shall apply:
(a) The Capital Account of each Holder initially shall be equal to
the cash contributed in exchange for its Down-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 Down-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
Down-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
Down-MACRO Holding Trust to such Holder on such day; (B) the
fair market value of any property other than cash distributed
by the Down-MACRO Holding Trust to such Holder on such day;
and (C) such Holder's interest in the Net Loss (and items
thereof) of the Down-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 Down-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 Down-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 Down-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 Down-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 Down-MACRO Holding
55
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 Down-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
Down-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 Down-MACRO Holding Trust dissolves and terminates.
(c) Before any distribution of property (other than cash) from the
Down-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 Down-MACRO Holding Trust), the Capital Accounts of all Holders
of the Down-MACRO Holding 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
Down-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 Down-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
56
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 Down-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 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 Down-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 Down-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 Down-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
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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 Down-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 Down-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 Down-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, deduction and expense with respect to transferred
Down-MACRO Holding Shares and redeemed Down-MACRO Holding Shares. A transferee
who takes all or part of a Holder's Down-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 Down-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 Down-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 Down-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 Down-MACRO Holding Trust. The initial balance
of each tax basis account shall be the amount contributed to the capital
of the Down-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 Down-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);
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(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
Down-MACRO Holding Shares other than as a consequence of a partial
redemption of Down-MACRO Holding Shares; and
(3) When any Down-MACRO Holding Share is redeemed, the tax
basis account attributable to such redeemed Down-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 Down-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
Down-MACRO Holding Shares in the Down-MACRO Holding Trust. If the
aggregate amount of recognized capital gain to be so allocated to all
Holders who have redeemed Down-MACRO Holding Shares on such day is less
than the excess of all such amounts received upon redemption over all such
tax basis 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 Down-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 Down-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 Down-MACRO Holding Shares on such
day up to any excess of (A) the tax basis account attributable to the
redeemed Down-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 Down-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 Down-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))
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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 Down-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 and expense for tax
purposes, the adoption or modification of any accounting procedures, any
adjustments to the books and records of the Down-MACRO Holding Trust and all
matters related to liquidation and dissolution of the Down-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 Down-MACRO Holding Trust, no Holder shall
be required to make any contribution to the Down-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 Down-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
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(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 Down-MACRO Asset
Amount on a day, excluding from such calculation the increase due to any
contributions with respect to a Paired Issuance made with respect to the
Down-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 Down-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).
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ARTICLE 8
REPORTING
Section 8.1 Calculations for the Down-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 Down-MACRO Aggregate Par Amount and the Up-MACRO Aggregate
Par Amount on that day;
(ii) the Down-MACRO Asset Amount and the Up-MACRO Asset Amount on
that day;
(iii) the Down-MACRO Underlying Value and the Up-MACRO Underlying
Value on that day, and the Per Share Underlying Value of a Down-MACRO
Holding Share, an Up-MACRO Holding Share, a Down-MACRO Tradeable Share and
an Up-MACRO Tradeable Share on that day;
(iv) the Down-MACRO Daily Fee Accrual and the Up-MACRO Daily Fee
Accrual for that day and the cumulative amount of the Down-MACRO Daily Fee
Accruals and the Up-MACRO Daily Fee Accruals for each day since the
preceding Distribution Date;
(v) the Down-MACRO Investment Amount and the Up-MACRO Investment
Amount on the preceding Distribution Date and the Down-MACRO Investment
Amount and the Up-MACRO Investment Amount on that day;
(vi) the Down-MACRO Available Income Accrual and the Up-MACRO
Available Income Accrual for that day and the cumulative amount of the
Down-MACRO Available Income Accruals and the Up-MACRO Available Income
Accruals for each day since the preceding Distribution Date;
(vii) the amount of the Down-MACRO Available Income in the
Down-MACRO Holding Trust and the amount of the Up-MACRO Available Income
in the Up-MACRO Holding Trust and the amount of the Down-MACRO Available
Income and the amount of the Up-MACRO Available Income allocable to each
Down-MACRO Holding Share and Up-MACRO Holding Share, respectively;
(viii) the Down-MACRO Earned Income Accrual and the Up-MACRO Earned
Income Accrual for that day and the cumulative amount of the Down-MACRO
Earned Income Accruals and the Up-MACRO Earned Income Accruals for each
day since the preceding Distribution Date;
(ix) the number of Down-MACRO Holding Shares and Up-MACRO Holding
Shares issued in Paired Issuances during the current Calculation Period;
(x) the number of Down-MACRO Holding Shares and Up-MACRO Holding
Shares redeemed in a Paired Optional Redemption during the current
62
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 Down-MACRO Holding Shares and Up-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 Down-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 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 Down-MACRO Underlying Value, the Up-MACRO Underlying Value
and the Per Share Underlying Value of a Down-MACRO Holding Share, an
Up-MACRO Holding Share, a Down-MACRO Tradeable Share and an Up-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 Up-MACRO Holding Trust
Agreement;
(ii) the Down-MACRO Settlement Payment, if any, to be paid by the
Down-MACRO Holding Trust to the Up-MACRO Holding Trust and the Up-MACRO
Settlement Payment, if any, to be paid by the Up-MACRO Holding Trust to
the Down-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 Down-MACRO Holding Share and each Up-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 Down-MACRO Underlying Value, the Up-MACRO Underlying Value,
and the Per Share Underlying Value of a Down-MACRO Holding Share, an
Up-MACRO Holding Share, a Down-MACRO Tradeable Share and an Up-MACRO
Tradeable Share on such Issuance Order Date; and
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(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 Down-MACRO Holding Trust the following
information:
(i) the Down-MACRO Fee Deduction Amount and the Up-MACRO Fee
Deduction Amount for each of the three preceding Calculation Periods;
(ii) the aggregate amount of all Down-MACRO Expenses, all Down-MACRO
Fees, all Up-MACRO Expenses and all Up-MACRO Fees presented to the Trustee
for payment during each of the three preceding Calculation Periods;
(iii) the Down-MACRO Income Distribution Payment, if any, paid by
the Down-MACRO Holding Trust to the Up-MACRO Holding Trust and the
Up-MACRO Income Distribution Payment, if any, paid by the Up-MACRO Holding
Trust to the Down-MACRO Holding Trust under the Income Distribution
Agreement on each of the three preceding Distribution Dates;
(iv) the Down-MACRO Earned Income Accrual and the Up-MACRO Earned
Income Accrual for each of the three preceding Calculation Periods;
(v) the Down-MACRO Available Income and the Up-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 Down-MACRO
Tradeable Trust and Up-MACRO Tradeable Trust; and
(vii) the number of Down-MACRO Holding Shares and Up-MACRO Holding
Shares redeemed during the preceding calendar quarter and the number of
Down-MACRO Holding Shares and the Up-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 Down-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 Down-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
64
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 Down-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 Down-MACRO Tradeable
Trustee, the Up-MACRO Holding Trustee, the Administrative Agent, either
Marketing Agent or the Calculation Agent under the Calculation Agency
Agreement;
(v) the appointment of a successor trustee for the Up-MACRO Holding
Trust and/or the Down-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 Down-MACRO Tradeable
Trust Agreement, the Up-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
Down-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
Down-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
Down-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;
65
and (iv) any material weaknesses in such controls are able to be identified for
the Down-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 Down-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 Down-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.
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 Down-MACRO Holding Trust, the Trustee, the Holders of the
Down-MACRO Holding Shares, the Up-MACRO Holding Trust, the Up-MACRO Holding
Trustee, the Holders of the Up-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 Down-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,
66
if the Trust Assets at the time the claim is made were not used to pay in full
all Outstanding Down-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
Down-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 Depositor Indemnified
Party arising out of or in connection with the performance of its obligations
hereunder or any actions taken in accordance with the provisions of this Trust
Agreement or (2) reckless disregard on the part of such Depositor Indemnified
Party of its obligations and duties under this Trust Agreement. Each Depositor
Indemnified Party shall also be indemnified by the Down-MACRO 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 Down-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 Down-MACRO
Holding Trust, the
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Trustee, the Holders of the Down-MACRO Holding Shares, the Up-MACRO Holding
Trust, the Up-MACRO Holding Trustee, the Holders of the Up-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 Up-MACRO Holding Trustee, the Down-MACRO Tradeable Trustee, the Up-MACRO
Tradeable Trustee or any Authorized Participant respecting any matters arising
hereunder. The Administrative Agent shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties
as Administrative Agent in accordance with this Trust Agreement and which in its
reasonable judgment may involve it in any expense or liability unless the
Administrative Agent has obtained an indemnity from the Holders of the
Down-MACRO 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 Down-MACRO Holding Shares and the rights and duties of the
parties hereto.
Section 10.4 Administrative Agent Indemnification of the Down-MACRO
Holding Trust and the Trustee. The Administrative Agent shall indemnify and hold
harmless the Down-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 Down-MACRO Holding Trust
or the Holders of the Down-MACRO Holding Shares for any liabilities, costs or
expenses of the Down-MACRO Holding Trust with respect to any action taken by the
Trustee at the request of the Holders of the Down-MACRO Holding Shares;
provided, further, that the Administrative Agent shall not indemnify the
Down-MACRO Holding Trust or the Holders of the Down-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 Down-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
Down-MACRO Holding Trust or the Holders of the Down-MACRO Holding Shares for any
liabilities, costs or expenses of the Down-MACRO Holding Trust or the Holders of
the Down-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 Down-MACRO
Holding Trust or the Holders of the Down-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
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Indemnified Party, subject to the limitations hereof. The obligations of the
Administrative Agent under this Section 10.4 shall survive the termination of
the Down-MACRO 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 Down-MACRO Holding Trust shall
be accompanied by the delegation of such similar duties to the same entity with
respect to the Up-MACRO Holding Trust, unless the prior written consent of the
Depositor is obtained. Notwithstanding anything herein to the contrary, the
Administrative Agent shall not assign any of its duties and responsibilities
hereunder, provided, that the Administrative Agent shall be entitled to assign
or pledge its right to receive the Down-MACRO Administration and Marketing Fee
hereunder to any third party.
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 Down-MACRO Holding Trust, the
Depositor and the resigning Administrative Agent; or
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(ii) until the assets of the Down-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
Down-MACRO Holding Trust of an instrument of resignation, the resigning
Administrative Agent may petition at the expense of the Down-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.
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 Down-MACRO Holding Trust, the
Trustee, the Administrative Agent, the Holders of the Down-MACRO Holding Shares,
the Up-MACRO Holding Trust, the Up-MACRO Holding Trustee, the Holders of the
Up-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 Up-MACRO Holding Trustee, the Down-MACRO Tradeable
Trustee, the Up-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 Down-MACRO Holding Shares sufficient to hold it harmless from such
liability.
Section 10.10 Marketing Agent Indemnification of the Down-MACRO Holding
Trust and the Trustee . Each Marketing Agent shall indemnify and hold harmless
the Down-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
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shall indemnify the Down-MACRO Holding Trust or the Holders of the Down-MACRO
Holding Shares for any liabilities, costs or expenses of the Down-MACRO Holding
Trust with respect to any action taken by the Trustee at the request of the
Holders of the Down-MACRO Holding Shares; provided, further, that neither
Marketing Agent shall indemnify the Down-MACRO Holding Trust or the Holders of
the Down-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 Down-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 Down-MACRO Holding Trust or the Holders of the Down-MACRO Holding
Shares for any liabilities, costs or expenses of the Down-MACRO Holding Trust or
the Holders of the Down-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 Down-MACRO Holding Trust or the Holders of the Down-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 obligations of each
Marketing Agent under this Section 10.10 shall survive the termination of the
Down-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
Down-MACRO Holding Trust shall be accompanied by the delegation of such similar
duties to the same entity with respect to the Up-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.
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ARTICLE 11
EARLY TERMINATION
Section 11.1 Termination Triggers.
(a) The Down-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
Down-MACRO Underlying Value; or (iii)(a) NYMEX terminates the NYMEX
License or does not agree to a renewal thereof after the expiration of its
initial 5-year term and the Depositor and MacroMarkets LLC are unable to
enter into a Substitute Reference Price Licensing Agreement with the Dow
Xxxxx Energy Service or (b) in the event that the Depositor and
MacroMarkets LLC have already entered into a Substitute Reference Price
Licensing Agreement, the Substitute Oil Price Provider which is party to
such agreement terminates that license and, in the case of either (a) or
(b), the Holders do not select a Substitute Oil Price Provider or the
Depositor and MacroMarkets LLC are unable to enter into a Substitute
Reference Price Licensing Agreement with the Substitute Oil Price Provider
that was selected by the Holders;
(ii) the Applicable Reference Price of Crude Oil rises to or above
$111, at which level the Underlying Value of the 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 Down-MACRO Holding Trust, the Up-MACRO Holding
Trust, the Down-MACRO Tradeable Trust or the Up-MACRO Tradeable Trust
becomes required to register as an "investment company" under the
Investment Company Act; provided, that the failure of the Down-MACRO
Tradeable Trust to hold at least a majority of the Down-MACRO Holding
Shares or the failure of the Up-MACRO Tradeable Trust to hold at least a
majority of the Up-MACRO holding shares will not constitute a
termination trigger until the expiration of 90 days following the date
as of which such failure first occurred, during which period the
administrative agent will be permitted to seek to remedy such failure;
(iv) any of the Down-MACRO Holding Trust, the Up-MACRO Holding
Trust, the Down-MACRO Tradeable Trust or the Up-MACRO Tradeable Trust
becomes a commodities pool that is regulated under the CEAct;
(v) DTC becomes unwilling or unable to act as Depository under this
Trust Agreement and no suitable replacement is willing and able to assume
the duties of the Depository hereunder;
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(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 Down-MACRO Holding Trust
and 66 and 2/3% of the Holders of the Down-MACRO Holding Trust and the
Up-MACRO Holding Trust, each voting as a separate class (with each Holder
of Tradeable Shares being entitled to vote the underlying Holding Shares
on deposit in its Tradeable Trust), consent to such termination;
(viii) a decree or order is entered by a court having competent
jurisdiction adjudging any of the Down-MACRO Holding Trust, the Up-MACRO
Holding Trust, the Down-MACRO Tradeable Trust or the Up-MACRO Tradeable
Trust to be bankrupt or insolvent or granting an order for relief or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of any of the
Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust under the Bankruptcy Code
or any other applicable law, or appointing a receiver, liquidator,
assignee or sequestrator (or other similar official) of any of the
Down-MACRO Holding Trust, the Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust or the Up-MACRO Tradeable Trust or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs,
or, in a court having jurisdiction, any of the Down-MACRO Holding Trust,
the Up-MACRO Holding Trust, the Down-MACRO Tradeable Trust or the Up-MACRO
Tradeable Trust commences a voluntary case or proceeding under the
Bankruptcy Code or any other applicable law, or an involuntary case or
proceeding is commenced against any of the Down-MACRO Holding Trust, the
Up-MACRO Holding Trust, the Down-MACRO Tradeable Trust or the Up-MACRO
Tradeable Trust, seeking any of the foregoing and such case or proceeding
continues undismissed or unstayed and in effect for a period of 90
consecutive days;
(ix) the amount of cash and Eligible Treasuries on deposit in the
Down-MACRO Holding Trust or the Up-MACRO Holding Trust is reduced to less
than ten (10) million dollars; and
(x) the amount of cash and Eligible Treasuries on deposit in the
Down-MACRO Holding Trust or the Up-MACRO Holding Trust is reduced to fifty
(50) million dollars or less after previously reaching an amount equal to
two hundred (200) million dollars or more, or the failure on the part of
the Paired Holding Trusts to each hold cash and Eligible Treasuries in an
amount equal to at least two hundred (200) million dollars after six (6)
months or more have elapsed since the Closing Date and 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
Up-MACRO Holding Trustee, the Down-MACRO Tradeable Trustee, the Up-MACRO
Tradeable Trustee and the Registered Owners of the Down-MACRO Holding Shares.
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(c) On the next Distribution Date following the occurrence of a
Termination Trigger (an "Early Termination Date"), the Trustee and the Up-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 Down-MACRO Holding
Shares, as set forth in Section 5.2. Upon receipt of this Final Distribution,
all Outstanding Down-MACRO Holding Shares shall be deemed to be redeemed in
full.
(d) The Depositor, upon receiving or otherwise obtaining actual
knowledge of the occurrence of any Termination Trigger, shall file a Form 8-K
with the SEC disclosing such occurrence.
(e) In the event that the Down-MACRO Tradeable Trust at any time
holds less than a Majority of the Outstanding Down-MACRO Holding Shares or the
Up-MACRO Tradeable Trust holds less than a Majority of the Outstanding
Up-MACRO Holding Shares, the Administrative Agent shall be permitted to seek
to restore such Majority ownership by the Down-MACRO Tradeable Trust and/or
the Up-MACRO Tradeable Trust for a period of 90 days following the first day
on which the applicable tradeable trust ceased to be the Majority owner of the
Down-MACRO or Up-MACRO Holding Shares that it holds on deposit. In the event
that such Majority ownership has not been restored on or prior to the
expiration of such 90-day period, a Termination Trigger will occur pursuant to
subclause (iii) of clause (a) of this Section 11.1.
ARTICLE 12
TRUSTEE TERMINATION EVENTS
Section 12.1 Trustee Termination Events. Any one of the following events
shall constitute a Trustee Termination Event (a "Trustee Termination Event"):
(a) to the extent that funds are available in the Down-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;
(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 Down-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;
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(e) the Trustee becomes ineligible or incapable of acting as Trustee
hereunder;
(f) the occurrence of a Trustee Termination Event under the Up-MACRO
Holding Trust Agreement, pursuant to the terms of the Up-MACRO Holding Trust
Agreement;
(g) 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; or
(h) the occurrence of a Trustee Termination Event under the Up-MACRO
Tradeable Trust Agreement, pursuant to the terms of the Up-MACRO Tradeable Trust
Agreement.
Section 12.2 Force Majeure. Notwithstanding the foregoing, any delay in or
failure of performance under 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 Down-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.
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 Down-MACRO Holding Trust to make its required
payments under the Income Distribution Agreement and the Settlement
Contracts;
(ii) making distributions on the Down-MACRO Holding Shares in
accordance with Section 5.2 and Section 6.1 hereof;
(iii) administering the Down-MACRO Holding Trust;
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(iv) at the direction of the Administrative Agent, acquiring
Eligible Treasuries on behalf of the Down-MACRO Holding Trust;
(v) paying the fees and expenses of the Down-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 Down-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
(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
Down-MACRO Holding Trust, except as expressly directed by the Administrative
Agent in accordance with the provisions of this Trust Agreement.
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(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 Down-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 or unless requested in
writing to do so by Holders evidencing more than 25% of the Down-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 Down-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
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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 Down-MACRO Holding Shares.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Down-MACRO Holding Shares (other than the
certificate of authentication on the Down-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 Down-MACRO Holding Shares (other
than the certificate of authentication on the Down-MACRO Holding Shares).
Section 13.4 Holders May Direct Trustee. Holders of Down-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 Down-MACRO Trustee Fee for all
services rendered by it under this Trust Agreement and in the exercise and
performance of any of the powers and duties hereunder of the Trustee. The
entitlement of the Trustee under this Section 13.5 for past services rendered
shall survive the termination of the Down-MACRO Holding Trust.
Section 13.6 Indemnification. The Trustee and its directors, shareholders,
officers, employees, agents, affiliates (as such term is defined in Regulation
S-X of the Securities Act) and subsidiaries (each, a "Trustee Indemnified
Party") shall be indemnified 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 Down-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 Down-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 Down-MACRO
Holding Shares (which, by way of illustration and not by way of limitation,
include the Registration Statement and any amendments thereof or supplements
thereto filed with the SEC or any periodic reports or updates that may be filed
under the Exchange Act), but not including any information provided in writing
by the Trustee to the Depositor for use in the Registration Statement or any
other filing with the SEC. Such indemnity shall include payment from the
Down-MACRO 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 Down-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 Down-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 Down-MACRO Holding Trust and the
rights of all Beneficial Owners pursuant to the terms of this Trust Agreement.
Any
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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 Up-MACRO Holding Trust, the Down-MACRO
Tradeable Trust and the Up-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:
(i) until a Successor Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Trustee and
delivered to the Down-MACRO Holding Trust, the Depositor, the
Administrative Agent and the resigning Trustee; or
(ii) until the assets of the Down-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 Down-MACRO Holding Trust of an instrument of
resignation, the resigning Trustee may petition at the expense of the
Down-MACRO Holding Trust any court of competent jurisdiction for appointment
of a
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Successor Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Trustee.
(d) No Trustee shall be liable for anything that occurs after it has
ceased to act in such capacity, including, without limitation, the acts or
omissions to act of any Successor Trustee; provided, that such resigning or
terminated Trustee shall remain liable for any actions taken by it prior to its
termination or resignation as a result of which it would be liable to the
Down-MACRO 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
Down-MACRO Holding Shares, voting by Down-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.
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.
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(a) Notwithstanding any other provisions of this Trust Agreement,
the Trustee shall have the power and may execute and deliver all instruments
to appoint, at any time, one or more Persons to act as a co-trustee or
co-trustees, or a separate trustee or separate trustees, of all or any part of
the Trust Assets, and to vest in such Person or Persons, in such capacity and
for the benefit of the Holders of the Down-MACRO 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 Up-MACRO Holding Trust
Agreement, the Down-MACRO Tradeable Trust Agreement and the Up-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 Down-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.
(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
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by law, to do any lawful act under or in respect to this Trust Agreement on
its behalf and in its name. If any co-trustee or separate trustee shall become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts under or in respect to this Trust Agreement shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 13.12 Books, Records; Taxes; Audit.
(a) The Trustee shall keep proper books of record and account of
all the transactions under this Trust Agreement at its Corporate Trust Office
or such office as it may subsequently designate upon notice to the other
parties hereto. The books and records of the Trustee shall be open to
inspection by any Person who establishes to the Trustee's reasonable
satisfaction that it is a Beneficial Owner upon reasonable advance notice at
all reasonable times during the usual business hours of the Trustee. The
Administrative Agent shall keep proper records of all Paired Optional
Redemptions and Paired Issuances effected at any time at its Business Office.
Such records shall be open to inspection by any Person who establishes to the
Administrative Agent's reasonable satisfaction that it is a Beneficial Owner
upon reasonable advance notice at all reasonable times during the usual
business hours of the Administrative Agent. Such records shall be preserved by
the Trustee or the Administrative Agent, as applicable, for so long as the
Depositor may direct.
(b) The Trustee shall provide the Depositor such financial and other
information regarding the operation of the Down-MACRO 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 Down-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 Down-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.
(d) In no event shall the Trustee, the Depositor or the
Administrative Agent be personally liable for any taxes or other governmental
charges imposed upon or in respect of the Down-MACRO Holding Shares under any
present or future law of the United States of America or imposed by any taxing
authority having jurisdiction over the Down-MACRO 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 Down-MACRO Holding Trust and the
payment of such amounts shall be secured by a lien on the Down-MACRO Holding
Trust. Any payments by the Trustee or the Administrative Agent shall be subject
to withholding regulations then in force. This paragraph shall survive
notwithstanding any termination of this Trust Agreement and the Down-MACRO
Holding Trust or the resignation or removal of the
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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 Down-MACRO Holding
Trust, the Depositor shall reimburse the Trustee and the Administrative Agent
therefor.
(e) The accounts of the Down-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 Down-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 Down-MACRO
Holding Shares . All rights of action and claims under this Trust Agreement or
the Down-MACRO Holding Shares may be prosecuted and enforced by the Trustee
without the possession of any of the Down-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 Down-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 Down-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
Down-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 Down-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 Owners of the
Down-MACRO Holding Shares of any change in the location of the Corporate Trust
Office.
ARTICLE 14
TERMINATION
Section 14.1 Termination of Trust. The Down-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 Down-MACRO Holding Trust
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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 Down-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 Down-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 Down-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 "Down-MACRO Underlying Value," "Up-MACRO
Underlying Value," "Down-MACRO Income Distribution Payment," "Up-MACRO Income
Distribution Payment," "Down-MACRO Settlement Payment," "Up-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 Down-MACRO Holding Shares are held by the Down-MACRO Tradeable
Trust.
(b) Subject to clause (a) of this Section 15.1, this Trust Agreement
may be amended from time to time with the written consent of the Depositor, the
Administrative Agent and the Trustee, but without the consent of any Holder of
Down-MACRO 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 Up-MACRO Holding Trust Agreement, the Down-MACRO
Tradeable Trust Agreement or the Up-MACRO Tradeable Trust Agreement, (ii) to
modify any provision of or add a provision to this Trust Agreement to conform it
to the description of the terms of the Down-MACRO 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
Down-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 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 Up-MACRO Holding Trustee, the Down-MACRO Tradeable Trustee, the Up-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
Down-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
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this Trust Agreement may be made if it would have the effect of causing the
Down-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 Down-MACRO Holding Shares evidencing not less than a
majority of the Down-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 Down-MACRO Holding Shares; provided, that the Up-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 Down-MACRO Holding Shares and the
Up-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 Down-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 Down-MACRO Holding Trust and the Down-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 Down-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 Down-MACRO Holding Shares, such amendment shall
not be effective unless and until an identical amendment has been made to the
Up-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.
(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
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approved. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Holders of the Down-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 Down-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 Down-MACRO Holding Shares or to make any Down-MACRO
Income Distribution Payment or any Down-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 Down-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 Down-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 Down-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
Down-MACRO Holding Trust shall continue to offer or sell Down-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 Down-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 Down-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 under the
federal securities laws of the United States, deliver in conjunction with any
marketing or computational materials, in any manner permitted by such laws, a
copy of the Prospectus, as most recently furnished to the Administrative Agent
by the Depositor.
Section 15.4 Protection of Right, Title and Interest to Trust Assets.
(a) The Depositor shall cause this Trust Agreement, all amendments
hereof and supplements hereto and all financing statements, continuation
statements and any other necessary documents covering the right, title and
interest of the Holders of the Down-MACRO 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
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filed, all in such manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of the Holders of the
Down-MACRO 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 Up-MACRO Holding
Trustee, on behalf of the Up-MACRO Holding Trust, in the Trust Assets which
shall secure the obligations of the Down-MACRO Holding Trust to the Up-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 Down-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 Down-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 Down-MACRO Holding
Shares.
(a) The death or incapacity of any Holder of the Down-MACRO Holding
Shares shall not operate to terminate this Trust Agreement or the Down-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 Down-MACRO Holding Trust, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Holder of the Down-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 Down-MACRO Holding Trust,
or the obligations of the parties hereto, nor shall any Holder of the Down-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 Down-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 Down-MACRO Holding Shares representing the beneficial ownership of at least
25% of all Outstanding Down-MACRO
87
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 Down-MACRO Holding Shares shall have any right in any manner whatsoever by
virtue of or by availing itself or themselves of any
87
provisions of this Trust Agreement to affect, disturb or prejudice the rights of
any other Holder of the Down-MACRO Holding Shares, to obtain or seek to obtain
priority over or preference to any other Holder of the Down-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
Down-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 Down-MACRO Holding Shares;
Voting. Each Holder of Down-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 Down-MACRO Holding Shares. Holders of Down-MACRO Holding
Shares evidencing not less than 66 and 2/3% of the Down-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 Down-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 Down-MACRO Tradeable Trust
Agreement, the holders of the Down-MACRO Tradeable Shares shall be able to
direct the Trustee in the exercise of the voting rights associated with the
Down-MACRO Holding Shares held on deposit in the Down-MACRO Tradeable Trust.
Each holder of Down-MACRO Tradeable Shares shall be entitled to vote on (i) any
amendments to 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 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
Down-MACRO Holding Trust shall enter into the MACRO Licensing Agreement with
MacroMarkets LLC, the Administrative Agent, the Down-MACRO Tradeable Trust, the
Up-MACRO Holding Trust and the Up-MACRO Tradeable Trust. Under such licensing
agreement, MacroMarkets LLC shall be entitled to the receipt of the Down-MACRO
Licensing Fee, which shall be payable to MacroMarkets LLC in arrears on each
Distribution Date in accordance with Section 5.4 hereof.
88
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
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
89
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
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) Any Notice required or permitted to be given to a Registered
Owner of the Down-MACRO 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.
90
Section 15.10 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Trust Agreement is held
invalid for any reason whatsoever, then such provision shall be deemed severable
from the remaining provisions of this Trust Agreement and shall in no way affect
the validity or enforceability of the remaining provisions or of the Down-MACRO
Holding Shares or the rights of the Holders of the Down-MACRO Holding Shares.
Section 15.11 Down-MACRO Holding Shares Nonassessable and Fully Paid. It
is the intention of the parties to this Trust Agreement that the Holders of the
Down-MACRO Holding Shares shall not be personally liable for obligations of the
Down-MACRO Holding Trust, that the interests in the Down-MACRO Holding Trust
represented by the Down-MACRO Holding Shares shall be nonassessable for any
losses or expenses of the Down-MACRO Holding Trust or for any reason whatsoever
and that the Down-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 Down-MACRO Holding Trust, acquiesce
in, petition for or otherwise invoke or cause the Down-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 Down-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 Down-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 Down-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 Down-MACRO Holding
Shares, hereby agrees that it will not institute against a Holder, or join any
other Person in instituting against a Holder, on account of its ownership of a
Down-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 Down-MACRO Holding Shares shall have been Outstanding.
Section 15.14 No Waiver; Cumulative Remedies. No failure by the Trustee or
the Holders of the Down-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.
91
Section 15.15 Counterparts. This Trust Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 15.16 Third-Party Beneficiaries. This Trust Agreement will inure
to the benefit of and be binding upon the parties hereto, the Holders of the
Down-MACRO Holding Shares, the Holders of the Up-MACRO Holding Shares, the
holders of the Down-MACRO Tradeable Shares, the holders of the Up-MACRO
Tradeable Shares and their respective successors and permitted assigns. Except
as otherwise expressly provided in this Trust Agreement, no other Person will
have any right or obligation hereunder.
Section 15.17 Actions or Notices by Holders of the Down-MACRO 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 Down-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 Down-MACRO Holding
Shares.
(b) Any Notice, request, authorization, direction, consent, waiver
or other act by the Holder of a Down-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.
92
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 Down-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 Up-MACRO
Holding Trust
By: /S/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
EXHIBIT A
FORM OF GLOBAL CERTIFICATE
CERTIFICATE OF BENEFICIAL INTEREST
-Evidencing-
All Undivided Interests
-in-
CLAYMORE MACROSHARES OIL DOWN HOLDING TRUST
A-1
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 DOWN
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 DOWN 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.
A-2
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.
A-3
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 Down Holding Share
Certificates (the "Certificates") evidencing in the aggregate the ownership of
all issued and outstanding Claymore MACROshares Oil Down Holding Shares
("Shares"), each of which represents a fractional undivided interest in the
Claymore MACROshares Oil Down Holding Trust ("Trust"), created under the laws of
the State of New York by the Amended and Restated Claymore MACROshares Oil Down
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 Up Holding Shares (the "Up MACRO
Holding Shares"), which represent a fractional undivided interest in the
Claymore MACROshares Oil Up 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 Down Tradeable Shares, which represent
a fractional undivided interest in the Claymore MACROshares Oil Down Tradeable
Trust (the "Down MACRO Tradeable Trust").
The Depositor hereby grants and conveys all of its rights, title and
interest in and to the Trust to the extent of the undivided interest represented
hereby to the registered holder of this Certificate subject to and in pursuance
of the Agreement, all the terms, conditions and covenants of which are
incorporated herein as if fully set forth at length.
The Register holder of the Shares on each Record Date is entitled to
receive quarterly distributions out of the funds the Trust 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 Up 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
A-4
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 Down-MACRO Aggregate
Par Amount. Any such consent by the shareholders shall be conclusive and binding
on such shareholders and upon all future shareholders represented by this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the shareholders.
The trustee will not enter into any amendment or modification which
would alter the status of the Down 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 the Underlying Value.
No amendment requiring consent of the shareholders may be made at
any time during which the Down MACRO Tradeable Trust holds less than 50% of the
Shares.
This Certificate, is executed and delivered by MACRO Securities
Depositor, LLC as the Depositor in the exercise of the powers and authority
conferred and vested in it by the Agreement. The representations, undertakings
and agreements made on the part of the Trust in this Certificate are made and
intended not as personal representations, undertakings and agreements by MACRO
Securities Depositor, LLC but are made and intended for the purpose of binding
only the Trust. Nothing in this Certificate shall be construed as creating any
liability on MACRO Securities Depositor, LLC individually or personally, to
fulfill any representation, undertaking or agreement other than as provided in
the Agreement or this Certificate.
This Certificate shall not become valid or binding for any purpose
until properly executed by the Trustee and the Depositor under the Agreement.
THIS CERTIFICATE AND THE TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Terms not defined herein will have the same meaning as in the
Agreement.
A-5
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-6
EXHIBIT B
FORM OF INCOME DISTRIBUTION AGREEMENT
Filed as Exhibit 4.5 to this Registration Statement
B-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
F-1
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.
G-1
EXHIBIT H
AFFILIATED PERSON VERIFICATION GUIDELINES
1. Acquisitions of Eligible Treasuries
(a) Subject to a best execution requirement pursuant to Section
6.8, the Administrative Agent may direct the Trustee to
acquire Eligible Treasuries from Authorized Participants or
from an Affiliated Person of an Authorized Participant (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, for trades in Eligible Treasury
Securities, on prices displayed on the applicable Bloomberg
screen and, for trades in Eligible Treasury Repurchase
Agreements, general market offered yields obtained from
Bloomberg or another third-party service provider for
Eligible Treasury Repurchase Agreements.
(c) For purposes of this Exhibit H, the "Best Yield" means the
average of the five highest yields offered by sellers with
whom the Administrative Agent has a trading agreement and the
"Range" is the difference between (i) the greater of (x)
0.10% and (y) 2% times the Best Yield, which is the bottom of
the Range, and (ii) the Best Yield, which is the top of 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) For 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 Bloomberg or other pricing service yield information at
the time each Eligible Treasury Repurchase Agreement purchase
order is placed (as well as, in each case, the corresponding
trade ticket information relating to such AP Acquisition).
Such print outs will include all available offers at the time
the applicable order was placed, as well as the time, date,
amount, counterparty and implied yield or price of each
transaction.
(b) For each AP Acquisition that was effected at a yield that was
lower than the Best Yield, the Administrative Agent will
record, contemporaneously with the transaction, why the AP
Acquisition was effected at a yield that was lower than the
Best Yield.
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(c) For 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 Authorized Participant, the
Eligible Treasury Securities that were delivered in the
redemption and the Eligible Treasury Securities that were on
deposit in the Down-MACRO Holding Trust immediately prior to
the In-Kind Redemption (including on the relevant acquisition
date), and the Eligible Treasury Securities which remained on
deposit in the Down-MACRO Holding Trust after such
redemption.
(d) 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 AP
Acquisition and AP In-Kind Redemption took place.
4. Independent Verification Procedures
(a) At the conclusion of each calendar quarter, the Trustee,
acting as a verification agent (the "Verification Agent"),
shall select, randomly and without notifying the
Administrative Agent, one Business Day in each week of the
preceding quarter, and
(i) if any AP Acquisitions occurred on such day, the
Verification Agent will verify that (1) the
Administrative Agent properly identified and
recorded all such AP Acquisitions; and (2) no
transactions outside of the Range were executed with
any AP Affiliated Person; and
(ii) if any AP In-Kind Redemptions occurred on such day,
the Verification Agent will verify that (1) the
Administrative Agent properly identified and
recorded all such AP In-Kind Redemptions and (2)
that the AP In-Kind Redemptions were 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 that violates 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), hereof, as applicable, during,
(i) the six-month period that preceded such Prohibited
Transaction and
(ii) the calendar quarter that follows the Prohibited
Transaction,
to determine whether any additional Prohibited Transactions
occurred.
5. Remedy for Prohibited Transactions
(a) In the event that the Verification Agent identifies any
Prohibited Transaction, the Verification Agent will notify
the Depositor and the Administrative Agent, and the
Administrative Agent will be required to pay to the
Down-MACRO Holding Trust, for each such Prohibited
Transaction within thirty day of such notification,
H-2
(i) if the Prohibited Transaction was an AP Acquisition,
the difference between (x) the Best Yield which the
Down-MACRO Holding Trust would have obtained had
such transaction occurred, less the Range and (y)
the yield actually obtained in the Prohibited
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.
6. These procedures will apply to transactions between the Down-MACRO
Holding Trust and any Authorized Participant or any Affiliated Person
with regard to the such Authorized Participant, to the extent that
such Authorized Participant meets the definition of "principal
underwriter" with regard to the Down-MACRO Holding Trust that is set
forth in Section 2(a)(29) of the Investment Company Act of 1940, as
amended and as interpreted by the SEC and its Staff.
H-3
