EXHIBIT 4.2
FORM OF CLAYMORE MACROSHARES OIL UP
TRADEABLE TRUST AGREEMENT
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MACRO SECURITIES DEPOSITOR, LLC,
as Depositor,
INVESTORS BANK & TRUST COMPANY,
as Trustee,
CLAYMORE SECURITIES, INC.,
as Administrative Agent and a Marketing Agent
and
MACRO FINANCIAL, LLC,
as a Marketing Agent
CLAYMORE MACROSHARES OIL UP TRADEABLE TRUST
TRUST AGREEMENT
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TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions..............................................2
SECTION 1.2 Other Definitional Provisions............................8
ARTICLE 2
CREATION AND DECLARATION OF THE TRUST;
THE INITIAL DEPOSIT; FORM OF THE CERTIFICATES;
DELIVERY AND REGISTRATION OF TRANSFER
OF UP-MACRO TRADEABLE SHARES
SECTION 2.1 Initial Deposit..........................................9
SECTION 2.2 Acceptance by Trustee...................................10
SECTION 2.3 Limited Purpose of the Up-MACRO Tradeable Trust.........10
SECTION 2.4 Representations and Warranties of the Depositor.........10
SECTION 2.5 Form of Shares; Book-Entry System; Transferability
of Up-MACRO Tradeable Shares............................12
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.............................................15
SECTION 3.2 Representations, Warranties and Covenants of the
Trustee.................................................17
SECTION 3.3 Acceptance of Appointment and Matters Relating to the
Administrative Agent and the Marketing Agents...........19
SECTION 3.4 Representations, Warranties and Covenants of the
Administrative Agent and the Marketing Agents...........20
SECTION 3.5 Establishment of the Securities Account.................23
SECTION 3.6 Establishment of the Distribution Account...............24
SECTION 3.7 Establishment of the Netting Account....................24
ARTICLE 4
CALCULATIONS
SECTION 4.1 Calculations on Price Determination Days................25
SECTION 4.2 Calculation of Intraday Indicative Values...............25
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ARTICLE 5
DISTRIBUTIONS ON THE UP-MACRO TRADEABLE SHARES
SECTION 5.1 Rights of Holders of the Up-MACRO Tradeable Shares......26
SECTION 5.2 Distributions...........................................26
SECTION 5.3 Payment of Fees and Expenses............................26
ARTICLE 6
EXCHANGES OF UP-MACRO TRADEABLE SHARES
SECTION 6.1 Exchanges in Connection with Paired Optional Redemptions26
SECTION 6.2 Paired Issuances........................................27
SECTION 6.3 Exchanges of Up-MACRO Tradeable Shares Other than in
Paired Optional Redemptions or Paired Issuances.........28
SECTION 6.4 Suspension or Delay of Settlement.......................29
SECTION 6.5 The Participants Agreement..............................29
ARTICLE 7
[RESERVED].
ARTICLE 8
REPORTING TO HOLDERS OF THE UP-MACRO TRADEABLE SHARES
SECTION 8.1 Reporting to Holders of the Up-MACRO Tradeable Shares...30
SECTION 8.2 Periodic Reports........................................31
SECTION 8.3 Form 8-K Disclosure.....................................31
SECTION 8.4 Listing of the Up-MACRO Tradeable Shares................32
SECTION 8.5 Disclosure Controls and Procedures......................32
SECTION 8.6 Fund Accounting Agent Responsibilities..................32
ARTICLE 9
OTHER MATTERS RELATING TO THE DEPOSITOR
SECTION 9.1 Liability of the Depositor..............................32
SECTION 9.2 Limitations on Liability of the Depositor and Claymore
Securities, Inc.........................................32
SECTION 9.3 Liabilities; Indemnification............................33
ARTICLE 10
MATTERS RELATING TO THE
ADMINISTRATIVE AGENT AND THE MARKETING AGENTS
SECTION 10.1 Role of the Administrative Agent........................34
SECTION 10.2 Liability of the Administrative Agent...................34
SECTION 10.3 Limitation on Liability of the Administrative Agent.....34
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SECTION 10.4 Administrative Agent Indemnification of the Up-MACRO
Tradeable Trust and the Trustee.........................34
SECTION 10.5 Delegation of Duties....................................35
SECTION 10.6 Resignation or Removal of Administrative Agent..........35
SECTION 10.7 Role of the Marketing Agents............................36
SECTION 10.8 Liability of the Marketing Agents.......................36
SECTION 10.9 Limitation on Liability of the Marketing Agents.........36
SECTION 10.10 Marketing Agent Indemnification of the Up-MACRO
Tradeable Trust and the Trustee. .......................37
SECTION 10.11 Delegation of Duties....................................37
ARTICLE 11
EARLY TERMINATION
SECTION 11.1 Termination Triggers....................................38
ARTICLE 12
TRUSTEE TERMINATION EVENTS
SECTION 12.1 Trustee Termination Events..............................40
SECTION 12.2 Force Majeure...........................................40
SECTION 12.3 Notification to Holders of the Up-MACRO Tradeable
Shares..................................................41
ARTICLE 13
THE TRUSTEE
SECTION 13.1 Liability of Trustee....................................41
SECTION 13.2 Rights of the Trustee...................................42
SECTION 13.3 Trustee Not Liable for Recitals in Up-MACRO Tradeable
Shares..................................................42
SECTION 13.4 Holders May Direct Trustee..............................43
SECTION 13.5 Compensation............................................43
SECTION 13.6 Indemnification.........................................43
SECTION 13.7 Eligibility Requirements..................................
SECTION 13.8 Resignation or Removal of Trustee.......................44
SECTION 13.9 Successor Trustee.......................................45
SECTION 13.10 Merger or Consolidation.................................45
SECTION 13.11 Appointment of Co-Trustee or Separate Trustee...........45
SECTION 13.12 Books, Records; Taxes; Audit............................47
SECTION 13.13 Trustee May Enforce Claims Without Possession of
Up-MACRO Tradeable Shares........................... ...48
SECTION 13.14 Suits for Enforcement...................................48
SECTION 13.15 Maintenance of Office or Agency.........................48
ARTICLE 14
TERMINATION
SECTION 14.1 Termination of Trust....................................48
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ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.1 Amendment; Waiver of Past Defaults and Termination......49
SECTION 15.2 Registration (Initial and Continuing) of Up-MACRO
Tradeable Shares; Certain Securities Law Filings
SECTION 15.3 Prospectus Delivery.....................................50
SECTION 15.4 Protection of Right, Title and Interest to Trust
Assets..................................................51
SECTION 15.5 Limitation on Rights of Holders of the Up-MACRO
Tradeable Shares........................................51
SECTION 15.6 Certain Rights of Holders of Up-MACRO Tradeable
Shares; Voting..........................................52
SECTION 15.7 MACRO Licensing Agreement...............................52
SECTION 15.8 Governing Law; Jurisdiction.............................53
SECTION 15.9 Notices.................................................53
SECTION 15.10 Severability of Provisions..............................55
SECTION 15.11 Up-MACRO Tradeable Shares Nonassessable and Fully
Paid....................................................55
SECTION 15.12 Further Assurances......................................55
SECTION 15.13 Non-Petition Covenant; No Proceedings...................55
SECTION 15.14 No Waiver; Cumulative Remedies..........................55
SECTION 15.15 Counterparts............................................56
SECTION 15.16 Third-Party Beneficiaries...............................56
SECTION 15.17 Actions or Notices by Holders of the Up-MACRO
Tradeable Shares........................................56
SECTION 15.18 Merger and Integration..................................56
SECTION 15.19 Headings................................................56
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EXHIBITS
EXHIBIT A.........FORM OF UP-MACRO TRADEABLE SHARE
EXHIBIT B.........FORM OF PARTICIPANTS AGREEMENT
EXHIBIT C.........FORM OF MACRO LICENSING AGREEMENT
EXHIBIT D.........FORM OF NYMEX SUBLICENSING AGREEMENT
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This TRUST AGREEMENT, dated as of November [ ], 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, not in its individual capacity
but solely as an additional marketing agent (in such capacity, also a
"Marketing Agent").
WHEREAS, the parties hereto have entered into this Trust
Agreement to form a trust under the laws of the State of New York to be known
as the "Claymore MACROshares Oil Up Tradeable Trust" and referred to herein as
the "Up-MACRO Tradeable Trust;"
WHEREAS, the Up-MACRO Tradeable Trust shall issue shares to
be known as the "Claymore MACROshares Oil Up Tradeable Shares" and referred to
herein as the "Up-MACRO Tradeable Shares;"
WHEREAS, the Depositor has assigned, transferred, conveyed
and otherwise set over to the Trustee the Initial Deposit (as defined herein)
in consideration for the issuance of founders' shares which shall constitute
the initial capital of the Up-MACRO Tradeable Trust, and the Trustee hereby
acknowledges receipt of such Initial Deposit in the Up-MACRO Tradeable Trust;
and
WHEREAS, the parties hereto wish to set forth the terms of
the Up-MACRO Tradeable Trust and the Up-MACRO Tradeable Shares and the
respective powers and duties of the Trustee, the Administrative Agent, the
Marketing Agents and the Depositor.
NOW, THEREFORE, in consideration of the mutual promises,
covenants, representations and warranties hereinafter set forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties intending to be legally bound hereby agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this Trust
Agreement, the following words and phrases shall have the following meanings,
and the definitions of such terms are applicable to the singular as well as
the plural forms of such terms and to the masculine as well as to the feminine
and neuter genders of such terms. Defined terms used herein and not otherwise
defined shall have the respective meanings ascribed to such terms in the
Up-MACRO Holding Trust Agreement.
"Account" or "Accounts" shall mean any or all of the Securities
Account, the Distribution Account and the Netting Account.
"Administrative Agent" shall mean 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.
"Aggregate Par Amount" shall mean, (i) with respect to any Up-MACRO
Holding Shares, an amount equal to the number of such Up-MACRO Holding Shares
multiplied by the Up-MACRO Stated Par Amount, (ii) with respect to any
Down-MACRO Holding Shares, an amount equal to the number of such Down-MACRO
Holding Shares multiplied by the Down-MACRO Stated Par Amount, (iii) with
respect to any Up-MACRO Tradeable Shares, an amount equal to the number of
such Up-MACRO Tradeable Shares multiplied by the Up-MACRO Stated Par Amount,
and (iv) with respect to any Down-MACRO Tradeable Shares, an amount equal to
the number of such Down-MACRO Tradeable Shares multiplied by the Down-MACRO
Stated Par Amount.
"AMEX" shall mean the American Stock Exchange, LLC.
"Authorized Participant" shall mean any entity that (i) is a
registered broker-dealer and a member in good standing with the NASD, or a
participant in the securities markets such as a bank or other financial
institution that is not required to register as a broker-dealer or be a member
of the NASD in order to engage in securities transactions, (ii) is a
participant in DTC or has indirect access to the clearing facilities of DTC by
virtue of a custodial relationship with a DTC Participant, (iii) is not a
Benefit Plan Investor and (iv) has entered into a Participants Agreement.
"Beneficial Owner" shall mean, with respect to a beneficial interest
in a Global Certificate, ownership and transfers of which shall be maintained
and made through book entries by the Depository as set forth in Section 2.5 of
this Trust Agreement, a Person who is the
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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).
"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
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"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 Holding Trustee, the Down-MACRO Tradeable
Trustee, the NYMEX and the AMEX, pursuant to which the AMEX shall render the
calculations set forth therein and post such calculations on its website.
"Calculation Agent" shall mean the AMEX in its role as calculation
agent under the Calculation Agency Agreement.
"Closing Date" shall mean November [ ], 2006.
"Code" shall mean U.S. Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall have the meaning set forth under
Section 13.15.
"Creation Order" shall have the meaning set forth in Section 3(b) of
the Participants Agreement.
"Depositor" shall mean MACRO Securities Depositor, LLC and its
successors and assigns.
"Depositor Indemnified Party" shall have the meaning set forth in
Section 9.3(c).
"Depository Agreement" shall mean the Letter of Representations,
dated as of [ ], 2006, delivered to the Depository by the Trustee and the
Depositor, on behalf of the Up-MACRO Tradeable Trust, as amended and restated
from time to time.
"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 Holding Shares" shall mean the pass-through securities
issued by the Down-MACRO Holding Trust pursuant to the Down-MACRO Holding
Trust Agreement.
"Down-MACRO Holding Trust" shall mean the Claymore MACROshares Oil
Down Holding Trust formed under the Down-MACRO Holding Trust Agreement.
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"Down-MACRO Holding Trust Agreement" shall mean the 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,
as such agreement may be amended from time to time.
"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 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 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.
"DTC" shall mean The Depository Trust Company.
"Early Termination Date" shall mean with respect to any date of
determination, the next Distribution Date that follows the occurrence of a
Termination Trigger.
"Event of Bankruptcy" shall occur with respect to any specified
Person, if:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or composition or
readjustment of debts of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for such Person or
all or any substantial part of its assets, or any similar action with respect
to such Person under any law relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, and such
case or proceeding shall continue undismissed, or unstayed and in effect, for
a period of sixty (60) consecutive days; or an order for relief in respect of
such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect, or
shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors; or
(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.
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"Exchange Order" shall have the meaning set forth in Section 5(b) of
the Participants Agreement.
"Final Distribution" shall mean any distribution made in redemption
of all or a portion of the Up-MACRO Tradeable Shares pursuant to Section
5.2(b) on the earlier of the Final Scheduled Termination Date or an Early
Termination Date.
"Final Scheduled Termination Date" shall mean the Distribution Date
scheduled to occur in December of 2026.
"Founders' Shares" shall mean 1,000 shares with a par value of $1 per
share, issued to MACRO Securities Depositor, LLC and Claymore Securities,
Inc., which constitute the initial capital of the Up-MACRO Tradeable Trust.
"Global Certificate" shall have the meaning set forth in Section
2.5(a) of this Trust Agreement.
"Holder" shall mean any Beneficial Owner of an Up-MACRO Tradeable
Share, an Up-MACRO Holding Share, a Down-MACRO Holding Share or a Down-MACRO
Tradeable Share, as the context requires.
"Holding Share" shall mean either an Up-MACRO Holding Share or a
Down-MACRO Holding Share.
"Independent" shall mean, as to any Person, any other Person
(including a firm of accountants or lawyers and any member thereof) who (i)
does not have and is not committed to acquire any material direct or any
material indirect financial interest in such Person or in any Affiliate of
such Person, (ii) is not connected with such Person as an officer, employee,
promoter, underwriter, voting trustee, partner, director or Person performing
similar functions and (iii) is not Affiliated with a Person who fails to
satisfy the criteria set forth in clauses (i) and (ii). "Independent" when
used with respect to any accountant may include an accountant who audits the
books of any Person if in addition to satisfying the criteria set forth above
the accountant is independent with respect to such Person within the meaning
of Rule 101 of the Code of Ethics of the American Institute of Certified
Public Accountants.
"Initial Deposit" shall have the meaning set forth in Section 2.1
hereof.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"Loss" shall have the meaning set forth in Section 9.3(b).
"MACROshares Website" shall mean the website maintained by the
Administrative Agent at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
"MACRO Unit" shall mean 50,000 Up-MACRO Holding Shares and 50,000
Down-MACRO Holding Shares.
"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.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
[and its successors and assigns.]
"Netting Account" shall have the meaning set forth in Section 3.7(a)
of this Trust Agreement.
"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.
"Officer's Certificate" shall mean a certificate signed by an officer
of the Depositor or the Administrative Agent that is authorized to make such
certification.
"Outstanding" shall mean, with respect to the Up-MACRO Holding Shares
or the Up-MACRO Tradeable Shares, as applicable, and any date of
determination, an amount equal to the aggregate number of Up-MACRO Holding
Shares or Up-MACRO Tradeable Shares, issued by the Up-MACRO Holding Trust or
the Up-MACRO Tradeable Trust, as applicable, either on the Closing Date or in
Paired Issuances occurring prior to such date of determination minus any such
Up-MACRO Holding Shares redeemed prior to such date of determination in a
Paired Optional Redemption or any such Up-MACRO Tradeable Shares exchanged
prior to such date of determination for the underlying Up-MACRO Holding
Shares.
"Paired Holding Shares" shall mean the Up-MACRO Holding Shares
together with the Down-MACRO Holding Shares.
"Paired Holding Trusts" shall mean the Up-MACRO Holding Trust
together with the Down-MACRO Holding Trust.
"Paired Optional Redemption" shall have the meaning set forth in
Section 6.1(a) hereof.
"Paired Issuance" shall have the meaning set forth in Section 6.2(a)
hereof.
"Participants Agreement" shall mean the participants agreement, dated
as of the date hereof, substantially in the form attached hereto as Exhibit B,
entered into among the Depositor, the Trustee, the Down-MACRO Tradeable
Trustee, each of the trustees of the Paired Holding Trusts, the Administrative
Agent and the Authorized Participants who may be party thereto from time to
time, which specifies certain procedures for the Paired Issuance and Paired
Optional Redemption of Paired Holding Shares and procedures for the creation
and exchange of Tradeable Shares for Holding Shares and Holding Shares for
Tradeable Shares.
"Per Share Underlying Value" means, with respect to any date of
determination occurring during any Calculation Period and (i) each Up-MACRO
Holding Share, an amount calculated by dividing the Up-MACRO Underlying Value
by the number of Up-MACRO Holding Shares Outstanding on that date, (ii) each
Down-MACRO Holding Share, an amount calculated by dividing the Down-MACRO
Underlying Value by the number of Down-MACRO Holding Shares Outstanding on
that date, (iii) each Up-MACRO Tradeable Share, an amount equal to the Per
Share Underlying Value of one Up-MACRO Holding Share on that date, and (iv)
each Down-MACRO Tradeable Share, an amount equal to the Per Share Underlying
Value of one Down-MACRO Holding Share on that date.
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"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company,
limited liability partnership, joint stock company, trust, unincorporated
organization or Governmental Authority or other entity.
"Prospectus" shall mean the prospectus, in the form filed by the
Depositor on behalf of the Up-MACRO Holding Trust and the Up-MACRO Tradeable
Trust with the SEC on or before the second Business Day after the date hereof
(or such earlier time as may be required under the Securities Act) or, if no
such filing is required, the form of final prospectus included in the
Registration Statement on and after the date on which such Registration
Statement becomes effective.
"Quarterly Distribution" shall mean with respect to each Distribution
Date, the distribution to be made to the Holders of the Up-MACRO Tradeable
Shares that are Outstanding on the Distribution Date pursuant to Section
5.2(a).
"Record Date" shall mean the last Business Day of each March, June,
September and December of each year, commencing in December of 2006.
"Redemption Date" shall mean any Business Day on which a Redemption
Order for a Paired Optional Redemption is submitted.
"Redemption Order" shall have the meaning set forth in Section 4(b)
of the Participants Agreement.
"Registration Statement" means the registration statement, file no.
333-116566, dated and filed with the SEC on November [ ], 2006, relating to the
Up-MACRO Holding Shares and Up-MACRO Tradeable Shares, as amended,
supplemented or otherwise modified from time to time.
"Registered Owner" shall mean the Depository or a nominee thereof in
whose name the Up-MACRO Tradeable Shares are registered in the Share Register.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Account" shall have the meaning set forth in Section
3.5(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Share Register" shall have the meaning set forth in Section 2.5(e)
hereof.
"Substitute Reference Price Licensing Agreement" shall mean any
licensing arrangement pursuant to which the Paired Holding Trusts and the
Up-MACRO Tradeable Trust acquire the right to use a Substitute Reference Oil
Price for the purposes of calculating the Up-MACRO Underlying Value under the
Up-MACRO Holding Trust Agreement.
"Successor Administrative Agent" shall have the meaning set forth in
Section 10.6(b) hereof.
"Successor Trustee" shall have the meaning set forth in Section
13.8(b) hereof.
"Termination Trigger" shall have the meaning set forth in Section
11.1(a) hereof.
"Tradeable Shares" shall mean the Up-MACRO Tradeable Shares and the
Down-MACRO Tradeable Shares.
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"Tradeable Trusts" shall mean the Up-MACRO Tradeable Trust and the
Down-MACRO Tradeable Trust.
"Transaction Documents" shall mean this Trust Agreement, the MACRO
Licensing Agreement, the NYMEX Sublicensing Agreement, the Calculation Agency
Agreement and the Participants Agreement.
"Transfer Agent and Registrar" shall have the meaning set forth in
Section 2.5(e) hereof.
"Trust Assets" shall have the meaning set forth in Section 2.1
hereof.
"Trust Officer" shall mean any officer or employee of the Trustee, in
each case having responsibility for the administration of this Trust Agreement
or authority to execute any documents on behalf of the Trustee, in its
capacity as Trustee hereunder.
"Trustee" shall mean Investors Bank & Trust Company, not in its
individual capacity but solely as Trustee under this Trust Agreement, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Trustee Indemnified Party" shall have the meaning set forth in
Section 13.6 hereof.
"Trustee Termination Event" shall have the meaning set forth in
Section 12.1 hereof.
"Up-MACRO Fees" shall have the meaning specified in Section 5.4 of
the Up-MACRO Holding Trust Agreement.
"Up-MACRO Holding Shares" shall mean the pass-through securities
issued by the Up-MACRO Holding Trust pursuant to the Up-MACRO Holding Trust
Agreement.
"Up-MACRO Holding Trust" shall mean the Claymore MACROshares Oil Up
Holding Trust created under the Up-MACRO Holding Trust Agreement.
"Up-MACRO Holding Trust Agreement" shall mean the Up-MACRO Holding
Trust Agreement, dated as of the date hereof, among the Depositor, the
Administrative Agent, the Marketing Agents and the Up-MACRO Holding Trustee.
"Up-MACRO Holding Trustee" shall mean Investors Bank & Trust Company,
not in its individual capacity but solely as trustee of the Up-MACRO Holding
Trust.
"Up-MACRO Stated Par Amount" shall mean the stated par amount of $[ ]
per Up-MACRO Holding Share or Up-MACRO Tradeable Share.
"Up-MACRO Tradeable Shares" shall have the meaning specified in the
Recitals to this Trust Agreement.
"Up-MACRO Tradeable Trust" shall have the meaning specified in the
Recitals to this Trust Agreement.
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.
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(b) As used in this Trust Agreement and in any share,
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Trust Agreement or in any such share,
certificate or other document, and accounting terms partly defined in this
Trust Agreement or in any such share, certificate or other document to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions
of accounting terms in this Trust Agreement or in any such share, certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Trust Agreement or in any such share, certificate or other document shall
control.
(c) The agreements, representations and warranties of MACRO
Securities Depositor, LLC in this Trust Agreement in its capacity as Depositor
shall be deemed to be the agreements, representations and warranties of MACRO
Securities Depositor, LLC solely in such capacity for so long as MACRO
Securities Depositor, LLC acts in such capacity under this Trust Agreement.
(d) Unless otherwise specified, references to any amount as
on deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(e) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Trust Agreement shall refer to this Trust
Agreement as a whole and not to any particular provision of this Trust
Agreement; references to any Article, Section, Schedule or Exhibit are
references to Articles, Sections, Schedules and Exhibits in or to this Trust
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
ARTICLE 2
CREATION AND DECLARATION OF THE TRUST;
THE INITIAL DEPOSIT; FORM OF THE CERTIFICATES;
DELIVERY AND REGISTRATION OF TRANSFER
OF UP-MACRO TRADEABLE SHARES
SECTION 2.1 Initial Deposit. Concurrently with the execution
of this Trust Agreement, each of the Depositor and the Administrative Agent
shall transfer to the Up-MACRO Tradeable Trust immediately available funds in
the amount of $500 (for a total initial deposit of $1,000 (the "Initial
Deposit")) in exchange for 1,000 Founders' Shares, of which 500 shall be
issued to the Depositor and 500 shall be issued to the Administrative Agent,
which is a wholly-owned subsidiary of Claymore Group, Inc., one of the members
of the Depositor. The Initial Deposit shall be held in trust for the Depositor
and the Administrative Agent and, upon the deposit of Up-MACRO Holding Shares
into the Up-MACRO Tradeable Trust and the first issuance of Up-MACRO Tradeable
Shares, such Initial Deposit shall be transferred back to the Depositor and
the Administrative Agent and the Founders' Shares shall be cancelled. At no
time shall the Initial Deposit be included in the calculation of the Per Share
Underlying Value of the Up-MACRO Tradeable Shares or any other calculation
performed at any time pursuant to Article 4 or Article 8 of this Trust
Agreement. The Up-MACRO Holding Shares on deposit from time to time in the
Securities Account, all monies on deposit from time to time in the
Distribution Account and the Netting Account and the Up-MACRO Holding Trust's
rights under the MACRO Licensing Agreement, the NYMEX Sublicensing Agreement
and any Substitute Reference Price Licensing Agreement, shall collectively
constitute the assets of the Up-MACRO Tradeable Trust (the "Trust Assets").
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SECTION 2.2 Acceptance by Trustee. The Trustee hereby (i)
acknowledges its acceptance on behalf of the Up-MACRO Tradeable Trust of all
right and title to and interest in the Trust Assets, both now existing and
hereafter created, and (ii) declares that it shall maintain such right, title
and interest, upon the Up-MACRO Tradeable Trust herein set forth, for the
benefit of all Holders of the Up-MACRO Tradeable Shares.
SECTION 2.3 Limited Purpose of the Up-MACRO Tradeable Trust.
The Up-MACRO Tradeable Trust shall not engage in any business or activity
other than those specified in this Section 2.3 or any activity that is
incidental and necessary to carrying out the business or activities enumerated
by this Section 2.3 The exclusive purposes and functions of the Up-MACRO
Tradeable Trust shall consist of:
(a) issuing the Founders' Shares on the Closing Date and
cancelling such shares concurrently with the first issuance of Up-MACRO
Tradeable Shares;
(b) issuing Up-MACRO Tradeable Shares in connection with
each deposit of Up-MACRO Holding Shares into the Up-MACRO Tradeable Trust on a
continuous basis and exchanging Outstanding Up-MACRO Tradeable Shares for the
underlying Up-MACRO Holding Shares that have been deposited in the Up-MACRO
Tradeable Trust, in each case on a continuous basis and in accordance with the
provisions and subject to the conditions set forth in this Trust Agreement;
(c) entering into the other Transaction Documents with the
other parties thereto; and
(d) maintaining a listing for the Up-MACRO Tradeable Shares
on the AMEX or another national stock exchange.
SECTION 2.4 Representations and Warranties of the Depositor.
The Depositor hereby makes the following representations and warranties to the
Up-MACRO Tradeable Trust (and agrees that the Trustee may rely on each such
representation and warranty in accepting the Initial Deposit in the Up-MACRO
Tradeable Trust and in authenticating the Up-MACRO Tradeable Shares) as of the
Closing Date and on each Issuance Date:
(a) Organization and Good Standing. The Depositor is a
limited liability company validly existing and in good standing under the laws
of the State of Delaware and has full power, authority and legal right to own
its properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Trust Agreement.
(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 transfer of the Initial Deposit to the Up-MACRO
Tradeable Trust by the Depositor or the performance by the Depositor of its
obligations under this Trust Agreement to violate any applicable law and would
have a material adverse effect on the interests of the Holders of the Up-MACRO
Tradeable Shares hereunder.
(c) Due Authorization. The execution, delivery and
performance of this Trust Agreement by the Depositor, the execution and
delivery to the Trustee of the Up-MACRO Tradeable Shares by the Depositor and
the consummation by the Depositor of the transactions provided for in this
Trust Agreement and the performance of its obligations hereunder have been
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duly authorized by the Depositor by all necessary action on the part of the
Depositor and this Trust Agreement will remain, from the time of its
execution, an official record of the Depositor.
(d) No Conflict. The execution and delivery by the Depositor
of this Trust Agreement and the Up-MACRO Tradeable Shares, the performance by
the Depositor of the transactions contemplated by this Trust Agreement and the
fulfillment by the Depositor of the terms hereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Depositor is a party or by which it or any of
its properties are bound.
(e) No Violation. The execution and delivery by the
Depositor of this Trust Agreement and the Up-MACRO Tradeable Shares, the
performance by the Depositor of the transactions contemplated by this Trust
Agreement and its obligations hereunder and the fulfillment by the Depositor
of the terms hereof will not conflict with or violate any Requirements of Law
applicable to the Depositor.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Depositor, threatened
against the Depositor before any Governmental Authority (i) asserting the
invalidity of this Trust Agreement or the Up-MACRO Tradeable Shares, (ii)
seeking to prevent the issuance of the Up-MACRO Tradeable Shares or the
consummation of any of the transactions contemplated by this Trust Agreement
or the Up-MACRO Tradeable Shares, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Depositor, would materially and
adversely affect the performance by the Depositor of its obligations under
this Trust Agreement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Trust
Agreement or the Up-MACRO Tradeable Shares or (v) seeking to affect adversely
the income tax attributes of the Up-MACRO Tradeable Trust under the federal or
applicable state income or franchise tax systems.
(g) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Depositor of this Trust Agreement and the Up-MACRO Tradeable Shares, the
performance by the Depositor of the transactions contemplated by this Trust
Agreement and its obligations hereunder and the Up-MACRO Tradeable Shares and
the fulfillment by the Depositor of the terms hereof and thereof have been
obtained.
(h) Bankruptcy; Insolvency. No Event of Bankruptcy with
respect to the Depositor has occurred which would materially and adversely
affect the validity or enforceability of this Trust Agreement or the Up-MACRO
Tradeable Shares, and the transfer of the Initial Deposit by the Depositor to
the Up-MACRO Tradeable Trust has not been made in contemplation of the
occurrence thereof.
(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).
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(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 the transfer and deposit by the
Depositor of the Initial Deposit to the Up-MACRO Tradeable Trust and shall be
deemed to be made on each Issuance Date. Upon discovery by the Depositor, the
Trustee or the Administrative Agent of a breach of any of the representations
and warranties by the Depositor set forth in this Section 2.4, the party
discovering such breach shall give prompt written notice to the other parties
hereto. The Depositor agrees to cooperate with the Trustee and the
Administrative Agent in attempting to cure any such breach.
SECTION 2.5 Form of Shares; Book-Entry System;
Transferability of Up-MACRO Tradeable Shares.
(a) Form of Shares. The Up-MACRO Tradeable Shares shall be
evidenced by one or more global certificates substantially in the form set
forth in Exhibit A attached hereto, with appropriate insertions, modifications
and omissions as hereinafter provided (each such certificate, a "Global
Certificate"). No Up-MACRO Tradeable Shares shall be entitled to any benefits
under this Trust Agreement or be valid or obligatory for any purpose unless a
Global Certificate evidencing those Up-MACRO Tradeable Shares has been
executed by the Trustee by the manual or facsimile signature of a duly
authorized signatory of the Trustee and countersigned by the manual or
facsimile signature of a duly authorized officer of the Depositor. The Trustee
shall maintain books on which the registered ownership of each Global
Certificate and transfers, if any, of such registered ownership shall be
recorded. Global Certificates evidencing the Up-MACRO Tradeable Shares bearing
the manual or facsimile signature of a duly authorized signatory of the
Trustee and the manual or facsimile signature of a duly authorized officer of
the Depositor, if applicable, who was, at the time such Global Certificates
were executed, a proper signatory of the Trustee or the Depositor, as
applicable, shall bind the Trustee, notwithstanding that such signatory has
ceased to hold such office prior to the delivery of such Global Certificates.
The Global Certificates may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Trust Agreement as may be required by the Trustee or
required to comply with any applicable law or regulations promulgated
thereunder or with the rules and regulations of any securities exchange upon
which the Up-MACRO Tradeable Shares may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to which the Up-MACRO Tradeable Shares are subject.
The Founders' Shares and the beneficial ownership thereof by
the Depositor and the Administrative Agent shall be recorded on the books and
records maintained by the Trustee on behalf of the Up-MACRO Tradeable Trust
and no physical certificates shall be issued in respect of such Founders'
Shares. Concurrently with the first issuance of Up-MACRO Tradeable 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
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CORPORATION (THE "DEPOSITORY"), TO THE AGENT AUTHORIZED BY THE DEPOSITOR FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
So long as the Up-MACRO Tradeable Shares are eligible for
book-entry settlement with the Depository, (i) no Beneficial Owner of Up-MACRO
Tradeable Shares will be entitled to receive a physical certificate evidencing
those shares, (ii) the interest of a Beneficial Owner in the Up-MACRO
Tradeable Shares will be shown only on, and transfer of that interest will be
effected only through, records maintained by the Depository or a DTC
Participant or Indirect Participant through which the Beneficial Owner holds
that interest and (iii) the rights of a Beneficial Owner of Up-MACRO Tradeable
Shares will be exercised only to the extent allowed by, and in compliance
with, the arrangements in effect between such Beneficial Owner and the
Depository or the DTC Participant or Indirect Participant through which that
Beneficial Owner holds an interest in the Up-MACRO Tradeable Shares.
As provided in the Depository Agreement, upon the settlement
date for any transfer or any creation, exchange or redemption of the Up-MACRO
Tradeable Shares, the Depository will credit or debit, on its book-entry
registration and transfer system, the amount of Up-MACRO Tradeable Shares so
transferred or so created, exchanged or redeemed to the accounts of the
appropriate DTC Participants. The accounts to be credited and charged shall be
designated by the Trustee, as instructed by the Administrative Agent and the
applicable Holder of Up-MACRO Tradeable Shares. The Beneficial Owners of the
Up-MACRO Tradeable Shares will be shown on, and the transfer of beneficial
ownership by Beneficial Owners will be effected only through, in the case of
DTC Participants, records maintained by the Depository and, in the case of
Indirect Participants and Beneficial Owners holding through a DTC Participant
or an Indirect Participant, through those records or the records of the
relevant DTC Participants. Beneficial Owners are expected to receive from or
through the broker or bank that maintains the account through which the
Beneficial Owner has purchased Up-MACRO Tradeable Shares a written
confirmation relating to their purchase of Up-MACRO Tradeable Shares.
Upon the settlement date for any creation, transfer,
exchange or redemption of Up-MACRO Tradeable Shares, the Trustee shall make a
notation on Schedule A attached to the Global Certificate indicating the
resulting Net Par Amount Increase or Net Par Amount Decrease in the Aggregate
Par Amount of Outstanding Up-MACRO Tradeable Shares represented by such Global
Certificate. Upon the settlement date for a transfer of a Global Certificate
to a new Registered Owner as described in clause (e)(ii) of this Section 2.5,
the Trustee shall cancel such Global Certificate and issue a new Global
Certificate in the name of such transferee Registered Owner.
The Depository may discontinue providing its services with
respect to the Up-MACRO Tradeable Shares by giving notice to the Trustee, the
Administrative Agent and the Depositor pursuant to and in conformity with the
provisions of the Depository Agreement and discharging its responsibilities
with respect thereto under applicable law. In such event, the Trustee, the
Administrative Agent and the Depositor shall seek to find a replacement for
the Depository to perform the functions thereof on terms acceptable to the
Administrative Agent and
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the Depositor. If no such replacement can be found or is willing to assume the
duties of the Depository, then a Termination Trigger will occur pursuant to
Section 11.1 of this Trust Agreement.
(c) Notices to Beneficial Owners. As described above, the
Trustee will recognize the Depository or its nominee as the owner of all
Up-MACRO Tradeable Shares for all purposes except as expressly set forth in this
Trust Agreement. Conveyance of all notices, statements and other communications
required to be delivered to Beneficial Owners will be effected as follows: The
Administrative Agent shall inquire of each such DTC Participant as to the number
of Beneficial Owners holding Up-MACRO Tradeable Shares, directly or indirectly,
through such DTC Participant. The Administrative Agent shall provide each such
DTC Participant with sufficient copies of such notice, statement or other
communication, in such form, number and at such place as such DTC Participant
may reasonably request, in order that such notice, statement or communication
may be transmitted by such DTC Participant, directly or indirectly, to such
Beneficial Owners. In addition, the Up-MACRO Tradeable Trust shall reimburse
each such DTC Participant for the expenses attendant to such transmittal,
subject to applicable statutory and regulatory requirements.
(d) Distributions on Book-Entry Certificates. All
distributions on the Up-MACRO Tradeable Shares shall be made to the Depository
or its nominee, Cede & Co., as the registered owner of all Up-MACRO Tradeable
Shares. The Trustee and the Depositor expect that the Depository or its nominee,
upon receipt of any distributions made in respect of the Up-MACRO Tradeable
Shares, shall credit immediately the DTC Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the Up-MACRO
Tradeable Shares as shown on the records of the Depository or its nominee. The
Trustee and the Depositor also expect that payments by DTC Participants to
Indirect Participants and Beneficial Owners held through such DTC Participants
and Indirect Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in a "street name," and shall be the
responsibility of such DTC Participants and Indirect Participants. None of the
Trustee, the Depositor or the Administrative Agent shall have any responsibility
or liability for any aspects of the records relating to or notices to Beneficial
Owners, or payments made on account of beneficial ownership interests in the
Up-MACRO Tradeable Shares, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests or for any other aspect
of the relationship between the Depository and the DTC Participants or the
relationship between such DTC Participants and the Indirect Participants and
Beneficial Owners owning through such DTC Participants or Indirect Participants
or between or among the Depository, any Beneficial Owner and any Person by or
through which such Beneficial Owner is considered to own Up-MACRO Tradeable
Shares.
(e) Registration of Transfer; Restrictions on Transfer.
(i) The Trustee shall cause to be kept at its Corporate
Trust Office a register (the "Share Register") in which, subject to such
reasonable regulations as it may prescribe, a transfer agent and
registrar (the "Transfer Agent and Registrar") shall provide for the
registration of the Up-MACRO Tradeable Shares and of transfers and
exchanges of such shares as herein provided. The Transfer Agent and
Registrar shall initially be the Trustee. The Depositor may revoke such
appointment and remove any Transfer Agent and Registrar if the Depositor
determines in its sole discretion that such Transfer Agent and Registrar
failed to perform the responsibilities of the Transfer Agent and
Registrar set forth in this Trust Agreement in any material respect. Any
Transfer Agent and
14
Registrar shall be permitted to resign as Transfer Agent and Registrar
upon thirty (30) days' notice to the Depositor and the Trustee; provided,
however, that such resignation shall not be effective and such Transfer
Agent and Registrar shall continue to perform its duties as Transfer
Agent and Registrar until the Trustee has appointed a successor Transfer
Agent and Registrar reasonably acceptable to the Depositor.
(ii) Transfers of the Global Certificates shall be limited
to transfers of such Global Certificates in whole, but not in part, to
nominees of the Depository or to a successor of the Depository or such
successor's nominee. When a Global Certificate is presented for
registration of transfer, the Depositor shall execute, the Trustee shall
authenticate and the Transfer Agent and Registrar shall register one or
more new Global Certificates in the name of the designated transferee or
transferees. Each Global Certificate presented for registration of
transfer shall be accompanied by a written instrument of transfer in a
form satisfactory to the Trustee or the Transfer Agent and Registrar duly
executed by the Registered Owner or the attorney-in-fact thereof duly
authorized in writing. No service charge shall be made for any
registration of transfer or exchange of Up-MACRO Tradeable Shares, but
the Transfer Agent and Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
(f) Mutilated, Destroyed, Lost or Stolen Global Certificate.
If (a) any mutilated Global Certificate is surrendered to the Transfer Agent and
Registrar, or the Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Global Certificate and (b)
there is delivered to the Transfer Agent and Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice to the Trustee that such Global Certificate has
been acquired by a bona fide purchaser, the Depositor shall execute, the Trustee
shall authenticate and the Transfer Agent and Registrar shall deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Global
Certificate, a new Global Certificate of like tenor and aggregate beneficial
interest. In connection with the issuance of any new Global Certificate under
this Section 2.5(f), the Trustee or the Transfer Agent and Registrar may require
the payment by the Registered Owner of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Transfer Agent
and Registrar) connected therewith. Any duplicate Global Certificate issued
pursuant to this Section 2.5(f) shall constitute complete and indefeasible
evidence of ownership in the Up-MACRO Tradeable 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,
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 Holding Trustee under the Down-MACRO Holding Trust
Agreement and the Down-MACRO Tradeable
15
Trustee under the Down-MACRO Tradeable Trust Agreement. The Holders of the
Up-MACRO Tradeable 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 Holding Trust under the Down-MACRO
Holding Trust Agreement and as trustee for the Down-MACRO Tradeable Trust
under the Down-MACRO Tradeable Trust Agreement.
(b) Subject to the limited purposes and functions of the
Up-MACRO Tradeable Trust specified in Section 2.3 hereof, the Trustee is hereby
authorized, instructed and empowered (i) to make deposits and withdrawals from
the Securities Account, the Distribution Account and the Netting Account, as set
forth in this Trust Agreement; (ii) to make distributions on the Up-MACRO
Tradeable Shares in accordance with Section 5.2 hereof; (iii) to administer the
Up-MACRO Tradeable Trust; (iv) to furnish to the Up-MACRO Holding Trustee and
the Administrative Agent notification of and all documentation relating to the
fees and expenses incurred by the Up-MACRO Tradeable Trust, pursuant to Section
5.3 of this Trust Agreement; (v) to effect the exchange of Up-MACRO Tradeable
Shares in connection with Paired Optional Redemptions and Paired Issuances in
accordance with the provisions of Section 6.1 and Section 6.2 hereof, and to
effect exchanges of Up-MACRO Tradeable Shares pursuant to Section 6.3 hereof;
(vi) to enter into the Participants Agreement, the MACRO Licensing Agreement,
the NYMEX Sublicensing Agreement and the Calculation Agency Agreement; (vii) to
make certain calculations on behalf of the Up-MACRO Tradeable Trust; and (viii)
to take any action required or permitted under this Trust Agreement and any
action needed for the daily operation of the Up-MACRO Tradeable Trust. Without
limiting the generality of the foregoing and with the prior written consent of
the Depositor, the Trustee is hereby authorized and empowered to make any
filings, reports, notices, applications and registrations with, and to seek any
consents or authorizations from, the SEC and any state securities authority on
behalf of the Up-MACRO Tradeable Trust as may be necessary or advisable to
comply with any federal or state securities laws or reporting requirements;
provided, however, that the [Depositor] [Administrative Agent] shall make all
filings with the SEC and under state securities laws on behalf of the Up-MACRO
Tradeable Trust to the extent required to do so hereby.
(c) Pursuant to Section 3.1(c) of the Up-MACRO Holding Trust
Agreement the Trustee shall be entitled to be reimbursed for any expenses
incurred by it, with the prior approval of the Depositor or the Administrative
Agent, in connection with the performance of its duties under this Trust
Agreement, including, without limitation, the fees and disbursements of any
custodian, Transfer Agent and Registrar, the reasonable fees and expenses of
legal counsel, the fees and disbursements of Independent accountants, and the
expenses associated with failed Creation and Exchange Orders under the
Participants Agreement. If so instructed by the Depositor or the Administrative
Agent, the Trustee shall expend its own funds on behalf of the Up-MACRO
Tradeable Trust and shall be reimbursed therefor on the next scheduled
Distribution Payment Date.
(d) The Up-MACRO Tradeable Trust shall not, and the Trustee
shall not cause the Up-MACRO Tradeable Trust to, nor shall the Depositor direct
the Trustee to, engage in any activity other than as required or authorized by
this Trust Agreement. In particular, the Up-MACRO Tradeable Trust shall not and
the Trustee shall not cause the Up-MACRO Tradeable Trust to:
(i) invest any interest or other distributions paid in
respect of the Trust Assets, but shall distribute all such proceeds to
the Holders on the date of receipt
16
thereof pursuant to the terms of this Trust Agreement and of the Up-MACRO
Tradeable Shares;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust Assets for a purpose other than those
described in Section 2.3;
(iv) sell, pledge, hypothecate or transfer the Up-MACRO
Holding Shares (except in accordance with Section 6.2 or Section 6.3);
(v) make any loans or incur any indebtedness or acquire any
securities other than Up-MACRO Holding Shares;
(vi) except as expressly permitted pursuant to Section 15.1,
act in such a way as to vary the terms of the Up-MACRO Tradeable Shares
in any way whatsoever;
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Up-MACRO Tradeable Trust,
other than the Up-MACRO Tradeable Shares and the Founders' Shares, which
shall be redeemed and cancelled by the Trustee upon the first issuance of
Up-MACRO Tradeable Shares and shall not thereafter be reissued;
(viii) (A) direct the time, method and place of conducting
any proceeding for any remedy available to the Up-MACRO Tradeable Trust
as the holder of the Up-MACRO Holding Shares or exercising any power
conferred upon Holders of Up-MACRO Holding Shares, (B) waive any past
default or violation that is waivable under the terms of the Up-MACRO
Holding Shares or (C) consent to any amendment or modification of the
terms of any Up-MACRO Holding Shares where such consent shall be
required, except, in each case, if permitted hereby or after receiving
instructions from the Holders of the Up-MACRO Tradeable Shares pursuant
to Section 15.6(b) hereof;
(ix) file a certificate of cancellation of the Up-MACRO
Tradeable Trust or take any other action to terminate the Up-MACRO
Tradeable Trust, except in connection with a liquidation thereof pursuant
to Article 14 hereof;
(x) take any action that would cause the Up-MACRO Tradeable
Trust to be classified other than as a grantor trust for U.S. federal
income tax purposes; or
(xi) take any action that would cause the Up-MACRO Tradeable
Trust to be required to register as an investment company under the
Investment Company Act or as a commodity pool under the CEAct.
SECTION 3.2 Representations, Warranties and Covenants of the
Trustee. Investors Bank & Trust Company, in its capacity as initial Trustee
under this Trust Agreement, hereby makes, and any successor Trustee by its
appointment hereunder shall make, on the Closing Date (or on the applicable
date of appointment), the following representations, warranties and covenants
to the Up-MACRO Tradeable Trust (and agrees that the Depositor, the
Administrative Agent and the Holders of the Up-MACRO Tradeable Shares may rely
on each such representation, warranty and covenant):
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(a) Organization and Good Standing. The Trustee is a
Massachusetts trust company and a wholly-owned subsidiary of a bank holding
company (or with respect to any successor Trustee, such other corporate entity
as may be applicable), duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts (or with respect to any
successor Trustee, under the laws of the applicable jurisdiction of
organization), and has full trust power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and, in all
material respects, to own its properties and conduct its business as such
properties are presently owned and as such business is presently conducted.
(b) Due Qualification. The Trustee is duly qualified to do
business and is in good standing as a foreign trust company (or is exempt from
such requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on the interests of the Holders
of the Up-MACRO Tradeable Shares hereunder.
(c) Due Authorization. The execution, delivery, and
performance of this Trust Agreement has been duly authorized by the Trustee by
all necessary trust action on the part of the Trustee.
(d) Binding Obligation. This Trust Agreement constitutes a
legal, valid and binding obligation of the Trustee, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect, affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(e) No Violation. The execution and delivery of this Trust
Agreement by the Trustee, the performance of the transactions contemplated by
this Trust Agreement and the fulfillment of the terms hereof applicable to the
Trustee, will not conflict with, violate, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any Requirement of Law applicable to
the Trustee or any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which the Trustee is a party or by which it or any of its
properties are bound.
(f) No Proceedings. There are no proceedings or investigations
pending or threatened against the Trustee before any Governmental Authority
seeking to prevent the issuance of the Up-MACRO Tradeable Shares or the
consummation of any of the transactions contemplated by this Trust Agreement,
seeking any determination or ruling that, in the reasonable judgment of the
Trustee, would materially and adversely affect the performance by the Trustee of
its obligations under this Trust Agreement, or seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Trust Agreement.
(g) Compliance with Requirements of Law. The Trustee shall
duly satisfy all of its obligations and duties under this Trust Agreement and
shall maintain in effect all qualifications and will comply in all material
respects with all of the Requirements of Law in connection with its duties
hereunder, inasmuch as a failure to comply with such requirements would have a
material adverse effect on the interests of the Holders of the Up-MACRO
Tradeable Shares.
(h) Protection of the Rights of Holders of the Up-MACRO
Tradeable Shares. The Trustee shall take no action which, nor omit to take any
action the omission of which, would
18
materially impair the rights of Holders of the Up-MACRO Tradeable Shares, nor
shall it revise amounts to be distributed on the Up-MACRO Tradeable Shares.
(i) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Trustee of this Trust Agreement, the performance by the Trustee of the
transactions contemplated by this Trust Agreement and the fulfillment by the
Trustee of the terms hereof, have been obtained; provided, however, that the
Trustee makes no representation or warranty regarding state securities or
"blue sky" laws in connection with the distribution of the Up-MACRO Tradeable
Shares.
(j) No Affiliation. The Trustee is not an Affiliated Person
with respect to the Depositor, the Up-MACRO Tradeable Trust, either of the
Paired Holding Trusts, the Down-MACRO Tradeable Trust, 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.
(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 or hold any Up-MACRO Holding
Shares, Down-MACRO Holding Shares, Up-MACRO Tradeable Shares or Down-MACRO
Tradeable Shares for its own account.
(m) Maintenance of Records and Books of Account. The Trustee
shall maintain and implement administrative and operating procedures
(including the ability to recreate records evidencing any transaction entered
into by the Up-MACRO Tradeable Trust in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, computer
records and other information, reasonably necessary or advisable for no less
than five years after the termination of the Trust. Such documents, books and
computer records shall reflect all facts giving rise to such transactions, all
payments and credits with respect thereto, and, to the extent required, such
documents, books and computer records shall indicate the interests of the
Up-MACRO Tradeable Trust in such transactions.
SECTION 3.3 Acceptance of Appointment and Matters Relating
to the Administrative Agent and the Marketing Agents.
(a) Claymore Securities, Inc. agrees to act as
Administrative Agent under this Agreement and the Holders of the Up-MACRO
Tradeable 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 Holding Trust under the Down-MACRO
Holding Trust Agreement and for the Down-MACRO Tradeable Trust under the
Down-MACRO Tradeable Trust Agreement. Claymore Securities, Inc. and MACRO
Financial, LLC each agree to act as a Marketing Agent under this Trust
Agreement and the Holders of the Up-MACRO Tradeable 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
19
Holding Trust Agreement, for the Down-MACRO Holding Trust under the Down-MACRO
Holding Trust Agreement and for the Down-MACRO Tradeable Trust under the
Down-MACRO Tradeable Trust Agreement.
(b) The Administrative Agent shall direct the Trustee in
effecting exchanges of Up-MACRO Tradeable Shares for the underlying Up-MACRO
Holding Shares in connection with Paired Issuances and Paired Optional
Redemptions. The Administrative Agent shall also at all times maintain the
MACROshares Website. The Administrative Agent shall have full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with the foregoing duties
which it may deem necessary or desirable. The Administrative Agent shall not
be obligated to use separate offices, employees or accounts in carrying out
its duties hereunder. The Depositor and the Trustee shall furnish to the
Administrative Agent any powers of attorney or other documents necessary or
appropriate to enable the Administrative Agent to carry out its administrative
duties hereunder.
(c) The Administrative Agent shall comply with and perform
its administrative obligations set forth in the Up-MACRO Holding Trust
Agreement and the Down-MACRO Holding Trust Agreement in accordance with the
terms of each such agreement and the Holders of the Up-MACRO Tradeable Shares
shall be third party beneficiaries of the Administrative Agent's covenants to
perform its obligations under such agreements.
(d) Each Marketing Agent shall comply with and perform its
obligations with respect to the Up-MACRO Tradeable 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 under the terms of this Trust Agreement, Claymore Securities,
Inc. will be entitled to receive the Up-MACRO Administration and Marketing Fee,
which shall be payable to it in arrears on each Distribution Payment Date in
accordance with the provisions of Section 5.4 of the Up-MACRO Holding Trust
Agreement. The Administrative Agent shall not be liable for any expenses
incurred by it on behalf of the Up-MACRO Tradeable Trust, but shall be
responsible for its overhead expenses related to the performance of its
obligations under this Trust Agreement.
(f) As compensation for acting as a Marketing Agent, MACRO
Financial, LLC will be entitled to receive the Up-MACRO Marketing Fee, which
shall be payable to it in arrears on each Distribution Payment Date in
accordance with the provisions of Section 5.4 of the Up-MACRO Holding Trust
Agreement.
SECTION 3.4 Representations, Warranties and Covenants of the
Administrative Agent and the Marketing Agents.
(a) Claymore Securities, Inc., in its capacity as the
Administrative Agent, hereby makes, and any successor Administrative Agent by
its appointment hereunder shall make, on the Closing Date (or on the date of any
such appointment), the following representations, warranties and covenants to
the Up-MACRO Tradeable Trust (and agrees that the Depositor and the Trustee may
rely on each such representation, warranty and covenant in fulfilling their
respective duties hereunder):
(i) Organization and Good Standing. The Administrative Agent
is a 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
20
Administrative Agent, the applicable jurisdiction of its organization),
and has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and, in
all material respects, to own its properties and conduct its business as
such properties are presently owned and as such business is presently
conducted.
(ii) Due Qualification. The Administrative Agent is duly
qualified to do business and is in good standing as a foreign corporation
(or is exempt from such requirements), and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material
adverse effect on the interests of the Holders of the Up-MACRO Tradeable
Shares hereunder.
(iii) Due Authorization. The execution, delivery and
performance of this Trust Agreement has been duly authorized by the
Administrative Agent by all necessary corporate action on the part of the
Administrative Agent.
(iv) Binding Obligation. This Trust Agreement constitutes a
legal, valid and binding obligation of the Administrative Agent,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, affecting the
enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(v) No Violation. The execution and delivery of this Trust
Agreement by the Administrative Agent, the performance of the
transactions contemplated by this Trust Agreement and the fulfillment of
the terms hereof applicable to the Administrative Agent will not conflict
with, violate, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any Requirement of Law applicable to the
Administrative Agent or any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Administrative Agent is a
party or by which it or any of its properties are bound.
(vi) No Proceedings. There are no proceedings or
investigations pending or threatened against the Administrative Agent
before any Governmental Authority seeking to prevent the consummation of
any of the transactions contemplated by this Trust Agreement, seeking any
determination or ruling that, in the reasonable judgment of the
Administrative Agent, would materially and adversely affect the
performance by the Administrative Agent of its obligations under this
Trust Agreement, or seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Trust Agreement.
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Administrative Agent of this Trust Agreement, the performance by the
Administrative Agent of the transactions contemplated by this Trust
Agreement and the fulfillment by the Administrative Agent of the terms
hereof, have been obtained; provided, however, that the Administrative
Agent makes no representation or warranty regarding state securities or
"blue sky" laws in connection with the distribution of the Up-MACRO
Tradeable Shares.
21
(b) Claymore Securities, Inc. and MACRO Financial, LLC, each
in its capacity as a Marketing Agent hereunder, hereby makes, and any successor
Marketing Agent by its appointment hereunder shall make, on the Closing Date (or
on the date of any such appointment), the following representations, warranties
and covenants to the Up-MACRO Tradeable Trust (and agrees that the Depositor and
the Trustee may rely on each such representation, warranty and covenant in
fulfilling their respective duties hereunder):
(i) Organization and Good Standing. 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 Up-MACRO Tradeable
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
22
performance by it of its obligations under this Trust Agreement, or
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Trust Agreement.
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by each
Marketing Agent of this Trust Agreement, the performance by each
Marketing Agent of the transactions contemplated by this Trust Agreement
and the fulfillment by each Marketing Agent of the terms hereof, have
been obtained; provided, however, that neither Marketing Agent makes any
representation or warranty regarding state securities or "blue sky" laws
in connection with the distribution of the Up-MACRO Tradeable Shares.
SECTION 3.5 Establishment of the Securities Account.
(a) The Trustee shall establish and maintain in the name of
the Trustee, on behalf of the Up-MACRO Tradeable Trust and for the benefit of
the Holders of the Up-MACRO Tradeable Shares, an Eligible Deposit Account
bearing a designation clearly indicating that the Up-MACRO Holding Shares
deposited therein are held for the benefit of the Holders of the Up-MACRO
Tradeable Shares (the "Securities Account").
(b) The Securities Account shall initially be established with
the Trustee. The Trustee shall possess all right, title and interest in and to
all of the Up-MACRO Holding Shares on deposit from time to time in the
Securities Account and in all proceeds thereof for the benefit of the Holders of
the Up-MACRO Tradeable Shares.
(c) The Securities Account shall be under the sole dominion
and control of the Trustee for the benefit of the Holders of the Up-MACRO
Tradeable Shares. Except as expressly provided in this Trust Agreement, each of
the Depositor, the Administrative Agent and the Trustee agree that it shall have
no right of set-off or banker's lien against, and no right to otherwise deduct
from, any assets held in the Securities Account for any amount owed to it by the
Up-MACRO Tradeable Trust or any Holder of Up-MACRO Tradeable Shares. If at any
time the Securities Account ceases to be an Eligible Deposit Account, the
Trustee shall within twenty (20) Business Days establish a new account, transfer
any assets to such new account, and from the date such new account is
established it shall be the "Securities Account" for purposes of this Trust
Agreement.
(d) In connection with each deposit of Up-MACRO Holding Shares
into the Up-MACRO Tradeable Trust, whether done as part of a Paired Issuance or
otherwise, the Trustee shall credit all Up-MACRO Holding Shares delivered to it
by the Up-MACRO Holding Trustee to the Securities Account on the date on which
the Up-MACRO Tradeable Trust becomes the beneficial owner of such shares on the
records of the Depository.
(e) In connection with each exchange of Up-MACRO Tradeable
Shares for the underlying Up-MACRO Holding Shares, whether done as part of a
Paired Optional Redemption or otherwise, the Trustee shall remove such
Up-MACRO Holding Shares from the Securities Account and debit such Account
from Up-MACRO Holding Shares in the amount and on the date specified to the
Trustee by the Administrative Agent.
(f) In connection with the Final Scheduled Termination Date
or an Early Termination Date, the Trustee shall remove all remaining Up-MACRO
Holding Shares from the Securities Account and deliver such Up-MACRO Holding
Shares to the Up-MACRO Holding
23
Trustee for cancellation and debit the Securities Account from all such
Up-MACRO Holding Shares.
SECTION 3.6 Establishment of the Distribution Account.
(a) The Trustee shall establish and maintain in the name of
the Trustee, on behalf of the Up-MACRO Tradeable Trust and for the benefit of
the Holders of the Up-MACRO Tradeable Shares, an Eligible Deposit Account
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Holders of the Up-MACRO Tradeable Shares (the
"Distribution Account").
(b) The Distribution Account shall initially be established
with the Trustee. The Trustee shall possess all right, title and interest in
and to all funds on deposit from time to time in the Distribution Account and
in all proceeds thereof. The Distribution Account shall be under the sole
dominion and control of the Trustee for the benefit of the Holders of the
Up-MACRO Tradeable Shares.
(c) Except as expressly provided in this Trust Agreement,
each of the Depositor, the Administrative Agent and the Trustee agree that it
shall have no right of set-off or banker's lien against, and no right to
otherwise deduct from, any funds held in the Distribution Account for any
amount owed to it by the Up-MACRO Tradeable Trust or any Holder of Up-MACRO
Tradeable Shares. If, at any time, the Distribution Account ceases to be an
Eligible Deposit Account, the Trustee shall within twenty (20) Business Days
establish a new account, transfer any funds on deposit therein to such new
account, and from the date such new account is established, it shall be the
"Distribution Account" for purposes of this Trust Agreement.
(d) Immediately upon receipt thereof, the Trustee shall
deposit into the Distribution Account any distribution amount received on the
Up-MACRO Holding Shares held by the Up-MACRO Tradeable Trust and shall
distribute such amount, on the same Business Day on which such amount is
received, to the Holders of the Up-MACRO Tradeable Shares, ratably based on the
Aggregate Par Amount of Up-MACRO Tradeable Shares held by each such Holder.
SECTION 3.7 Establishment of the Netting Account.
(a) The Trustee shall establish and maintain in the name of
the Trustee, on behalf of the Up-MACRO Tradeable Trust and for the benefit of
the Holders of the Up-MACRO Tradeable Shares, an Eligible Deposit Account
bearing a designation that the securities deposited therein are held for the
benefit of the Holders of the Up-MACRO Tradeable Shares (the "Netting Account").
(b) The Netting Account shall initially be established with
the Trustee. The Trustee shall possess all right, title and interest in and to
all the securities on deposit from time to time in the Netting Account. The
Netting Account shall be under the sole dominion and control of the Trustee
for the benefit of the Holders of the Up-MACRO Tradeable Shares.
(c) On the Redemption Date, the Issuance Date or the
Business Day following the Business Day in which an Exchange Order was
submitted, on which (i) both a Redemption Order in which Tradeable Shares are
submitted and an Issuance Order in which Tradeable Shares are requested, are
to be executed, (ii) both a Redemption Order in which Tradeable Shares are
submitted and an Exchange Order Pursuant to Section 6.3 in which Up-MACRO
Tradeable Shares are requested, are to be executed or (iii) both an Issuance
Order in which Tradeable Shares are requested and an Exchange Order pursuant
to Section 6.3 in which Up-MACRO Tradeable
24
Shares are submitted, are to be executed, the Trustee shall net such Up-MACRO
Tradeable Shares to be redeemed and/or exchanged against the Up-MACRO
Tradeable Shares to be issued and/or exchanged as follows:
(i) if there is a positive difference between the number of
shares to be redeemed and/or exchanged and the number of shares to be
issued and/or exchanged, the Trustee shall cancel the number of Up-MACRO
Tradeable Shares equal to such positive difference and deliver all
remaining Up-MACRO Tradeable Shares credited to the Netting Account to
the Authorized Participants who directed the issuance or exchange, as
applicable, of such shares; or
(ii) if there is a positive difference between the number of
shares to be issued and/or exchanged and the number of shares to be
redeemed and/or exchanged, the Trustee shall cause the Up-MACRO Tradeable
Trust to issue new Up-MACRO Tradeable Shares in the amount of such
positive difference and deliver such newly-issued Up-MACRO Tradeable
Shares and all Up-MACRO Tradeable Shares credited to the Netting Account
to the Authorized Participants who directed the issuance of such shares.
(iii) No Up-MACRO Tradeable Shares shall remain on deposit
in the Netting Account at the end of each Business Day.
ARTICLE 4
CALCULATIONS
SECTION 4.1 Calculations on Price Determination Days.
(a) With respect to each Price Determination Day, the Trustee
shall calculate and provide to the Administrative Agent and the Calculation
Agent, not later than 5:00 p.m. on the preceding Business Day, the following
data: (i) the number of Up-MACRO Holding Shares on deposit in the Up-MACRO
Tradeable Trust on such preceding Business Day; (ii) the aggregate amount of
Up-MACRO Tradeable Shares Outstanding on such Business Day; and (iii) the Per
Share Underlying Value of an Up-MACRO Tradeable Share on such Business Day.
For purposes of calculating the foregoing amounts on any
Business Day, any issuances or exchanges of Up-MACRO Tradeable Shares
scheduled to settle on such Business Day shall be taken into account in making
such calculations.
(b) The Trustee's calculations pursuant to clause (a) of
this Section 4.1 shall be conclusive and binding upon the Holders of the
Up-MACRO Tradeable Shares and all other Persons.
SECTION 4.2 Calculation of Intraday Indicative Values.
Intraday indicative values for the Per Share Underlying
Value of the Up-MACRO Tradeable Shares based on the intraday trading prices of
the Applicable Reference Price of Crude Oil will be calculated by the
Calculation Agent under the Calculation Agency Agreement based upon the
Applicable Reference Price of Crude Oil and the data provided to the
Calculation Agent by the Trustee pursuant to Section 4.1 of this Trust
Agreement, by the Up-MACRO Holding Trustee pursuant to Section 4.1 of the
Up-MACRO Holding Trust Agreement and by the Down-MACRO Holding Trustee
pursuant to Section 4.1 of the Down-MACRO Holding Trust Agreement.
25
ARTICLE 5
DISTRIBUTIONS ON THE UP-MACRO TRADEABLE SHARES
SECTION 5.1 Rights of Holders of the Up-MACRO Tradeable
Shares. Each Up-MACRO Tradeable Share represents an undivided beneficial
interest in the Up-MACRO Tradeable Trust and the Beneficial Owner thereof is
entitled to receive distributions on such Up-MACRO Tradeable Share on the
dates and in the amounts specified in Section 5.2 from assets on deposit in
the Up-MACRO Tradeable Trust.
SECTION 5.2 Distributions. The Trustee, on behalf of the
Up-MACRO Tradeable Trust, shall make the following distributions from amounts
on deposit in the Distribution Account:
(a) Quarterly Distributions. On the Distribution Payment
Date that follows each Distribution Date, the Trustee shall distribute to each
Person who was a Registered Owner of the Up-MACRO Tradeable Shares as of the
Record Date that preceded such Distribution Payment Date an amount equal to
the portion of the Quarterly Distribution received by the Up-MACRO Tradeable
Trust on the Up-MACRO Holding Shares it holds on deposit, in cash, for
delivery thereof by the Depository to each Person who was a Beneficial Owner
of Up-MACRO Tradeable Shares on such Record Date.
(b) Final Distributions. On the Distribution Payment Date that
follows the Final Scheduled Termination Date or an Early Termination Date, the
Trustee shall distribute to each Person who was a Registered Owner of the
Up-MACRO Tradeable Shares as of the Record Date that preceded such Distribution
Payment Date an amount equal to the portion of the Final Distribution received
by the Up-MACRO Tradeable Trust on the Up-MACRO Holding Shares it holds on
deposit, in cash, for delivery thereof by the Depository to each Person who was
a Beneficial Owner of Up-MACRO Tradeable Shares on such Record Date.
SECTION 5.3 Payment of Fees and Expenses. All fees and
expenses of the Up-MACRO Tradeable Trust shall be paid by the Up-MACRO Holding
Trust pursuant to the provisions of Section 5.3 and Section 5.4 of the
Up-MACRO Holding Trust Agreement. The Trustee shall promptly deliver to the
Up-MACRO Holding Trustee and the Administrative Agent, notice of and any
documentation relating to any expense incurred by and on behalf of the
Up-MACRO Tradeable Trust and any fee payable by the Up-MACRO Tradeable Trust.
ARTICLE 6
EXCHANGES OF UP-MACRO TRADEABLE SHARES
SECTION 6.1 Exchanges in Connection with Paired Optional
Redemptions.
(a) On any Price Determination Day occurring after the
Closing Date but prior to the Final Scheduled Termination Date or an Early
Termination Date, any Authorized Participant may direct the redemption of
Paired Holding Shares by delivering a Redemption Order to the Administrative
Agent and satisfying the conditions set forth in Section 6.1 of the Up-MACRO
Holding Trust Agreement (such redemption, a "Paired Optional Redemption"). Any
Authorized Participant who wishes to direct a Paired Optional Redemption
pursuant to Section 6.1 of the Up-MACRO Holding Trust Agreement and who holds
Up-MACRO Tradeable Shares, may direct an exchange and concurrent redemption of
its Up-MACRO Tradeable Shares for their underlying Up-MACRO Holding Shares
pursuant to and in accordance with the procedures
26
specified in the Participants Agreement. The Authorized Participant directing
the Paired Optional Redemption must be the Beneficial Owner of the Paired
Holding Shares or the Up-MACRO and Down-MACRO Tradeable Shares which are being
tendered for redemption, as shown on the records of the Depository.
(b) Following the Redemption Date, the redeeming Authorized
Participant must transfer to the Trustee, not later than the date and time
specified in the Participants Agreement, the requisite number of Paired
Holding Shares or Up-MACRO Tradeable Shares and Down-MACRO Tradeable Shares
constituting at least one MACRO Unit or integral multiples thereof, plus the
applicable Redemption Cash Component, if any, and the transaction fee as
specified in this Section 6.1(d), and provide written or electronic evidence
of such deposit to the Administrative Agent in accordance with the
Participants Agreement.
(c) Pursuant to Section 6.1(c) of the Up-MACRO Holding Trust
Agreement, the Administrative Agent may reject any Redemption Order (i) if the
Administrative Agent determines that the Redemption Order is not in the required
form, (ii) if Paired Holding Shares or Up-MACRO and Down-MACRO Tradeable Shares
constituting at least one or more whole MACRO Units are not tendered to the
Trustee for redemption, (iii) if the Depositor has determined, based upon an
opinion of counsel, and advised the Trustee, that such Redemption Order would
have adverse tax or securities laws consequences for either of the Paired
Holding Trust, the Up-MACRO Tradeable Trust or Down-MACRO Tradeable Trust, the
Holders of the Paired Holding Shares or the Holders of the Up-MACRO Tradeable
Shares or Down-MACRO Tradeable Shares, (iv) if the acceptance or receipt of the
Redemption Order would, in the opinion of counsel to the Depositor acceptable to
the Trustee, be unlawful, (v) if any such redemption would cause the Up-MACRO
Tradeable Trust to hold fifty percent or less of the Outstanding Up-MACRO
Holding Shares, (vi) if circumstances outside the control of the Trustee, the
Depositor or the Administrative Agent make it impractical or not feasible to
process the Redemption Order on the Redemption Order Date or the Redemption
Date, or (vii) if the Down-MACRO Holding Trustee has notified the Trustee that
it has rejected the related Redemption Order or the related Exchange Order
delivered under the Down-MACRO Holding Trust Agreement for one of the reasons
described in Section 6.1(c) of the Down-MACRO Holding Trust Agreement. None of
the Trustee, the Depositor or the Administrative Agent shall be liable to any
Person for rejecting a Redemption Order pursuant to Section 6.1(c) of the
Up-MACRO and/or Down-MACRO Holding Trust Agreement.
(d) A non-refundable transaction fee will be payable to the
Up-MACRO Holding Trustee for its own account in the amount specified in Section
7 of the Participants Agreement in connection with each Redemption Order.
(e) On any Distribution Date that is an Early Termination
Date, or the Final Scheduled Termination Date, the Trustee shall redeem all of
the Up-MACRO Tradeable Shares that are Outstanding on such Distribution Date at
their Up-MACRO Per Share Underlying Value, as calculated [on the immediately
preceding Price Determination Day], using the funds received on such date from
the Up-MACRO Holding Trustee pursuant to the terms of the Up-MACRO Holding Trust
Agreement.
SECTION 6.2 Paired Issuances.
(a) On any Price Determination Day that occurs after the
Closing Date but prior to the Final Scheduled Termination Date or an Early
Termination Date, the Up-MACRO Holding Trust shall issue additional Up-MACRO
Holding Shares contemporaneously with the issuance of additional Down-MACRO
Holding Shares in the form of MACRO Units (such an
27
issuance, a "Paired Issuance") and, if applicable, concurrently exchange such
MACRO Units to their related Tradeable Shares following the receipt of, and in
accordance with, a Creation Order delivered by an Authorized Participant and
forwarded to the Trustee by the Administrative Agent. Any Authorized
Participant who directs a Paired Issuance pursuant to Section 6.2 of the
Up-MACRO Holding Trust Agreement shall be deemed (unless it has specifically
directed that Paired Holding Shares be delivered to it) to direct the deposit
of the Paired Holding Shares created in such Paired Issuance into the Up-MACRO
Tradeable Trust and the issuance in exchange therefor of Up-MACRO Tradeable
Shares which shall be delivered to the Authorized Participant pursuant to and
in accordance with the procedures specified in the Participants Agreement.
(b) Subject to the requirements and limitations set forth
herein, in the Participants Agreement and in the Up-MACRO Holding Trust
Agreement, the number of Up-MACRO Tradeable Shares that the Up-MACRO Tradeable
Trust may issue is unlimited.
(c) Pursuant to Section 6.2(c) of the Up-MACRO Holding Trust
Agreement, the Administrative Agent shall reject any Creation Order (i) if the
Administrative Agent determines that the Creation Order is not in the required
form, (ii) if the Trustee notifies the Administrative Agent that the
Authorized Participant directing the Paired Issuance has not deposited
sufficient funds with the Trustee, (iii) if the Depositor determines, based
upon an opinion of counsel, that such Creation Order would have adverse tax or
securities law consequences for either of the Paired Holding Trusts, the
Up-MACRO Tradeable Trust or Down-MACRO Tradeable Trust, the Holders of the
Paired Holding Shares or the Holders of the Up-MACRO Tradeable Shares or Down
MACRO Tradeable Shares, (iv) the acceptance or fulfillment of which would, in
the opinion of counsel to the Depositor acceptable to the Trustee, be
unlawful, (v) if any such creation would cause the Up-MACRO Tradeable Trust to
hold fifty percent or less of the Outstanding Up-MACRO Holding Shares (vi) if
the Down-MACRO Holding Trustee notifies the Trustee that the Creation Order
for additional Down-MACRO Holding Shares has been or will be rejected by it,
by the Administrative Agent on behalf of the Down-MACRO Holding Trust, or
(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. 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
Up-MACRO Holding Trustee for its own account in the amount specified in Section
7 of the Participants Agreement in connection with each Creation Order.
SECTION 6.3 Exchanges of Up-MACRO Tradeable Shares Other
than in Paired Optional Redemptions or Paired Issuances.
(a) On any Business Day, an Authorized Participant may submit
an Exchange Order to the Administrative Agent requesting an exchange of its
Up-MACRO Tradeable Shares for the underlying Up-MACRO Holding Shares, and the
Administrative Agent, upon processing such Exchange Order, shall provide the
Trustee with the requisite information needed in order to effectuate such order.
The Administrative Agent shall provide such information at the times set forth
in Attachment A-III to the Participants Agreement. The Trustee and the
Administrative Agent, in effectuating each Exchange Order, shall follow the
procedures set forth herein and in Attachment A-III to the Participants
Agreement.
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(b) The Trustee will process Exchange Orders only from
Authorized Participants with respect to which the Participants Agreement is in
full force and effect.
(c) After accepting an Authorized Participant's Exchange
Order, the Trustee will, as directed in such Exchange Order, either (i)
withdraw Up-MACRO Holding Shares in an equal number to the Up-MACRO Tradeable
Shares delivered by such Authorized Participant from the Securities Account
and deliver those Up-MACRO Holding Shares to the Authorized Participant or
(ii) deposit the Up-MACRO Holding Shares delivered by such Authorized
Participant into the Up-MACRO Tradeable Trust and cause the Up-MACRO Tradeable
Trust to deliver to such Authorized Participant Up-MACRO Tradeable Shares on
deposit in the Netting Account on the applicable day of settlement, if any,
and, if the Up-MACRO Tradeable Shares on deposit in the Netting Account are
insufficient to satisfy such Exchange Order, to issue one Up-MACRO Tradeable
Share for each Up-MACRO Holding Share delivered by it, in each case, in
accordance with, and subject to the satisfaction of, the terms and conditions
set forth in the Participants Agreement.
(d) Any Exchange Order is subject to suspension or delay by
the Administrative Agent pursuant to Sections 6.1(c), 6.2(c) or 6.4, as
applicable.
SECTION 6.4 Suspension or Delay of Settlement.
(a) The Administrative Agent may, in its discretion, and will
when so directed by the Depositor, suspend the right of exchange for the
Up-MACRO Tradeable Shares, or postpone the date of settlement for any such
exchange,
(i) for any period during which the AMEX or NYMEX is closed,
or trading is suspended or restricted;
(ii) for any period during which an emergency exists as a
result of which delivery or acquisition of Eligible Treasuries by the
Paired Holding Trusts is not reasonably practicable;
(iii) if any such redemption would cause the Up-MACRO or
Down-MACRO Investment Amount to equal less than 10 million dollars; and
(iv) for such other period as the Depositor, the Trustee or
the Administrative Agent determines to be necessary for the protection of
the Beneficial Owners of any of the Paired Holding Shares, the Up-MACRO
Tradeable Shares or the Down-MACRO Tradeable Shares.
None of the Depositor, the Trustee or the Administrative
Agent will be liable to any Person for any loss or damages that may result
from any such suspension or postponement.
SECTION 6.5 The Participants Agreement.
(a) Each Paired Optional Redemption, each Paired Issuance and
each Exchange Order shall be effected in accordance with the procedures set
forth in Attachment A to the Participants Agreement, which may be amended from
time to time with the written consent of the Trustee, the Up-MACRO Holding
Trustee, the Down-MACRO Holding Trustee, the Down-MACRO Tradeable Trustee and
the Administrative Agent in accordance with the provisions thereof.
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(b) The Trustee and the Administrative Agent shall only
process Redemption Orders, Creation Orders and Exchange Orders from Authorized
Participants who have executed a Participants Agreement that is in full force
and effect at the time when the Redemption Order, the Creation Order or the
Exchange Order is placed. The Administrative Agent will maintain and make
available at its Business Office during normal business hours a current list
of the Authorized Participants eligible to participate in a Paired Issuance.
(c) In the event that the provisions of this Trust Agreement
and the Participants Agreement conflict in any way, the provisions of the
Participants Agreement will prevail insofar as they relate to the requirements
and procedures for directing and effecting Paired Optional Redemptions, Paired
Issuances and Exchange Orders.
ARTICLE 7
[RESERVED].
ARTICLE 8
REPORTING TO HOLDERS OF THE UP-MACRO TRADEABLE SHARES
SECTION 8.1 Reporting to Holders of the Up-MACRO Tradeable
Shares.
(a) On each Price Determination Day, the Trustee shall
calculate and provide to the Administrative Agent for posting on the
MACROshares Website, not later than four hours after the Applicable Reference
Price of Crude Oil is published to the consolidated tape on such Price
Determination Day, the Per Share Underlying Value of an Up-MACRO Tradeable
Share and the number of Up-MACRO Holding Shares on deposit in the Up-MACRO
Tradeable Trust.
(b) Not later than [ ] on the last Business Day preceding
each Distribution Date, including the Final Scheduled Termination Date or an
Early Termination Date, the Trustee shall calculate and provide to the
Depositor for inclusion in the quarterly report on Form 10-Q that the
Depositor will prepare and file with the SEC on behalf of the Up-MACRO
Tradeable Trust the following information:
(i) if applicable, the Final Distribution that will be made
on each Up-MACRO Tradeable Share;
(ii) a record of the aggregate exchanges of Up-MACRO
Tradeable Shares for the underlying Up-MACRO Holding Shares in connection
with Paired Optional Redemptions or otherwise and the aggregate number of
Up-MACRO Holding Shares deposited into the Up-MACRO Tradeable Trust in
connection with Paired Issuances or otherwise; and
(iii) the aggregate number of Up-MACRO Tradeable Shares
Outstanding as of the date of the applicable report.
(c) The Administrative Agent shall post [all] of the
information calculated and provided to it by the Trustee pursuant to clause
(a) of this Section 8.1 on the MACROshares Website on each Price Determination
Day.
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SECTION 8.2 Periodic Reports.
(a) At the end of each fiscal year, the Depositor shall
prepare an annual report on Form 10-K for the Up-MACRO Tradeable Trust
containing financial statements prepared by the Depositor and audited by
Independent accountants engaged by the Depositor. The annual report shall
contain such information as shall be required by applicable laws, rules and
regulations and may contain such additional information as the Depositor or
the Administrative Agent determines shall be included. The Trustee shall
deliver a copy of such annual report to the Registered Owners of the Up-MACRO
Tradeable Shares and the Depositor shall file such annual report with the SEC
in such manner as shall be required by applicable laws, rules and regulations.
(b) At the end of each calendar quarter, the Depositor shall
prepare a quarterly report on Form 10-Q for the Up-MACRO Tradeable Trust
containing unaudited financial statements prepared by the Depositor. The
quarterly report shall be in such form and contain such information as shall
be required by applicable laws, rules and regulations and may contain such
information as the Depositor determines shall be included. The Trustee shall
deliver a copy of such quarterly report to the Registered Owners of the
Up-MACRO Tradeable Shares and 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 accounting policies specified
in the financial statements included in the Registration Statement.
(d) The Trustee shall deliver the reports prepared pursuant
to clause (a) and (b) of this Section 8.2 to each Registered Owner within two
Business Days of the filing thereof with the SEC.
SECTION 8.3 Form 8-K Disclosure. Within four Business Days
(or such shorter period as required under the general instructions to Form
8-K), the Depositor shall file a Form 8-K with the SEC disclosing:
(a) the occurrence of a Trustee Termination Event;
(b) the appointment of a Successor Trustee;
(c) the resignation of the Trustee, the Up-MACRO Holding
Trustee, the Down-MACRO Holding Trustee, the Administrative Agent, either
Marketing Agent or the Calculation Agent under the Calculation Agency
Agreement;
(d) the appointment of a successor trustee for the Up-MACRO
Holding Trust and/or the Down-MACRO Holding Trust, a successor Administrative
Agent, any successor Marketing Agent or a successor Calculation Agent under
the Calculation Agency Agreement;
(e) the occurrence of a Termination Trigger;
(f) an amendment to this Trust Agreement, the Up-MACRO
Holding Trust Agreement, the Down-MACRO Holding Trust Agreement, the
Participants Agreement or any other Transaction Document;
(g) at the sole discretion of the Depositor, a change to the
list of Authorized Participants set forth on Schedule I to the Participants
Agreement; and
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(h) any other event that would be material to the Holders of
the Up-MACRO Tradeable Shares and which is, accordingly, required to be
disclosed by means of the filing of a Form 8-K.
SECTION 8.4 Listing of the Up-MACRO Tradeable Shares. The
Depositor shall use its best efforts to obtain and maintain the listing of the
Up-MACRO Tradeable Shares on a national stock exchange. Within three (3)
Business Days following receipt of notice of any actual, proposed or
contemplated de-listing of the Up-MACRO Tradeable Shares by any such stock
exchange, the Depositor shall terminate the listing on such stock exchange.
SECTION 8.5 Disclosure Controls and Procedures. The
Depositor shall establish and maintain disclosure controls and procedures (as
defined in Rule 13a-14 and 15d-14 under the Exchange Act, giving effect to the
rules and regulations and SEC interpretations (whether or not public)
thereunder) that shall be designed to ensure that (i) material information
relating to the Up-MACRO Tradeable Trust is made known to the Depositor, (ii)
such disclosure controls and procedures are effective to perform the functions
for which they were established; (iii) the Depositor will be advised, on
behalf of the Up-MACRO Tradeable Trust, of: (A) any significant deficiencies
in the design or operation of such controls which could adversely affect the
Fund 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
Fund Accounting Agent's or the Depositor's internal controls; and (iv) any
material weaknesses in such controls are able to be identified for the
Up-MACRO Tradeable Trust's auditors.
SECTION 8.6 Fund Accounting Agent Responsibilities. The
Trustee, in its capacity as the Fund Accounting Agent, shall maintain a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with this Trust Agreement and
the Administrative Agent's and Trustee's duties hereunder; (ii) transactions
with respect to the Up-MACRO Tradeable Trust are recorded as necessary to
permit preparation of financial statements and to maintain accountability for
the Trust Assets; and (iii) the Trust Assets are held for the Up-MACRO
Tradeable Trust by the Trustee in accordance with this Trust Agreement.
ARTICLE 9
OTHER MATTERS RELATING TO THE DEPOSITOR
SECTION 9.1 Liability of the Depositor. The Depositor shall
be liable in all respects for the obligations, covenants, representations and
warranties of the Depositor arising under or related to this Trust Agreement.
The Depositor shall be liable only to the extent of the obligations
specifically undertaken by it in its capacity as Depositor.
SECTION 9.2 Limitations on Liability of the Depositor ,
Claymore Securities, Inc and MACRO Financial LLC.. None of the Depositor,
Claymore Securities, Inc., MACRO Financial, LLC or any of their respective
directors, officers, employees or agents acting in such capacities shall be
under any liability to the Up-MACRO Tradeable Trust, the Trustee, the Holders
of the Up-MACRO Tradeable Shares or any other Person for taking any action or
for refraining from taking any action in good faith in their capacities as
Depositor, Administrative Agent or Marketing 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
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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 market fluctuations or other similar market or investment risks
associated with ownership of the Up-MACRO Tradeable Shares) arising out of or
based on the arrangement created by this Trust Agreement or the actions of the
Depositor taken pursuant hereto or arising from any allegation of infringement
of the intellectual property rights of third parties (to the extent that, if
the Trust Assets at the time the claim is made were not used to pay in full
all Outstanding Up-MACRO Tradeable Shares, the Trust Assets would be used to
pay any such losses, claims, damages or liabilities).
(b) The Depositor shall indemnify and hold harmless the
Trustee and its officers, directors, employees and agents from and against any
loss, liability, expense, damage or injury (collectively, a "Loss") suffered
or sustained by reason of the acts performed or omitted by the Trustee
pursuant to this Trust Agreement, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any action, proceeding or claim including, without
limitation, any action, proceeding or claim relating to or arising from any
alleged infringement of intellectual property rights of third parties;
provided, however, that the Depositor's duty to indemnify under this Section
9.3(b) shall not extend to any Losses (i) for which the Trustee has a right to
indemnification under any other provision of this Trust Agreement, or (ii)
that are caused by or result from the breach of contract by, or the fraud,
negligence or willful misconduct of, the Trustee or its officers, directors,
employees or agents.
(c) The Depositor and its members, managers, officers,
employees, affiliates (as such term is defined in Regulation S-X of the
Securities Act) and subsidiaries (each, a "Depositor Indemnified Party") shall
be indemnified by the Up-MACRO Tradeable Trust and held harmless against any
loss, liability or expense incurred hereunder without (1) gross negligence,
bad faith, willful misconduct or willful malfeasance on the part of such
Depositor Indemnified Party arising out of or in connection with the
performance of its obligations hereunder or any actions taken in accordance
with the provisions of this Trust Agreement or (2) reckless disregard on the
part of such Depositor Indemnified Party of its obligations and duties under
this Trust Agreement. Each Depositor Indemnified Party shall also be
indemnified by the Up-MACRO Tradeable Trust and held harmless against any
loss, liability or expense arising under the Participants Agreement insofar as
such loss, liability or expense arises from any untrue statement or alleged
untrue statement of a material fact contained in any written statement
provided to the Depositor by any of the Calculation Agent, the Administrative
Agent and the Trustee. Such indemnity shall include payment from the Up-MACRO
Tradeable Trust of the costs and expenses incurred by such Depositor
Indemnified Party in defending itself against any such indemnified claim or
liability.
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(d) Any obligation owed by the Up-MACRO Tradeable Trust
pursuant to this Section 9.3 shall be paid by the Up-MACRO Holding Trust in
accordance with the provisions of Section 5.3 of the Up-MACRO Holding Trust
Agreement.
ARTICLE 10
MATTERS RELATING TO THE
ADMINISTRATIVE AGENT AND THE MARKETING AGENTS
SECTION 10.1 Role of the Administrative Agent. The
Administrative Agent hereby acknowledges and accepts its role pursuant to its
duties set forth in this Trust Agreement.
SECTION 10.2 Liability of the Administrative Agent. The
Administrative Agent shall be liable under this Trust Agreement only to the
extent of the obligations specifically undertaken hereunder by the
Administrative Agent in its capacity as Administrative Agent.
SECTION 10.3 Limitation on Liability of the Administrative
Agent. Neither the Administrative Agent nor any of the directors, officers,
employees or agents of the Administrative Agent shall be under any liability
to the Up-MACRO Tradeable Trust, the Trustee, the Holders of the Up-MACRO
Tradeable Shares or any other Person for any action taken or for refraining
from taking any action in good faith in its capacity as Administrative Agent
pursuant to this Trust Agreement; provided, however, that this provision shall
not protect the Administrative Agent or any director, officer, employee or
agent of the Administrative Agent against any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties or by reason of reckless disregard of its
obligations and duties hereunder. The Administrative Agent and any director,
officer, employee or agent of the Administrative Agent may rely in good faith
on any document properly executed and delivered under this Trust Agreement by
the Depositor, the Trustee, the Down-MACRO Holding Trustee, the Up-MACRO
Holding Trustee, the Down-MACRO Tradeable Trustee or any Authorized
Participant respecting any matters arising hereunder. The Administrative Agent
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties as Administrative Agent in
accordance with this Trust Agreement and which in its reasonable judgment may
involve it in any expense or liability unless the Administrative Agent has
obtained an indemnity from the Holders of the Up-MACRO Tradeable Shares
sufficient to hold it harmless from such liability. The Administrative Agent
may, in its sole discretion, undertake any such legal action which it may deem
necessary or desirable for the benefit and interests of the Holders of the
Up-MACRO Tradeable Shares and the rights and duties of the parties hereto.
SECTION 10.4 Administrative Agent Indemnification of the
Up-MACRO Tradeable Trust and the Trustee. The Administrative Agent shall
indemnify and hold harmless the Up-MACRO Tradeable Trust, the Depositor and
the Trustee and their respective officers, directors, employees and agents
(each, an "Administrative Agent Indemnified Party") from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts or omissions of the Administrative Agent under this Trust Agreement,
including any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any action,
proceeding or claim; provided, however, that the Administrative Agent shall
not indemnify the Trustee if such acts or omissions, or alleged acts or
omissions, constitute or are caused by fraud, negligence, or willful
misconduct of the Trustee; provided, further that the Administrative Agent
shall not indemnify the Depositor if such acts or omissions, or alleged acts
or omissions, constitute or are caused by fraud, gross negligence, or willful
34
misconduct of the Depositor; provided, further, that the Administrative Agent
shall not indemnify the Up-MACRO Tradeable Trust or the Holders of the
Up-MACRO Tradeable Shares for any liabilities, costs or expenses of the
Up-MACRO Tradeable Trust with respect to any action taken by the Trustee at
the request of the Holders of the Up-MACRO Tradeable Shares; provided,
further, that the Administrative Agent shall not indemnify the Up-MACRO
Tradeable Trust or the Holders of the Up-MACRO Tradeable Shares as to any
losses, claims or damages incurred by any of them in their capacities as
investors, including, without limitation, losses with respect to market or
investment risks associated with ownership of the Up-MACRO Tradeable Shares;
and provided, further, that the Administrative Agent shall not indemnify the
Up-MACRO Tradeable Trust or the Holders of the Up-MACRO Tradeable Shares for
any liabilities, costs or expenses of the Up-MACRO Tradeable Trust or the
Holders of the Up-MACRO Tradeable Shares arising under any tax law, including
any federal, state, local or foreign income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with
respect thereto or arising from a failure to comply therewith) required to be
paid by the Up-MACRO Tradeable Trust or the Holders of the Up-MACRO Tradeable
Shares in connection herewith to any taxing authority. Indemnification
pursuant to this Section 10.4 shall not be payable from the Trust Assets. The
provisions of this indemnity shall run directly to and be enforceable by an
Administrative Agent Indemnified Party, subject to the limitations hereof. The
obligations of the Administrative Agent under this Section 10.4 shall survive
the termination of the Up-MACRO Tradeable Trust and the resignation or removal
of the Administrative Agent or the resignation or removal of any of the
entities which constitute Administrative Agent Indemnified Parties at the time
of the execution of this Trust Agreement and the appointment of successors
thereto.
SECTION 10.5 Delegation of Duties. In the ordinary course of
business, the Administrative Agent may at any time delegate any duties
hereunder to any Person who agrees to conduct such duties in accordance with
this Trust Agreement. Any such delegations shall not relieve the
Administrative Agent of its liability and responsibility with respect to such
duties and shall not constitute a resignation, and the Administrative Agent
will remain jointly and severally liable with such Person for any amounts
which would otherwise be payable pursuant to this Article 10 as if the
Administrative Agent had performed such duty; provided, however, that in the
case of any significant delegation to a Person other than an Affiliate of the
Administrative Agent, (1) at least thirty (30) days' prior written notice
shall be given to the Trustee and the Depositor of such delegation to any
entity that is not an Affiliate of the Administrative Agent and (2) the prior
written consent of the Depositor must be obtained. Notwithstanding anything
herein to the contrary, the Administrative Agent shall not assign any of its
duties and responsibilities hereunder, provided, that the Administrative Agent
shall be entitled to assign or pledge its right to receive the Up-MACRO
Administration and Marketing Fee hereunder to any third party.
SECTION 10.6 Resignation or Removal of Administrative Agent.
(a) An Administrative Agent appointed to office shall hold
office until its successor shall have been appointed by the Holders in
accordance with this Trust Agreement or until its termination, removal or
resignation.
(b) Subject to the provisions of this Section 10.6, the
Administrative Agent may be appointed, removed or replaced with or without
cause at any time by the Depositor, upon written notice; provided, however,
that the Administrative Agent shall not be removed in accordance with this
Section 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
35
Depositor and has accepted such appointment by written instrument executed by
such Successor Administrative Agent and delivered to the Depositor.
(c) Any Administrative Agent may resign hereunder by an
instrument in writing signed by the Administrative Agent and delivered to the
Depositor, the Trustee and each Registered Owner, which shall become effective
on the date specified in such instrument; provided, however, that no such
resignation of a Administrative Agent shall become effective:
(i) until a Successor Administrative Agent has been
appointed and has accepted such appointment by instrument executed by
such Successor Administrative Agent and delivered to the Up-MACRO
Tradeable Trust, the Depositor and the resigning Administrative Agent; or
(ii) until the assets of the Up-MACRO Tradeable Trust have
been completely liquidated and the proceeds thereof distributed to the
Holders.
If no Successor Administrative Agent shall have been appointed and accepted
such appointment within thirty (30) days after delivery to the Depositor and
the Up-MACRO Tradeable Trust of an instrument of resignation, the resigning
Administrative Agent may petition at the expense of the Up-MACRO Tradeable
Trust any court of competent jurisdiction for appointment of a Successor
Administrative Agent. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Administrative Agent.
(d) No Administrative Agent shall be liable for anything
that occurs after it has ceased to act in such capacity, including, without
limitation, the acts or omissions to act of any Successor Administrative Agent
SECTION 10.7 Role of the Marketing Agents. Each Marketing
Agent hereby acknowledges and accepts its role pursuant to its duties set
forth in 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 Up-MACRO Tradeable
Trust, the Trustee, the Administrative Agent, the Holders of the Up-MACRO
Tradeable Shares or any other Person for any action taken or for refraining
from taking any action in good faith in its capacity as Marketing Agent
pursuant to this Trust Agreement; provided, however, that this provision shall
not protect either Marketing Agent or their respective directors, officers,
employees or agents against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of reckless disregard of its obligations and duties
hereunder. Each Marketing Agent and their respective directors, officers,
employees or agents may rely in good faith on any document properly executed
and delivered under this Trust Agreement by the Depositor, the Trustee, the
Administrative Agent, the Down-MACRO Holding Trustee, the Up-MACRO Holding
Trustee, the Down-MACRO Tradeable Trustee or any Authorized Participant
respecting any matters arising hereunder. Neither Marketing Agent shall be
under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties as Marketing Agent in accordance with this
Trust Agreement and which in its reasonable judgment may involve it in any
expense or liability unless such Marketing Agent has
36
obtained an indemnity from the Holders of the Up-MACRO Tradeable Shares
sufficient to hold it harmless from such liability.
SECTION 10.10 Marketing Agent Indemnification of the
Up-MACRO Tradeable Trust and the Trustee. Each Marketing Agent shall indemnify
and hold harmless the Up-MACRO Tradeable Trust, the Depositor and the Trustee
and their respective officers, directors, employees and agents (each, a
"Marketing Agent Indemnified Party") from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts or
omissions of such Marketing Agent under this Trust Agreement, including any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any action, proceeding or
claim; provided, however, that neither Marketing Agent shall indemnify the
Trustee if such acts or omissions, or alleged acts or omissions, constitute or
are caused by fraud, negligence, or willful misconduct of the Trustee;
provided, further, that neither Marketing Agent shall indemnify the Depositor
if such acts or omissions, or alleged acts or omissions, constitute or are
caused by fraud, gross negligence, or willful misconduct of the Depositor;
provided, further, that neither Marketing Agent shall indemnify the Up-MACRO
Tradeable Trust or the Holders of the Up-MACRO Tradeable Shares for any
liabilities, costs or expenses of the Up-MACRO Tradeable Trust with respect to
any action taken by the Trustee at the request of the Holders of the Up-MACRO
Tradeable Shares; provided, further, that neither Marketing Agent shall
indemnify the Up-MACRO Tradeable Trust or the Holders of the Up-MACRO
Tradeable Shares as to any losses, claims or damages incurred by any of them
in their capacities as investors, including, without limitation, losses with
respect to market or investment risks associated with ownership of the
Up-MACRO Tradeable Shares; and provided, further, that neither Marketing Agent
shall indemnify the Up-MACRO Tradeable Trust or the Holders of the Up-MACRO
Tradeable Shares for any liabilities, costs or expenses of the Up-MACRO
Tradeable Trust or the Holders of the Up-MACRO Tradeable Shares arising under
any tax law, including any federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by the Up-MACRO Tradeable Trust or the Holders
of the Up-MACRO Tradeable 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 Up-MACRO Tradeable 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. 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.
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ARTICLE 11
EARLY TERMINATION
SECTION 11.1 Termination Triggers.
(a) The Up-MACRO Tradeable Trust shall terminate if any one
of the following events (each, a "Termination Trigger") occurs:
(i) any of the following circumstances persists for five (5)
consecutive Business Days: (i) the Applicable Reference Price of Crude
Oil is not established by NYMEX or the Substitute Oil Price Provider;
(ii) NYMEX or such Substitute Oil Price Provider refuses to make that
price available to the Administrative Agent for the purpose of
calculating the Up-MACRO Underlying Value; or (iii)(a) NYMEX terminates
the NYMEX License or does not agree to a renewal thereof after the
expiration of its initial 5-year term and the Depositor and MacroMarkets
LLC are unable to enter into a Substitute Reference Price Licensing
Agreement with the Dow ▇▇▇▇▇ 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 $[ ], 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 $[ ], at which
level the Underlying Value of the Up-MACRO Holding Trust will be equal to
15% or less of the assets it holds on deposit and, in either case, the
Applicable Reference Price of Crude Oil remains at that level for three
(3) consecutive Price Determination Days;
(iii) any of the Up-MACRO Holding Trust, the Down-MACRO
Holding Trust, the Up-MACRO Tradeable Trust or the Down-MACRO Tradeable
Trust becomes required to register as an "investment company" under the
Investment Company Act;
(iv) any of the Up-MACRO Holding Trust, the Down-MACRO
Holding Trust, the Up-MACRO Tradeable Trust or the Down-MACRO Tradeable
Trust becomes a commodities pool that is regulated under the CEAct;
(v) DTC becomes unwilling or unable to act as Depository
under this Trust Agreement and no suitable replacement is willing and
able to assume the duties of the Depository hereunder;
(vi) the Administrative Agent resigns or is unable to
perform its duties under the Up-MACRO Holding Trust Agreement and the
Down-MACRO Holding Trust Agreement or becomes bankrupt or insolvent, and
no suitable replacement is willing and able to assume the duties of the
Administrative Agent under such agreements;
(vii) the Depositor elects to terminate the Up-MACRO Holding
Trust and 66 and 2/3% of the Holders of the Up-MACRO Holding Trust and
the Down-
38
MACRO Holding Trust, each voting as a separate class (with each Holder
of Tradeable Shares being entitled to vote the underlying Holding
Shares on deposit in its Tradeable Trust), consent to such termination;
(viii) a decree or order is entered by a court having
competent jurisdiction adjudging any of the Up-MACRO Holding Trust, the
Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the Down-MACRO
Tradeable Trust to be bankrupt or insolvent or granting an order for
relief or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of any of the
Up-MACRO Holding Trust, the Down-MACRO Holding Trust, the Up-MACRO
Tradeable Trust or the Down-MACRO Tradeable Trust under the Bankruptcy
Code or any other applicable law, or appointing a receiver, liquidator,
assignee or sequestrator (or other similar official) of any of the
Up-MACRO Holding Trust, the Down-MACRO Holding Trust, the Up-MACRO
Tradeable Trust or the Down-MACRO Tradeable Trust or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, or, in a court having jurisdiction, any of the Up-MACRO Holding
Trust, the Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the
Down-MACRO Tradeable Trust commences a voluntary case or proceeding under
the Bankruptcy Code or any other applicable law, or an involuntary case
or proceeding is commenced against any of the Up-MACRO Holding Trust, the
Down-MACRO Holding Trust, the Up-MACRO Tradeable Trust or the Down-MACRO
Tradeable Trust, seeking any of the foregoing and such case or proceeding
continues undismissed or unstayed and in effect for a period of 90
consecutive days;
(ix) the amount of cash and Eligible Treasuries on deposit
in the Up-MACRO Holding Trust or the Down-MACRO Holding Trust is reduced
to less than ten (10) million dollars; and
(x) the amount of cash and Eligible Treasuries on deposit in
the Up-MACRO Holding Trust or the Down-MACRO Holding Trust is reduced to
fifty (50) million dollars or less after previously reaching an amount
equal to two hundred (200) million dollars or more, or the failure on the
part of the Paired Holding Trusts to each hold cash and Eligible
Treasuries in an amount equal to at least two hundred (200) million
dollars after six (6) months or more have elapsed since the Closing Date
and, in either case, the Depositor elects to terminate the Paired Holding
Trusts.
(b) On the next Distribution Date following the occurrence
of a Termination Trigger (an "Early Termination Date"), the Trustee shall make
a Final Distribution on all Outstanding Up-MACRO Tradeable Shares, as set
forth in Section 5.2. Upon receipt of this Final Distribution on the related
Distribution Payment Date, all Outstanding Up-MACRO Tradeable Shares shall be
deemed to be redeemed in full.
(c) The Administrative Agent will be responsible for
notifying the Depositor and the Trustee of the occurrence of the Termination
Trigger that results from a specified increase or decrease in the Applicable
Reference Price of Crude Oil or the failure by NYMEX or the applicable
Substitute Oil Price Provider to establish the Applicable Reference Price of
Crude Oil or its refusal to make it available to the Administrative Agent.
Upon obtaining knowledge of the occurrence of any of the other Termination
Triggers described above, the Trustee will be responsible for notifying the
Depositor and the Administrative Agent of such occurrence. In addition, the
Trustee will give prompt notice of that event to the Calculation Agent, the
Down-
39
MACRO Holding Trustee, the Up-MACRO Tradeable Trustee, the Down-MACRO
Tradeable Trustee and the Registered Owners of the Up-MACRO Holding Shares.
(d) The Depositor, upon receiving or otherwise obtaining
actual knowledge of the occurrence of any Termination Trigger, shall file a
Form 8-K with the SEC disclosing such occurrence.
ARTICLE 12
TRUSTEE TERMINATION EVENTS
SECTION 12.1 Trustee Termination Events. Any one of the
following events shall constitute a Trustee Termination Event (a "Trustee
Termination Event"):
(a) to the extent that any Quarterly Distribution is
received by the Up-MACRO Tradeable Trust on its Up-MACRO Holding Shares, a
failure by the Trustee to pass through such Quarterly Distribution, which
failure continues unremedied for a period of five (5) or more Business Days;
(b) to the extent that any Final Distribution is received by
the Up-MACRO Tradeable Trust on its Up-MACRO Holding Shares, a failure by the
Trustee to pass through such Final Distribution, which failure continues
unremedied for a period of five (5) or more Business Days;
(c) any failure by the Trustee to observe or perform in any
material respect any of its other covenants or obligations hereunder, which
failure continues unremedied for thirty (30) days after the giving of written
notice of such failure to the Trustee by the Depositor or by not less than 25%
of the Holders, voting by par amount;
(d) the Trustee becomes ineligible or incapable of acting as
Trustee hereunder;
(e) 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;
(f) the occurrence of a Trustee Termination Event under the
Down-MACRO Holding Trust Agreement, pursuant to the terms of the Down-MACRO
Holding Trust Agreement; or
(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.
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.
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SECTION 12.3 Notification to Holders of the Up-MACRO
Tradeable Shares. Within two (2) Business Days after the Administrative Agent
or the Trustee is notified or obtains actual knowledge of any Trustee
Termination Event, the Administrative Agent or the Trustee, as applicable,
shall give notice thereof to the Depositor and the Administrative Agent or the
Trustee, as applicable, and notification of such Trustee Termination Event
shall be filed by the Depositor on Form 8-K with the SEC.
ARTICLE 13
THE TRUSTEE
SECTION 13.1 Liability of Trustee.
(a) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments that are specifically required to be furnished to the Trustee
pursuant to any provision hereof, shall examine them to determine whether they
conform on their face to the requirements of this Trust Agreement. The Trustee
shall give prompt written notice to the Depositor and the Administrative Agent
of any material lack of conformity of any such instrument to the applicable
provisions of this Trust Agreement. The Trustee shall also give prompt written
notice to the Registered Owners of the Up-MACRO Tradeable Shares of any
material lack of conformity of any such instrument to the applicable
requirements of this Trust Agreement which would entitle a specified
percentage of the Holders of the Up-MACRO Tradeable Shares to take any action
pursuant to this Trust Agreement.
(b) No provision of this Trust Agreement shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, its own bad faith, its own reckless disregard of its
duties hereunder or its own willful misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was grossly negligent in ascertaining the pertinent
facts; and
(ii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted by it in good faith and in
accordance with the direction of the Administrative Agent, the Depositor,
the Calculation Agent or any Holder relating to the time, place or method
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Trust Agreement.
(c) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder or in the exercise of any of its rights or powers
hereunder, if it has reasonable grounds for believing that repayment of such
funds or adequate indemnity against any related risk or liability is not
reasonably assured to it.
(d) The Trustee shall have no power to vary the corpus of the
Up-MACRO Tradeable Trust.
(e) In the event that the Transfer Agent and Registrar (if
not also the Trustee) fails to perform any obligation, duty or agreement in the
manner or on the day required under this Trust Agreement, the Trustee shall be
obligated, as soon as possible upon knowledge of a Trust
41
Officer of such failure and receipt of appropriate records, if any, to perform
such obligation, duty or agreement in the manner required hereunder.
SECTION 13.2 Rights of the Trustee.
(a) The Trustee may rely on and shall be protected in
acting, or in refraining from acting, in accord with any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented to it pursuant to this Trust
Agreement by the proper party or parties.
(b) The Trustee may consult with counsel, and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted hereunder
by the Trustee in good faith and in accordance with such advice or Opinion of
Counsel.
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement or to institute,
conduct or defend any litigation in relation to this Trust Agreement at the
request, order or direction of any of the Holders of the Up-MACRO Tradeable
Shares pursuant to the provisions of this Trust Agreement unless such Holders
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby.
(d) Subject to Section 13.1(b) hereof, the Trustee shall not
be personally liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Trust Agreement.
(e) The Trustee shall not be bound to make any investigation
into the accuracy of any assertions of facts made in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond or other paper or document, unless the
Trustee has actual knowledge that any such assertion is incorrect or unless
requested in writing to do so by Holders evidencing more than 25% of the
Aggregate Par Amount of the Up-MACRO Tradeable Shares.
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder that are customarily executed or
performed by agents, custodians, nominees or attorneys under like
circumstances, either directly or by or through agents, custodians, nominees
or attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney selected by it in good faith
and with due care (other than an agent or attorney that is an Affiliate of the
Trustee); furthermore, the Trustee shall be under no obligation to monitor,
and shall assume no personal liability for, the actions of the Depositor or
any other Person in connection with their duties under this Trust Agreement or
in connection with the Up-MACRO Tradeable Trust generally.
(g) Except as may be required by Section 13.1(a) and Section
13.12, the Trustee shall not be required to make any initial or periodic
examination of any documents or records for the purpose of establishing the
presence or absence of defects, the compliance by the Depositor, the
Administrative Agent or the Marketing Agents with their respective
representations and warranties or for any other purpose.
SECTION 13.3 Trustee Not Liable for Recitals in Up-MACRO
Tradeable Shares. The Trustee assumes no responsibility for the correctness
of the recitals contained herein
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and in the Up-MACRO Tradeable Shares (other than the certificate of
authentication on the Up-MACRO Tradeable Shares). Except as set forth in
Section 3.2, the Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement or of the Up-MACRO Tradeable Shares (other
than the certificate of authentication on the Up-MACRO Tradeable Shares).
SECTION 13.4 Holders May Direct Trustee. Holders of Up-MACRO
Tradeable Shares who are the Beneficial Owners of an Aggregate Par Amount
representing at least 66 and 2/3% of all such shares that are Outstanding at
any time may direct the Trustee with respect to actions that the Trustee is
permitted to take under this Trust Agreement, subject to the limitations set
forth in 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 of the Up-MACRO Holding Trust
Agreement, and the Trustee shall be entitled to receive, on each Distribution
Payment Date, the Up-MACRO Trustee Fee for all services rendered by it under
this Trust Agreement and in the exercise and performance of any of the powers
and duties hereunder of the Trustee. The entitlement of the Trustee under this
Section 13.5 for past services rendered shall survive the termination of the
Up-MACRO Tradeable Trust and the Up-MACRO Holding Trust.
SECTION 13.6 Indemnification. The Trustee and its directors,
shareholders, officers, employees, agents, affiliates (as such term is defined
in Regulation S-X of the Securities Act) and subsidiaries (each, a "Trustee
Indemnified Party") shall be indemnified by the Up-MACRO Holding Trust and
held harmless against any loss, liability or expense (a) arising out of or in
connection with the acceptance or administration of the Up-MACRO Tradeable
Trust and any actions taken in accordance with the provisions of this Trust
Agreement or that arises out of or is related to any offer or sale of Up-MACRO
Tradeable Shares incurred without (i) negligence, bad faith, and willful
misconduct on the part of such Trustee Indemnified Party and (ii) reckless
disregard on the part of such Trustee Indemnified Party of its obligations and
duties under this Trust Agreement, or (b) that arises out of or is related to
any filings with or submissions to the SEC in connection with or with respect
to the Up-MACRO Tradeable Shares (which, by way of illustration and not by way
of limitation, include the Registration Statement and any amendments thereof
or supplements thereto filed with the SEC or any periodic reports or updates
that may be filed under the Exchange Act), but not including any information
provided in writing by the Trustee to the Depositor for use in the
Registration Statement or any other filing with the SEC. Such indemnity shall
include payment from the Up-MACRO Tradeable Trust of the costs and expenses
incurred by such Trustee Indemnified Party in investigating or defending
itself against any claim or liability relating to this Trust Agreement or the
Up-MACRO Tradeable Trust, including any loss, liability or expense incurred in
acting pursuant to written directions or instructions given by the Depositor
or counsel to the Up-MACRO Tradeable Trust to the Trustee from time to time in
accordance with the provisions of this Trust Agreement or in undertaking
actions from time to time which the Trustee deems necessary in its discretion,
subject to the limitations imposed by Section 2.3 and Section 3.1(b) hereof,
to protect the Up-MACRO Tradeable Trust and the rights of all Beneficial
Owners pursuant to the terms of this Trust Agreement. Any amounts payable to a
Trustee Indemnified Party under this Section 13.6 may be payable in advance in
accordance with the provisions of Section 5.3 of the Up-MACRO Holding Trust
Agreement or shall be secured by a lien on the Up-MACRO Holding Trust.
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
43
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 ▇▇▇▇▇'▇ Investors Service, Inc.) and (iv) accept and act
in the capacity of both the Trustee hereunder and as trustee of the Down-MACRO
Tradeable Trust, the Up-MACRO Holding Trust and the Down-MACRO Holding Trust.
If such bank publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 13.7, the combined capital and surplus of
such bank or trust company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee ceases to be eligible in accordance with the
provisions of this Section 13.7, the Trustee shall resign immediately in the
manner and with the effect specified in Section 13.8.
SECTION 13.8 Resignation or Removal of Trustee.
(a) A Trustee appointed to office shall hold office until
its successor shall have been appointed by the Holders in accordance with this
Trust Agreement or until its termination, removal or resignation.
(b) Subject to the provisions of this Section 13.8, the
Trustee may be appointed, removed or replaced without cause at any time by the
Depositor, upon written notice, or with cause upon the occurrence of a Trustee
Termination Event; provided, however, that the Trustee shall not be removed in
accordance with this Section 13.8 until a successor Trustee possessing the
qualifications to act as Trustee and willing and able to make the
representations contained in Section 3.2 (a "Successor Trustee") has been
appointed by the Depositor and has accepted such appointment by written
instrument executed by such Successor Trustee and delivered to the Depositor.
(c) Any Trustee may resign hereunder by an instrument in
writing signed by the Trustee and delivered to the Depositor, the
Administrative Agent and each Registered Owner, which shall become effective
on the date specified in such instrument; provided, however, that no such
resignation of a Trustee shall become effective:
(i) until a Successor Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Trustee and delivered to the Up-MACRO Tradeable Trust, the Depositor, the
Administrative Agent and the resigning Trustee; or
(ii) until the assets of the Up-MACRO Tradeable Trust have
been completely liquidated and the proceeds thereof distributed to the
Holders.
If no Successor Trustee shall have been appointed and accepted such
appointment within thirty (30) days after delivery to the Depositor, the
Administrative Agent, the Marketing Agents and the Up-MACRO Tradeable Trust of
an instrument of resignation, the resigning Trustee may petition at the
expense of the Up-MACRO Tradeable Trust any court of competent jurisdiction
for appointment of a Successor Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Trustee.
(d) No Trustee shall be liable for anything that occurs
after it has ceased to act in such capacity, including, without limitation,
the acts or omissions to act of any Successor Trustee; provided, that such
resigning or terminated Trustee shall remain liable for any actions
44
taken by it prior to its termination or resignation as a result of which it
would be liable to the Up-MACRO Tradeable Trust pursuant to Section 13.1(b).
SECTION 13.9 Successor Trustee.
(a) Any Successor Trustee appointed as provided in Section
13.8 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee an instrument in a form acceptable to the Depositor
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such Successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as Trustee herein. The predecessor
Trustee shall deliver to the Successor Trustee all documents and statements
held by it hereunder, and the Depositor and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
Successor Trustee all such rights, powers, duties and obligations within
thirty days of execution of such instrument.
(b) No Successor Trustee shall accept appointment as
provided in this Section 13.9 unless at the time of such acceptance such
Successor Trustee is eligible under the provisions of Section 13.7 and makes
in the instrument of acceptance delivered pursuant to clause (a) of this
Section 13.9 the representations and warranties contained in Section 3.2
hereof.
(c) Upon acceptance of appointment by a Successor Trustee as
provided in this Section 13.9, such Successor Trustee shall provide prompt
notice of its succession hereunder to the Depositor, and the Depositor shall
file a Form 8-K with the SEC disclosing such succession.
(d) Without the consent of a majority of the Holders of the
Up-MACRO Tradeable Shares, voting by Aggregate Par Amount, the compensation to
be paid to the Successor Trustee may not be greater than the compensation paid
to the terminated Trustee hereunder.
SECTION 13.10 Merger or Consolidation. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided, however, that such corporation shall be otherwise qualified
and eligible under this Article 13, including without limitation Section 13.7
hereof. The Trustee shall promptly furnish to the Depositor and the
Administrative Agent a notice of any merger or consolidation to which the
Trustee is a party.
SECTION 13.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Trust
Agreement, the Trustee shall have the power and may execute and deliver all
instruments to appoint, at any time, one or more Persons to act as a
co-trustee or co-trustees, or a separate trustee or separate trustees, of all
or any part of the Trust Assets, and to vest in such Person or Persons, in
such capacity and for the benefit of the Holders of the Up-MACRO Tradeable
Shares, such title to the Trust Assets or any part thereof and, subject to the
other provisions of this Section 13.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Assets may at the time be located; provided, that such
co-trustee or co-trustees, or separate trustee or separate
45
trustees, shall also assume the rights, duties and obligations of the Trustee
under each of the Down-MACRO Tradeable Trust Agreement, the Up-MACRO Holding
Trust Agreement and the Down-MACRO Holding Trust Agreement; provided, further,
that the Trustee shall exercise due care in the appointment of any co-trustee
or separate trustee. Each co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility for a successor trustee under
Sections 13.8 and 13.9. No notice to Holders of the Up-MACRO Tradeable Shares
of the appointment of any co-trustee or separate trustee shall be required
under this Section 13.11; provided, that the Trustee shall provide notice of
each such appointment to the Depositor and the Administrative Agent.
(b) Every co-trustee and separate trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such co-trustee or separate trustee
jointly (it being understood that such co-trustee or separate trustee
shall not be authorized to act unless the Trustee joins in such act)
except to the extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed the Trustee is incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Assets or any portion thereof in any such jurisdiction) shall be
exercised or performed singly by such co-trustee or separate trustee, but
solely at the direction of the Trustee;
(ii) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Trustee may at any time accept the resignation of
or remove any co-trustee or separate trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then co-trustees and
separate trustees as effectively as if given to each of them. Every instrument
appointing any co-trustee or separate trustee shall refer to this Trust
Agreement and the conditions of this Article 13. Upon its acceptance of the
trusts conferred by its instrument of appointment, each co-trustee and
separate trustee shall be vested with the estates or property specified in
such instrument, either jointly with the Trustee or separately, as may be
provided therein, subject to all of the provisions of this Trust Agreement,
specifically including every provision of this Trust Agreement relating to the
conduct of, affecting the liability of, or affording protection to the
Trustee. Every such instrument shall be filed with the Trustee.
(d) Any co-trustee or separate trustee may at any time
appoint the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect to this Trust Agreement on its behalf and in its name. If any
co-trustee or separate trustee shall become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts under or
in respect to this Trust Agreement shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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SECTION 13.12 Books, Records; Taxes; Audit.
(a) The Trustee shall keep proper books of record and
account of all the transactions under this Trust Agreement at its Corporate
Trust Office or such office as it may subsequently designate upon notice to
the other parties hereto. The books and records of the Trustee shall be open
to inspection by any Person who establishes to the Trustee's reasonable
satisfaction that it is a Beneficial Owner upon reasonable advance notice at
all reasonable times during the usual business hours of the Trustee. The
Administrative Agent shall keep proper records of all Paired Optional
Redemptions and Paired Issuances effected at any time at its Business Office.
Such records shall be open to inspection by any Person who establishes to the
Administrative Agent's reasonable satisfaction that it is a Beneficial Owner
upon reasonable advance notice at all reasonable times during the usual
business hours of the Administrative Agent. Such records shall be preserved by
the Trustee or the Administrative Agent, as applicable, for so long as the
Depositor may direct.
(b) The Trustee shall provide the Depositor such financial
and other information regarding the operation of the Up-MACRO Tradeable Trust
as may be required for the Depositor to prepare such reports and filings
required under the federal securities laws as required under Section 8.2.
Unless otherwise required by applicable law or regulation, the Depositor shall
be responsible for any certification of any such reports or the contents
thereof; provided, that the Trustee shall make such representations to the
Depositor with respect to information within the Trustee's control as shall be
required for the Depositor to make such certification.
(c) The Depositor shall prepare or cause to be prepared, and
the Trustee shall sign (if it is determined that the Trustee's signature is
required thereon) and file any tax returns required to be filed by the
Up-MACRO Tradeable Trust. The Depositor shall also prepare or cause to be
prepared all tax information required by law to be distributed to Holders of
the Up-MACRO Tradeable Shares. The Trustee, the Calculation Agent, the
Marketing Agents 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 Up-MACRO Tradeable Shares under any
present or future law of the United States of America or imposed by any taxing
authority having jurisdiction over the Up-MACRO Tradeable Trust. For all such
taxes and charges and for any expenses, including counsel's fees, which the
Trustee or the Administrative Agent may sustain or incur with respect to such
taxes or charges, the Trustee or the Administrative Agent shall be reimbursed
and indemnified by or on behalf of the Up-MACRO Holding Trust in accordance
with the provisions of Section 5.3 of the Up-MACRO Holding Trust Agreement and
the payment of such amounts shall be secured by a lien on the Up-MACRO Holding
Trust. Any payments by the Trustee or the Administrative Agent shall be
subject to withholding regulations then in force. This paragraph shall survive
notwithstanding any termination of this Trust Agreement, the Up-MACRO
Tradeable Trust, the Up-MACRO Holding Trust Agreement or the Up-MACRO Holding
Trust, or the resignation or removal of the Trustee or the Administrative
Agent.
(e) The accounts of the Up-MACRO Tradeable Trust shall be
audited, as required by law and as may be directed by the Depositor, by
Independent certified public accountants designated from time to time by the
Depositor and the cost of such audit shall be
47
borne by the Up-MACRO Holding Trust in accordance with the provisions of
Section 5.3 of the Up-MACRO Holding Trust Agreement. The report of such
accountants shall be furnished by the Administrative Agent to any Beneficial
Owner upon request.
SECTION 13.13 Trustee May Enforce Claims Without Possession
of Up-MACRO Tradeable Shares. All rights of action and claims under this Trust
Agreement or the Up-MACRO Tradeable Shares may be prosecuted and enforced by
the Trustee without the possession of any of the Up-MACRO Tradeable Shares or
the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee. Any recovery of judgment shall, after provision for payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Up-MACRO Tradeable Shares in respect of which such judgment has been obtained.
SECTION 13.14 Suits for Enforcement. If a Termination
Trigger or a Trustee Termination Event occurs and is continuing, the Trustee
(or the Depositor, in the case of a Trustee Termination Event) in its
discretion may proceed to protect and enforce its rights and the rights of the
Holders of the Up-MACRO Tradeable Shares under this Trust Agreement by a suit,
action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Trust
Agreement, in aid of the execution of any power granted in this Trust
Agreement or for the enforcement of any other legal, equitable or other remedy
as the Trustee (or the Depositor, in the case of a Trustee Termination Event),
being advised by counsel, shall deem most effectual to protect and enforce any
of the rights of the Holders of the Up-MACRO Tradeable Shares.
SECTION 13.15 Maintenance of Office or Agency. The Trustee
shall maintain at its expense an office or agency (the "Corporate Trust
Office") where notices and demands to or upon the Trustee in respect of the
Up-MACRO Tradeable Shares and this Trust Agreement may be served. The
Corporate Trust Office shall initially be located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Trustee will give prompt notice to the
Depositor and to Registered Owners of the Up-MACRO Tradeable Shares of any
change in the location of the Corporate Trust Office.
ARTICLE 14
TERMINATION
SECTION 14.1 Termination of Trust. The Up-MACRO Tradeable
Trust and the respective obligations and responsibilities of the Depositor,
the Administrative Agent, the Marketing Agents and the Trustee created hereby
shall terminate on the earlier of an Early Termination Date and the Final
Scheduled Termination Date. The Up-MACRO Tradeable Trust shall not terminate
in the event that the Depositor is adjudged to be insolvent or is liquidated
or dissolved for any reason.
Upon the termination of the Up-MACRO Tradeable Trust, the
Trustee shall wind up the activities and affairs of the Up-MACRO Tradeable
Trust and shall cause its certificate of designation to be cancelled by filing
a certificate of cancellation with the New York Secretary of State,
terminating the Up-MACRO Tradeable Trust.
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ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.1 Amendment; Waiver of Past Defaults and
Termination.
(a) This Trust Agreement shall not in any circumstances be
amended (i) to modify the definition of "Per Share Underlying Value" of the
Up-MACRO Tradeable Shares or any constituent defined terms that are a part of
the foregoing defined term; or (ii) to modify the rule that one Up-MACRO
Tradeable Share shall be issued for each Up-MACRO Holding Share that is
deposited into the Up-MACRO Tradeable Trust.
(b) Subject to clause (a) of this Section 15.1, this Trust
Agreement may be amended from time to time with the written consent of the
Depositor, the Administrative Agent and the Trustee, but without the consent
of any Holder of Up-MACRO Tradeable Shares (i) to cure any ambiguity or to
correct or supplement any provision which may be defective or inconsistent
with any other provision of this Trust Agreement, the Up-MACRO Holding Trust
Agreement, the Down-MACRO Holding Trust Agreement or the Down-MACRO Tradeable
Trust Agreement, (ii) to modify any provision of or add a provision to this
Trust Agreement to conform it to the description of the terms of the Up-MACRO
Tradeable Shares contained in the Prospectus, (iii) to add to the covenants,
restrictions or obligations of any entity under this Trust Agreement for the
benefit of the Holders of the Up-MACRO Tradeable Shares or to modify any
provisions of this Trust Agreement in any manner that does not adversely
affect any Holder of Up-MACRO Tradeable Shares or any Holder of Paired Holding
Shares in any material respect, (iv) to evidence and provide for the
acceptance of appointment hereunder of a Successor Trustee, a successor
Administrative Agent or any successor Marketing Agent, (v) to modify the
procedures for directing and settling Creation Orders, Redemption Orders and
Exchange Orders set forth herein in connection with an amendment of the
Participants Agreement entered into among the Trustee, the Down-MACRO
Tradeable Trustee, the Up-MACRO Holding Trustee, the Down-MACRO Holding
Trustee, the Administrative Agent and one or more Authorized Participants, and
(vi) to comply with any requirements imposed by the Code, or any federal or
state securities laws; provided, that no amendment to this Trust Agreement may
be made if it would have the effect of causing the Up-MACRO Tradeable Trust to
be classified other than as a grantor trust for U.S. federal income tax
purposes; provided, further, that no amendment of this Trust Agreement may be
made if it would have the effect of causing the Up-MACRO Tradeable Trust to be
required to register as an investment company under the Investment Company Act
or to be regulated as a commodity pool under the CEAct. The Trustee may, but
shall not be obligated to, enter into any amendment which affects the
Trustee's rights, duties or immunities under this Trust Agreement or
otherwise.
(c) Subject to clause (a) of this Section 15.1, this Trust
Agreement may also be amended from time to time with the written consent of
the Depositor, the Administrative Agent and the Trustee and the written
consent of the Holders of Up-MACRO Tradeable Shares evidencing not less than a
majority of the Aggregate Par Amount, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Trust Agreement or of modifying in any manner the rights of the Holders of the
Up-MACRO Tradeable Shares; provided, that no amendment to this Trust Agreement
may be made if it would have the effect of causing the Up-MACRO Tradeable
Trust to be classified other than as a grantor trust for U.S. federal income
tax purposes; provided further, that, without the written consent of each
Holder of the Up-MACRO Tradeable Shares that would be adversely affected
thereby, no amendment may (i) modify the amount or timing of any distributions
that are required to be made
49
on the Up-MACRO Tradeable Shares; or (ii) reduce the percentage of Holders
that are required to consent to any of the foregoing amendments.
(d) Promptly after the execution of any amendment or consent
pursuant to this Section 15.1, the Trustee shall furnish notification of the
substance of such amendment or consent to each Registered Owner and the
Depositor shall prepare and file a Form 8-K with the SEC setting forth the
provisions of such amendment.
(e) Where the consent of Holders is required under this
Section 15.1 in order to amend this Trust Agreement, it shall be sufficient if
such consent approves the substance of the proposed amendment; the particular
form of such amendment need not be approved. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Holders of the Up-MACRO Tradeable Shares shall be subject to such reasonable
requirements as the Trustee may prescribe.
(f) Holders evidencing not less than a majority of the
Aggregate Par Amount may waive any default by the Depositor, the Trustee, or
the Administrative Agent in the performance of their obligations hereunder and
its consequences, except the failure to make any distributions required to be
made to Holders of the Up-MACRO Tradeable Shares. Upon any such waiver of a
past default, such default shall cease to exist, and any default arising
therefrom shall be deemed to have been remedied for every purpose of this
Trust Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly
so waived.
SECTION 15.2 Registration (Initial and Continuing) of
Up-MACRO Tradeable Shares; Certain Securities Law Filings. The Depositor
agrees to (i) prepare and file the Registration Statement with the SEC under
the Securities Act, and take such action as is necessary from time to time to
qualify the Up-MACRO Tradeable Shares for offering and sale under the federal
securities laws of the United States, including the preparation and filing of
amendments of and supplements to such Registration Statement, (ii) promptly
notify the Trustee and the Administrative Agent of any such amendment of or
supplement to the Registration Statement and of any order preventing or
suspending the use of the Prospectus included therein, (iii) provide the
Trustee and the Administrative Agent from time to time with copies, including
copies in electronic form, of the Prospectus, in such quantities as the
Trustee and the Administrative Agent may reasonably request, (iv) prepare and
file any periodic reports or updates that may be required under the Exchange
Act, as specified in Section 8.2 hereof, and (v) take such action as is
necessary from time to time to register or qualify the Up-MACRO Tradeable
Shares for offering and sale under the securities or blue sky laws of those
states of the United States or other jurisdictions as the Depositor may select
or as may be necessary to continue that registration or qualification in
effect for so long as the Depositor determines that the Up-MACRO Tradeable
Trust shall continue to offer or sell Up-MACRO Tradeable Shares in that
jurisdiction. Registration charges, blue sky fees, printing costs, mailing
costs, attorney's fees, and other miscellaneous out-of-pocket expenses shall
be borne by the Up-MACRO Holding Trust in accordance with the provisions of
Section 5.3 of the Up-MACRO Holding Trust Agreement.
SECTION 15.3 Prospectus Delivery. The Administrative Agent
shall, if required to do so under the federal securities laws of the United
States, deliver at the time of issuance of any Up-MACRO Tradeable Shares in
any manner permitted by such laws, a copy of the Prospectus, as most recently
furnished to the Administrative Agent by the Depositor, to each person
submitting a Creation Order. The Administrative Agent shall also, if required
to do so under the federal securities laws of the United States, deliver in
conjunction with any marketing
50
or computational materials, in any manner permitted by such laws, a copy of
the Prospectus, as most recently furnished to the Administrative Agent by the
Depositor.
SECTION 15.4 Protection of Right, Title and Interest to
Trust Assets.
(a) The Depositor shall cause this Trust Agreement, all
amendments hereof and supplements hereto and all financing statements,
continuation statements and any other necessary documents covering the right,
title and interest of the Holders of the Up-MACRO Tradeable Shares and of the
Trustee in and to the Trust Assets to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Holders of the Up-MACRO Tradeable
Shares and the Trustee hereunder in and to all property comprising the Trust
Assets. The Depositor shall deliver to the Trustee file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or filing.
(b) Within 30 days after the Depositor makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) (or any
comparable provision) of the UCC, the Depositor shall give the Trustee notice
of such change and shall file such financing statements or amendments as may
be necessary to continue the perfection of the Up-MACRO Tradeable Trust's
security interest in the Trust Assets and the proceeds thereof.
(c) The Depositor shall give the Trustee prompt notice of
any relocation of its principal executive offices or of any office from which
it performs its duties hereunder or keeps records concerning this transaction.
If, as a result of any such relocation, the applicable provisions of the UCC
require the filing of any new financing statement or of any amendment to any
previously filed financing or continuation statement, the Depositor shall file
such financing statements or amendments as may be necessary to perfect or to
continue the perfection of the Up-MACRO Tradeable Trust's security interest in
the Trust Assets and the proceeds thereof. The Depositor shall at all times
maintain its principal executive offices and each office from which it
performs its duties hereunder within the United States.
SECTION 15.5 Limitation on Rights of Holders of the Up-MACRO
Tradeable Shares.
(a) The death or incapacity of any Holder of the Up-MACRO
Tradeable Shares shall not operate to terminate this Trust Agreement or the
Up-MACRO Tradeable Trust, nor shall such death or incapacity entitle the legal
representatives or heirs of such Holder to claim an accounting or to take any
action or commence any proceeding in any court for a partition or winding-up
of the Up-MACRO Tradeable Trust, or otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
(b) No Holder of the Up-MACRO Tradeable Shares shall have
any right to vote (except as expressly provided in this Trust Agreement) or in
any manner otherwise control the operation and management of the Up-MACRO
Tradeable Trust, or the obligations of the parties hereto, nor shall any
Holder of the Up-MACRO Tradeable Shares be under any liability to any third
person by reason of any action by the parties to this Trust Agreement pursuant
to any provision hereof.
51
(c) No Holder of the Up-MACRO Tradeable Shares shall have
any right by virtue of any provisions of this Trust Agreement to institute any
suit, action or proceeding in equity or at law upon, under or with respect to
this Trust Agreement unless such Holder previously has made, and unless the
Holders of Up-MACRO Tradeable Shares representing the beneficial ownership of
at least 66 and 2/3% of all Outstanding Up-MACRO Tradeable Shares have made,
written request to the Trustee to institute such suit, action or proceeding in
its own name as Trustee hereunder and have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee, for sixty (60)
days after its receipt of such request and offer of indemnity, has neglected
or refused to institute any such action, suit or proceeding; it being
understood and intended, and expressly agreed to by each Holder with every
other Holder and the Trustee, that no one or more Holders of the Up-MACRO
Tradeable Shares shall have any right in any manner whatsoever by virtue of or
by availing itself or themselves of any provisions of this Trust Agreement to
affect, disturb or prejudice the rights of any other Holder of the Up-MACRO
Tradeable Shares, to obtain or seek to obtain priority over or preference to
any other Holder of the Up-MACRO Tradeable Shares or to enforce any right
under this Trust Agreement except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of the Up-MACRO Tradeable
Shares. For the protection and enforcement of the provisions of this Section
15.5, each and every Holder and the Trustee shall be entitled to such relief
as can be obtained either at law or in equity.
SECTION 15.6 Certain Rights of Holders of Up-MACRO Tradeable
Shares; Voting.
(a) Each Holder of Up-MACRO Tradeable Shares shall be able
to vote on all matters on which shareholders may or are required to vote under
this Trust Agreement for the Up-MACRO Tradeable Shares. Holders of Up-MACRO
Tradeable Shares evidencing not less than 66 and 2/3% of the Aggregate Par
Amount shall have the right to direct the time, place and method of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee relating to such proceeding; provided,
however, that, subject to Section 15.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken, or if a
Trust Officer in good faith determines that the proceedings so directed would
be illegal or involve the Trustee in personal liability or be unduly
prejudicial to the rights of Holders of the Up-MACRO Tradeable Shares not
party to such direction; provided further that nothing in this Trust Agreement
shall impair the right of the Trustee to take any action deemed proper by the
Trustee that is not inconsistent with such direction or with the limitations
imposed by Section 2.3 and Section 3.1(b) hereof.
(b) The Holders of the Up-MACRO Tradeable Shares shall be
entitled to direct the Trustee in the exercise of the voting rights associated
with the Up-MACRO Holding Shares held on deposit in the Up-MACRO Tradeable
Trust. Each Holder of Up-MACRO Tradeable Shares shall be entitled to vote an
equal number of Up-MACRO Holding Shares as the number of Up-MACRO Tradeable
Shares owned by such Holder.
SECTION 15.7 MACRO Licensing Agreement. On the Closing Date,
the Up-MACRO Tradeable Trust shall enter into the MACRO Licensing Agreement
with MacroMarkets LLC, the Administrative Agent, the Up-MACRO Holding Trust,
the Down-MACRO Holding Trust and the Down-MACRO Tradeable Trust. Under such
licensing agreement, MacroMarkets LLC shall be entitled to the receipt of the
Up-MACRO Licensing Fee, which shall be payable to MacroMarkets LLC in arrears
on each Distribution Date in accordance with the provisions of Section 5.4 of
the Up-MACRO Holding Trust Agreement.
52
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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Claymore Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee, to: Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
53
With a copy to: Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (617) [ ]
If to the Administrative Agent, to: Claymore Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
With a copy to: Claymore Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Marketing Agents, to: Claymore Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
With a copy to: Claymore Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Or, to: MACRO Securities Depositor, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Any Notice required or permitted to be given to a
Registered Owner of the Up-MACRO Tradeable Shares shall be given by
first-class mail, postage prepaid, at the address of such Registered Owner as
shown in the Share Register. Any Notice so mailed within the time prescribed
in this Trust Agreement shall be conclusively presumed to have been duly
given, whether or not the Registered Owner receives such Notice. [Any notice
to be given to a Beneficial Owner shall be duly given if mailed or delivered
to Authorized Participants designated by the Depository for delivery to
Beneficial Owners.]
54
SECTION 15.10 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Trust Agreement is
held invalid for any reason whatsoever, then such provision shall be deemed
severable from the remaining provisions of this Trust Agreement and shall in
no way affect the validity or enforceability of the remaining provisions or of
the Up-MACRO Tradeable Shares or the rights of the Holders of the Up-MACRO
Tradeable Shares.
SECTION 15.11 Up-MACRO Tradeable Shares Nonassessable and
Fully Paid. It is the intention of the parties to this Trust Agreement that
the Holders of the Up-MACRO Tradeable Shares shall not be personally liable
for obligations of the Up-MACRO Tradeable Trust, that the interests in the
Up-MACRO Tradeable Trust represented by the Up-MACRO Tradeable Shares shall be
nonassessable for any losses or expenses of the Up-MACRO Tradeable Trust or
for any reason whatsoever and that the Up-MACRO Tradeable Shares upon
authentication thereof by the Trustee pursuant to Section 2.5 are and shall be
deemed fully paid.
SECTION 15.12 Further Assurances. The Depositor agrees to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Trustee more fully
to effect the purposes of this Trust Agreement, including the execution of any
financing statements or continuation statements relating to the Trust Assets
for filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 15.13 Non-Petition Covenant; No Proceedings.
(a) Notwithstanding any prior termination of this Trust
Agreement, the Trustee, the Administrative Agent, the Marketing Agents and the
Depositor shall not, prior to the date which is one year and one day after the
termination of this Trust Agreement with respect to the Up-MACRO Tradeable
Trust, acquiesce in, petition for or otherwise invoke or cause the Up-MACRO
Tradeable Trust or the Depositor to invoke the process of any Governmental
Authority for the purpose of (x) commencing or sustaining a case against the
Up-MACRO Tradeable Trust or the Depositor under any federal or state
bankruptcy, insolvency or similar law, (y) appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Up-MACRO Tradeable Trust or the Depositor or any substantial part of their
respective property or (z) ordering the winding-up or liquidation of the
affairs of the Up-MACRO Tradeable Trust or the Depositor.
(b) Each of the Trustee, the Depositor, the Administrative
Agent, each Marketing Agent and each Holder, by acceptance of its Up-MACRO
Tradeable Shares, hereby agrees that it will not institute against a Holder,
or join any other Person in instituting against a Holder, on account of its
ownership of an Up-MACRO Tradeable Share or its obligations hereunder, any
bankruptcy, insolvency, liquidation, readjustment of debt, marshalling of
assets or any similar proceeding so long as there has not elapsed one year
plus one day since the last day on which any Up-MACRO Tradeable Shares shall
have been Outstanding.
SECTION 15.14 No Waiver; Cumulative Remedies. No failure by
the Trustee or the Holders of the Up-MACRO Tradeable Shares to exercise any
right, remedy, power or privilege under this Trust Agreement, and no delay in
such exercise, shall operate as a waiver of such right, remedy, power or
privilege; nor shall any single or partial exercise of any right, remedy,
power or privilege under this Trust Agreement preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under this
Trust Agreement are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
55
SECTION 15.15 Counterparts. This Trust Agreement may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 15.16 Third-Party Beneficiaries. This Trust
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Holders of the Up-MACRO Holding Shares, the Holders of the Down-MACRO
Holding Shares, the Holders of the Up-MACRO Tradeable Shares, the Holders of
the Down-MACRO Tradeable Shares and their respective successors and permitted
assigns. Except as otherwise expressly provided in this Trust Agreement, no
other Person will have any right or obligation hereunder.
SECTION 15.17 Actions or Notices by Holders of the Up-MACRO
Tradeable Shares.
(a) Wherever a provision in this Trust Agreement states that
an action may be taken or a Notice given by Holders of the Up-MACRO Tradeable
Shares, such action or Notice may be taken or given by any Holder, unless such
provision requires a specific percentage of Holders of the Up-MACRO Tradeable
Shares.
(b) Any Notice, request, authorization, direction, consent,
waiver or other act by the Holder of an Up-MACRO Tradeable Share shall bind
such Holder and every subsequent Holder of such share and of any share issued
upon the registration of transfer thereof, in exchange therefor or in lieu
thereof in respect of anything done or omitted to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
share.
SECTION 15.18 Merger and Integration. Except as specifically
stated otherwise herein, this Trust Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Trust Agreement.
This Trust Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 15.19 Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
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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:
--------------------------------
Name:
Title:
INVESTORS BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Name:
Title:
CLAYMORE SECURITIES, INC.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
CLAYMORE SECURITIES, INC.,
as a Marketing Agent
By:
--------------------------------
Name:
Title:
MACRO FINANCIAL, LLC,
as a Marketing Agent
By:
--------------------------------
Name:
Title:
EXHIBIT A
FORM OF UP-MACRO TRADEABLE SHARE
[TO COME]
EXHIBIT B
FORM OF PARTICIPANTS AGREEMENT
Filed as Exhibit 4.3 to this Registration Statement
EXHIBIT C
FORM OF MACRO LICENSING AGREEMENT
Filed as Exhibit 4.7 to this Registration Statement
EXHIBIT D
NYMEX SUBLICENSING AGREEMENT
Filed as Exhibit 4.8 to this Registration Statement